When a child is hurt in an accident, it is the worst time in a parents life. Parents often have questions and concerns relating to the injury and legal rights of their child. Simply put, we get asked this question all the time: My child was hurt in an accident – can we sue? The focus of this post is to help answer some of these questions and alleviate some concerns that parents will naturally have when a child is hurt.
In Pennsylvania, children have the same rights as adults to bring a claim for personal injury, including bringing a law suit, if they were injured in an accident because of someone else’s negligence. Obviously, the first order of business is making sure that the appropriate medical care is obtained for the child to treat the injury. This becomes exceedingly important when a child is involved in a car accident, or other accident where there may be issue relating to the brain including concussion. Recent studies have shown this type of injury on a developing brain can be long lasting and take some time to manifest.
However, there are 3 notable differences in the law that a parent needs to know when a child was hurt in an accident.
- The major difference for a child hurt in an accident versus an adult’s personal injury claim is that the minor’s statute of limitation will not expire until 2 years after the minor turns 18. In other words, even if a minor is injured as a toddler, they will have the right to file a lawsuit against those responsible for their injuries until they turn 20 years of age. The statute of limitations for an injury claim for an adult is 2 years in Pennsylvania. This extended statute of limitation for a child hurt in an accident is again for the best interest of the child. Injuries, especially in very young, developing children can manifest over time – specifically as mentioned above relating to concussion injuries on a child’s developing brain. The extra time allows for the full extent of a child’s injuries to play out, and to be certain that they are recovered before making a determination as to what their personal injury case is worth.
- A minor child (younger than 18), does not have the legal capacity to enter into a fee agreement with an attorney. That means the child’s parent(s) or legal guardian has to choose the attorney and sign any fee agreement on behalf of the child. The contingency fee that the attorney can accept for legal services varies, each county in Pennsylvania has their own policies regarding the maximum contingent amount that will be acceptable when minors are involved. Each county Court caps the fee an attorney can charge for a child’s accident case, this is done because the overarching goal is to protect the best interest of the child. After the injury and once counsel has been chosen, the claim of a minor proceeds much the same way an adult’s claim moves through the legal system. If and when it comes time for an actual lawsuit to be filed, a minor cannot bring a claim in his or her name alone. The Plaintiff in the lawsuit is the minor by the parent or guardian. For instance, Billy Smith, a minor, by his mother and natural guardian, Connie Smith.
- The case will proceed thru the litigation process as an adult’s would, until it is time for settlement. Before a minor’s claim can be conclusively settled, a Petition must be filed with the Court in the county where the litigation is pending or in the county where the minor resides. This Petition to the Court will request approval of the settlement, along with approval of the distribution of the proceeds of the settlement. This proposed distribution will detail exactly where the money is going, including the clients portion, the attorney’s fee, costs, and any other items that need to be paid. When the Court does approve the settlement, an Order will be issued by the Court, designating who is to receive what amounts out of the settlement and any money that is due and owing the minor will be placed in an interest bearing trust account that is not to be touched until the minor reaches adulthood (18) or until a further Court Order is issued.
As a parent it is important to understand that a child’s personal injury case may take a long time, but the extended process is in place for the best interest of the child. That extra level of protection will in most cases, help to insure that all the child’s injuries are known, and well healed prior to settlement of their personal injury case. If you have any questions about your child’s accident, please contact our firm, we are happy to take the time to answer any questions you may have.