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Little Kids, Big Accidents: The Ultimate Guide to Child Injury Cases in Ohio


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The Toledo child injury attorneys at the Charles Boyk Law Offices provide this guide for parents who's children have been hurt or wrongfully killed in any type of accident.

The Toledo child injury attorneys at the Charles Boyk Law Offices provide this guide for parents who's children have been hurt or wrongfully killed in any type of accident.

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  • 1. Little Kids, Big Accidents THE ULTIMATE GUIDE TO CHILD INJURY CASES IN OHIO Charles E. Boyk Law Offices, LLC405 Madison Ave., Suite 1200, Toledo, OH 43604We also have offices in West Toledo, South Toledo, Findlay, Bowling Green, and Swanton.
  • 2. Copyright © 2009 by Charles E. Boyk, Michael A. Bruno, andDale R. Emch.All rights reserved. No part of this book may be used orreproduced in any manner whatsoever without written permissionof the author(s).Printed in the United States of America.ISBN 978-0-615-28931-1Charles E. Boyk Law Offices, LLC405 Madison Avenue, Suite 1200Toledo, Ohio
  • 3. LITTLE KIDS, BIG ACCIDENTS TABLE OF CONTENTSIntroduction Page 2Chapter 1 Page 5Our Kids Are At RiskChapter 2 Page 9Who We AreChapter 3 Page 13Don’t Wait!Consult and Attorney ImmediatelyChapter 4 Page 19Do You Have A Case?Chapter 5 Page 22Smart Moves to Help Your Child’s CaseChapter 6 Page 29The Probate Process and Your ChildChapter 7 Page 32Protect Your Child’s RecoveryChapter 8 Page 36Dealing With the Loss of a ChildChapter 9 Page 42Let Your Lawyer Be Your GuideChapter 10 Page 46Let Us Know If We Can Help 1
  • 4. LITTLE KIDS, BIG ACCIDENTS INTRODUCTION The most difficult cases we handle in our officeinvolve the death or serious injury of a child. It’s heart-breaking to see the emotional devastation parents,grandparents, and siblings experience after a child hasbeen killed or injured in an accident. As we all havechildren in our lives, we understand how traumatic theseexperiences can be for families. When tragedy strikes, the lives of parents areturned upside down. If their child has been seriouslyinjured, parents are left trying to navigate the medicalcommunity and health insurance. If someone has lost achild, just trying to get out of bed can seem like a monu-mental task. Deaths or injuries caused by someone else’scareless conduct adds even more stress because it entailsdealing with a legal system with which most peoplehave little familiarity. That’s why we wrote this book. We’ve found thatparents whose kids have been hurt or killed in accidentshave so much on their minds that they don’t need moreconfusion when they’re exploring their legal options. The attorneys in our office believe knowledge ispower. Our goal with this book is to help parentsunderstand how they can best protect their rights andtheir children’s rights. When parents meet with us,they’re often confused and heartbroken. They’re lookingfor straightforward answers and guidance. We hope thisbook provides solid information for parents so they feellike they have a grasp on the basics before they consultwith an attorney. 2
  • 5. LITTLE KIDS, BIG ACCIDENTS When an accident causes a child’s death or injury,parents aren’t thinking about lawyers and litigation.They’re either grieving or trying to make sure their childrecovers as fast as possible. But at some point, parentsfind that they have legal issues they need to address.People who haven’t been in this situation expect that thenegligent person’s insurance company will pay for theirmedical bills, and compensate them for the loss of theirchild, or for the pain their child experienced. Of course,when a parent loses a child, no amount of money canever make things right. Unfortunately, it’s rarely that simple or straight-forward. Parents may find that their emotional traumacompounded by the unfair treatment some insurancecompanies seem to incorporate into their businessmodels. Insurance companies often want to close a filefor as little money as possible regardless of whether thechild and parents are treated fairly. Though this likely isa new experience for you, it’s certainly not for theadjusters and lawyers who defend these claims for insur-ance companies. Even sophisticated people who are suc-cessful in other areas of their lives often find themselvesshocked when they seek compensation on behalf of theirchild. We hope this book helps level the playing fieldand gives parents a basic education on the legal issuesthey’ll face in these unique cases. If you’re reading thebook and you find you have some questions, the lawyersin our office would be happy to answer them. Just call419-241-1395 or 800-637-8170. After business hours, 3
  • 6. LITTLE KIDS, BIG ACCIDENTSour phones are forwarded to an attorney in case youhave an urgent situation to address. You can also visitour Web site at We have six offices in northwest Ohio where wemeet clients: Downtown Toledo, West Toledo, SouthToledo, Bowling Green, Findlay, and Swanton. 4
