It’s every parent’s nightmare–your child is hurt in a car accident. Unfortunately, it happens to people every day. Before something like this happens, you need to be ready to take care of your child’s medical and legal needs. Following is a “how-to” guide to preparing for a possibility that most parents would rather avoid thinking about.
Table of Contents
Get the Child Into a Safe Environment, Perform First Aid, and Call an Ambulance
Move the vehicles off the road to avoid a second impact. In any case, make sure your child is not in the middle of the road. Examine their injuries and perform what first aid you can while you call an ambulance.
If you don’t know first aid already, consider learning some as soon as possible. Once the ambulance and the police arrive, stay out of their way and let them do their job. Cooperate with the police if they have any questions or requests for you.
Exchange Contact and Insurance Details With the Driver(s)
California law requires the drivers involved in an accident to exchange contact and insurance details with each other. This will pave the way for protecting your child’s legal rights later on.
Carefully Monitor Your Child at Home
Some injuries take hours or even days to generate symptoms. Two of the most common examples are traumatic brain injury and soft tissue injuries such as whiplash.
If your child is not in the hospital, watch them closely over the next few days. If they are old enough to talk, ask them to tell you if they experience any pain or discomfort. If your child is too young to talk, you will have to do the best you can on your own.
Collect Relevant Documentation
Collect all the documentation you can concerning the accident. This includes:
- Medical records,
- Medical bills, and
- The police report.
When in doubt about a document, keep it. In addition, keep your own journal containing your observations of your child’s symptoms and behavior.
Talk to a Qualified San Diego Car Accident Lawyer
Get a lawyer involved as soon as possible. Just about any car accident lawyer will offer you a free initial consultation. A lawyer can be of immense help to you and your child.
Negotiate With the Insurance Company
You can expect the insurance company (or whoever else will be paying your claim) to offer you a cheap “lowball” settlement to start out with. Refuse it, and let your lawyer do the negotiating for you. Remember that your lawyer cannot accept a settlement offer without your permission.
File a Lawsuit (if Necessary)
Most of the time, claimants file lawsuits not for the purpose of trial, but for the purpose of pressuring the opposing party to offer a reasonable settlement.
Here is the problem: a minor cannot file a lawsuit in their own name until they turn 18. Nonetheless, you have a few options:
Option 1: Wait for Your Child to Turn 18
One option is to wait until your child turns 18. California’s personal injury statute of limitations is “tolled” (suspended) until a child personal injury victim turns 18.
At that point, your child will have two more years to file the lawsuit before the statute of limitations expires. This approach is probably not optimal, however. Evidence grows stale over time, and the longer you wait to file a claim, the weaker it becomes.
Option 2: Seek Legal Emancipation for Your Child
A court can declare your minor child “emancipated” before the age of 18 if they get married or join the armed services. Once emancipated, the child will enjoy the status of a legal adult with respect to the ability to file a lawsuit.
Option 3: File a Lawsuit as Your Child’s Guardian
Your other option is to file a lawsuit on behalf of your child. The court will probably allow this if you are the child’s parent. Even as a parent, however, you might have trouble convincing the court to let you file on behalf of your child if:
- You have ever been convicted of child abuse or domestic violence, or there is other evidence indicating you are an unfit parent.
- There is a conflict of interest. Suppose, for example, that the accident occurred while your child was a passenger in your car. If the accident might have been your fault, there is a conflict of interest between you and your child.
In either of these two cases, a court is likely to appoint the other parent or a third party as guardian ad litem to represent the child in the lawsuit.
How To File a Lawsuit
To file a lawsuit, you need to complete three tasks:
- File a formal written complaint with the clerk of the appropriate court. It is best to ask a lawyer to draft this document for you.
- Pay the appropriate filing fee.
- Have a third-party “process server” deliver a court summons and a copy of your complaint to the defendant.
Don’t worry – a trial is far from inevitable at this point. The odds are still good that you will end up settling the case and withdrawing your lawsuit.
Gather Additional Evidence During Pretrial Discovery
Pretrial discovery is a court-supervised process whereby each party seeks evidence that is in the possession of the opposing party. The legal weapons available during pretrial discovery include depositions (questioning of hostile witnesses), interrogatories (written questions), and demands for production (demands to examine physical evidence and to copy documents). The court can sanction any party that refuses to cooperate.
Return to Negotiations and Settle Your Claim Under Court Supervision
Hopefully, by this time, you will have gathered enough evidence during the discovery process to force the opposing party to sign a settlement agreement on terms that are favorable to you. Alternatively, you might have won a jury verdict. There are still some administrative hoops to jump through, however.
- To gain court approval of your child’s settlement or verdict, you must file Form MC-350 or Form MC-350EX. You have to do this even if you never file a lawsuit.
- If your child’s settlement is less than $5,000, the California legal system will probably trust you to manage the money for the benefit of your child.
- If your child’s settlement adds up to $5,000 or more, a California court will deposit the money into a blocked account or an investment vehicle after a “minor’s compromise and release hearing.” No settlement agreement is enforceable until this happens.
Once the funds are deposited into the blocked account or the investment vehicle (or a combination of both), only a court order can release the money. The purpose of this restriction is to ensure that the injured child is the only one who receives the benefits of the money. When the child turns 18, the court will release any remaining funds to the child.
You’re Probably Going To Need a San Diego Personal Injury Lawyer
You might not need a lawyer to resolve a simple, low-value claim. Filing a claim on behalf of a child, however, is one of those complications that generate the need for a San Diego personal injury lawyer unless the value of your claim is absolutely trivial. Contact Mission Personal Injury Lawyers, you have little to lose by scheduling a free initial consultation with a lawyer who can tell you whether you need their services. Call us today at (619) 777-5555.
