I am in the process of filing a medical malpractice case for my soon to be 2 year old son who has Cerebral Palsy. The attorney has said that an expert reviewed the case and said that it is a case and is working on getting a couple more experts to look at the case. I have not signed at papers yet. Is it legal for my child's father to get half of or a portion of the money if we win the case? If so how much is he entitled to?
2 Answers from Attorneys
If you have a lawyer you should be asking him. Ultimately it will be up to the probate court in the county where you live to decide how to apportion any proceeds. Most of the money will go into a trust for your son's benefit but there will probably be some money paid directly to the parents. It will depend on the relationship each parent has with the child if you two are no longer married.
I agree with Ryan Fisher. When you hired the attorney he should have had you sign a contingency fee contract. While you may have been the only one to sign the contract, the father of the child may have a claim. Depending on his relationship with your son and the amount of support he provides and the time he spends with your son,etc will determine the likely amount that a jury would ultimately award and if settled what a probate court would designate to him as the father of the child. There is no cut and dry answer to your question and it depends on the relationship of the father and the harms and loses he has suffered by virtue of the injury to your son. As Ryan suggested, you should discuss this with your attorney although there may be a conflict of interest depending on whether you and the father are at odds with each other. If so, eventually you and the father may need to talk to separate attorneys concerning your respective interersts. For now, my suggestion is stay united with your son and the attorney as the injury is all about him and you and the father should not be concerned at this point as to what you might be entitled to unless and until you get to the point of serious settlement negotiations or final trial preparation. Just my 2 cents on top of my learned colleague, Ryan Fisher's opinion.