Seven Key Factors in Handling Minors’ Tort Claims in Georgia

Love for our children is among the most instinctive and unconditional of human sentiments. Children can be our greatest joy, worry and legacy. The death or serious injury of a child, who has not had an opportunity to experience life and fulfill potential, seems more poignant than a comparable injury to an adult. A serious injury to a minor child touches the heart more than a comparable injury to an adult. Similarly, when a child’s carelessness causes injury, our concern is often as much for the child who caused the harm as for the person injured. According to the CDC, injury treatment is the leading cause of medical spending for children equaling about $11.5 billion in the United States.

Who can file suit for a child’s personal injury?

A parent or other guardian. 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. Over the years, the legislature and courts in Georgia have developed rules that address the special needs, vulnerabilities and unique circumstances of minors and their parents or guardians who find themselves involved in tort claims.

Is it important for parents and guardians to be very careful in handling a child’s injury claim?

Obviously yes. But beyond the moral duty, there is also a legal duty to the child. The need for special care in handling minors’ settlements was highlighted in a decision in a legal malpractice suit released by the Georgia Court of Appeals on July 1, 2013. A young adult 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, 745 S.E.2d 787, 2013 WL 3286703 (Ga. App., decided July 1, 2013), Though all the malpractice 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 to get a better understanding of why the minors’ claims were rejected. Here are seven tips to help lawyers representing a minor in a personal injury claim:

Why is it important to follow court rules to protect a child’s settlement funds?

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 and potential liability. 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).

Why is it important to separate claims for the child’s injury and the parent’s injury?

When both parent and child are seriously injured, it is a safeguard to 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 clearly required by law, it may prevent later headaches when dealing with a minors’ personal injury settlement. See OCGA § 9–11–17(c).

Why is it important to distinguish child’s claim for injury from a parental claim for medical expenses and loss of services?

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. It is essential to analyze how how medical lien claims will apply to each of these. If the defense might claim that one parent has some fault share fault for the child’s injury, it is prudent to 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.

Why is it important to analyze differing limitation period deadlines?

The variety of time limits can be a trap for the unwary. A minor’s claim for pain, suffering and future medical expense and income loss after reaching the age of majority is 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 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). A lot of people have tripped up on these varying limitations.

Why is it important to consider structuring all or part of a minor’s settlement?

When a settlement is structured to have an annuity to pay out after the child becomes an adult, that eliminates or reduces the need to for guardian bond 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 repay low interest college loans, installments at predetermined ages to pay for down payment on a home, to start a business, etc. That eliminates the temptation for a parent to “borrow” part of the child’s funds without court authorization. It also relieves the parents of a lot of potentially confusing paperwork requirements. There are many ways to structure payment of funds so use a plaintiffs’ side structured settlement specialist.

Why do personal injury lawyers hire another lawyer who specializes in guardianships, conservatorships and special needs trusts to assist at the time of settlement?

Much as physicians have a variety of specialties involving different training and skills, personal injury trial lawyers do not necessarily have the same skill sets as those who focus on special needs trusts, probate and estate matters. When there is a very significant recovery for an injured minor, particularly one with a significant disability resulting from the injury, we routinely use a portion of our fee to hire a specialist to assist with a special needs trust, if appropriate, and the probate court issues..

Why is it important to assess a minor’s maturity in settling a personal injury case?

“Reasonable adolescent” is not necessarily an oxymoron. Georgia Rule of Professional Conduct 1.14 addresses a lawyer’s duty to a client with diminished capacity, including minors. To the extent appropriate for the individual minor’s capacity and maturity, we try to involve her in the process. Obviously a 5-year-old lacks the capacity to meaningfully participate in decisions about injury settlements, but a bright, mature teen as young as 12 or 13 may have better sense about long-term objectives than adult relatives. It is important to listen and take into account a mature teenager’s educational and occupational aspirations along with all other relevant factors.

Ken Shigley received the State Bar of Georgia Traditions of Excellence Award in 2019. He is a past president of the State Bar of Georgia (2011-12) and past chair of the trustees of the Institute for Continuing Legal Education in Georgia (2012-13). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy.. He was lead author of eleven editions of Georgia Law of Torts: Trial Preparation & Practice (West Thomson Reuters, 2010-21). He is also a past chair of he AAJ Motor Vehicle, Highway & Premises Liability Section and past board member of the Academy of Trucking Accident Attorneys.