When Child Is Injured in Texas, What Happens?

DIFFERENT LEGAL PROCEDURES APPLY WHEN CHILD IS INJURED

Being injured in a car or truck accident when you are an adult can be a traumatic, life-changing experience, but it can be even worse when your child is injured due to the negligence of another driver. In addition to caring for your child, you can be saddled with huge medical expenses and lose wages from your job. Texas has procedures that can make recovering money for a child’s injury easier, but they can be complicated if you don’t know what to expect. This post will explain how a child’s injury case is handled in Texas and explain terms you will need to know including

• minor prove up hearing;
• structured annuity;
• registry of the court; and
• guardian ad litem

I thought to write this post because I was in court yesterday representing a 16-year-old woman who had broken her finger at a church retreat. The judge had appointed me to represent her interests since she was a minor, i.e. under the age of 18. The mother, who did not have an attorney, had many questions.

And this morning, I told a client that I was filing a lawsuit so we could conclude his son’s $30,000 settlement (the maximum available) and he wanted to know more about this process.

Whether it is a baby or a 17-year-old who is injured, a child is not allowed under the law to represent himself since they have not achieved the age of majority. Until someone is 18, he or she is not allowed to make legal decisions, enter into contracts, or hire attorneys, which makes sense. So all states have special procedures to protect the best interests of the minor child.

A LAWSUIT MUST BE FILED

I explained to my client this morning that this we had to go through a brief legal procedure. A judge has to approve the settlement so that the insurance company will pay it. Usually, when an adult receives an out of court settlement from an insurance company, he simply signs a release and receives a check to compensate him for his damages.

However, since a minor cannot go to court on his own, the courts have invented the oxymoron of a “friendly lawsuit” to ratify the settlement. Here’s how it works.

If the amount of the settlement is generally $5,000 or more, the insurance company will require that one or both parents as the “next friends” file a petition in a court that has jurisdiction and venue, usually where the crash happened.

If the parents are divorced, the one with legal custody and the right in the divorce decree to represent the child in legal proceedings decides whether to accept the offered amount and is named the next friend.

Occasionally, the insurance company will pay a settlement as high as $10,000 – $20,000 without requiring a prove up hearing.

The county court at law can often hear cases quickly and they have jurisdiction up to $200,000, so many of these petitions are filed there.

ROLE OF THE GUARDIAN AD LITEM

A motion is then filed asking the judge to appoints an attorney to serve as the guardian ad litem (in Latin, for the duration of the case). His job is to represent the child and advise the court whether the settlement is fair and in the child’s best interest. Under Texas Rule of Civil Procedure 173, the guardian has the duty to investigate the claim and make a report to the judge.

Generally, this will involve him meeting or talking to the parents and the other lawyers by phone to learn the case details. He will study the police report, photographs, bills, records, liens, itemization of the settlement proceeds, insurance policy declaration pages, and other evidence.

In all of my cases, I attempt to reduce outstanding medical bills and subrogation liens filed by health insurance companies or governmental entities, especially Medicaid.

As guardian ad litem, I file a detailed report with the court explaining my investigation and recommendation and work with the other attorneys’ and parents’ calendars to set up a hearing. A key question is whether the child will have any future medical expenses and how and when his funds should be allocated.

COURT HEARING

At the prove up hearing, the judge hears evidence about the accident, injuries, and settlement from the parent and occasionally the child when they are older. The hearing is usually short and friendly and little testimony is necessary.

The guardian ad litem gives his opinion as to whether the amount of the settlement and the means for disbursing the money to the child when he turns 18 (and beyond) are reasonable and whether he believes the court should approve of the settlement. The judge usually approves it and signs the final documents and the insurance company funds the settlement.