  • 7. LITTLE KIDS, BIG ACCIDENTS CHAPTER 1 Our Kids Are At Risk STATISTICS SHOW THE IMPACT ACCIDENTS HAVE ON KIDS A quick look at statistics involving accidentswhere we would expect to affect kids – in cars, schoolbuses, on bicycles, on foot, and by dog bites – revealshow common it is for children to be injured.Motor vehicle accidents In 2007, motor vehicle accidents in Ohio resultedin injuries to 9,159 children under the age of 15, accord-ing to the Ohio Department of Public Safety. Traffic ac-cidents caused the deaths of 39 children under the age of15, according to statistics compiled by the department. Using safety seats is the best thing parents can doto safeguard their young children. When the childrenoutgrow safety seats, parents should require their chil-dren to wear seatbelts and, preferably, to ride in the backseat.School bus accidents Also in 2007, which is the most recent year inwhich accident statistics from the Department of PublicSafety were available at the time this book went topress, 275 passengers of school buses experienced inju-ries in Ohio. In many situations, school buses are not equippedwith safety belts, which can increase the risk of injury to 5
  • 8. LITTLE KIDS, BIG ACCIDENTSchildren.Pedestrian accidents Pedestrian accidents in which children are injuredor hurt tend to be particularly heart breaking. In manysituations, parents or relatives have backed over a childwho happens to be playing in a driveway. Young kidscan be particularly difficult to see for drivers, especiallywhen the person is driving a vehicle like a minivan orSUV. Unfortunately, we’ve seen the tragedy families en-dure in these types of situations. In 2007, according to the Department of PublicSafety, 610 children 15-years-old and younger were in-jured and 13 were killed as the result of pedestrian acci-dents in Ohio.Bicycle accidents As all parents know, children also face dangerswhen riding their bicycles. Of the incidents reported inOhio, 486 children through the age of 15 were injured inbicycle accidents in 2007, according to the Departmentof Public Safety. Two of those accidents were fatal. Injuries attributed to bicycle accidents droppedoff in 2007 for children over the age of 16, perhaps be-cause children that age don’t ride their bikes as muchonce they reach driving age. Across the United States, 15 percent of all bicy-clists killed and 29 percent of those injured in 2007 wereunder the age of 16, according to the National HighwayTraffic Safety Administration. That number actually has 6
  • 9. LITTLE KIDS, BIG ACCIDENTSfallen pretty dramatically compared to statistics com-piled for 1997. That year, 31 percent of all bicyclistskilled and 44 percent of those injured were under 16years old. Those numbers may have dropped because of theincreased emphasis on having children wear bicycle hel-mets. Wearing a helmet can reduce the risk of a head in-jury by 85 percent, according to the NHTSA. Brain inju-ries can be cut by 88 percent through helmet use, the na-tional organization found.Dog bites Unfortunately, we often see the devastating con-sequences that can result from dog bites. We’ve seen in-juries ranging from scars our clients will bear on theirfaces for the rest of their lives to wounds so deep thatmuscle and ligaments were exposed. Obviously the bitesand resulting medical treatment are painful. But beingattacked by a dog also can be tremendously scary, par-ticularly if the victim is a child. In the United States, approximately 800,000 peo-ple a year suffer injuries from dog bites that are signifi-cant enough to require medical treatment, according theCenters for Disease Control and Prevention. Childrenare particularly vulnerable. Of the dog-bite victimsneeding medical attention, half are children, the CDCfound. Kids between the ages of 5 and 9 years old ex-perienced the most bites, according to the CDC. Some bites, while painful, require little recoverytime. Others, though, cause damage to muscles, broken 7
  • 10. LITTLE KIDS, BIG ACCIDENTSbones, and serious disfigurement. Victims with seriousinjuries may face numerous physical therapy sessionsand multiple surgeries. Children, particularly those withfacial scars, may have to endure a number of scar-revision surgeries as they grow up. We don’t present these numbers in order tofrighten you. Rather, we think they show just how vul-nerable our kids are. Again, knowledge is power. If wehave a better understanding of how our kids get hurt,maybe we can take steps to prevent those injuries. Ofcourse, none of us can completely insulate our childrenfrom harm. If you’re reading this book because yourchild was injured or killed, we hope you’ll find someanswers that might help you during this difficult period. 8
  • 11. LITTLE KIDS, BIG ACCIDENTS CHAPTER 2 Who We Are Our office has been representing children whohave been injured in accidents for more than 25 years.We’ve also represented parents who have suffered thegreatest loss of all – the death of a child. We take a teamapproach to the cases we handle for families. We believethat our job is to:1. Provide family members with all their legal optionsalong with our analysis about how the case should beapproached.2. Develop strategies to maximize the recovery forgrieving family members who may find themselvesstruggling financially.3. Take charge of the situation and solve problems asquickly and easily as possible.4. Recommend grief counseling and help connect fami-lies with the resources they’ll need to cope with theirloss. Over the years we have represented children andfamilies in injury and wrongful death cases arising fromamong the following situations: Car accidents 9
