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.

 

Toy-Related Deaths and Serious Injury

Just before Christmas 2013 the U.S. PIRG (Public Interest Research Group) Education Fund released its annual exposé of dangerous toys, Trouble in Toyland. The consumer watchdog group identified 24 toys on the market which it deemed dangerous.

It is now February of 2014 and despite the efforts of the U.S. PIRG Education Fund many of these toxic toys have been sold and passed into the hands of our children. What legal options do parents have if their child has been injured by one of these toys?

In this post I will discuss legal options parents of injured children possess. I will start by highlighting some of the more dangerous toys identified in the Trouble in Toyland report.

Keep in mind that even if the toy that injured your child is not discussed here you still may have a viable legal claim. Hazards in toys and children’s products run the gamut from choking hazards created by toys with small parts, to strangulation hazards from cords on pull toys, to laceration hazards from edges that are too sharp, to toxic hazards posed by chemicals in toys. Injuries have been documented from all of these hazards.

The most common toy-related child injury is choking and the most common causes of choking are small toy parts, small balls, marbles, and balloons. Federal law bans small parts in toys for children under three and requires a warning label on toys with small parts for children between the ages of four and six.

Regulators use three factors to determine whether a toy is intended for children under three years old, including the manufacturer’s stated intent in the age labeling; the advertising and marketing of the product; and if the toy is “commonly recognized” as being intended for a child under three years old. Some items commonly recognized for children under three include squeeze toys; teether toys or articles that are affixed to a crib, stroller, playpen, or baby carriage; pull and push toys; bathtub, wading pool and sand toys; and stuffed animals.

So how do government regulators determine if a toy part is small enough to be banned (or to require a warning label for children 4-6)? Regulators use a choke test cylinder (sometimes it is called a “small parts cylinder”) and below you can see a schematic that shows the dimensions of the cylinder:

Choke Test Cynlinder

The choke test cylinder has an interior diameter of 1.25 inches and a slanted bottom with a depth ranging from 1 to 2.25 inches. This cylinder is designed to approximate the size of a fully expanded throat of a child under three years old. If a toy or part of a toy – including any parts that separate during “use and abuse” testing – fits inside the test tube, the product is a choking hazard and is banned for children under the age of three.

Here is a photo of a choke test cylinder in use testing a product:

Choke Test Cylinder

I said I would start by highlighting some of the more dangerous toys identified by the Trouble in Toyland report. Toys which were deemed dangerous and which may cause choking in children include:

  • Product name: Princess Wand
  • Label on toy: None
  • Type of hazard: Choking
  • Why toy is a problem: A small heart that fits inside the small parts cylinder detaches easily.
  • Manufacturer/Distributor: Greenbrier International
  • Store: Dollar Tree
  • Image:

Princess Wands

  • Product name: Bead Kit
  • Label on toy: 5+
  • Type of hazard: Choking
  • Why toy is a problem: No small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Greenbrier International
  • Store: Dollar Tree
  • Image:

Bead Kit

  • Product name: Littlest Pet Shop- #2744 Horse
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: Bottom half of pony easily detaches and fits within the small parts cylinder. There is no small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Hasbro
  • Store: Kmart
  • Image:

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As you can see below, the pony fails the choke cylinder test:

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  • Product name: Littlest Pet Shop – Candyswirl Dreams Collection #3313
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: The bottom of the toy animal easily detaches and both the head and bottom fit within the small parts cylinder. There is no small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Hasbro
  • Store: Wal-Mart
  • Image:

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  • Product name: Littlest Pet Shop – Sunil Nevla
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: The bottom of the toy animal easily detaches and fits within the small parts cylinder. There is no small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Hasbro
  • Store: Wal-Mart
  • Image:

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  • Product name: Littlest Pet Shop- Seal and Dolphins
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: The round head of the seal easily detaches and barely passes the small parts test but fails the small ball test*.
  • Manufacturer/Distributor: Hasbro
  • Store: Kmart
  • Image:

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*Note explaining my reference to the “small ball test” above. In 1994 the federal government established a test for small balls which is more restrictive than the 1.25 inches in diameter small parts test (for which they use the choke test cylinder discussed above). Balls with a diameter smaller than 1.75 inches are banned for children under three years old. Federal law defines a ball as “any spherical, ovoid, or ellipsoidal object designed or intended to be thrown, hit, kicked, rolled, dropped, or bounced.” In addition, the term “ball” includes any multisided object formed by connecting planes into a generally spherical ovoid, or ellipsoidal shape that is designated or intended to be used as a ball.

