Serious injuries are terrible for any individual or family to endure but when they happen to our children they become almost unbearable. There is nothing more heart-wrenching than to see an injured child lying helplessly in a hospital bed suffering from an injury caused by another person’s negligence, recklessness or intentional actions. Tragically, according to the National Center of Health Statistics (CDC) and National Highway Traffic Safety Administration (NHTSA), car accidents are the leading cause of death for children ages 2 through 14. The most recent available statistics reveal that an average of 568 children ages 14 and younger are injured car accidents in the United States every day. An additional 5 children are killed in car accidents every day in this country.
While these statistics are down considerably from ten years ago primarily due to advances in child seats and restraint technology, public awareness and mandatory child restraint laws, any family having to suffer from the loss or injury to a child understands that no amount ofmonetary compensation can undue the years of pain and suffering that result. Injuries to children are peculiar, not only in their impact on the parents and family unit as a whole, but they are also accompanied by peculiar legal and medical considerations that do not normally arise in cases involving injuries to adults.
A minor child (anyone under the age of 18) is legally incompetent to sue or be sued. Thus, any claim for an injury to a child must either be made by the child following its 18th birthday, or must be brought by the parent, guardian or a court appointed conservator on behalf of the child.
For that reason, the statute of limitations for an injury to a child is one year after their 18th birthday.
Statutes of Limitations on Injuries to Children
If the child is young or the parents do not believe it is in the child or family’s best interest to wait until the child turns 18 there are a couple of different options available to the family and child.
Who can make a claim on behalf of a child?
First, any one of the parents or a legal guardian can make the claim and bring the action on behalf of the child as “Next Friend.” The term “Next Friend” is merely legalese for a person who appears in a lawsuit on behalf of an incompetent or minor plaintiff but who is not a party to the lawsuit in that capacity. A parent or guardian can bring both a personal action individually and still act as the “Next Friend.”
Courts Can Intercede in Children's Claims
The other option is to set up a conservatorship on behalf of the minor child and have the court appoint a conservator who’s sole responsibility is to ensure that the child’s best interest is taken into consideration during the litigation or claim process. In cases involving serious injuries to minor children, a conservatorship is almost always necessary because Iowa law requires that a conservatorship be established anytime a child is to receive more than $10,000.00. Depending on the situation, a parent, close relative, attorney, or completely independent individual may be appointed as the conservator. Who is best to be appointed as the conservator will vary from case to case. It is important to recognize and understand in these situations where a child is seriously injured, the injury lawyer’s obligation and duty is to the child; it is to ensure that the child’s financial and medical needs are first and foremost. When a conservatorship is created, the ultimate last word is with the Court who must approve any and all settlements and disbursements including any attorney fee agreements or other disbursements from the conservatorship. It is also the Court’s responsibility to ensure that the best interest of the injured child is met.
Parents can also make a claim for their own personal losses when their child is killed or injured in Iowa. These types of claims are commonly referred to as loss of consortium, services, and support, or sometimes simply consortium claims. If a child is killed these claims typically are made along with the underlying estate’s claim in a wrongful death action unless it is not feasible to do so for some reason.
Parental Claims and Damages.
When a minor child is killed or injured, a parent can bring an action for loss of consortium and services. Until relatively recently however, parents of an adult child were not allowed to make such a claim. This changed in 2007 when the legislature amended the Iowa code to allow parents to bring claims for the death of an adult child as well. Note that parents are still not allowed to make a claim under Iowa law for injuries to an adult child no matter how severe.
Loss of consortium
Parental consortium refers to a parent’s loss of the intangible benefits of the parent child relationship such as companionship, cooperation, aid and affection. Like pain and suffering, there is no mathematical formula to calculate these losses. However, these losses are valued significantly by Iowa juries and can and have led to very substantial verdicts. In fact GRL law has obtained 3 of the 5 highest ever reported verdicts for adult-child consortium claims in Iowa.
Loss of Support
Parents are also entitled to the economic value of the loss of the child’s services which includes both the amount the child could have earned outside the home as well as the value of the child’s labor inside the home.
Parents are also entitled to compensations for medical bills and burial expenses as well if they incur those expenses.
Medical and Special Considerations
The younger a child is when it suffers a serious injury, the more difficult and complicated a claim for damages can become. It is well-established that the vast majority of a child’s cognitive development occurs within the earliest years of their life. That being so, even the most seemingly insignificant interference with this development can have a lasting impact on every aspect of the child’s future development. Serious injuries will often times have a negative impact on the child’s development both cognitively and physically that may not be readily apparent to the untrained eye. Physical injuries to the bones and joints of a child can adversely impact growth plates and slow or hinder physical development. Injuries both mental and physical to the brain and cognitive functions will likewise slow or inhibit the child’s mental developmental progress sometimes to a point of permanent disability.
While some serious injuries to children have open and obvious long term consequences, others are not always so readily apparent. In these situations, the lack of a well-defined baselines for comparison, of before and after accident abilities, complicates claims made on behalf of seriously injured children. Adults have presumably reached full development at the time of their injuries and have a baseline for comparison before and after the injury. The adult or other witness can testify that the injured person could do a specific activity before the accident, but can’t perform that same activity after the accident. The causal connection is easily made. This is not always the case for children, especially infants or toddlers who are constantly learning and developing with each passing day. Any setback in early development can have a significant impact on the child’s future. A young child simply does not have the distinct baseline and developmental delays or impediments can be considered more speculative if not properly documented and explained. For this reason a medical and psychological expertise is necessary to not only document and treat the specific injuries but also to be able to explain to insurance companies and ultimately juries, what the child’s future will be like as a result of the injury.
Special Considerations for Children's Injuries
While at times it may not be simple or convenient to determine, cognitive and physical developmental delays in injured children should not and cannot be minimized or discounted in anyway when a child’s best interest is the controlling consideration. Many times with these injuries only time will tell what the future prognosis will be. Patience and thorough evaluation by qualified medical and legal professionals is the only way to go when dealing with serious injuries to children. You deserve a thorough work-up of the case and more importantly, your child deserves it. As a result, a quick settlement for serious injuries to children is hardly ever advisable, unless it involves the insurance company settling a claim for the limits of a policy.