  • 12. LITTLE KIDS, BIG ACCIDENTS Truck accidents Bicycle accidents Pedestrian accidents Dog bites Playground accidents Medical malpractice Falls from windows Failure to install safety glass Food poisoning Prescription drug reactions Shootings Assaults The authors of this book have more than 50 yearsof combined legal experience. Chuck Boyk has been inprivate practice for 25 years and heads the Charles E.Boyk Law Offices, LLC. During his career, he has han-dled more than 4,000 injury cases to completion. Manyof his cases have involved the injury or death of a child, 10
  • 13. LITTLE KIDS, BIG ACCIDENTSwhich has given him a special appreciation for how dif-ficult these situations are for parents. Chuck has conducted numerous seminars forother attorneys to help them understand the world ofpersonal injury law. In addition to his personal injurywork, Chuck has represented thousands of criminal de-fendants, handling everything from routine traffic of-fenses to murder cases. Mike Bruno also has been practicing law for 25years. Mike, who has been named an Ohio Super Law-yer, has a unique background that benefits our clients.As an assistant Lucas County prosecutor, he handledthousands of felony cases, including death penalty mur-der cases. As an insurance defense attorney, he handledserious personal injury cases representing insurancecompanies. That experience has provided him with in-valuable insight into how insurance companies willview our cases. Mike has handled more than 100 jurytrials, is Board Certified by the National Board of TrialAdvocacy, and is AV rated by Martindale Hubbell, thehighest rating an attorney can receive. Dale Emch focuses his practice on helping adultsand children who have been injured in accidents or bydog bites. He writes a column for the Toledo Bladecalled “Legal Briefs,” in which he answers readers’questions about a variety of legal issues. Dale graduatedcum laude from the University of Toledo College ofLaw, where he was an associate member of Law Re-view. He serves on the Lucas County Public DefenderCommission, the Lucas County Dog Warden Advisory 11
  • 14. LITTLE KIDS, BIG ACCIDENTSCommittee, and the Media Relations Board for theToledo Bar Association. Our attorneys’ varied experience gives us aunique perspective on the cases we handle and benefitsthe families of those who have lost a loved one. Under-standing the way insurance adjusters and defense attor-neys will analyze the case gives us an added advantagewe can pass on to our clients.THIS BOOK DOES NOT OFFER LEGAL ADVICE We’re happy that you’ve taken time to read ourbook. You should note, however, that ordering or read-ing our book does not create an attorney-client relation-ship. We also aren’t offering a legal opinion in thesepages because every case is different based on the factsof the situation. If you want our legal opinion, pleasecontact us at 800-637-8170 or 419-241-1395. We’ll behappy to set up a free meeting with you. 12
  • 15. LITTLE KIDS, BIG ACCIDENTS CHAPTER 3 Don’t Wait! Consult a Lawyer ImmediatelyTOP 5 REASONS FOR HIRING A LAWYER NOW1. Missing deadlines can destroy your child’s case In any accident case, parents need to understand thatthere are important deadlines that cannot be missed. Themost crucial deadline is that for filing a lawsuit, whichis called the statute of limitations. If this deadline ismissed, the child will be forever barred from making aclaim. The court system understands that kids, especiallyyoung ones, will have little to no control over whetherthey can advance a claim. In order to protect an injuredchild’s rights, the statute of limitations doesn’t begin torun until the child is 18. In a typical accident case, thestatute of limitations is two years. So, in a typical claiminvolving an injury to a child, the case would have to befiled by the time the child turns 20 years old. In a dog-bite case, the statute of limitations is sixyears, so the suit would need to be filed by the child’s24th birthday. The statute of limitations for claims involving medi-cal malpractice or intentionally harming someone is oneyear from the point the child turns 18. A claim a parent may have for loss of the child’s so-ciety lasts as long as the child’s claims. The reason forthis is to promote a more efficient judicial system and to 13
