Protecting a child's interests following an accident in New York
The days and weeks following an accident or injury to a child can feel like a blur. You've been taking the child from one appointment to another or dealing with hospitals and insurance companies. All you care about, of course, is seeing your child's condition improve.
Reality sets in
As time goes on, different sorts of questions will start to rise. What does our child's future medical care look like? Where will we need to go to get the best treatment? How will she be cared for day to day? How will we pay for this?
These are reasonable, and quite common, questions that parents ask when dealing with the fallout from an accident or injury to a child. Maybe you've dealt with the acute problems immediately following the accident, but what about the chronic issues that the child now faces?
Injuries to children can often be difficult, insofar as they may require significant future treatment based upon the age of the child at the time of the accident. Fortunately, if you consider taking appropriate steps, there may be some help.
New York provides options
As we have described elsewhere, in New York when a child is hurt because of the negligence or errors of someone else (whether a person or company), that child is entitled to recover damages in an attempt to help them.
Of course, the child is not capable of taking this action on her own, so the responsibility of investigating and pursuing such a claim falls to the parents or guardian.
Some parents understandably bristle at the thought of filing a lawsuit on behalf of a child. They worry about what others might think; about whether they can afford it; about how long it will take.; about whether they'll be somehow blamed for the accident. These are fair concerns, but they ignore the reality that the child needs and is entitled to help.
Looking at the big picture
When parents come to us looking for help we often counsel them to look at the big picture – what the child's life looks like in 1,5,10 years. If that child will need future medical care, surgery, or long-term assistance, what does that look like? How is it paid for? How does the injury impact the child's ability to live a “normal” life?
Each of these factors play a role in the decision to move forward with a legal case on behalf of the child. Fortunately, New York provides a clear approach.
When a child is injured in New York, the parent/guardian has the right to pursue a lawsuit against the wrongdoer. This may be the driver of another vehicle, the manufacturer of a product or device, a hospital, dog owner or someone else. While the legal arguments may differ depending upon the type of wrongdoer and case, the potential outcome does not.
How to protect a child long-term
And the outcome is the reason for the action that the parent/guardian has decided to take. If the attorney for the child is able to successfully prove that the injury was caused by the fault of another person/entity, the child will be entitled to recover damages.
Among the damages that the child is entitled to are damages for medical expenses incurred to date; co-pays for future medical treatment; the cost of future medical treatment; the cost of future assisted care; and an award for past and future pain and suffering that the child has and will incur into the future. This includes damages for the emotional distress the child may encounter as a result of the injury into the future.
How are these damages quantified for a child who cannot adequately advocate for herself? They are estimated, often by medical and other long-term care experts. As attorneys for the child, we take care to ensure that the right experts have been brought into the case early on, in order to evaluate the child's condition, likely future needs, and incorporate the costs of those needs into a long-term evaluation.
We then present that evaluation to the insurance company for the wrongdoer or, if they refuse to pay, to a judge and/or jury at trial.
Ensuring long-term help to an injured child
If/when an award is negotiated or given by a jury, however, the work is not done. Let's look at an example:
Madison suffered a severe injury to her left eye when she was bitten by a neighbor's dog who had a history of vicious attacks. She has had two surgeries thus far and continues to have diminished vision as a result of the attack. Her physicians expect to perform another surgery and are unsure about the long-term likelihood of her vision returning.
We have proceeded with pursuing a legal claim against the dog owner in Supreme Court in Saratoga County, and have negotiated a settlement for Madison where her net recovery after payment of costs and fees is $500,000. What now?
Well, the next, and often one of the most critical steps, in a case involving long term care for a child, is to ensure that the funds will be there when the child needs them. This means that we do not simply deposit them into a bank account for the child. Instead, we bring in people who can help the parents make the best decision about how to put the money to work.
Often that means that the funds will be put into what is commonly known as a structured settlement. This is essentially an annuity or series of annuities, which will ensure payments to the child for medical and other needs over the long term. The positives of this approach (and there are many) include the fact that the money will be able to grow as the child ages, and that the flow of the funds will be controlled over time.
So, for example, Madison's $500,000 settlement may be paid to her in annual lump sum payments of $50,000 starting at the age of 18 and continuing for many years after (remember, the money can grow when it's left untouched). There may also be payments along the way for necessary medical procedures, surgeries, etc.
What this means is that the child will be protected long term. The damage cannot be undone, the accident cannot be made not to happen. What can happen is that the parents can move forward and take steps to help ensure that the child's life gets better, and easier, as she gets older. We can help with this, just give us a call.