  • Product name: Gobble Gobble Guppies
  • Label on toy: 2+
  • Type of hazard: Choking
  • Why toy is a problem: The round fish are bigger than choke tube but smaller than small ball tester.
  • Manufacturer/Distributor: SwimWays
  • Store: Kmart
  • Image:

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  • Product name: Super Play Food Set
  • Label on toy: Statutory Small Parts Warning
  • Type of hazard: Some food objects are small parts—other rounded food objects are bigger than choke tube but smaller than small ball tester.
  • Why toy is a problem: Toy food poses a special hazard because it looks as if it should be eaten
  • Manufacturer/Distributor: Geoffrey LLC
  • Store: Toys-R-Us
  • Image:

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  • Product name: Fisher-Price Loving Family Outdoor Barbeque
  • Label on toy: 3+
  • Type of hazard: Choking
  • Why toy is a problem: The toy has circular near small part and also looks like something that should be eaten.
  • Manufacturer/Distributor: Mattel
  • Store: Kmart
  • Image:

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  • Product name: Punch Balloons
  • Label on toy: Statutory balloon warning; 5+
  • Type of hazard: Choking
  • Why toy is a problem: Balloons are dangerous for children under 8, but this toy is labled for 5+
  • Manufacturer/Distributor: Toy Investments, Inc.
  • Store: Toys R Us
  • Image:

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Toys which were deemed dangerous by the Trouble in Toyland report and which may cause gastroenterological injuries in children include:

  • Product name: Sonic Sound Sizzlers Noise Magnets
  • Label on toy: 8+
  • Type of hazard: Ingestion
  • Why toy is a problem:The toy contains two high powered magnets that are near small parts. If the toy was a small part, it would be banned for children <14.
  • Manufacturer/Distributor: JA-RU Inc
  • Store: Family Dollar
  • Image:

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Many magnet toys on the market today use powerful neodymium iron boron (NIB) magnets which have increased in popularity with toy manufacturers as they have become readily available from Chinese exporters. They are commonly used in magnetic sets and magnetic office toys and jewelry, especially earrings and bracelets. They are also appearing in dollar store toys.

If swallowed, one magnet may pass through the digestive system without incident. If two or more magnets are swallowed, however, they can attract each other in the body. If one magnet is in the stomach and another is in the small intestine, for example, they can cling together and quickly work their way through tissue, perforating the wall or creating a hole. Two or more magnets attracted to each other in the intestine can create a bowel obstruction or perforation. Using MRIs to diagnose the problem is very dangerous, since the magnetic fields used in imaging could tear the magnets through tissue if they are present.

Another dangerous product discussed in the Trouble in Toyland report is
Buckyballs or Buckycubes, made by Maxfield and Oberton. In my opinion, Buckyballs and magnet desk toys similar to Buckyballs sold by retailers are not merchantable and reasonably suited to the use intended and pose an unreasonable risk of injury to children.

Here is an image of one type of Buckyballs:

sidekick-edition-buckyballs-supraballs

The federal standard for high powered magnet toys for children bans them for children under 14 if they fit in the choke test cylinder. There is an exception for magnets included in certain “hobby, craft, and science kit-type items” intended for children 8 and up, provided the products comply with special magnet hazard disclosures.

There are a number of other dangerous toys discussed in the Trouble in Toyland report. Read it if I have not mentioned the toy that injured your child.

I’ve highlighted a few dangerous toys that can cause harm to children. Next I want to address what options a parent has if their child has been injured by one of these toys (or other toys that pose an unreasonable risk of harm).

Normally, a products liability claim is going to be the best option for parents.

In Georgia product liability is centered upon O.C.G.A. Section 51-1-11 which provides that the manufacturer of personal property sold as new is strictly liable to individuals who are injured by that property.

To establish a strict liability claim under this statute, a plaintiff must prove that (1) the defendant was the manufacturer of the product, (2) the product was defective when it left the control of the manufacturer, and (3) the product’s defective condition proximately caused the injury to the plaintiff.

While O.C.G.A. Section 51-1-11 is the basis for most products liability claims, there are other legal options open to a parent whose child is injured by a dangerous toy. A plaintiff can rely on negligence, strict liability, and warranty theories.

The bottom line? If your child has been harmed by a toy and you believe there may be a basis for holding the manufacturer liable, please don’t hesitate to contact me. It costs you nothing and may benefit you a great deal.

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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 six 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.

CHILD TOOTH INJURY

Of all facial injuries, tooth injuries are the most common in children and may also involve the jaw, lips and oral muscles. The most common causes of tooth injuries are falls (day care accidents, playground accidents), followed by automobile accidents (and also bicycle accidents), abuse (battered children), and sports injuries.

