Child Injuries in Texas
The Kishinevsky Law Firm is a personal injury law firm in the greater Houston area. If your child has suffered an injury due to the fault of someone else, contact us today for a free consultation with a Houston child injury attorney.What Makes Child Injuries Different?
If a minor is injured due to the fault of someone else, they generally have the same legal recourse to recover for their injuries as an adult. However, there are several aspects of child injury claims which are unique due to the fact that unemancipated minors are not legally allowed to enter into contracts in Texas, meaning they cannot hire an attorney and must have a guardian or next friend do so on their behalf.Who can Represent Injured Children in Legal Claims and Court Proceedings?
Generally speaking, a minor’s legal guardians have the authority to represent him in legal proceedings. However, Texas Rule of Civil Procedure 44 allows minors who do not have a legal guardian to be represented by a “next friend” in court proceedings.What is the Deadline for an Injured Child to File a Lawsuit?
The general deadline to file a personal injury lawsuit in Texas is two years from the date of the incident causing the injury. Texas Civil Practice and Remedies Code §16.003.
However, if the injured person is under the age of 18 at the time of the injury, the deadline to file a lawsuit for the injury is tolled and does not begin to run until the person turns 18, making the deadline to file a lawsuit two years from the injured person’s 18th birthday. Texas Civil Practice and Remedies Code §16.003.
The tolling of a deadline to file a lawsuit for a minor does not apply to claims that non-minors have arising out of the injury. In cases where a minor is injured, medical expenses are often incurred by the minor’s guardians or other adults. These are considered economic damages of the adult who incurred them, rather than the minor, so the deadline to file a lawsuit to recover these economic expenses is not tolled, making it two years from the date of the injury, not two years from the date the minor turns 18.What is a Guardian ad Litem?
Texas Rule of Civil Procedure 173 allows courts to appoint a guardian ad litem in cases where a party is represented by a next friend or guardian.
A guardian ad litem is an advisor to the court. The main function of a guardian ad litem is to make sure there is no conflict of interest between the next friend or legal guardian and the party they represent. The most common example of this is when there is a settlement involving the claims of both a parent and a minor child. The court will frequently appoint a guardian ad litem in these situations to make sure any settlement is allocated fairly between the child and the parent and the parent is not taking advantage of the situation to take a bigger portion of the settlement than they are actually entitled to at the child’s expense.What is a Minor Settlement Prove-Up Hearing?
In cases involving the settlement of a minor’s claim, the court will hold a hearing to consider relevant evidence about the settlement before it will approve the settlement. This is done to protect the interest of the minor and make sure the settlement is fair to him or her. Generally, the court will want to make sure that:
- the total settlement amount is appropriate in light of the nature and severity of the injuries and damages the minor has suffered,
- the minor has received appropriate medical evaluation and care for his injuries to prevent the possibility that there are other undiscovered injuries from the accident that are not factored into the settlement
- the distribution of the settlement between the minor and his guardian or next friend is fair to the minor
- the attorney is not charging an excessive fee for representing the minor
For smaller settlement amounts, the money is deposited into the registry of the court, where it will be invested along with other registry funds in specific low-risk investments specified by law. The minor will be able to take the money out of the court registry after they turn 18.
For larger settlements, the claimant’s attorney and the guardian ad litem will usually work with the client(s) to agree upon a low-risk annuity or other appropriate investment vehicle to accrue additional money for the minor until they turn 18.
A minor’s settlement funds are never given to the minor’s legal guardian or next friend to manage directly to avoid the potential issues that could arise once the case is closed and the court and the guardian ad litem are no longer involved to prevent any possible conflicts of interest.
If your child has suffered an injury due to someone else’s fault, contact us today for a free consultation with a Houston child injury attorney to discuss your legal options. We will be happy to discuss your situation and help you find out more about your legal rights and what we can do to help you obtain the recovery you are entitled to under Texas law.