Children do have a right to seek and to receive compensation if injured in an accident due to another individual’s or entity’s unsafe actions or unsafe conditions. In Massachusetts, anyone under the age of 18 years old is a minor and lacks the legal capacity to bring a personal injury claim on their own. However, their parent or legal guardian may bring a claim for personal injury on their behalf.

Accidents that can happen to adults can happen to a minor. Whether it be as a passenger in a car accident, being served food the minor is allergic to, or being bitten by a dog, unfortunately children are just as prone to accidents as adults. The law recognizes this, and children have a right to receive compensation for the damage they suffer due to an accident caused by someone else’s negligence or bad behavior.  Whenever a personal injury case involves a minor, there is a different process to be followed to pursue a personal injury claim to make sure the minor’s best interest is protected. This blog will highlight the process to pursue an injury claim for a minor who is under the age of 18 years old.

1. The involvement of the parent or legal guardian of the minor

A parent or legal guardian can bring a personal injury claim on behalf of a minor. Throughout the process, the parent or legal guardian will be the one in direct communication with the attorney hired and make decisions in the case. The parent or legal guardian will also be the one that signs all documentation, such as health authorizations to release medical information and the contingent fee agreement.

However, if the minor turns eighteen while the injury case is still open, becoming a legal adult, he or she has the ability to take over in the case and be the individual party, without the parent or legal guardian’s involvement. The new adult can replace his or her legal guardian or parent in the case or lawsuit that was filed on the minor’s behalf. In this case, the newly legal adult will be the one signing all documentation and making any decisions on settlements.

2. How compensation is paid out to protect the interests of the minor

All compensation, whether reached through trial or settlement, solely belongs to the child. The parent or legal guardian who represents the child throughout the case or lawsuit has no legal right to any compensation from the case unless there is a separate claim for them specifically. Because of this, in most cases, the money is placed into a trust, a restricted bank account, or a structured settlement where periodic payments are made to the injured party that will not be accessible until the minor turns 18. This prevents the legal guardian or parent from using the money for his or her own use.

The method used to protect the money for the minor depends on several factors and one of the primary factors is the amount of the settlement. In some cases, the parent or legal guardian may be the custodial of the minor’s bank account or trustee of the trust and the settlement terms include allowing the parent or legal guardian the right to use the money being held for the minor  for the minor’s benefit while the child is still a minor for such things as essential needs like clothing or school needs such as a computer.

The court is often involved, even in the case of a settlement of a minor’s personal injury claim, to make sure the settlement is in the child’s best interest. A judge will ensure the amount agreed to in the settlement is fair. The judge will also determine whether the payout plan, whether it be through a trust, restricted bank account, or periodic payments, is in the best interest of the child.

3. Court approval is typically required on a minor’s settlement

In a case involving a minor, there is often a settlement reached with the insurance company who insures the at fault party that caused harm to the minor. When a settlement is reached, the insurance company usually requires that the court approves the settlement before the insurance company is required to pay out the settlement money. The exception to this is if it is a small settlement for a small case, typically under $5,000.00.

Court approval requires the insurance company attorney and minor’s attorney to prepare a petition for minor settlement approval, file it with the court and request a hearing for the judge to approve the settlement for the minor. Depending on the court where the petition is filed, the minor who was injured and his parent or legal guardian must attend the court hearing either in person or by Zoom hearing with their lawyer and present the case to the judge for approval. These hearings are usually straightforward and routinely allowed by the court. Once the court approves the settlement and issues the court order for approval, the insurance company will then issue the settlement check.

4. Children can receive the same types of compensation available to adults.

The same types of compensation are available in all personal injury cases regardless of whether they involve an adult or a minor.

Minors can recover for all medical expenses that result from the accident. These can be medical bills immediately after the accident, such as emergency room bills, surgery bills, bills for imaging or other medical tests, or a follow up with a primary care physician, or bills for more long-term care that will continue beyond when the case is closed, such as long-term physical therapy or additional care, in the case of permanent injuries that need recurring visits.

Children can also recover for pain and suffering. Pain and suffering include the immediate pain caused by the accident as well as long term suffering, such as anxiety or PTSD caused by the accident, or the loss of the ability to do something that was a major part of his or her life, such as playing a sport.

Even though a child may not be old enough to be in the workforce at the time of the accident, they can still recover for loss of future earnings. If the accident caused a permanent injury that will affect his or her ability to work throughout life, for example if the accident created a permanent disability, then the child can receive compensation for this loss of future income.

Another form of compensation that is sometimes granted is parental loss of income. If a parent must take time off from work to care for the child after the accident and bring them to appointments needed for injuries caused by the accident, then compensation may be available.

5. Statute of limitations

The statute of limitations dictates how long a person has to file a lawsuit in court after an accident happens. If an injured party fails to file suit within the time allowed their claims for personal injury are forever barred. In Massachusetts, the statute of limitations for a personal injury case is generally 3 years. There are some exceptions. However, the rule differs when a minor is involved. For an accident involving a minor, the statute of limitations is 3 years after the child turns 18. For example, even if a child was 6 years old at the time of an accident, he or she can file a lawsuit until his or her 21^st birthday. This is a major difference between adult personal injury cases and cases involving minors because it can greatly increase the length of time for when a lawsuit must be filed. There are some exceptions to this general rule involving minor’s statute of limitations.

Whether a parent or legal guardian files a claim on behalf of a child after an accident or a young adult files on behalf of themselves years after an accident, personal injury claims are available to minors just as they are available to adults. Keep in mind that strategically it may not make sense to wait to pursue a personal injury claim for years after the accident as evidence may be lost for example making it difficult to prove the personal injury case. Although some of the procedures may differ from an adult’s claim, a minor can still recover for any damages he or she encounters from being involved in an accident due to someone else’s fault.

At Nadeau Harkavy LLC, we have over 60 years combined experience representing injured people including children and their families when they have been involved in a motor vehicle accident, trip and fall or other type of accident. We have recovered millions of dollars in compensation for our clients over the years to help them get on with their lives after suffering the consequences of a serious accident.  We make sure everything is done to protect your interests while you and your family concentrate on getting better. We handle all types of car accident cases including wrongful death and brain injury. We represent drivers, passengers, pedestrians, bicyclists, as well as other types of car accident cases such as scooter, motorcycle, and skateboard cases. We also handle other types of injury cases such as trip and fall, slip and fall, dog bite, allergic reaction, construction site, and catastrophic injury accidents. If you or a loved one has been harmed through no fault of your own, call us today for a free consultation about your legal rights at 617-674-7640.