Attorneys Jim and Matt Poe have focused for many years on helping families in Atlanta and across Georgia to deal with the aftermath of an injury to a child. We know the questions that parents commonly have about their legal rights and the process of seeking justice. We answer many of those Atlanta child injury FAQs below.
Please keep in mind that these are only general responses. Each case is different. If your child has been injured due to another’s negligence or due to a defective product, we encourage you to contact our firm for a free consultation about the unique facts and issues in your case. Simply call or contact us online.
Child Injury FAQs
Although a minor cannot file a lawsuit in his or her own name, a claim can be filed on his or her behalf either by a parent acting as “next friend” of the child, or by a representative approved by the Court to act as a guardian of the child’s property rights. This claim is distinct from the claim which parents have when their child is injured (even though it can be pursued in the same action). There may be tactical or practical reasons to pursue the two claims separately depending on the facts of a particular case. These claims also involve different types of damages.
When a child is injured, the parents or legal guardian have an injury claim to recover the reasonable and necessary medical costs and other related expenses that they have incurred or will likely incur as a result of the child’s injuries prior to the child’s eighteenth birthday. Additionally, parents in Georgia have a legal claim for “the loss of the services of the injured child.”
The injured child has a separate claim for all reasonable and necessary medical expenses that the child will incur after the child reaches majority at age 18.
In addition, an injured child is also entitled to seek recovery for any diminishment of earning capacity and/or loss of future earnings the child will experience after reaching the age of majority (18) . The child’s rights include the right to recover for temporary and/or permanent injury, for temporary and/or permanent impairment of any bodily function, and for past, present and future pain and suffering from any injury. Pain and suffering includes physical pain and mental anguish. Depending on the facts of the case, punitive damages may also be available.
The attorneys of James M. Poe, P.C., work closely with medical experts, life-care planners, economists and other experts to determine the injuries which have been suffered and the various types and amounts of damages which need to be sought to properly and fully compensate the child and the parents in their respective claims.
Under Georgia law, parents of a deceased child have the right to bring a wrongful death claim. In addition there are two other potential claims. The first is an action on behalf of the child’s estate for any claims the child could have asserted as a result of the injuries. The second is a claim which the parents have for incurred expenses, such as medical bills, and for any final expenses, such as funeral and burial costs.
Claims for the wrongful death of a child are not limited to situations where the child is a minor. Parents can bring a wrongful death action for the death or an adult child as long as the child did not leave behind a spouse and/or children. In any action parents may recover the “full value of the life” of the child. Full value includes the loss of the child’s expected lifetime earnings reduced to present value, and loss of the child’s society and services.
Even though it may seem impossible to put a “value” on a child’s life, the value of a wrongful death claim may be established through evidence about the child’s age, gender, health, normal life expectancy and likely educational achievement. Moreover, the value of the child’s intangible loss of the enjoyment of life as a result of premature death is also compensable in a wrongful death action.
In a wrongful death action, there is no recovery for “loss of consortium.” Also, parents cannot recover for any mental anguish they personally may have experienced as a result of the death except in very limited circumstances. Under Georgia law, punitive damages cannot be sought in a wrongful death action.
It is important to work with a lawyer who understands and recognizes the subtle differences between these various claims, and who can assist in obtaining a full recovery under all the available actions.
If I am divorced from the child’s other parent, can I file a wrongful death lawsuit on my own, or do I need the other parent’s permission?
If parents are living together and are not divorced at the time of the child’s death, then they jointly have the right of recovery in a wrongful death claim.
If both parents are living but are divorced, separated, or living apart, the cause of action is in both parents. If one parent refuses to proceed or cannot be located, the other parent can contract for both parents and proceed, with any ultimate recovery to be shared as out statute provides.
Parents who are divorced, separated or living apart owe a duty to one another to prudently assert, prosecute or settle a wrongful death claim, and a failure to do so by one parent which causes a loss of the right of recovery for the other can leave the first parent subject to liability for that failure.
