Representing children who have been injured is considerably different than representing adults. Regardless of how seriously a child has been injured, no minor wants to sue a friend, a friend’s parents, a neighbor, or a teacher. Even more challenging, children are not as articulate as adults, especially when the minor has suffered post traumatic stress from his or her injuries.
A. TYPES OF INJURIES TO CHILDREN
Children can suffer serious injuries in countless ways.
1. Motor vehicle accidents
Children are more likely than adults to suffer a severe injury in an automobile accident, because their small bodies cannot efficiently absorb and dissipate a physical impact. Stewart A. Sutton has successfully represented numerous minors who have been injured in vehicular accidents as both passengers and pedestrians.
Children are often injured at school, because they spend much of their waking hours at educational institutions
In a class room, a teacher can violate a student’s right to privacy by disclosing confidential medical information. Stewart A. Sutton successfully represented a minor whose HIV condition was disclosed by a Montgomery County public school teacher, because the teacher incorrectly believed that AIDS could be transmitted by sharing lip balm.
Each year, countless students are injured in playground fights. Teachers can be held liable for their failure to properly police the playground to stop fights between students. Besides physical injuries, it is common for a child who has been hurt in a school yard fight to suffer post traumatic stress symptoms.
c. Physical education classes
Many children are excused from participating in physical education due to medical conditions, such as asthma. Unfortunately, it is all too common that these children suffer exertion related injuries when their physical education teachers coerce them to participate in strenuous physical exercise.
d. Playground equipment
The school has a duty to properly maintain playground equipment and to supervise the children’s proper use of the equipment under the doctrine of loco parentis.
3. Sleepover parties
When parents hosts a sleepover party, the parent expressly assume the
responsibility of caring for their under aged overnight guests. Stewart A. Sutton has successfully represented a child who broke her ankle at sleepover parties due to the failure of the hosts to properly supervise the use of a trampoline. He also has successfully represented the parents of 2 children who died in a house fire in Gaithersburg, Maryland during an overnight sleepover when candles were used during a power outage.
4. Pools and hot tubs
Drowning is the second leading cause of unintentional injury-related death among kids ages 1 to 14. An adult host’s duty to supervise minor guests’ use of a pool or spa is inversely proportional to the child’s age.
5. Dog bites
Thousands of children are wounded and scarred each year by dog bites. They are usually bitten by a neighbor or friend’s dog. Stewart A. Sutton successfully represented a girl who was bitten on the face at a friend’s house by the family dog.
6. Daycare Centers
Children are frequently injured at daycare centers due to understaffing and/or misuse of playground equipment. Stewart A. Sutton successfully represented a 5-year girl who finger was partially severed at a daycare center. The child was riding inside a wooden carriage that was being pushed by another child. The child’s finger was crushed between the side of the carriage and an outdoor post. The daycare center was liable for the child’s injuries, because the wooden carriage was never designed for outdoor use.
Stewart A. Sutton represented a mother whose son suffered disfiguring third degree burns when his babysitter held the child’s hand in a pot of boiling water. The babysitter pled guilty to assault, battery, and cruelty to a minor; and she is serving a long prison sentence.
8. Psychiatric Hospitals
When a child is hospitalized to treat mental illness or substance abuse, the hospital’s foremost duty is to protect the minor from harming himself or herself as well as protecting the child from other patients. Stewart A. Sutton has successfully represent a minor who was harmed as a result of the hospital’s failure to properly monitor the minor patient.
9. False arrest and false imprisonment
Security guards often stop and detain children, despite the lack of probable cause to believe that the child committed a felony or breached the peace. Stewart A. Sutton has sued security guards firms for falsely arresting and imprisoning children.
When a child suffers an injury, the child and the parent can recover 3 types of compensatory damages.
1. Medical and hospital bills
The parents are entitled to recover the child’s medical and hospital bills, because the parents are responsible for providing medical care for their children. Even if the child has insurance, the parents are still entitled to be reimbursed for their child’s healthcare expenditures.
2. Pain and suffering, including mental and emotional distress
Anytime a child is physically injured, the child is entitled to compensation for his or her pain and suffering.
The minor is also entitled to be compensated for his or her mental and emotional distress in situations where there has not been a physical impact, such as when a teacher discloses the child’s confidential medical condition.
3. Lost Wages
If the child’s injuries prevents him or her from working at a regular job, the child can recover his or her loss income. If the child suffers a permanent injury, the child may be entitled to his projected future lost wages.
C. WRONGFUL DEATH OF A CHILD
For a wrongful death of a child, parents can collect damages for their own emotional distress as well as for their child’s pre-death pain and suffering. As of October 1, 2016, the total amount of emotional distress damages (also known as non-economic damages) that parents can recover for the wrongful death of their child is capped at $1,245,500 in Maryland; and this amount increases by $22,500 on October 1st of each succeeding year.
For an unmarried child between the ages of 18 and 21, the parents can recover their emotional distress damages as long as the parents provided more than half (50%) of child’s support within 12 months before the child died.
As of October 1, 2016, the total damages the child’s estate can recover for pre-death fear, pain, and suffering is capped at $830,000 in Maryland; and this amount increases by $15,000 on October 1st of each succeeding year.
The parents are also entitled to repayment of their child’s medical and up to $5,000 in funeral expenses.
D. STATUTE OF LIMITATIONS
Adults have 3-years to file suit to recover for their personal injuries. This is known as a statute of limitations. In Maryland, the statute of limitations for minors extends to the day before their twenty-first birthday. However, it is a better practice for a parent to file a lawsuit on behalf of their child as soon as practical. Otherwise, memories of the accident will fade and documentation of the child’s medical treatment and bills may be difficult to find.
When one parent has sole custody of the minor, the custodial parent has the exclusive right to file suit on behalf of the minor for a period of 1-year after the accident. If the custodial parent does not file suit, the non-custodial parent or any other adult can file suit on the child’s behalf in the capacity of the child’s best friend.
E. COURT’S APPROVAL OF A SETTLEMENT
Over 90% of all personal injury lawsuits are resolved by the parties entering into a settlement. In Maryland, it is a common practice for the parties to ask the Court to approve the settlement as being in the child’s best interest and then having the court enter a consent judgment for the amount of the settlement.
F. SETTLEMENT AND JUDGMENT PROCEEDS
When a minor receives more than $5,000 as a result of a settlement or judgment, the parents are required to deposit the proceeds into a protected trust account. The child may withdraw the money from the protected trust account when he or she turns 18, or if the Court approves a withdrawal prior to the child reaching the age of 18 upon a showing of good cause.
Seventy percent (70%) of the child’s protected trust fund must be invested in zero risk obligations, such as AAA- or AA-rated government bonds, Treasury Notes, or CDs. Only 30% may be invested in a mutual stock fund or money market fund, as long as the prospectus of the fund states that its objective is long-term growth or capital appreciation.