Making a Compensation Claim for an Injury to a Child
If your child has suffered an injury or the avoidable deterioration of an existing condition due to somebody else´s lack of care, it is often possible to recover child injury compensation. However, due to the complexity of injury compensation claims for children, the process of making a compensation claim for an injury to a child is far from straightforward.
This article intends to explain some of the scenarios in which a compensation claim for an injury to a child is likely to arise. It also aims to provide advice on claiming compensation on behalf of a child and what should be included in a settlement of child injury compensation. What it cannot do is exactly relate to the circumstances in which your child suffered their specific injury.
Just as no two children are truly identical, no two injury compensation claims for children are the same. Consequently, at a time when you are likely emotionally traumatized by the injury your child has sustained – and may find it difficult to focus on the procedures for claiming compensation on behalf of a child – it is strongly recommended that you speak with a children´s injury lawyer at the first practical opportunity.
Establishing a Entitlement to Child Injury Compensation
The basic principal of “duty, breach, cause” is the same in injury compensation claims for children as it is an any other category of personal injury claim – “but for a breach of duty owing to your child, he or she would not have been injured” – and, in order to establish an entitlement to child injury compensation, all three elements must be fulfilled.
The fact that your child has been injured is indisputable and will be supported by his or her medical records. Proving that the person(s) who caused the injury had a duty of care towards your child – and that their negligence resulted in the cause of your child´s injury – is not always so straightforward and, depending on the nature of the event in which your child was injured, may require an investigation.
The successful conclusion to a compensation claim for an injury to a child might also depend on whether there is an insurance policy against which to claim, or whether the insurance carrier is claiming a reservation of rights – a scenario in which the carrier denies coverage for all or some of the claim, on the grounds that the negligent party was in breach of the insurance policy´s terms at the time the negligent act was committed.
These are issues that a children´s injury lawyer would attempt to resolve as quickly as possible in order to advise you whether claiming compensation on behalf of a child is worth your while to pursue. If so, your lawyer would then guide you through the rest of the procedures for making a compensation claim for an injury to a child so that a settlement of child injury compensation can be agreed at the earliest possible opportunity and you can return to caring for your child.
Injury Compensation Claims for Children – Complications
Before discussing areas such as procedures and settlements, we would like to highlight some of the complications that hinder injury compensation claims for children – complications that occur more frequently than you may imagine.
Medical Malpractice Claims for Children
Any avoidable injury to your child due to the negligence of a healthcare professional can result in child injury compensation being pursued, but the key word here is “avoidable”. Even though an injury has occurred, it has to be shown that it was avoidable “at the time and in the circumstances”, and that a competent healthcare professional would have taken an alternative course of action that would not have resulted in the same degree of injury, if any at all. Consequently medical malpractice claims for children are often resolved on the opinion of medical experts, rather than what may appear “fair”.
Automobile Accident Claims for Children
Comparative negligence – when part of the blame for an injury is assigned to the plaintiff because of their own lack of care – is rarely assigned to children in claims for child injury compensation. However there are scenarios in which the actions of the child can complicate automobile accident claims for children:
- If you are the driver of a car – in which your child is traveling as a passenger – and you cause an accident due to the child misbehaving in the back seat
- When your child is injured by an automobile due to running out into the road while your attention has been distracted
- If your child drives an automobile without insurance, and is injured in an accident for which they are not to blame, in some States you will unable to recover non-economic damages (pain and suffering, physical impairment, etc.) when claiming compensation on behalf of a child.
Public Liability Claims for Children
When children are injured at managed recreational facilities or in school, the success of a compensation claim for an injury to a child can hinge upon the level of supervision at the time. Most recreational facilities and schools maintain a sufficiently safe environment to defend public liability claims for children successfully; but they also have a duty of care to protect your child from injury due to their own actions. A lack of supervision could be justifiable grounds to claim child injury compensation.
It is also worth mentioning that most States have selected immunities from certain causes of injury – for example, in Pennsylvania, if your child is injured due to the dangerous condition of a tree, or because the sidewalk has not been maintained adequately, claiming compensation on behalf of a child is not viable. There are a significant number of immunities scattered around the statute books, so please do not assume that because your child´s injury has been caused by the negligence of a government department he or she will automatically be entitled to child injury compensation.
