Frequently Asked Questions

My child was hurt really bad because somebody was being really careless.  What’s the first thing I need to know?

The very first thing for you to do is to make sure your child gets all the complete and proper medical care needed.  This is the most important thing you can do for your child and for your child’s case.  Follow the orders of the pediatrician or other pediatric specialists.  No exceptions.  Make sure you do everything they tell you to do and follow up with all necessary visits and procedures.  (If you miss appointments, the lawyer for the guy who hurt your child will try to make a big deal out of it and try to make you look like a bad parent.)

Unfortunately, we hear stories that sometimes doctors don’t always listen.  Doctors and nurses are busy trained medical experts, but they do not know your child the way you do. If you feel the doctors aren’t getting the complete picture, insist that they listen.  A good outcome for you child depends upon it.

What are the basic things I need to know to see if my child has a legitimate injury claim?

First, two things you need to understand upfront:

(1) Children do get hurt by simply being children. Just because a child gets injured does not mean that someone is always legally responsible; and

(2) Just because the other guy has insurance does not mean his insurance company has to pay.

So now if that’s not enough for a valid claim, what is required?

The California legal system operates on a fault-based system.  With some occasional exceptions which I won’t get into right here, there are 3 major elements which have to be satisfied in order to make a legitimate claim: (1) negligence, (2) cause and (3) damages.

“Negligence” basically means some form of carelessness.  It means that a company or person   didn’t do something it was supposed to do, or it did something it wasn’t supposed to do.  There are many different sources of what a careful person or company should or shouldn’t do: laws passed by legislators, regulations put in place by government agencies, industry and professional standards and practices, contracts and internal policies which companies and their employees are supposed to follow, decision by judges, and at the end of the day, what important community safety standards a jury decides it wants to see enforced.

“Cause” means there has to be a significant enough connection between a negligent company or person’s act and your child’s injury.  This means that your child’s injury or death must have happened (at least partially) because of what the defendant did or didn’t do.  “Abstract negligence” is not enough.  A good example we see in child injury cases might be where, without any warning or sign from the circumstances, a driver has a child run out of the street and strikes the child before he has any time to react.  Without any warning and without any time to avoid the collision, the driver actions or inactions may not be a cause of the child’s injury or death.  On the other hand, in a busy residential neighborhood, if a ball gets loose in the street, drivers are supposed to adjust their driving habits to avoid a pending collision, because everyone with any kind of driving experience knows that a loose ball in the street means there will be a kid chasing it and the driver needs to be more careful.  This is one example of the special rules designed to protect children.

“Damages” is the legal term which refers to the injury resulting from the defendant’s negligence and the amount of monetary compensation which can be recovered.

In a child’s personal injury claim, the three major categories of compensation are (1) lost earnings, (2) medical expenses, and (3) general damages (commonly referred to as “pain and suffering”).

Even if a child does not have a job, some injuries to children are serious enough that they can impact and even prevent a child’s earnings as an adult; properly presented, California law allows the child to recover for both past and future lost income resulting from the injury.

To keep things simple, California law also allows the injured child to present a claim for past and future medical expenses since it is his injury, even though he is not the one paying the bills at this point.  As a practical matter, where the parents or health insurance may have paid for some or all of the child’s medical expenses, those expenses can be reimbursed under certain circumstances.  If a child’s injury is serious enough to require lifetime medical care or at least certain medical expenses in the future, that money can be held in reserve in a variety of special accounts for when the needs arise in the future.

Lastly, an injured child is entitled to receive compensation for the way the injury has impacted her life, the “human element” of her injury and in many cases, the most significant part of the claim.  In a very important case which involved an infant’s medical malpractice claim, the California Supreme Court explained that a child’s right to monetary recovery is not limited to  only pain and suffering or even to what the child can verbalize or express himself, but also includes things like the child’s emotional distress, fright, shock, apprehension, embarrassment, inconvenience, anxiety, humiliation, ordeal, disfigurement, and scarring.  Basically, all of those things which make us human and all of the things which the defendant’s carelessness caused.

You mentioned the negligent party being “at least partially” at fault.  What does that mean?

California injury claims are part of a “comparative fault” system, which is a fancy way of saying that if more than one person or company is responsible for a child’s injury, then they each must pay a share of the child’s injury claim.  This also takes into account the child’s responsibility, if he has any legal responsibility for contributing to his injury.  It wasn’t always this way.  A little background is helpful.

There was actually a time, not that long ago really, when an injured party could recover nothing in California if he was even 1 % responsible and the other guy was 99 % responsible.  What that meant was that if some drunk came speeding through a red light, but a jury thought that a kid who was already crossing in a crosswalk should have seen the driver and run out of the way faster, the kid would receive nothing and the drunk would get off free.  Another example of the way things used to be is the situation where a property owner decided to dig up the sidewalk in front of his property and just leaves a great big hole out there; if a school-age child came riding her bicycle around the corner and wasn’t quick enough to avoid the hole, in the past she might be out of luck because she had the last chance to avoid the problem.

Fortunately those days are behind us.

