How Child Injury Cases Differ
One of the most heartbreaking things that can happen to a parent is when their child becomes injured. It’s even worse when that injury could have been prevented, but another party caused the injury with their recklessness or negligence. A child’s injury can also mean financial hardship for the family because of medical and related bills. However, a parent or guardian can ask to be compensated for a number of costs related to the child’s injury if negligence was involved.
Child injury cases differ from adult injury cases in some basic ways. Knowing these differences can help you understand your potential case.
Children Cannot File for Themselves
In Indiana, a person under the age of 18 cannot file the injury suit on their own behalf, as they are considered legally incompetent. Generally, a parent or legal guardian brings the suit on behalf of the child. Both parents may bring the case if they wish.
Children Are Not Held to the Same Contributory Negligence Standards as Adults
In injury cases, it must be established that the other party exhibited negligence or recklessness that directly led to the injury. However, sometimes an adult bringing a case can be found to be contributorily negligent, meaning they did not act with a normal and reasonable amount of care and are therefore not eligible for economic damages.
Children, on the other hand, have different standards. Indiana law presumes that children under the age of 7 are incapable of being at fault. Children ages 7 through 14 are assumed incapable of fault under a rebuttable presumption, meaning that such an assumption is considered true unless someone can prove otherwise. Once a child is older than 14, they are held to the same standards of care as adults unless special circumstances exist.
The Statutes of Limitation Are Different for Children
You must also bring your case within the time limits specified by Indiana’s statutes of limitations. In Indiana, a suit can be brought for a minor child until that child turns 18 for any personal injury case (except for medical malpractice and product liability—see below). Once they turn 18, they have two years to bring a suit.
Exceptions are medical malpractice and product liability cases. In medical malpractice cases where the child is under 6 years of age, a claim can be filed until the child turns 8. After that, the statute of limitations is the same as for adults—two years. For product liability cases, the statute of limitations is two years regardless of age.
The Court May Appoint a Guardian ad litem
When there is a conflict regarding the child’s best interests, the court can appoint another person to determine which courses of action would benefit the child the most. Such a person is known as a guardian ad litem.
When a suit for a minor child is brought and a settlement is offered that is worth $10,000 or more, the settlement must be approved by the court. In such a case, a guardian ad litem is often appointed to ensure that the settlement offered is in the best interests of the child.
Parents Can Bring a Suit for Medical Expenses
The parents or legal guardian, if they are the ones paying the medical bills, can bring a suit for medical expenses. This is so because they are the ones paying the medical expenses, not the child.
However, other portions of a settlement in a child injury case are usually put in trust for the minor child. Examples of such damages can be the future lost wages for the child if they are disabled, for pain and suffering, and for mental anguish.
When the Injury Results in Wrongful Death: Differences
Should a child’s injury be the cause of their death, some points of law change. For example, one or both parents can bring a wrongful death suit except when they are divorced. In that case, the parent with legal custody must file the claim. In cases where both parents are dead or no longer have parental rights, the legal guardian files the case.
The statutes of limitation change as well. The time limit for filing a wrongful death claim is two years even if the victim was a child.
Monetary damages in Indiana are not capped for child wrongful death cases under the state’s Child Wrongful Death Act.
At McNeely Stephenson, when others breach their duty, we keep ours.
If someone’s negligent or reckless actions have caused injury or death to your child, it is your right to seek compensation in a personal injury lawsuit, but it is critical to have a knowledgeable and trustworthy legal professional representing you.
Indiana lawyer Mike Stephenson is a Martindale-Hubbell AV-rated attorney, the highest possible attorney peer rating. When you call Mike, you can have complete confidence that you are talking with an attorney who has more than 30 years’ experience offering compassionate and successful representation for his clients.
Let our Indianapolis child injury lawyers fight for you. The experience of Mike Stephenson and the resources of McNeely Stephenson can be your means of achieving justice when your child is the victim of someone’s negligence or recklessness. What is your next step? You can start now by calling 1-317-825-5200, or you can use our online contact form for a free evaluation of your claim.