How Does an Injured Child Seek Compensation in a Personal Injury Lawsuit?
A personal injury lawsuit can seek damages when a child is a victim of an accident, just as it can for adults. However, personal injury lawsuits involving children can be somewhat different. This article looks into those differences.
Personal injury lawsuits aren’t always brought to seek compensation for injuries that adults suffer in accidents. Sometimes, children have incurred injuries as a result of accidents as well. These children need to be granted the same opportunity to seek damages including compensation for medical bills and pain and suffering.
Concerns unique to personal injury claims for children
When a child is injured, it’s generally a parent or a guardian who brings the lawsuit on their behalf. The parents will seek compensation for the child’s injuries, as well as reimbursement for the money they spent on the child’s medical expenses as a result of the accident. However, a parent isn’t able to collect compensation for medical bills in the event that they caused the accident.
In cases where the child’s parent/guardian is a party to the lawsuit or there are multiple parties and limited available coverage, the parent/guardian may not be able to fully advocate for his/her child’s best interest and therefore guardian ad litem would be appointed by the court. Guardian ad litem will give a voice to the child by acting as their investigator and reporter, and advocating for what she/he believes are in the child’s best interest.
A lawsuit for compensation for a child’s injuries needs to take into consideration the long-term impacts of the accident: for example, it needs to consider any future loss of earning capacity, permanent scarring, or future pain and suffering that will occur throughout the child’s life and once the child becomes an adult. The child may need support for decades. In cases where there is a permanent injury, future pain and suffering, and permanent scarring the courts take into consideration upon life expectancy of the injured person, relying on the North Carolina Mortality Table (N.C. Gen. Stat. § 8-46).
A minor, once they turn 18 and gain agency, may revisit their childhood case, and claim inadequate compensation. For this reason, in general, insurance companies insist that all settlements involving minors receive court approval. However, we have noticed a trend where insurance companies are waiving this requirement for settlements less than $5,000.
While a parent or guardian is granted compensation for anything they spent out-of-pocket on medical treatment for an injured child arising, separate payments are determined for the minor in their own individual capacity. That sum is held by the court and made available to the minor when they turn 18. A personal injury lawyer can apply to the court to create a structured settlement arrangement, but essentially, the money is held in a special needs trust or other arrangement until the child turns 18.
The statute of limitations in a personal injury case is three years for adults in North Carolina. In the case of children, however, the clock starts when the child turns 18. The window for legal action stays open for three years afterward, until the child turns 21. Exceptions exist, however soit’s important to always seek the counsel of an experienced personal injury lawyer as soon as possible after an injury.
Contributory negligence is another area that operates differently for children. In North Carolina, adults who sustain injuries are unable to seek compensation if their actions are found to have contributed to the incident in even the smallest degree. The law, however, does not believe that children under seven are capable of contributory negligence. A child between the ages of seven and 14 may be capable of contributory negligence, but the defense needs to be able to prove that the child did not use the kind of rational care that children of that age are known for. A child over 14, however, is considered to be fully capable of contributory negligence, just as an adult is, unless the child’s attorney is able to prove that the child’s development or another factor made it hard for them to exercise reasonable care.
Finally, the suffering of children seeking justice in a personal injury case is often minimized. Defense attorneys tend to argue that children do not experience the same degree of pain and suffering as adults, and that they bounce back to their pre-accident condition quicker than adults. It takes a good personal injury lawyer to make sure that the defense doesn’t get away with this kind of subversion. As with any personal injury case, one involving a child does require experienced legal guidance.