Author: Janet Thoman Green, Attorney at Law

Recognizing the needs and vulnerabilities of children, both law and medicine have special methods by which children are treated following a traumatic injury. Medical specialists versed in the differences in children’s physiology are important to assure factors such as growth and development are considered for the best post-injury outcome. Law recognizes the vulnerabilities of children and requires special handling and rules related to some aspects of claims of children.

In medicine, consideration of the difference between children and adults comes into play in diagnosis and treatment. Depending upon the age of the child, communication may be difficult. A child may describe a symptom with limited vocabulary. A symptom an adult would describe as "blurred vision", for instance, may be described by a child as "foamy" or some other descriptor. More importantly, a child may answer in the negative to a query about a specific symptom simply because they do not know what the word means. Specialized health care providers who understand the communication differences are important to culling accurate subjective information on which to base a diagnosis and then move forward with proper treatment.

Physiological difference are also important to address in treatment. An orthopedic injury such as a fracture, for example, must take into consideration the further growth of the bone in addressing the best form of treatment. Inappropriate repair of a fracture could lead to an adverse impact on the bone’s growth and lead to long-term problems as the child grows. Pediatric specialists in virtually every practice area are generally accessible in populated areas and should be consulted when a child has suffered a traumatic injury.

Likewise, the legal system recognizes different standards of conduct for children and the unique vulnerabilities of this group. Children are held to a standard of conduct that allows for the incapacities and limitations of the age. State law allows additional time for bringing actions against a negligent party on behalf of a child and dictates who may bring and settle such a claim.

A. Standards of Care and Statute of Limitations 

In negligence actions, a child’s conduct is not held to the same standard as an adult. If a child causes an injury to another, he or she will be considered negligent only if the standard of the behavior falls below that of a reasonably careful child of the same age, intelligence, maturity, training and experience.¹ Public policy recognizes that it would be unfair to hold a child’s behavior to that of an adult. However, a 16 or 17 year-old may be held to an adult standard.

When a child is the one who has been harmed by the negligence of another, some special rules apply to bringing and concluding an action for damages. In Washington state, the period of time in which an action against a negligent party must be brought (named the Statute of Limitations law) is three years from the date of the occurrence. (See Advocate article "Statute of Limitations" for a more in-depth discussion of these laws.) However, when a child is the harmed party, the three year Statute of Limitations does not start until the child’s eighteenth birthday. Then the child has 3 years from his or her eighteenth birthday to resolve the claim or file a lawsuit. The clock does not begin ticking right away as it does for an adult.

B. Waivers

Despite the broad decision-making power of parents, there are instances in which the law does not allow a parent the final say. In Washington state, a person may sign away their right to bring an action for negligence against a potential party. This is a common occurrence when undertaking a recreational activity in which injury may occur. The releases or waivers required by some businesses or schools are commonplace. Though a parent may sign this type of waiver or release to allow their child to participate in an activity, Washington courts do not recognize them as valid. In 1992, the Washington Supreme Court held these releases to be unenforceable because they violate public policy. These releases were viewed as contrary to the public good at large. However, the release may be valid and enforceable to bar claims of the signing parent for actions based on injury to the child.²

C. Minor’s Personal Injury Settlement: Court Approval Required

When a case is concluded through settlement, again Washington courts do not allow parents unfettered discretion. When a claim is concluded, Washington law requires that any tentative settlement be approved by a court, whether a lawsuit has been filed or not. The court will appoint a specially trained representative called a ‘Guardian ad Litem’ to review the facts of the case and provide an opinion regarding the reasonableness of the proposed settlement. If approved, the court will generally require that the settlement funds of the child be placed in a blocked account. Money from the account cannot be withdrawn until the child turn 18 without a court order.

When a child is the victim of a traumatic injury caused by another, it is important that the he or she is treated and legally represented by attorneys with experience and knowledge in understanding the special needs and requirements governing these matters. The attorneys at Adler Giersch, ps have extensive knowledge and experience working with pediatric specialists and addressing the requirements and standards set down by the law.