Recognizing the needs and vulnerabilities of children, both law and medicine have special methods by which children are treated following a traumatic injury.
In medicine, consideration of the difference between children and adults comes into play in diagnosis and treatment. Depending upon the age of the child, communication may be difficult. A child may describe a symptom with limited vocabulary. A symptom an adult would describe as “blurred vision,” for instance, may be described by a child as “foamy” or some other descriptor. More importantly, a child may answer in the negative to a query about a specific symptom simply because they do not know what the word means, or may be too embarrassed to say yes. Specialized healthcare providers who understand the communication differences are important in getting accurate subjective information on which to base a diagnosis and then move forward with proper treatment.
Physiological differences are also important to address in treatment. An orthopedic injury such as a fracture, for example, must take into consideration the further growth of the bone in addressing the best form of treatment. Inappropriate repair of a fracture could lead to an adverse impact on the bone’s growth and lead to long-term problems as the child grows. Pediatric specialists in virtually every practice area are generally accessible in populated areas and should be consulted when a child has suffered a traumatic injury.
Likewise, the legal system recognizes different standards of conduct for children and the unique vulnerabilities, incapacities, and limitations of this group. Washington law allows additional time for bringing actions against a negligent party on behalf of a child, and dictates who may bring and settle such a claim for a child.
A. Standards of Care and Statute of Limitations
In negligence actions, a child’s conduct is not held to the same standard as an adult’s. If a child causes an injury to another, he or she will be considered negligent only if the standard of the behavior falls below that of a reasonably careful child of the same age, intelligence, maturity, training, and experience. [1] Public policy recognizes that it would be unfair to hold a child’s behavior to that of an adult.
When a child is the one who has been harmed by the negligence of another, some special rules apply for their claim for damages and personal injury. For example, in Washington State, the period of time in which an action against a negligent party must be brought (named the Statute of Limitations law) is three years from the date of the occurrence. However, when a child is the harmed party, the three-year Statute of Limitations does not start until the child’s 18th birthday. Then the child has three years from his or her 18th birthday to resolve the claim or file a lawsuit. The clock does not begin ticking right away as it does for an adult.
B. Waivers
Despite the broad decision-making power of parents, there are instances in which the law does not allow a parent the final say. In Washington State, an adult may sign away their right to bring an action for negligence against a potential party. The releases or waivers are a common occurrence when undertaking a recreational activity in which injury may occur.
In 1992, the Washington Supreme Court held these releases to be unenforceable as applied to children because they violate public policy[2] and are contrary to the public good. In short, a parent may not sign away the legal rights of their children. However, the release may bar any claim by the parent for their own loss resulting from their child’s injury.[3]
C. Minor’s Personal Injury Settlement: Court Approval Required
When a case is concluded through settlement negotiations, Washington courts do not allow parents unfettered discretion.
When a claim is concluded for a minor Washington law requires that any tentative settlement be approved by a court, whether a lawsuit has been filed or not.
When reviewing a minor’s settlement that is agreed to by the parent (regardless if the parent has retained an attorney for the child), the court will appoint a specially trained representative called a Settlement Guardian ad Litem (SGAL) to review the facts of the case and provide a written opinion to the judge regarding the reasonableness of the proposed settlement. This protects the child from a parent potentially – perhaps through lack of knowledge – striking a bad deal. If approved, the court will require that the settlement funds of the child be placed in a blocked account. Money from the account cannot be withdrawn without a court order until the child turns 18.
When a child is the victim of a traumatic injury caused by another, it is important that he or she is treated by top healthcare specialists trained in understanding, evaluating and treating injuries to children. Likewise, only attorneys with experience and knowledge in understanding the special needs and requirements governing children and injury laws should be sought for legal representation. At Adler Giersch ps we have represented children of all ages and have worked hard to protect and preserve their rights as children to ensure best healthcare and injury claim outcomes.
