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Answers to the Ten Most Frequently Asked Questions in Child Injury and Death Cases
1. What should a parent do when their child is injured?
When a child is injured, the initial focus of all parents
will be to do whatever they can to ensure that their child
recovers as completely as possible from their injury.
Once the fate of the child’s injury is understood, most
parents go through a difficult process of deciding whether or not
to bring a lawsuit to hold the wrongdoer who caused the injury
accountable and to compensate their child for the injury.
If the child heals well and quickly, most parents will let a
relatively minor incident go.
However, when the injury has serious physical or emotional
consequences, parents should consider a lawsuit.
2. Will my child be traumatized if we bring a lawsuit for their
injuries?
Almost always, no. The laws have changed dramatically in
recent years to protect child injury victims. Even in civil
cases involving molestation, the identity of the child will be
protected and the child will not be able to be cross-examined in
the way that people sometimes see on TV and in the movies. The
parent or guardian for the purpose of the litigation will be more
involved in the lawsuit, and the child will usually be able to
live their normal life without the lawsuit interfering in any
significant way.
3. Would my child have to bring a lawsuit himself/herself?
No. The lawsuit will be brought by one of the parents or
somebody else the parents choose to act as the guardian for
purposes of the litigation. The parent or guardian makes all of
the important decisions in the case along with the attorney and a
court on the child’s behalf.
4. What if my child has died due to the fault of another?
In this almost unthinkably tragic situation, the parents,
whether still living together or separated, each have a right to
bring a lawsuit for their loss of comfort, society and care of a
child. Most parents feel a certain amount of empowerment from
this type of lawsuit and it can help to deal with the
overwhelming grief to know that some type of justice was
attempted or done.
5. What if my child was partially at fault for causing their
injury or death -- can I still sue?
Yes. California is a comparative fault state. A person can
sue for serious personal injury even if they are partially at
fault. As long as they can prove that one or more other parties
are also at fault. However, the amount of a plaintiff’s recovery
will be reduced by the amount of their fault. Therefore, if
someone is awarded $5 million dollars in a serious personal
injury case, but are found to be fifty percent (50%) at fault,
the recovery will be limited to $2.5 million dollars.
In the case of the death of a child, the recovery of the
parents will be limited by the percentage of the decedent’s
fault. Thus, if the parents are awarded $2,000,000 but the
decedent is found to be 50% at fault, the recovery will be
limited to $1,000,000.
6. What if the defendant blames us for causing our child’s
injury or death?
It is true that if at all possible, the defense will attempt
to blame the parents for an injury or death to their child. This
may occur in a case in which the defense will attempt to claim
that, for instance, the parents should have supervised their
child more closely and that supervision would have avoided an
accident or sometimes a molestation.
These claims can usually be overcome, and even if the parent
is found to be partly at fault for the injury or death, it simply
reduces their recovery by the percentage of their own fault.
7. What damages are recoverable in a child injury or death
case?
The survivors are entitled to the value of future monetary
contributions from the decedent and the value of any personal
service, advice or training that would have probably been given
if the decedent had lived. This is determined by projecting the
amount of money the decedent would have earned in the future but
for their death and subtracting from that the amount that the
decedent would have “consumed” on their own expenses. The
parents will have to establish that the child would likely have
contributed financially to the parents’ support.
Concerning damages for emotional distress, the answer is yes
and no. Under California law, the heirs are entitled to recover
compensation for loss of love, companionship, comfort, society,
affection, solace or moral support. However, they are not
entitled to recover for grief.
8. How soon must we bring a lawsuit on behalf of our child?
If your child is injured, you generally have until your
child’s 18th birthday to bring a case on behalf of your child,
and once your child turns 18, they have an additional one year
until their 19th birthday to bring a lawsuit. However, it is
generally not a very good idea to wait very long to bring a case
because important evidence will be lost and the case of a younger
child will be worth more than an older child who has generally
recovered well from the injuries.
The exception to the usual statute of limitations rules
occurs in medical malpractice cases and cases against government
entities.
In a medical malpractice case, a child under five has until
their eighth birthday to bring a lawsuit. Any child between the
ages of five and 18 has three years from the date of the
malpractice to bring the lawsuit.
In cases against government entities, a claim should be
brought against the government entity within six months; courts
will automatically allow a late claim up until one year from the
date of the accident.
In cases in which your child has died, you have one year
from the date of the death to bring the action unless it is a
government entity in which case you have six months to file a
claim, or in a medical malpractice case, you have three years
from the date of the malpractice or one year from the date that
you discovered that your child died as a result of the
malpractice, whichever is sooner (thus, you have as short a
period of time as one year).
9. Will my child injury or death case settle out of court?
Probably. Over 90 percent of child injury and death cases
do settle at some time before trial.
10. Do I need to retain an attorney?
Except in cases of very minor injuries, you will probably
want to hire an attorney to handle your child’s case.
Any settlement involving a child’s case of more than $5,000
must be approved by the court, and attorneys will be able to help
walk you through the process of having the guardian appointed and
the settlement approved.
More importantly, child injury and death cases normally do
not have the type of economic losses that make insurance
companies want to settle for a lot of money without an attorney.
For instance, in a child death case, there will be virtually no
economic losses other than the cost of the funeral; yet, with a
good attorney the case can be worth hundreds of thousands or even
millions of dollars.
In a child injury case, children usually heal fairly well
with a minimum of medical expenses. However, there may be some
long term consequences to the injury which an attorney will be
able to discover through a thorough investigation and discussions
with a specialist and thus, a case can be greatly increased in
value.
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