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Why Child Injury Claims Are Unique

By Allen, Flatt, Ballidis & Leslie on November 11, 2020

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As parents, nothing is more important than making sure your child is taken care of, especially if they suffer from a serious medical condition. After an auto accident or dog bite, you may be scared, confused, and worried about how to get them proper treatment and pay for any long-term injuries. While you may assume that a child injury case is more straightforward, it is important to understand how these cases different from your standard personal injury claim.

Legal Requirements in a Child Injury Claim

In the state of California, child injury claims are processed under different legal requirements than claims involving adults. For one, children cannot file claims on their own without a legal representative, but there are also other matters to consider, such as an extended statute of limitations and how settlements are paid.

Ad Litem Guardian

In order to begin pursuing a personal injury claim for a minor, there must be a legally recognized “ad litem guardian,” or a guardian who acts as their legal representative. This is because minors under the age of 18-years-old are not allowed to sign and agree to settlement offers because they are not legal adults. The courts do not believe a child can properly determine if a settlement offer is fair or meet all the other legal requirements in a claim. While you may assume that automatically means the child’s parents, the courts only allow a child to have one ad litem guardian. This is to avoid any confusion or legal disputes if parents disagree about a claim or if they go through a divorce.

If your child was injured due to someone else’s negligence and you choose to pursue a claim, then you must first petition the court to assign an ad litem guardian. Your attorney can prepare a list of potential guardians for the court to review and make a selection from. Both parents can be included in this list and chosen by the court, but it can also include an adult sibling or other family member who is considered responsible enough to represent the child. This can prove useful if you are a single parent and cannot devote a large amount of time to the case but know a family member who can.

Statute of Limitations

The statute of limitations, or deadline to file a claim, is two years in California for personal injury claims and six months for government claims. If you do not file by this deadline, you legally lose the right to file a lawsuit against the at-fault party or their insurance company. However, children benefit from two extensions in a claim.

In the state of California, children have until two years after they turn 18-years-old to file a claim. This means a child can wait until they are a legal adult to file a claim on their own, which can prove beneficial if a parent refuses to let them file a claim or the child is an older teen. However, this is not always the best option, as key evidence could be lost over the years.

The other extension for children is the date of discovery. If you do not discover a child was injured until years after the original statute of limitations, then a claim can be filed up to two years after the date that the injury was discovered. This is more common in premises liability claims and product liability claims that involve chemical exposure. In these cases, your child may not show symptoms until years later when a medical condition develops.

How Settlements Are Paid

The last difference between child and adult claims, and possibly the most important, is how settlements are paid. Once your child’s attorney and guardian agree to a settlement from an insurance company, a civil court must approve it. This includes reviewing the types of damages included and determining if it is in the child’s best interest. The court will also look at the attorney’s fees to ensure that the child is getting a fair cut and that the attorney’s fees are reasonable. The court can also reject a settlement or verdict if it feels that it is not enough.

However, even if the court approves a claim, that does not mean that the child automatically receives the money. In fact, courts often place compensation in a blocked account that a child cannot access until they turn 18-years-old.

This typically includes a mixture of economic and non-economic damages, such as costs related to the child’s lost wages (or lost career opportunities if they are disabled), pain and suffering, mental anguish, and loss of enjoyment. However, medical expenses, including future bills that a parent must pay for until the child turns 18, are not included in this account. Instead, the courts can provide these funds to the parent in order to cover immediate medical bills or at regular intervals to cover future medical costs.

But a blocked account is not the only option. If your child is disabled due to an accident, then the court may place the money in a special needs trust. This means that most of the funds will be blocked until the child becomes an adult, but parents can petition to access certain funds to help cover disability costs related to the child’s injury.

Have Questions About a Child Injury Claim? Call Us

At Allen, Flatt, Ballidis & Leslie, we have experience handling cases involving minors and achieving outstanding settlements for our clients. If your child was injured due to someone else’s negligence, then we can advocate for the highest possible settlement in a claim. We also provide real-time updates to all our clients about their cases so that you are never left confused and wondering what is happening with your claim. Our duty is to make sure you and your child receive proper treatment from insurance companies and get the compensation you deserve. To schedule a free consultation with a skilled Orange County personal injury attorney, call our firm at (949) 752-7474.

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