A harsh truth we have learned as longtime personal injury and wrongful death attorneys practicing in Virginia is that children are not spared from other people’s negligence and recklessness. From birth injuries to traffic accidents, children are as at risk as adults for suffering physical injuries and emotional distress due to medical malpractice, drunk driving, unsafe premises such as unsecured backyard pools, and even dangerous and defective products.
There are no silver linings to these stories. Children’s lives and well-being should be assured at all times, and there is no happy ending to a tale that starts with a youngster being hurt in some way that could have been prevented.
But Virginia law does give minor children—those younger than 18 years of age—the same rights as legal adults to file insurance claims and civil lawsuits against the parties that caused them harm. Some different rules and procedures must be followed during a case in which a young child is the plaintiff, but the best outcome of receiving compensation for medical expenses, disability and pain and suffering is the same.
LEARN MORE
- What Types of Monetary Compensation Can an Injured Person Receive in Virginia?
- What Does ‘Pain and Suffering’ Mean in a Personal Injury Case?
- What Should a Parent Do When Their Child Is Injured in an Accident Caused by Someone Else?
Here are a few of the most important things to know about bringing a personal injury or wrongful death case on behalf of a minor child in Virginia.
A Close Family Member of Legal Executor Acts for the Child
State law puts minor children under what is called “disability.” This is a legal designation that prevents individuals who are younger than 18 from entering into binding contracts or representing themselves in court. Exemptions apply, particularly after a child reaches their teens and starts working. One of the major practical effects of a minor child being under legal disability, however, is that they must have an adult family member or an executor handle their insurance claim and lawsuits.
Generally, a person who is recognized as the child’s parent, legal guardian or next of kin deals with lawyers, testifies, and negotiates with insurance claims adjusters. Depending on the facts, and sometimes at the insistence of the court, a guardian ad litem will also be named to ensure that the child’s rights and interests are protected.
Statutes of Limitation for Taking Legal Action Require Attention
A family member or legal executor typically has two years from the day on which an injury or death occurred to file an insurance claim or lawsuit on behalf of a child. The statute of limitations clock may start ticking (“tolling,” in legal jargon) on the day that a medical diagnosis is made or an injury becomes apparent.
In regular personal injury cases, a minor will have until age 18, plus two years to file a Virginia lawsuit in court. These rules do not apply in medical malpractice cases, however. There, the limitation on taking legal action is determined by the date on which the minor’s alleged injury occurs. Please consult with a personal injury attorney before deciding if you need to act promptly.
Consulting with a knowledgeable Virginia plaintiff’s attorney will ensure that the applicable statute of limitation can be met. Always keep in mind that missing the deadline to take legal action makes it impossible to request and receive compensation for an injury or wrongful death.
Minor Children Will Only Be Involved in Their Cases to the Extent of Their Maturity
Lawyers, insurance claims adjusters, judges and jury members will want to hear children tell their own stories. At the same time, very young children and children who have intellectual deficits will not be required to give extensive testimony.
Another consideration in Virginia is that children who are younger than 8 years of age will not be held to the standard of contributory negligence. This matters because Virginia courts apply a strict test for contributory negligence that disqualifies compensation claims from adults who can be found to any degree to have caused the accident that harmed them.
We Take Cases for Families
Our three attorneys have more than 80 years of combined experience helping parents and guardians to receive favorable settlements or verdicts in personal injury and wrongful death actions involving child victims of others’ negligence. We have worked with multiple orthopedic surgeons, plastic surgeons, pediatricians, nurses, physical therapists and other health care providers to present the appropriate evidence of catastrophic or serious injuries.
We cannot take every case, and we can never guarantee a positive result. But we offer free consultations, so let us know if we can advise and represent you.
EJL