I am writing this post to address two questions. First, under what circumstances should a parent talk to a lawyer after a dental injury? Second, what unique considerations are present when a lawyer brings a claim on behalf of a child who has suffered a dental injury (how does it differ from a claim that involves an adult with a similar injury)?

DO I NEED TO TALK TO A LAWYER ABOUT MY CHILD’S TOOTH INJURY?

Lawyers are sometimes ridiculed for answering questions with “Well, it depends.” But it really does depend! Ask yourself the following questions:

  • Where did the injury occur? This information may have legal implications – for instance, did the injury occur at your home while your child was under your supervision? Or was your child being supervised at another home or a day care center? Did the injury occur while the child was in a motor vehicle and if so, does the at-fault driver have insurance? In the event the other driver may not have insurance, do you have uninsured motorist coverage that will compensate your child?
  • How did the injury occur? What doctors call the “mechanism of injury.” This may lead to identification of hidden injuries. For example, a chin injury is often combined with crown or crown-root fractures in premolar and molar regions.
  • When did the injury occur? How much time has gone by since your child was hurt? This matters both because it is best to start collecting legal and medical documentation as soon as practicable after an injury and because the more time that passes the harder it gets for your doctor to address the all-important issue of causation (in their records.) Causation has to do with making sure the dental records clearly link the cause of the injury to the injury. You would shocked at how hard some insurance companies work to attack causation by blaming “intervening events” (things that happened to your child after the injury and before he/she was diagnosed with the injury.)

Of course, sometimes it will be obvious you need to talk to an attorney. I am currently handling a case for a little boy that fell while he was at a day care center. The center told the child’s mother that he knocked a tooth out during diaper changing time. What the center did not tell the mother (and a video subsequently revealed) was that the teacher left the boy on a table while taking all the other children in the room out into the hall. The boy did what boys do – he tried to follow and, being alone and unsupervised, fell off the table and his tooth was knocked completely out. In this case there was an attempt to cover up what really happened. Anytime you sense a cover up, it is important to contact an attorney so that a sifting investigation can take place.

In general, if your child was injured and you feel it was due to someone else’s negligence or lack of supervision, you should call me. It costs you nothing to get my opinion and I would like to hear about what happened and talk you through whether you have any legal options.

UNIQUE LEGAL CONSIDERATIONS INVOLVED WITH CHILD DENTAL INJURIES

You already know that baby teeth differ from adult teeth. A child’s mouth will be full of 20 teeth eventually, which is a few less than the 32 adult teeth that come later.

Baby teeth (dentists call them primary teeth) are important to your child’s dental health and not just during the few years before they fall out! They help shape the mouth for the permanent teeth. They help guide the adult teeth into position. If your child loses teeth (or has damaged teeth) the permanent teeth are more likely to overlap or not come in at all (dentists call this “disturbance in eruption”.)

Also, an impact to a baby tooth can lead to the death of a permanent tooth. Under your child’s baby teeth are tooth buds (also called tooth germs). They are the “pre-teeth,” the beginnings of the permanent teeth. They are, in essence, the embryonic structures that will become the adult teeth.

One way traumatic dental injuries differ in children (as compared to adults) is that a knocked out tooth (dentists call this an “avulsed” tooth) typically will not be put back in (called replanting.) This is because attempts to replant a baby tooth can actually damage the permanent tooth that is growing inside of the bone.

Another unique consideration with child dental injuries is that sometimes the dentist can’t do anything for your child right away, particularly in the case of a knocked out tooth in a very young child. In a recent case my client was just 18 months old. The dentist told the parents that they would need to wait until the child was 6-7 years old to see if the permanent tooth would come in normally (the effected tooth was a central incisor and the permanent teeth don’t normally come in until age 6 or 7.) For my clients, presenting their legal claim to the insurance company was complicated by the reality that the future dental expenses were going to be the most significant part of their claim.  I worked with the family and their dentist and was provided with estimates of the cost of future care, which we adjusted upward for the cost of dental inflation over the 5-6 year time frame in question (Did you know there was such a thing? There surely is and the latest government predictions have it running at 3.4% per year.)

Another unique legal consideration is that in order to have a successful claim it may be important to get your child to a pediatric endodontist. Endodontists specialize in saving teeth and choosing one who specializes in pediatric care can be important. It is important to ask your lawyer to “vet” any doctor you are considering. Some doctors are willing to work with your lawyer to document your child’s claim; others are hostile to legal claims. It won’t do to take your child to a dentist that refuses to help your legal advocate.

CONCLUSION

Trauma that results in tooth injury raises unique and sometimes complex legal considerations. It is imperative to assess whether your lawyer has expertise in handling dental injury claims. If you find yourself in need of such an attorney, I hope you will consider giving me a call. I’d be honored to assist you.

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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 six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564.