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. Tennessee 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 ten percent (10%) at fault, the recovery will be limited to $4.5 million dollars.
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 Tennessee law, the heirs are entitled to recover compensation for loss of love, companionship, comfort, society, affection, solace or moral support in a death case. However, they are not entitled to recover for grief.
8. How soon must we bring a lawsuit on behalf of our child?
Tennessee has a one year statute of limitations. Thus any claim by parents must be brought one year fro the date of the injury to the 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. In a medical malpractice case, a child must sue within three years of the date of injury. An attorney must be consulted to obtain accurate information about any applicable statute of limitations.
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 a ceratin amounts 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.