Inadequate Minor Settlement – Not Enforceable Until Judicial Approval

What are your options as a parent if you agreed to take a settlement offer made by an insurance company but no judge has yet approved the settlement and you have just realized the offer is too low?

Georgia law contains a safety net for you, if you find yourself in that situation. O.C.G.A. § 29-3-3 establishes that no settlement for a minor in excess of $15,000 is enforceable without judicial approval.  

If the offer to settle your child’s claim was greater than $15,000.00 your agreement to accept that amount is not legally binding because you did not have legal authority to accept it. A parent may accept such an offer ONLY AFTER a judge reviews and approves the proposed settlement.

Typically the way this issue comes up is when a parent has been trying to negotiate with an insurance company without having an attorney. Often when an attorney does get involved it is because the parent realizes something is not right. Sometimes a judge will tell the parent they need to consult with an attorney about the adequacy of the settlement.

With minor settlements, the “guardian” is normally the parent. That is the language the probate court uses to refer to the person who is requesting the legal authority to compromise (aka settle) a minor’s claim.

Parents are sometimes left in the dark by insurers with regard to important issues that effect how much would be fair compensation for their child. There may be an issue of the parent not knowing the extent of the future treatment their child will need. Another common issue that gets overlooked is the subrogation/reimbursement rights of health insurance and employee funded ERISA health plans. More often, the parent is simply misled by the insurer with regard to the reasonable settlement value.

You may be facing a motion to enforce the purported settlement. A motion to enforce asks a judge to force you to take a purported settlement based on the legal theory that you previously agreed to settle all your child’s claims. The problem with such an argument is that Georgia law does not give the right to settle a child’s claim to the guardian. That right belongs to the Courts alone. Only after the Court confers authority can a guardian enter into a binding settlement. Until judicial review and approval occurs there can be no enforceable settlement.

Incidentally, I have argued elsewhere that the Courts have assumed too much power over family life. I’m an advocate for scaling back the jurisdiction of courts over family matters. But the law as it exists in Georgia at this time clearly puts the power of settlement in the judges’s hands.

If you find yourself in this situation, please call me to discuss.

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Attorney Pete Pearson has been working for injury victims for 20 years. Located in the Greater Atlanta Metro Area, he serves clients all over the State of Georgia. He has a sub-specialty in child injury law. You can talk to Attorney Pearson for a free initial consultation by clicking here or by calling him at Six-Seven-Eight 358-2564.

 

 

 

How Do I Get My Doctor To Help Me Document The Full Extent Of My Child’s Head Injury?

The head is the most common body region injured in motor vehicle crashes for children age birth to seven years and head injury outcome in children can be worse than similar injuries sustained by adults.

Children who suffer traumatic brain injuries (TBIs) can experience lasting or late-appearing neuropsychological problems. For this reason, head injuries should be of particular concern to parents of children injured in motor vehicle traffic crashes. Proper diagnosis and treatment is critical. So is marshalling the legal evidence necessary to prove the link between the crash or other trauma and your child’s deficits. Proving future deficits is one of the most vexing issues that arise in child head injury cases.

In children, some neurological deficits after head trauma may not manifest for many years. Consider that frontal lobe functions develop relatively late in a child’s growth, so that injury to the frontal lobes may not become apparent until the child reaches adolescence when higher level reasoning develops. Since the frontal lobes control social interactions and interpersonal skills, early childhood brain damage may not manifest until such frontal lobe skills are called into play later in development. Likewise, injury to reading and writing centers in the brain may not become apparent until the child reaches school age and shows signs of delayed reading and writing skills.

How can you obtain compensation now for deficits that may not show up until many years later? How can you prove now what may happen later? Head injury legal claims are challenging precisely because of these kinds of considerations.

The standard for admitting evidence on considerations of this nature is “a reasonable degree of medical certainty.” Your child’s doctor must be willing to testify to a “reasonable degree of medical certainty” that the trauma sustained by your child caused or will cause the future deficits. What does this phrase “a reasonable degree of medical certainty” mean?

It’s been observed that the phrase is almost an oxymoron. Normally the word “certainty” means certain. But the adjective “reasonable” negates the absolute connotation of the word “certainty.” But if you push past the awkwardness of the phrase to how it is employed in the courtroom it makes more sense. In actual trial practice the evidentiary standard is “more likely than not” or “more probable than not.” This is a lower standard of proof than certainty and also lower than the “beyond a reasonable doubt” standard (which is the standard used to convict a defendant in criminal cases). Essentially the standard is whether your doctor can say that it is “more likely than not” that the trauma will cause your child to suffer a particular deficit in the future.

