As the parent of two young children, I understand the fear and worry parents feel when they come to my office after their child has been involved in an accident as a result of someone else’s negligence. Every year, we represent many families of children who have been harmed in car accidents, slip and falls, dog bites, medical malpractice claims in minor and catastrophic injury accidents. There are special considerations when a child is involved in an accident such as how to get help with medical care and who will receive the settlement funds. We hope this guide will help you explain the process that we undertake in our representation of minor children.
Get Necessary Medical Care
The first and foremost need after an accident is to get you child the best medical care possible. If the injury is severe or there is any concern that your child needs emergency medical treatment, your child should be taken to the emergency room. El Paso’s Level I treatment center is University Medical Center (UMC) and can treat the most severe injuries. Other local hospitals and several new stand alone emergency departments are also good choices if there is a need for emergency medical treatment. If you do not believe your child needs immediate emergency care for her injuries, it is still wise to take your child to an urgent care center or follow up with the child’s pediatrician soon after the accident.
The goal of the injury lawyer is to make sure that the child receives the best medical care possible, whether that injury is catastrophic or minor. Often times, that means working with the parent’s insurance company or Medicaid to get the child to needed specialists, therapy and other treatment. If there is no health insurance or Medicaid to assist with needed medical care, we work with affiliated physicians, facilities and therapists to get the medical care needed. This year, we have referred children to specialists for medical care and treatment like plastic surgeons, pediatric orthopedic surgeons, physical therapists and psychologists and counselors. If necessary and appropriate, we can insure that the child gets needed surgery and other inpatient care following an accident. The inability of a parent to pay for costly medical care should not be an impediment to getting the child the medical care that is needed after an accident.
Prove up the Child’s Damages
In a catastrophic injury case involving a child, the next step a good injury attorney will undertake is to quantify the economic damages that your child has suffered. We often work with a team of forensic experts to assist in determining the amount of economic damages that your child has suffered. If the child needs future medical care, we work with specialists called life care planners to calculate the cost of the child’s medical needs in the future. We work with economists to calculate the dollar amount that a jury can award in today’s dollars to pay for the future medical care. In a recent case involving an infant that suffered a traumatic brain injury, we sent the child to a medical doctor that specializes in creating life care plans to detail the future medical needs of the child. Because of the severity of the injury, this doctor helped us put together a life care plan
that included attendant home health care for the child after the child reaches age 18. We worked with the life care planner and our economist expert to calculate an $11 million-dollar life care plan for the child. This life care plan was a major bargaining chip when it came time to negotiate with the insurance company to settle the claim.
Prove Up The Other Party’s Fault
The next step in the process is to prove that the other party is at fault. A good personal injury attorney will use all means necessary to prove that the at fault party is held responsible for causing the damages to your child. For example, in an automobile accident case, we begin early by gathering evidence from drivers, witnesses, and the police. We make sure that we have all available evidence such as 911 recordings, accident reports, photographs, videos, and cell phone records of the other driver. In all kinds of injury cases, we hire all kinds of safety and other experts to help us prove up the fault of the other party. Here are some of the types of expert the we have employed in the recent past to help us prove up the case against the at fault party:
* A safety engineer who testified on the lack of fall protections at an apartment complex
* An accident reconstructionist who opined on the cause of a major truck accident
* A radiologist who opined that another radiologist missed a child’s femur fracture
* A pediatrician that opined on another pediatrician’s medical negligence
* An expert on the vicious tendencies of a dog that mauled a child
* A cellular telephone expert that opined that a truck driver was distracted.
