7 Tips for Lawyers Handling a Minors’ Personal Injury Settlement
Injuries to children are going to happen. In fact, according to the CDC, injury treatment is the leading cause of medical spending for children equaling about $11.5 billion in the United States. A serious injury to a minor child touches the heart more than a comparable injury to an adult. 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.
On July 1, 2013, the Georgia Court of Appeals ruled on a legal malpractice suit filed by a young adult over 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, 2013 WL 3286703 (decided July 01, 2013). Though all the minors’ personal injury 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. I won’t rehash it, but here are seven tips for lawyers representing a minor in a personal injury settlement:
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. 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. Figure out 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 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 and parent’s 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 limitation period deadlines. A minor’s claim for pain, suffering and future medical expense and income loss after reaching 18 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 not classified 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 replay low interest college loans, installments at predetermined ages to pay for down payment on a home, to start a business, etc.
6. Consider associating a lawyer who specializes in guardianships, conservatorships and special needs trusts. Personal injury trial lawyers do not necessarily have the same expertise as those who focus on these issues. When there is a significant recovery for an injured minor , it can be well worth the time, effort and cost to bring in a specialist to structure the handling of funds.
7. Assess the minor’s maturity. To the extent appropriate for the individual minor’s capacity and maturity, involve her in the process. Rule of Professional Conduct 1.14 addresses a lawyer’s duty to a client with diminished capacity, including minors. 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.
Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.