Understanding Claims Relating to Children

INJURY TO A CHILD:

1. My child has been injured. How long do I have to bring a lawsuit on behalf of my child?

Answer: Under the law in Tennessee, there are time limits on which any person can bring a lawsuit against another. The general rule is that a child has until one year after his or her eighteenth birthday to bring a lawsuit to recover for a personal injury. Some people argue, however, that a parent’s claim for medical expenses incurred on behalf of the child must be filed by the parent within one year of the incident causing the injury, and thus it makes sense to consult with a lawyer promptly about any injury to your child that you believe was caused by someone else’s negligence.

If the child was injured as a result of medical malpractice, different rules apply. Medical malpractice claims are subject to a statute of repose. A statute of repose imposes an absolute time limit for bringing a claim regardless of the age of the injured person. The statute of repose for bringing a medical malpractice claim is three years. This means that a medical malpractice claim must be initiated within three years of the date of the malpractice regardless of the age of the injured person. Therefore, for example, a medical malpractice claim for a child injured during birth must be initiated within three years of the date of the birth of the child. There are certain other types of lawsuits where a minor must take legal action before his or her 19th birthday.

A new Tennessee law requires that medical providers be given 60 days advance, formal notice before being sued for medical malpractice. The notice must be given before the expiration of the time limit for initiating the claim. If proper notice is given, the deadline for filing the lawsuit is then automatically extended by 120 days.

Determining the deadline for filing suit in a particular case is very complicated. The consequence of a late filing – even by one day – is the loss of your legal rights. Therefore, the safest course of action is to contact an attorney as soon as possible if you believe you may have a claim. Most lawyers do not charge for this type of consultation.

2. What damages are recoverable in a lawsuit arising from an injury to a child?

Answer: An injured child may recover the cost of past and future medical expenses and (if working) lost wages. If the child’s ability to earn a living has been impaired then the child can recover for the lost capacity to earn money. The child may also recover for pain and suffering, the loss of enjoyment of life, disability and disfigurement.

If a parent or family member has paid expenses (such as medical expenses) on behalf of the child as a result of the injury then those may be recovered. Parents may also recover for the loss of services of a child who has been injured.

3. What medical bills can be recovered?

Answer: People injured by the negligence of another can recover the reasonable medical bills necessarily incurred as a result of the incident. To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

4. What is physical pain and suffering?

Answer: Pain and suffering is physical discomfort caused by an injury.

5. What is mental or emotional pain and suffering?

Answer: Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

6. What is disfigurement?

Answer: Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

7. What is loss of enjoyment of life?

Answer: Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities he or she once enjoyed.

8. What is disability?

Answer: Disability is the loss of the claimant’s ability to do the same physical things that he or she did before the injury.

9. What is loss of earning capacity?

Answer: Loss of earning capacity is the loss of the ability to work and earn money. It may be an amount equal to lost wages as a result of the injuries received in the incident. If your child had suffered permanent injuries that affect his or her ability to work and earn money, it includes those monies likely to lost in the future because of the injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a college student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at McDonald’s. Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

10. I think I have a personal injury claim to bring on behalf of my child. What do I do?

Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.

DEATH OF A CHILD:

1. How long do I have to bring a lawsuit arising from the death of my child?

Answer: The most conservative answer to this question is one year from the date of the injury that later gives rise to the death.

If the child died as a result of medical malpractice, then a new Tennessee law requires that the medical providers be given 60 days advance, formal notice before being sued. The notice must be given before the expiration of the one year time limit for bringing the lawsuit. If proper notice is given, the deadline for filing the lawsuit is then automatically extended by 120 days.

Determining the deadline for filing suit in a particular case is very complicated and therefore the safest course of action is to contact an attorney as soon as possible if you believe you may have a claim.

2. What damages are recoverable in a lawsuit arising from the death of a child?

Answer: Damages recoverable for the loss of a child include medical and funeral expenses. The parents may also recover for the pecuniary value of the child’s life. This is determined by taking into account many factors including the wages the child would have earned during the child’s lifetime, and the loss of the child’s love, society and affection.

3. My child lost his life as a result of someone’s mistake. What are my legal rights?

Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.

© 2010 Law Offices of John Day P.C.