When a child is hurt, Georgia law sees two claims. One claim belongs to your child. The other belongs to you. They cover different losses. They run on different clocks. They are settled under different rules.
When a child is hurt, most parents think of it as one case. Their child’s case.
Georgia law sees two.
One claim belongs to your child. The other belongs to you. They cover different losses. They run on different clocks. They are settled under different rules.
Getting this wrong can cost a family the money that pays the medical bills. Sometimes it costs the child, too.
I touched on this in my post on the minor tolling statute. This post explains it in full.
What belongs to your child
Your child’s claim is for what happened to your child. A parent usually files it as the child’s “next friend.” That does not make the claim the parent’s. The money still belongs to the child.
Your child’s claim is for what happened to your child:
- Pain and suffering, past and future.
- Scarring and disfigurement. I have written about the value of a facial scar.
- Disability, and the loss of things your child can no longer do.
- Medical care your child will need after turning 18.
- Lost earning capacity, if the injury will reduce what your child can earn as an adult.
A child cannot file a lawsuit in his own name. A parent usually files it as the child’s “next friend.” That does not make the claim the parent’s. The money still belongs to the child.
What belongs to you
The parents’ claim is for what the injury costs the family while the child is a minor, including medical bills until your child turns 18. Because the parent owes the bill, the parent holds the claim to recover it.
The parents’ claim is for what the injury costs the family while the child is a minor:
- Medical bills and other necessary expenses until your child turns 18.
- The loss of your child’s services. That means the help around the house, or in the family business, that your child can no longer give.
- Lost wages from work you missed to care for your child.
Georgia law makes parents responsible for supporting their children until 18. O.C.G.A. § 19-7-2. That includes their medical care. Because the parent owes the bill, the parent holds the claim to recover it.
Either parent may bring that claim. If the parents are divorced, the question is usually which parent actually paid or owes the expense.
In a few situations the child can recover these expenses instead. That can happen if the child is emancipated, or if the parent assigns the claim to the child before the deadline runs. Do not assume that has happened just because your child’s case was filed.
One thing the parents’ claim does not include is your own grief. Georgia does not allow a parent to recover for loss of consortium when a child is injured. A husband or wife can bring that claim. A parent cannot. Many parents find that hard to accept. It is still the law.
The two claims run on different clocks
Your child’s claim is protected by the minor tolling statute. Your claim is not protected that way. Treat your claim as running on the ordinary clock: two years from the injury.
This is where families get hurt.
Your child’s claim is protected by the minor tolling statute, O.C.G.A. § 9-3-90(b). In most injury cases, the child has until the 20th birthday to file.
Your claim is not protected that way. In Swallows v. Adams-Pickett, 344 Ga. App. 647 (2018), the Court of Appeals held that the parents’ claims for their child’s medical expenses were not tolled by the child’s minority. The child’s claim survived. The parents’ claim did not.
Treat your claim as running on the ordinary clock: two years from the injury. If you wait until your child is grown, you may still have your child’s claim. You will have lost the claim that pays the bills.
Medical malpractice is shorter for everyone, and a claim against a city, county, or the State may need written notice within months. I explained those deadlines in The Minor Tolling Statute in Georgia: Your Child’s Deadline Is Not Your Deadline.
When the case settles, the money has to be divided
Your child’s share is protected by court approval under O.C.G.A. § 29-3-3. Your share does not need a judge’s approval. A fair split follows the actual losses.
A settlement usually resolves both claims at once. Part of the money is for your child’s claim. Part is for yours. How it is divided matters.
Your child’s share is protected. Under O.C.G.A. § 29-3-3, if the gross settlement of your child’s claim is more than $25,000, a court must approve it before it binds your child. If the net amount your child will actually receive is also over $25,000, a conservator has to be appointed to receive it.
Your share does not need a judge’s approval. That is exactly why the split gets attention. Money moved from the child’s side to the parents’ side escapes the court’s protection. Expect the judge to ask how the settlement was divided, and why.
A fair split follows the actual losses. The medical bills you paid or owe go to your claim. Pain, scarring, disability, and losses after 18 go to your child’s. When you sign for your child, you are acting for your child. Get the split right, and be ready to explain it.
I have written about a minor settlement that was not enforceable until a judge approved it, and about lawful ways to limit court involvement in a child’s settlement.
The medical bills come with strings attached
Whoever paid your child’s medical bills may want to be paid back out of the settlement. Deal with them before the settlement is final, not after.
Whoever paid your child’s medical bills may want to be paid back out of the settlement:
- Your health insurance plan may claim reimbursement.
- A hospital or doctor with an unpaid bill may file a lien. O.C.G.A. § 44-14-470.
- Medicaid and PeachCare for Kids have repayment rights of their own.
These claims are tied to the medical expenses, which sit on the parents’ side of the case. Deal with them before the settlement is final, not after. Many of them can be negotiated down. None of them should be allowed to quietly eat into your child’s share.
If your child was hurt at another family’s home, their homeowner’s policy may also have no-fault medical payments coverage. I explained how that works here.
What I tell parents to do
Keep every bill, statement, and receipt, and write down who paid it. Protect your claim on the ordinary clock. Think about the split before you settle.
- Keep every bill, statement, and receipt, and write down who paid it. Those papers are your claim.
- Keep a record of the work you miss to take your child to appointments and care for your child at home.
- Protect your claim on the ordinary clock. Do not let the tolling statute lull you into waiting.
- Think about the split before you settle. Know what part of the money is your child’s and what part is yours, and why.
- Talk to a lawyer before you sign anything. A release can end claims you did not know you had. I recently wrote about a Georgia case where one missing sentence in a release cost a client her UM claim.
Two claims means two sets of rules. Families who understand that early protect both. Families who learn it late often find that one of them is already gone.
Attorney Pete Pearson has practiced personal injury law in Georgia since 1996. He has a special interest in helping families of injured children. He is a father of ten and lives with his wife and children in Newborn, Georgia.
If you need to talk, my direct line is Six-Seven-Eight 358-2564, or email pete@petepearsonlaw.com.