Car seats, and youth booster seats, have prevented many serious injuries to children in car accidents. Sometimes, however, the crash is so severe that the child may still be injured in a car seat. When a child is injured by the negligence of another, special rules govern those claims and lawsuits.
What to Do After Your Child Is Hurt in a Car Accident
The first question often on the minds of most parents is: how will I know for sure what injuries my child received? The second question quickly follows: when will I know when my child has recovered from his injuries? Pediatricians tell us that children experience physical and emotional injuries differently than do adults. After the child is cleared in the ER to be released home, the child’s regular pediatrician should be consulted as soon as possible after that to examine the child with the history of the child that only his regular pediatrician has. Taking the child to the pediatrician is the most helpful way to start the injury claims process. This examination will provide an informed ‘base-line’ of the child’s accident injuries as compared to his pre-accident condition, as well as recording the parents’ account as to how the child is acting or responding at home. Regular follow up visits will document the child’s progress for the injury claim and, possibly, provide the signs to involve a specialist in pediatric neurology or orthopedics in the child’s recovery.
Children's Injuries May Take Time to Present
Insurance companies handling children’s injury claims seem to want to rush to settle those claims, even when the doctor is not completely sure the child has recovered—or has progressed in growth sufficient to determine if the injury is resolved or will be an ongoing problem for the child. Parents must resist the pressure of the insurance company to settle their child’s claim. The law gives the child lots of room to recover and resolve the insurance claim: in Colorado the deadline to file a lawsuit for a claim for negligent injury to a child is the child’s 20th birthday!
Elements of a Child's Personal Injury Claim
There are really two claims for compensation when a child is injured. First, the child has a claim for his own damages including: “non-economic” damages, such as pain, emotional stress and the like; “economic” damages the child will have in the future, such as a reduced ability to earn a living; and “physical impairment” or “disfigurement” damages. As noted above, this claim belongs to the child alone and does not expire until the child’s 20th birthday.
The second claim is that of the parents for reasonable and necessary expenses, such as medical expenses, paid by the parents on behalf of the child between the date of the child’s injury and the child’s 18th birthday. This claim belongs to the parent(s) and, in the case of a car accident injury, this claim must be settled or filed as a lawsuit by the parents within 3 years of the date of the accident or it will be forever barred.
Sometimes it makes more sense for the parents and child to join their claims and file a lawsuit before the 3rd anniversary of the car accident. In that case, the child’s claim is brought by the parent as “next friend,” i.e. the adult who has the legal right to control the affairs of the child as parent or guardian. Courts do not require a probate conservatorship be set up in order for a parent to initially file a child’s claim for injuries in court.
How the Child's Settlement Is Handled
When the insurance claim is paid for a child’s injury, a judge must approve the payment to be sure that the claim is paid in an appropriate amount in relation to the injuries sustained by the child and that it is in the overall best interest of the child to settle the claim for the tendered amount at that time. At all times in the claim’s process the parents must be reminded that the child’s settlement belongs to him—it does not belong to the parents. The judge will enter orders requiring the parents to keep the child’s money in a safe and insured bank account until the child reaches an age where it can reasonably be paid to him. The court will likely require that a parent be formally appointed a conservator by the probate court and be required to report each year to the probate court as to the status of the child’s funds. If a parent does not keep the child’s money separate and safe for the child to reach adulthood, the courts will assess severe penalties on the parent(s).
In light of the complexities of handling a child’s injury claim, most parents seek legal advice and guidance through the process. The personal injury attorneys in Colorado Springs at Clawson & Clawson LLP have the experience to handle a child’s auto injury claim to ensure that the child’s injuries are fairly evaluated and fairly compensated by the insurance company—as well as the experience of guiding the parents through the probate process that safeguards the child’s settlement funds until they are able to handle those funds on their own.
Call our Colorado Springs car accident lawyers if your child has been injured: (719) 602-5888