How medical malpractice lawsuit settlements work when children are involved
An experienced medical malpractice lawsuit can guide you through the extra steps in resolving a case where there are minor plaintiffs
As a medical malpractice lawyer, I frequently handle negligence cases where children are a party to a lawsuit. Children can be plaintiffs in a lawsuit when they are directly injured by medical negligence, or when their damages are indirect because of the injury or death of a parent.
Parents often ask how this ends up working in litigation and court.
Under Texas law, children under the age of 18 years old are considered minors. Minors cannot be a party to a lawsuit in their individual capacity, but rather appear through a “next friend,” which is usually a parent.
Through the course of a lawsuit, the next friend is the party who works with the attorney, participates in discovery, and may give a deposition. In most cases, the minors are uninvolved in the entire process, and rely on testimony and other evidence to be produced through the next friend.
In many instances, the parties to lawsuits settle before the case goes to trial in front of a judge and jury. When a case settles and all parties are adults, the settlement is immediately effective. If minors are involved, though, there are some additional steps that are necessary to finalize the settlement.
The first step is that the parties notify the court of a proposed settlement and request that the judge appoint a guardian ad litem. A guardian ad litem is a licensed attorney who represents the children.
The second step is the guardian ad litem’s investigation of the case. The guardian ad litem’s role is to review the case pleadings and evidence, meet with the family, and then make a determination of whether the proposed settlement is reasonable and in the best interest of the minor plaintiff. As part of this step, the plaintiffs’ attorney will work with the guardian ad litem to determine if a structured settlement, annuity, or special needs trust is necessary to protect the minor plaintiffs’ eligibility for governmental assistance, like Medicaid.
The third step is scheduling a minor settlement hearing with the court. During the hearing, the parties will appear in court along with their attorneys. On this occasion, the minor children plaintiffs will also appear in court. The hearing is transcribed by a court reporter. Typically, the plaintiffs’ attorney describes the general terms of the proposed settlement for the court. Next, the next friends/parents are sworn in as witnesses and asked a series of questions either the plaintiffs’ attorney or the guardian ad litem. These questions are to verify their understanding that the proposed settlement will be the last payment of any time made as a result of the alleged negligence, and to obtain their recommendation that the court approve the settlement. Finally, the guardian ad litem will make a recommendation that the court approve the settlement because it is in the best interest of the minor plaintiffs. At that point, the judge may have some questions for the parents and children, and then will normally approve the settlement.
We are here to help
When a minor will be a plaintiff in a medical malpractice case, it is important to select a lawyer who is experienced. I have written articles and spoken about how medical malpractice law in Texas is a minefield for lawyers who do not routinely handle these types of cases. In addition, though, an inexperienced lawyer can also harm his or her minor clients by not giving proper advice on how to structure a lawsuit settlement to protect Medicaid or other benefits.
Our experienced medical malpractice lawyers are here to help. For a free evaluation of your potential case, call Painter Law Firm, in Houston, Texas, at 281-580-8800.
Attorney Robert Painter represents adult and minor plaintiffs in medical malpractice and wrongful death lawsuits.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
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Published in the July/August 2018 edition of "The Houston Lawyer" magazine