LITIGATION TIPS FOR PARENTS OF CHILDREN INJURED BY THE NEGLIGENCE OF OTHERS.
Parents having to litigate when their child is severely injured by others often navigate the legal system with little knowledge about how to protect their rights and that of their child. This Guide offers help to parents in those circumstances. I am a Florida licensed attorney.
1) The Statute of Limitations and the need to obtain Medical Records.The Statute of Limitations (the amount of time you have to file suit after a claim accrues) varies depending on the type of case and the state where the action accrued. Many complex legal rules apply as well to determine if the Statute of Limitations is tolled. Better, however, not to take chances. Often, you will know right away if a child was injured due to the fault of another. For example, in a car accident situation, the cause of the injury usually is obvious. Other times, however, the cause of the problem is unknown, or even the presence of a problem is not obvious. In one case, a child showed developmental issues from very early on - days and weeks after his birth. Doctors kept telling the parents that everything was fine. It was not. It took six months to get the child to see good doctors in a major hospital - and only then, for the first time, the parents found out what happened to their son shortly after he was born. It turns out that he developed severe neonatal hypoglycemia (very low blood sugar levels) during his second day of life, and no one - not the doctors, not the nursing staff - told the parents about this. Lesson - if your child is not doing well after being treated (or born) at a medical facility, make sure that you get your child's records, and consult with an attorney or a friendly doctor (preferably not one involved in the care of your child) if you don't understand what the records say. If you find out about a medical malpractice issue after the Statute of Limitations expired, you may still be able to bring suit, but it will be more difficult to do so, and the case could get dismissed because it was filed too late. Most lawyers will give you a free consultation, but they may shy away from representing you and your child if there is a statute of limitations issue.
2) What the case is about - components of damages recoverable in such a suit.If you have a child who was tragically injured, then the case is about the economic and pain and suffering damages of the child, as well as the economic and pain and suffering (or loss of consortium) damages of the parents. Of course, the main component of the case is the child's injuries. If they are severe, if the child has a normal or near normal life expectancy, and if the child will require a lot of medical care, and will never work, those economic damages will be very significant. But the parents' damages could be significant as well. For example, a parent may have to stop working. And the parents will have a lot of extra-ordinary expenses that were caused by someone else's fault. All parents have an obligation to provide their children with basic support. But if the injuries cause a parent to have to spend extra-ordinary expenses, make sure that any ultimate settlement includes a) reimbursement for the expenses incurred in the past; and b) money to the parents for those anticipated extra-ordinary expenses to be incurred until the child reaches the age of majority.
3) Court approval of settlements involving children in Florida.If the case is a high-value one, then the judge must generally appoint a Guardian Ad Litem to ensure that the child's best interests are protected. Make sure that the Guardian is not a buddy of your lawyers. Try to have a say on who gets to be the Guardian. It would be great if the Guardian is independent, has a lot of experience, and has a lot of knowledge about guardianship issues. You want your child's interests to be well protected - remember, the Guardian is supposed to protect the child from all of the adults involved, not just the parents, but also the lawyers.
4) Guardianship and its problems.If the child gets some money from the case - hopefully you are able to settle for something reasonable (full recovery is almost always impossible, given such issues as the need to reimburse costs and to pay attorneys' fees out of the award or settlement) - then it is more than likely that the money will be monitored in guardianship proceedings. If you have to hire a guardian, that will cost money to the child. The child also has to pay annual guardianship fees. There are other expenses - all because the State does not trust parents with money in such circumstances. A few bad apples made it bad for everyone. If you are the guardian, it feels awful at times to have a Judge who knows little about you or your child watching over your decisions about what to spend for the child, how to invest the money for the child, etc. This is why it is important that the parents, the good ones at least, get a portion of the settlement for the anticipated extraordinary costs of raising an injured or disabled child, up front. Yet, if the monies have been distributed, and none of the money was apportioned to the parents for this purpose, there is still a way to get this accomplished. There is case law in Florida that allows a guardianship judge to treat a portion of the monies that were assigned to the child as a trust to help the parents cover the extraordinary expenses of the child up to the age of majority. Another issue to consider during distribution, and this is one reason why having a Guardian Ad Litem who is knowledgeable about guardianship issues may help, is that, generally speaking, one the child reaches the age of majority, having a lot of assets and cash could preclude the child from receiving some or most Federal Benefits the child would otherwise be entitled to - such as social security disability benefits. This seems strange to me because, in essence, the little the parents get for their child will be used to save taxpayers money. You should be aware that in 2015 Congress passed a new law that allows some of the funds to be set aside in an account that will not, up to certain limits, affect the child's (by then, adult's) eligibility for most federal benefits - the so called Able Act. You can find more information about this at https://www.autismspeaks.org/news/news-item/10-things-know-about-able-act or http://www.ablenrc.org/about/what-are-able-accounts -- and there are assets that are exempt (i.e. not considered) when determining eligibility for federal benefits. Again, this may cost some money up front, but having the guidance of good guardianship attorney with knowledge of tax and federal benefits consequences of your actions on behalf of your child is crucial.