When parents are divorced, separated, or living apart, either parent may file a motion requesting that the judge apportion any award between the parents. If requested, a hearing must be held at which the judge will decide how the proceeds shall be allocated. A non-custodial parent’s right to recover can be lost if the judge finds that the non-custodial parent has failed to contribute to the support of the child.
The rules governing how divorced or separated parents must bring such claims are complex, and change depending on many circumstances. Issues of remarriage and adoption, conflicts between parents, intrafamily immunity, or children born out of wedlock can complicate things significantly, and require very careful analysis by experienced counsel who will recognize these issues.
Yes. A child’s claim may be – and often is – resolved through a settlement with the one or more parties who are at fault for the child’s injury. Sometimes it may be necessary to file an action first, while other cases may be resolved without need for a lawsuit.
Typically, a lawyer will negotiate with lawyers from the at-fault party’s insurance company to reach a full and fair settlement of the child’s claim and the parents’ related claim. Depending on the size of the child’s net recovery, Georgia law may require a settlement of the child’s claim to be approved by either the court where the lawsuit was filed, or the probate court of the county where the child lives. Additionally, depending on the size of the net recovery, the proceeds may have to be supervised by be subject to supervision by the probate court of the county in which the child resides.
Under Georgia law, net settlements in excess of $15,000 are subject to court supervision to ensure those funds will be properly protected and managed until the child reaches age 18. Annual reports are required to demonstrate that the funds have been properly managed. At James M. Poe, P.C., we carefully handle the negotiation and structuring of settlements to meet the requirements of Georgia law to protect injured minors.
Understandably, parents may be concerned about involving their child in litigation. The child may have gone through a traumatic experience, and parents may be worried about the child having to “re-live” it by pursuing a lawsuit against those responsible for the harm. A child’s condition or scars may make them very self-conscious when they are in public.
At James M. Poe, P.C., we always do our best to minimize a child’s exposure to the rigors of the litigation process. Our goal is to focus on your case so that you and your child can focus on his or her health and recovery. The child’s involvement can be limited, but sometimes it is necessary to involve the child to make sure that full and fair compensation is obtained.
Depending on the child’s age and injuries in may be reasonable to anticipate that the child may be deposed. This is the giving of a statement under oath. Older children may be questioned by the other side’s attorneys. If there are any issues regarding whether a deposition is appropriate, or what ground rules should apply, those issues can be taken to the Court for resolution before any deposition is scheduled. Courts are always careful to protect children in the litigation process. Even if a deposition is deemed appropriate, you child’s lawyer will be present throughout that process to ensure your child’s rights are fully protected.
At James M. Poe, P.C., we understand the sensitivity that a child injury case involves. We pay close attention to the needs of both children and parents throughout the process of seeking a just recovery, and are prepared to guide you and your child through this process.
In Georgia, a person normally must pursue an injury claim by filing a lawsuit in court within two years of the date on which the injury occurred. This is called the statute of limitations.
This two-year limit applies to any claim brought by parents based on an injury to their child such as a claim for medical expenses incurred before the child’s 18th birthday.
However, the child, as a minor, normally has until two years after the child reaches age 18 (or until his or her 20th birthday) to file a lawsuit. It is crucial to note that different rules and time limits apply if the child’s injury arose from medical malpractice.
While the statute of limitations for injury claims may not start to run for many years on the child’s portion of that claim, there are reasons why it is important to proceed promptly after an injury. If there is a lengthy delay before counsel is sought evidence may be lost or destroyed, key witnesses may disappear or move away, records may not be retained, and the ability to recover can be lost or very seriously impaired as a result.
In general, attorneys Jim and Matt Poe advise those who believe their child may have been injured by another’s negligence to take action and contact a lawyer without delay. Cases take time to thoroughly research, investigate and prepare, and you do not want to lose a valid and valuable claim simply because of delay.