Claiming Compensation on Behalf of a Child
Claiming compensation on behalf on a child under the age of eighteen (twenty-one in some States) is a straightforward legal process provided there is no conflict of interest in the case – say, for example, you were the driver of the car in the scenario above where your child was the injured passenger.
The process involves you taking the role of a “guardian ad litem” to advocate the best interest of your child and claim child injury compensation on their behalf. A children´s injury lawyer will be able to guide you through the process of claiming compensation on behalf of a child, but you should be aware that any settlement of compensation had to be approved by a court before the case is finalized in order to double-check it is in the child´s best interest.
If you accept the responsibility of claiming compensation on behalf of a child, you may be approached directly by the insurance carrier of the negligent party offering you a settlement of child injury compensation. Such approaches should always be referred to your children´s injury lawyer to ensure a) it is appropriate to the injury your child has sustained and b) if it is a partial settlement, that the terms of the offer allow you to pursue the carrier for more child injury compensation as necessary.
If you inadvertently accept a settlement of compensation from an insurance carrier, which subsequently proves to be inadequate to pay for the educational and care needs of your son or daughter, you cannot go back to the negligent party´s insurers and ask for more!
The Statute of Limitations for Injury Compensation Claims for Children
In most States the Statute of Limitations for injury compensation claims for children does not begin until your child reaches the age of majority; after which three years are allowed to file a compensation claim for an injury to a child. This allows the time for the full consequences of an injury to manifest and make sure that your child is fully compensated. You do not have to wait until your child is eighteen or twenty-one before making a claim, and in some states the three-year limitation period can vary.
However, there are exceptions and, to understand some of these exceptions, it is important to know what is meant by the “date of discovery”. The “date of discovery” is the date on which an injury was diagnosed, rather than the date on which an accident causing an injury occurred. It may be an important factor in claims for acquired brain injury or other health issues due to environmental factors.
Some of the exceptions to the Statute of Limitations for injury compensation claims for children take the date of discovery into account, whereas others do not. In California, for example, medical malpractice claims for children must be made within three years from the date of the alleged malpractice (not the date of discovery) once the child is eight years of age.
Although the settlement of a compensation claim for an injury to a child may often be left as long as possible to ensure all the consequences of an injury due to somebody else´s negligence are accounted for, exceptions such as the one in California illustrate why it is so important to speak with a children´s injury lawyer as soon as the immediate care concerns of your child have been attended to.
How Much Child Injury Compensation Might You Receive?
Settlements of injury compensation claims for children can include the same elements as those for adults – usually compensatory damages and punitive damages – but the value of each of these elements varies widely according to the State you live in and how the judiciary perceives the long term consequences of a serious, life-long injury.
For example, the Supreme Courts in Arizona and Florida have both ruled that parents of children who have suffered non-fatal injuries can claim compensation for the loss of consortium – it is even written into the Statute in Massachusetts. However, in Texas, Michigan and Wyoming, injury compensation claims for children which include loss of consortium have been rejected by the State´s courts.
Under the title of compensatory damages, you should also be able to recover child injury compensation on behalf of your child for their pain and suffering, and the consequential “economic” effects your child´s injury has had for you and may continue to have in the future, provided they can be justified – something you may require the services of a forensic accountant for.
On behalf of your child, you may also be awarded punitive damages – a separate compensation amount which is intended to penalize the negative party for their negligence and encourage them to be more careful in the future. Most States will not allow punitive damages to be included in injury compensation claims against the government on the rationale that punitive damages will not have the same deterrent effect.
Speak with a Children´s Injury Lawyer
An injury to a child is one of the most traumatic experiences that a parent can undergo, and it is understandable if you are overwhelmed by the situation you are currently in. Claiming compensation on behalf of a child is not the first thing that goes through a parent´s mind when their child has been injured; however the costs of treatment can spiral beyond those provided for by your insurance carrier and considerable ongoing expenses can be incurred in the care of your child (if, for example you have to give up your job). A negligent third party´s insurance carrier could be liable to cover those expenses and give you financial peace of mind.
No amount of money can make up for an injury to a child, but child injury compensation can ensure there is no financial burden on you as a result of somebody else´s lack of care.