As personal injury counsel, we are often faced with the difficult task of working on behalf of injured children and their families. As parents, we understand that injuries to children can involve devastating and heartbreaking situations and present unique legal issues which practitioners need to consider.
When encountered with a claim for injuries to a child, it is initially important to determine the applicable statute of limitations. The general statute of limitations for personal injury claims under Indiana law is two years. Ind. Code § 34-11-2-4. However, because children are legally incompetent due to their minority, they do not have the legal capacity to sue on their own. For this reason a minor’s statute of limitations is generally tolled until they reach majority. Ind. Code § 34-11-6-1. Therefore minors generally have until their 20th birthday to bring personal injury claims.
The requirement of serving tort claims notice under the Indiana Tort Claims Act is also tolled for minors. Specifically, while a tort claim notice must be sent within 180 days (for claims against a political subdivision) or 270 days (for claims against the State) Ind. Code § 34-13-3, the clock does not begin to tick on a minor’s governmental tort claim notice until their 18th birthday. Upon reaching the age of 18, minors then have 180 days or 270 days to serve a tort claims notice. City of Indianapolis v. Hicks, 932 N.E.2d 227 (Ind. App. 2010).
The statute of limitations for a minor’s medical malpractice claim is governed by a different standard, however Indiana’s Medical Malpractice Act establishes a two year limitations period applicable to claims against health care providers resulting from negligent healthcare. Carved from this general rule is an exception for malpractice victims less than six years of age. Under the Medical Malpractice Act, victims of malpractice who are under the age of 6 at the time of the negligent act have two years after their 6th birthday to file a claim. Ind. Code § 34-18-7-1(b). If the malpractice claim arises after a child’s 6th birthday, the Act’s two year statute of limitations will apply to the claim, and it is not tolled to a later age. See, e.g., Ledbetter v. Hunter, 842 N.E.2d 810 (Ind. 2006).
While the statute of limitations for minors’ claims is tolled under some circumstances, it is important to note that the parents’ derivative claims are not. If a parent seeks to bring their derivative claim for loss of services, lost wages or for reimbursement of medical expenses resulting from their child’s injuries, it must be filed within two years from the date of the injury or the claims will be barred. Campbell v. Supervalu, Inc., 565 F. Supp. 2d 969 (N.D. Ind. 2008) (applying Indiana law). Of course, claims for medical expenses can be made by both the parent and the child. Scott County School District 1 v. Asher, 324 N.E.2d 496 (Ind. 1975) (holding “that both parent and child are liable upon suit by the doctor or the hospital, and consequently either may be compensated for the reasonable value of medical expenses”). Therefore, if a parent does not initiate their personal claim arising from the child’s claim within two years, their claim will be lost. However, because the claim for medical expenses incurred by the child also belongs to the child, the child may still include the medical expense claim as part of his or her case provided it is brought within the child’s applicable statute of limitations.
Because children are incompetent to bring their own personal injury action due to their minority, parents or guardians must pursue a claim on behalf of the child. Once a minor’s claim is pursued, you must consider how comparative fault and contributory negligence apply to a minor’s claim. Under Indiana law, minors under the age of seven are conclusively presumed incapable of fault, and there is a rebuttable presumption that children between the ages of seven and fourteen are likewise incapable of fault. Clay City Consolidated School Corp. v. Timberman, 918 N.E.2d 292 (Ind. 2009). Once over the age of fourteen, a child is chargeable with exercising the standard of care of an adult, absent special circumstances. Id.
In addition to dealing with the child’s fault, the fault of the parents must be considered. When a parent’s fault contributes to a child’s injuries, questions arise as to how the parent’s fault is to be treated under the Comparative Fault Act. In these circumstances, the parent’s fault is not imputed to the child. However, the parent may be named as a non-party. Witte v. Mundy, 820 N.E.2d 128 (Ind. 2005). This distinction is important, as under many circumstances improperly imputing a parent’s fault to a child could preclude a child from recovery due to the Comparative Fault Act 50% fault threshold being eclipsed if the child’s and parent’s fault were to be combined. While a parent’s fault is not imputed to a child in the child’s injury claim, if a parent brings their own claim to recover for medical expenses or loss of services, the parent’s comparative fault will preclude recovery if such fault is more than 50%. Hockema v. J.S., 832 N.E.2d 537 (Ind. App. 2005).
While pursuing claims on behalf of children can present difficult issues, resolving and finalizing a child’s settlement present unique issues which must be addressed as well. A parent may compromise their child’s claim, but before the compromise is valid it must be approved by a court of competent jurisdiction. Ind. Code § 29-3-9-7. This requirement exists regardless of the amount of the settlement, large or small. However, if a settlement provides the child a recovery of $10,000 or more, a guardian must be appointed to receive the settlement proceeds under the terms of distribution as the Court deems appropriate. Ind. Code 29-3-9-7. The guardian is appointed to oversee and protect the money for the child until the child reaches the age of majority. If a settlement results in a recovery of less than $10,000, a guardianship is unnecessary and the court can authorize distribution directly to the parents with the provision that the parents must use the money for the support, use and benefit of the minor. See Ind. Code 29-3-3-1.
In the end, handling children’s claims can present unique challenges. However, they also provide unique opportunities to help children and families through difficult times.
The personal injury attorneys at Parr Richey Obremskey Frandsen & Patterson represent the interests of Indiana accident victims and their families, helping them to obtain compensation for their damages. To schedule a free and confidential consultation with one of our lawyers, contact us today online or at (888) 532-7766.