Many medical doctors don’t understand what I said in the last paragraph. They don’t want to get involved with a legal claim unless there is overwhelming proof that the trauma caused a deficit. They in effect think there must be enough evidence to prove it “beyond a reasonable doubt.” They are not aware of the correct legal standard. This is unfortunate as it results in many families not getting enough compensation to provide for the future care of their injured child.

I talk with my client’s doctors before they give any testimony and educate them on the correct standard of proof. I ask them to tell the truth, no matter what that may be. I request that they review their treatment of the child with an eye toward helping the family prove all related deficits that have or may flow from the trauma. I encourage them to understand that the law only allows the family “one bite of the apple”, one chance to get justice, and that when the legal claims ends they can never reopen the case even if it turns out their child has far more profound deficits than we proved.

If your child has suffered a head injury, you are dealing with one of the most complex and challenging of all claims. You would benefit greatly from talking to an attorney. There are many related issues that arise in the context of child TBI claims that are not for the uninitiated. Please call me if, due to the fault of another, your child has sustained a brain injury. The call is free, you are under no obligation to hire me, and I will do my best to point you in the right direction.

Sources: http://www-nrd.nhtsa.dot.gov/Pubs/811325.pdf

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to seven and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

 

Georgia Pool Rules – Child Injury in Swimming Pools, Spas, and Recreational Water Parks

I’ve just reviewed Georgia’s “pool rules”, a scintillating read.

The Georgia Department of Public Health (DPH) promulgates rules that apply to most swimming pools, spas and recreational water parks. The goal of the DPH rules is to minimize illnesses and injuries at these facilities.

Why would I spend a perfectly good afternoon reading a 50 page regulation? For you, my dear readers, for you.

Parents of children who have been injured come to my blog looking for information. I want to provide the information parents need to make a decision about whether legal action is proper. I also want to provide parents with the best legal analysis of Georgia’s “pool rules.”

Every legal claim starts with an analysis of what duty was violated. There has to be a violation of some duty or there is no legal claim. It’s imperative to discover what duties apply. In the context of child injuries that occur in or near water, one important source of duties is the State you live in. In Georgia the State agency that is tasked with oversight of pools, spas, and recreational water parks is DPH and a working knowledge of the rules made by that agency will help you discover what duties might apply to your situation.

(Keep in mind that DPH is not the ONLY source of duties that might apply to your situation. Many Georgia counties have county pool regulations. If you want to know if your county has county-specific regulations, you can find out here (if your county is in white it has county-specific regulations that go beyond the State regulations). Federal law creates other duties (such as the Federal Pool and Spa Safety Act of 2007).

The rules and regulations created by DPH are long and complex. Most folks are not going to wade through them. Please consider this my effort to provide you with a crash course in water safety. I won’t hit upon every single rule but I will highlight those I think are most significant.

Before I jump in to details, let me alert you that the DPH rules are limited in scope – they do not apply to every body of water now existing in the State of Georgia. Some are expressly exempt: such as private pools and hot tubs/spas, apartment complex pools, country club pools, subdivision pools that are open only to residents of the subdivision and their guests, and there are a few other categories of pools/spas/baths that fall outside the scope of the application of DPH rules.

DPH rules DO apply to all other swimming pools, spas, and recreational water parks located within the State of Georgia. The rules prescribe minimum design, construction, and operation requirements that are intended to safeguard the health and safety of the public.

Here is my list of important rules that may create a legal duty and the violation of which may provide a basis for a successful legal claim:

  • Barrier Hazards – All outdoor swimming pools and spas shall be provided with a barrier. A barrier is a fence, wall, building wall or a combination thereof, which completely surrounds or covers the swimming pool or spa and obstructs access to the swimming pool, spa or recreational water park. One safety purpose of a barrier is to keep unsupervised kids out. The top of the barrier must be at least four feet high. All access gates must be self-latching. Pedestrian access gates must also be self-closing. When the release mechanism of the self-latching device is less than 4.5 feet from the bottom of the gate the mechanism must be located on the pool side of the gate and the gate and the barrier shall have no opening greater than one-half inch within 18 inches of the release mechanism (to keep little hands from reaching through). Installation of a safety cover over the pool does not exempt a pool operator from erecting a barrier. Installation of a safety cover over a spa DOES exempt the operator from the provisions of the barrier requirement.
  • Bather Load Violations – this has to with how many bodies are allowed in the pool at one time. The rules are a function of “square feet per user”. For instance, for pools with minimal deck areas (which means smaller than the pool surface area) the maximum number of people allowed in the pool at one time varies depending on what part of the pool you are considering. For shallow or wading areas there must be 18 square feet per bather. For the deep area there must be 20 square feet per bather. And for the diving area there must be 300 square feet per bather. Spas are handled differently: the maximum bather load should not exceed one person per nine square feet of surface area.
  • Permitting Violations – it is unlawful for a pool to operate without a valid operating permit. Permits are invalidated by a change in ownership. An operating permit cannot be valid for longer than twelve months. The permit must be prominently displayed as close to the main entrance as practicable.
  • Structural Design Violations – slip resistant surfaces are required in the pool and on the deck surfaces near the pool (all ladders/steps in and out of pools shall have treds with slip resistant surfaces), spas shall have handrails, abrasion hazards must be avoided, decks shall be sloped to prevent water pooling (minimum slope of decks must be 1/8” per foot, return inlets and suction outlets must be designed to not to constitute a hazard to bathers (bather entrapment is the concern).
  • Dimensional Design Violations – beginner’s areas may not adjoin deep areas, transition points between shallow and deep sections of pools must be visually set apart with a rope and float line, depth markers, and a four inch minimum width row of floor tile, painted line or similar means of a color contrasting with the bottom. Diving areas in pools shall conform to minimum water depths, areas, slopes and other dimensions.
  • Water temperature hazards – the owner/operator is required to routinely check the water temperature to ensure it does not exceed 104 degrees Fahrenheit. Obviously what is in view here is mainly spas and heated pools.
  • Warning Signs – various requirements for signage at pools and spas. Risk of fetus damage (hot water exposure in spas), risk of damage to small children and pregnant mothers (small children and pregnant women have lower hot water exposure limitations), risk of drowning warnings, risk of injury, risk of electric shock if electrical appliances are used in or near water or facilities are used during lighting storms. The words “No Diving” shall be permanently visible at the edge of the deck for water five feet (5′) or less.
  • Chemicals in the Pool/Spa – The rules provide for minimum and maximum dilution rates for the chemicals used in pools and spas. Too little disinfectant and harmful organisms may be present in the water, too much and bathers can be harmed/burned. There is a section on “fecal incidents” (poop in the water) and the rules require the pool be shut down for a period of time to ensure no diseases (such as Giardia infection) are spread.
  • Handholds, depth markers, rope and float lines – a handhold means a device that can be gripped by a user for the purpose of resting and/or steadying him/herself. Handholds are required around the perimeter of pools in areas where the depths exceed 3 feet 6 inches. Depth markers must be plain and conspicuous and there are a number of specific requirements for how and where they must appear.
  • Lifeguard training requirements & qualifications – If lifeguards are provided they must hold up to date, nationally recognized certification. They are responsible for the safety and supervision at the pool, spa, or recreational water park.
  • Lifesaving  equipment – requirements include, but are not limited to, a pole not less than 12 feet long, including a body hook; a throwing rope to which has been firmly attached a ring buoy; a telephone which is hard wired and affixed (not a cell phone) with posted names and numbers for emergency personnel.
  • Specials rules applying to water slides, flumes, wave pools, wading pools, zero-depth pools, falling-entry pools, etc . . . this section of the rules concerns recreational water parks. The rules in this area vary greatly depending on the type of water activity and so it is hard to summarize. Suffice it to say the owner/operator of a recreational water park has a duty to make sure staff closely monitor these activities. Wave pools that generate waves more than 3 feet in height must not continue for more than 15 minutes at a time. At all times when a water slide is open an attendant must be on duty at each falling-entry pool or runout and another attendant must be on duty at each entrance to a flume. Radio communication or some other acceptable communication method must be maintained at all times between the attendants. Only one person at a time may go through a flume on a water slide.
  • Inadequate training of pool manager/operator – it is required that each pool and spa covered by these rules be maintained by properly trained individuals. One kind of training that qualifies is the National Swimming Pool Foundation’s Certified Pool/Spa Operator’s Course.

So, if your loved one has been injured or killed and you believe one or more of the rules I’ve discussed in the post were broken, please call me. A phone consultation is free. The advice I give may be a help to you as you weigh your legal options.

Also, I’ve previously blogged about this topic and if that is of interest to you, you can find it here.

Sources –

Georgia Department of Public Health

Georgia Pool Rules

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. Many years ago, in what seems like another life, Pete was a lifeguard. His interest in water safety probably got its start way back then. He is a father to seven and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.