In California legal responsibility now is shared in proportion to how negligent the parties are in relation to each other.  Fortunately there are rules for measuring responsibility designed to protect an injured child who may be careless or contribute to his injury.  First, no child under the age of 5 years old can be legally responsible for his injuries.  Second, for children over the age of 5 and under 18, their legal responsibility is not measured by what a careful adult should do, it is measured by what a child of the same age, education, development, and intelligence would do.  Basically there is a “sliding scale” of responsibility between 5 and 18.  An exception would be where the child is doing something normally done by adults, like driving a car; in that case, a teenage driver is treated just like an adult.

Let’s say you have a situation where a child has a potential serious injury claim with a value of $ 1,000,000.00, and the child is 10 % responsible for the injury, party A is 30 % at fault, and party B is 60 % at fault.  The $ 1,000,000 value of the claim is reduced 10 % for his share of fault down to $ 900,000, and then the $ 900,000 is split with $ 300,000 be assigned to party A and $ 600,000 to party B.  Depending upon what types of damages are involved, there are also situations where it may be possible to collect the entire amount from either party A or party B; this becomes a more involved topic beyond a simple FAQ which I will be addressing in detail in our Important Legal News and Helpful Information tab in the near future.

I got a call from the driver’s insurance company.  They said my daughter and I have to give them a recorded statement and sign some papers so they can get her medical records, or else they can’t pay the medical bills or offer her anything for her injury.  Does this sound right?

It sounds typical, but it doesn’t sound right.  Because it’s not. .

You and your daughter do not have to give a recorded statement to anybody investigating for the other side’s insurance company.  (Note: if you’re making a claim under the uninsured motorist coverage on your own insurance policy, that’s a completely different animal.)  The purpose of the recorded statement is to give an experienced insurance adjuster an opportunity to trick you and your daughter into saying something which will hurt her case without you knowing, and then use it against her if the case goes to trial.  That is the only reason they’re asking for a recorded statement.  Don’t do it.

And don’t sign anything.  Two typical insurance company tricks:

(1)  Get you to sign paperwork which allows them to get all of your child’s medical records, even if they have nothing at all to do with her injury, which they will use to try to embarrass her; and

(2) Try to trick you into signing away her rights for a fraction of its value before you know the true value of her claim.  Fortunately all settlements involving minors require that a judge approve the settlement, but insurance companies never tell you this, so if you try to get more for her later on, they will intimidate you with what is really a bogus settlement agreement.

The fact is we provide insurance companies with the all the records they really need to settle cases all they time without allowing them to go snooping through a lot of unnecessary records.  And if we do allow them to take recorded statements, it is only under the terms we agree to and with an attorney present to safeguard her rights.

How can I be sure that my child’s future financial security will be properly protected?

Every child injury case, whether it is settled before or after a lawsuit is filed or even after a jury hears the case, must be reviewed and approved by a judge.  The judge reviews every part of the case to make sure that the case is being resolved with your child’s best interests in mind.  The judge will review the circumstances which caused your child’s injury, where the money’s coming from, and approve all payments to be made from the settlement, including any unpaid medical bills, reimbursed co-payments, the amount of attorney’s fees and expenses, and anything else related to your child’s injury.  For the settlement to be valid, the judge must approve it.  No exceptions.

The judge also approves what to do with the balance of funds for your child.  Smaller amounts can be deposited into special bank accounts which require the judge’s approval before any money can be withdrawn.  Depending upon the amount involved and what your child’s future needs will be, larger amounts of money can be held in a trust or paid by a special structured settlement annuity.  Structured settlement annuities are especially favorable for children and carry the benefit that all payments received over the course of your child’s lifetime will be tax-free.

Is it true that my child can wait until she is 20 years old to file a lawsuit for her injury?  And what is a statute of limitations anyway?

A statute of limitations is a time limit that the legislators set for certain types of legal claims to be brought.  If a claim or lawsuit is not settled or filed within a certain period of time, and there are no exceptions for extending the time limit, then the right to receive compensation for the injury will be lost forever.

The typical statute of limitations in California for an adult’s personal injury claim is two years.  In most cases, the statute of limitations does not start running for a child’s claim until she reaches 18, so the “typical” statute of limitations is until age 20.  However, there are numerous types of cases that don’t fall under that category.   Figuring out what the proper statute of limitations is can be very complicated.  It is one of the most crucial aspects involved in preserving a child’s rights.  In cases that involve multiple defendants, every effort should be made to have the entire lawsuit filed against everyone involved no later than the time limit required for the defendant with the shortest statute of limitations.

Keep in mind: if too much time passes, witnesses forget, tapes get erased, properties get fixed and evidence disappears.  These sorts of things can present major challenges even in a case which is filed within the appropriate time limit.  So even though your child legally may have a long time to file her lawsuit, we strongly urge that the potential claim be brought to the attention of an attorney who specializes in serious child injury claims as soon as possible.

Free Case Evaluation

If you would like to contact us about a potential serious injury or wrongful death claim, or would like to see a particular topic covered on our site, please complete and submit the form below.

  • This field is for validation purposes and should be left unchanged.
Recent News & Articles