Love for our children is among the most instinctive and unconditional of human sentiments. Children can be our greatest joy, worry and legacy. The death or serious injury of a child, who has not had an opportunity to experience life and fulfill potential, seems more poignant than a comparable injury to an adult. A serious injury to a minor child touches the heart more than a comparable injury to an adult. Similarly, when a child’s carelessness causes injury, our concern is often as much for the child who caused the harm as for the person injured. According to the CDC, injury treatment is the leading cause of medical spending for children equaling about $11.5 billion in the United States.
Because young children lack the maturity and judgment to make adult decisions about their own juvenile injury claims, their parents and guardians must act for them. Attorneys handling personal injury cases for minors must take care to protect the infant’s interests. Over the years, the legislature and courts in Georgia have developed rules that address the special needs, vulnerabilities and unique circumstances of minors and their parents or guardians who find themselves involved in tort claims.
The need for special care in handling minors’ settlements was highlighted in a decision in a legal malpractice suit released by the Georgia Court of Appeals on July 1, 2013. A young adult alleged mishandling of the settlement of an injury claim when she was five years old. After injury claims for her and her father were settled, her parents divorced. Upon reaching adulthood, she claimed that her father and attorney had conflict of interest and did not protect her interests. Anderson v. Jones, 745 S.E.2d 787, 2013 WL 3286703 (Ga. App., decided July 1, 2013).
Though all the malpractice claims against the law firm were rejected, the decision provides valuable lessons for lawyers representing injured children. Lawyers handling minors’ personal injury tort claims should read Anderson case to get a better understanding of why the minors’ claims were rejected. Here are seven tips to help lawyers representing a minor in a personal injury claim:
1. Carefully comply with the rules on minors’ settlements. Compliance with legal procedures protects the child from wasting or misuse of her funds in a personal injury settlement . It also protects the parents and attorney from costly mistakes and potential liability. See O.C.G.A. § 29-3-2, OCGA § 29-3-3, O.C.G.A. §29-5-23(c)(5) and Probate Court Standard Forms, GPCSF 19, Petition To Compromise Doubtful Claim Of Minor/Ward. For context read OCGA § 29-3-1 through 29-3-100 (conservatorships for minors).
2. Determine if both parent and child were injured. When both parent and child are seriously injured, get someone other than an injured parent to serve as “next friend” or guardian ad litem for the child. This may guard against possible conflict of interest claims about the allocation of damages in the event of a later schism in the family. While not clearly required by law, it may prevent later headaches when dealing with a minors’ personal injury settlement. See OCGA § 9–11–17(c).
3. Distinguish child’s claim from parental claim. Under Georgia law, an injured child has a claim for pain, suffering and loss of future income after age 18, and the child’s parent has a separate claim for medical expense, loss of services and loss of child’s income before age 18. Analyze how medical lien claims will apply to each of these. If one parent may be alleged to share fault for an incident, consider having the other parent or another relative serve as “next friend” or guardian ad litem in suit for the child’s claim in order to reduce risk of confusion of issues.
4. Analyze differing limitation period deadlines. A minor’s claim for pain, suffering and future medical expense and income loss after reaching the age of majority is subject to a two year limitation period starting on the 18th birthday, so the deadline to file that suit is the 20th birthday. OCGA § 9–3–90(a). A parent’s claim for the child’s medical expense, loss of services and loss of income up to age 18 was formerly subject to a 4 year limitation as a property claim but is now generally viewed as a personal injury claim is subject to a 2 year limitation. Mitchell v. Hamilton, 228 Ga.App. 850, 493 S.E.2d 41 (2002). In medical malpractice cases, the limitation is two years with a period of repose only to the 5th birthday, so any case for medical malpractice on a child under 5 must be filed by the 7th birthday. OCGA §§ 9–3–71, 9–3–73(b).
5. Consider structuring all or part of a minor’s settlement to pay out after the child becomes an adult, eliminating or reducing the need to for guardian bonds and annual reports to probate court. For example, a structured settlement annuity can have payments scheduled to pay for college, a lump sum at perhaps age 23 to repay low interest college loans, installments at predetermined ages to pay for down payment on a home, to start a business, etc. There are many ways to structure payment of funds so use a plaintiffs’ side structured settlement specialist.
6. Consider associating a lawyer who specializes in guardianships, conservatorships and special needs trusts to assist at the time of settlement. Personal injury trial lawyers do not necessarily have the same skill sets as those who focus on probate and estate matters. When there is a very significant recovery for an injured minor, particularly one with a significant disability resulting from the injury, it can be well worth the time, effort and cost to bring in a specialist to assist with probate court issues and help structure the handling of funds.
7. Assess the minor’s maturity. “Reasonable adolescent” is not necessarily an oxymoron. Georgia Rule of Professional Conduct 1.14 addresses a lawyer’s duty to a client with diminished capacity, including minors. To the extent appropriate for the individual minor’s capacity and maturity, involve her in the process. Obviously a 5 year old lacks the capacity to meaningfully participate in decisions about tort settlements, but some bright, mature 14 year old adolescents have better sense than their parents and even their lawyers. I was once the mediator in a wrongful death case in which the decedent's 13-year-old daughter had better sense about long-term objectives than her lawyers. Listen and take into account a mature teenager’s educational and occupational aspirations along with all other relevant factors.
Ken Shigley is a past president of the 44,000 member State Bar of Georgia (2011-12), past chair of the trustees of the Institute for Continuing Legal Education in Georgia (2012-13), a board certified Civil Trial Advocate of the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation & Practice (West Thomson Reuters, 2010-13). He is also a past board member of the American Association for Justice Trucking Litigation Group, and currently secretary of the AAJ Motor Vehicle, Highway & Premises Liability Section.