Fighting a personal injury claim is not easy. It becomes all the more stressful when you want to claim for injuries sustained by your young child.
The distress and helplessness a parent experiences when his or her child suffers an injury due to the negligence of a third party is understandable. It is important that you seek justice in such a situation and win a fair compensation that will help bring your child’s life back on track.
Child personal injury lawsuits are similar to that of adults’ but there are a few important distinctions that you need to be aware of. Taking into consideration age and maturity of children, they very rarely have the onus on themselves to prove negligence of the party that caused them harm. There are other distinctions as well, which are primarily put in place to safeguard children’s interests.
Here are a few things you need to know about filing for personal injury claim on a child’s behalf.
1. Statute of Limitations Vary for a Child
Statute of limitations is the minimum time limit from the date of injury within which you should file the personal injury claim. The statute of limitations in the case of adults is usually two years from the date of injury or from the date you came to know about your injury. This may vary across jurisdictions and according to state laws. If you file later than two years, or exceed statute of limitations, then the case will be automatically dismissed.
In the case of a minor, the statute of limitations does not begin to run until he or she has turned 18. So you typically have time till your child turns 20 and can file the claim on his own. But if you want to file on behalf of your child, you can do it as soon as possible in order to get compensation for ongoing and future medical treatment and other expenses.
2. A Child Cannot File His or Her Own Personal Injury Lawsuit
A minor below the age of 18 cannot file a personal injury lawsuit in court because he or she is considered incapacitated legally.
But that does not mean your child cannot expect legal recourse. Legal guardian or parent/parents can sue on behalf of the child. The person who files claim in the name of the child is termed as ‘next friend’ or guardian ad litem.
The law also states that the friend should not share fault in the minor’s injury. For example, if the child suffered injuries in a car accident caused by a father’s negligence, then it is advisable that someone other than the injured parent file the claim. This is to avoid confusion of issues and avoid risk to the case outcome.
In instances where both the child and parent/parents are seriously injured, it is best to have someone else file as guardian ad litem on behalf of your child. This is not legally necessary, but will help prevent possible conflict of interest claims when you are required to allocate damages in the event of a split or any other issue in the family.
Your experienced personal injury lawyer will be able to help you avoid potential pitfalls while filing for your child’s personal injury claim.
3. Claim for Medical Bills Is Paid to Parents
An injured child cannot claim for medical expenses that arise from the injury. The treatment expenses are borne by parents and, as a result, when the court declares compensation, a separate verdict for medical bills is given to parents. Your child will be compensated for non-economic losses including pain and suffering, long-term effects on health, and mental anguish.
The parents can also file a separate claim to be compensated for their child’s treatment expenses.
It is important to keep in mind that the statutes of limitations vary for each case. It does not run out for your child’s personal injury claim until two years after his or her eighteenth birthday. But you cannot wait for more than five years from the date of injury to claim for medical bills and other economic losses.
4. Children Cannot Claim for Lost Wages
If the injury has caused a disability that will prevent the child from being gainfully employed or having a career, then loss of income claim can be made by your child after he or she attains the age of maturity.
If your child is a minor, the law does not take into consideration earning potential, so loss of income is not a part of a child’s personal injury claim.
5. Children Are Held to Different Standards from Adults
Children below the age of 6 are considered to be incapable of negligence. In the case of adults, the victim has to prove that the negligence of the other party caused the injury. But children are considered free of contributory negligence while deciding who is at fault. Older kids between the ages of 7 and 14 are presumed to be incapable of negligence.
If a child is old enough to understand the risks associated with his or her actions, then a jury will decide whether the child behaved with reasonable care that a child of similar age, maturity, experience, and intelligence would under similar circumstances. If the child did not conform to the norm, he or she will be considered contributory negligent. This may compromise the child’s personal injury claim.
The law makes several special provisions to act in the best interests of the injured minor. Consult an experienced lawyer who will be able to guide you to secure a claim that will help your child overcome the hardships that come with an injury.