We are also aware that many times the at fault party and defense lawyers will attempt to shift blame onto the parents or the child for causing the accident. A good injury attorney will know these tactics. A good injury attorney will know the law surrounding the parent’s potential negligence and use it to help decrease the parent’s responsibility and increase the child’s recovery. A good injury lawyer will know that a special standard of ordinary care applies to children to either eliminate this defense or negate it as much as possible. For example, in a recent case involving a child with traumatic brain injuries, the defense attempted to blame the mother for negligent supervision. We conducted a focus group to discuss the defense tactic of blaming the child’s mother to see how a jury might react. The focus group provided a set of facts, which if true would lessen the mother’s responsibility for causing the accident. After learning what the jury would think is important in determining the mother’s fault or lack thereof, we were able to develop the facts in discovery. The facts that we developed helped us show that the mother was not at fault, including the major fact that the defendant had notice of the same complaint with the defective equipment that caused the child’s injuries.
What happens once a settlement is reached or a judgment rendered.
A major concern of parents of an injured child is who will get the proceeds of the settlement and how will it protect the injured child. In all cases of significant injury involving a child, the court will appoint a special attorney known as a Guardian Ad Litem. The Guardian Ad Litem’s role is as a special advisor to the court to ensure that a settlement is in the child’s best interests. The only duty of the Guardian Ad Litem is to that of the minor child, and he or she will work with the court and with all counsel to make sure that the settlement is fair and that the proceeds go to the benefit
of the minor child. In Texas, the Guardian Ad Litem is appointed pursuant to Texas Rule of Civil Procedure 173. If the Guardian Ad Litem is convinced that the terms of the settlement are fair, the Guardian Ad Litem will work with counsel to decide the best option to invest the money for the child’s benefits. The following is a summary of the types of investments that might be chosen.
Registry of the Court – If the proceeds of the settlement are relatively minor, most cases below $10,000, the Guardian Ad Litem may propose putting the money into the registry of the court. If this option is chosen, the court clerk’s office will establish a savings account with your child’s money segregated. The account will gain interest until the child reaches age 18. At 18, the child will be entitled to receive all of the money with interest earned from the account.
Structured Settlement -If a significant amount of money is recovered for the child, generally more than $10,000, the Guardian Ad Litem may propose placing the money in a structured annuity until the child reaches age 18 or older. Texas Civil Practice and Remedies Code Chapter 141 known as the Structured Settlement Protection Act allows Texas courts to place a child’s settlement funds into a structured annuity. Generally, a structured annuity works by having the insurance company for the defendant purchase an annuity contract for the child with a large and highly rated life insurance company. Companies that we deal with regularly include Met Life and Pacific Life. The life insurance company than guarantees that it will pay the child the funds at specific times after the child reaches 18. We often help set up structured annuities that pay in the 4-5 years after age 18 so that the child will have money for college or to go to a trade school. The Guardian Ad Litem will work with the parents to make sure that the most suitable structured annuity is chosen for the given situation. A structured annuity is preferred because it earns more interest than the court’s registry. Payment from the life insurance company is guaranteed, so the child’s money is not at risk like the stock market or other risky investments. Further, the interest gained from a structured annuity is tax free.
Special Needs Trusts – A special needs trust is a special trust that can be established to help pay for a child’s medical and living needs. The most likely scenario where a special needs trust is needed is when the child is receiving ongoing medical care which is paid for by Medicaid. If the child were to receive a lump sum payment, the child would lose his or her right to receive Medicaid. A special needs trust allows the child to pay for needs without losing his or her Medicaid benefits. In a special needs trust, the money is placed with a company or special adviser that specializes in administering these types of trusts. This trustee will work with the parents and the child to pay for needs that are not being covered by Medicaid. States also have established pooled trusts that serve like special needs trusts in situations where there are significant settlement proceeds but the proceeds are not enough to qualify for setting up an individual special needs trust. The funds of many are pooled together to justify the expense of creating a trust. The pooled trust administered by the State of Texas is known as the Arc of Texas. We have used the Arc of Texas on occasion to help assist preserving a child’s Medicaid and other governmental benefits.
Harmonson Law Firm is committed to protecting children. If your child is injured because someone else’s fault, please feel free to give us a call at (915) 584-877 or by reaching out to us on our website.