  • 16. LITTLE KIDS, BIG ACCIDENTSkeep the claims together.2. Important evidence may be lost or destroyed After an accident, parents want to ensure thattheir child gets the proper medical treatment and makesthe best recovery possible. Oftentimes, a fair amount oftime passes before they consult an attorney, and some-times that delay can greatly damage any claim the childmight have. An attorney understands that the only way toprove a case is through the presentation of evidence.Preserving evidence before it gets lost or destroyed canmake or break a case. While certain documents or itemsmay not seem important to you, an attorney may realizethat they must be gathered and saved, and sometimesmay require immediate legal action. In some cases, it’s important to have the vehiclethe injured child was riding in inspected before it’s re-paired or destroyed. In other cases, witness statementsmust be gathered while memories are still fresh. In dog bite cases, experienced attorneys know thecritical importance in documenting the severity of theinjuries. In our office, we have a sophisticated digitalcamera that we use to take photos of the wounds causedby a dog attack. In some circumstances, we hire profes-sional photographers to take the images. Cases involving injuries caused by failure of abusiness or apartment complex owner to install safetyglass make for another example where preserving evi-dence can be very important. Photographing the scene 14
  • 17. LITTLE KIDS, BIG ACCIDENTSas soon as possible, hiring an expert to determine thestandards the property owner should have met, and re-taining a private investigator to interview witnessesabout prior injuries caused by broken glass are examplesof the necessary evidence gathering. There are countless different scenarios in whichacting quickly to preserve evidence could be crucial.Don’t delay in consulting an attorney regarding yourchild’s case, even if you have many years left to file thecase.3. Signing medical authorization forms can hurt claim Signing documents before consulting a lawyercould sink your child’s claim. When representatives ofinsurance companies ask you to sign certain documentsshortly after your child has been injured, alarm bellsshould be going off in your head. Insurance companies often will parents to sign au-thorization forms that allow them to access all of thechild’s medical records. It happens all of the time, andparents often think they have no choice but to do what’sbeing asked of them. Signing an authorization form al-lows the insurance company to comb through yourchild’s medical records, even those that are completelyunrelated to the case. This not only violates your child’sprivacy, but could yield information that, taken out ofcontext, could hurt your child’s claim.4. Don’t settle claims before consulting an attorney Rushing into a settlement with an insurance com- 15
  • 18. LITTLE KIDS, BIG ACCIDENTSpany could cause serious financial harm to your family.Insurance companies often try to contact the parents ofan injured child within a few days of the accident in or-der to settle the claim quickly. The money may look good initially until it’s dis-covered that the child was more seriously injured thaninitially thought, or that the entire settlement will begobbled up having to pay medical bills. The way it works is that the insurance companysends a check and a document for the parents to signthat effectively ends the case. So, even if it later be-comes apparent that the child’s injuries are far more se-rious than originally thought, no further recovery is pos-sible. In one case we handled – and this example is justone of many we could point to – the child had a brokenarm and a scar on his face. The insurance company of-fered an amount to settle the case that was tens of thou-sands too low, which the adjuster surely knew. Fortu-nately, the parents realized they might need some guid-ance and they consulted our office before signing anypaperwork. Do not be in a hurry to settle the case. Just po-litely inform the insurance adjuster that you’re going toconsult with an attorney to make sure your child’s rightsare protected.5. Lawyers know how to protect your child’s rights Lawyers help level the playing field between par-ents and adjusters. As we wrote earlier, insurance adjust- 16
  • 19. LITTLE KIDS, BIG ACCIDENTSers handle claims for a living. Naturally they have a tre-mendous advantage over most parents in negotiating asettlement. This is true even if the parents are very so-phisticated and have successful careers. Injury cases, particularly those involving children,are far more complicated than they often appear. Thenumber of legal issues that arise even in seeminglystraightforward cases can be tricky even for lawyerswho specialize in representing injured people. For example, we’ve handled tragic cases involv-ing children who were injured or killed when struck by acar in a driveway. Because our office is experienced inhandling such cases, we know the importance of doingthings like hiring a private investigator to interview wit-nesses, gathering the child’s school records, and makingsure the family members of the child were receiving theproper psychological treatment to cope with their loss. Apart from legal issues, an attorney experiencedwith child injury cases may be able to help guide you tothe best medical care in the area. We’ve had a number ofsituations in our office where an accident has left a childwith a broken arm or leg. That’s a problem for anyone,but growing children can experience issues with growthplates that can cause situations such as one leg beingshorter than the other. Because we deal with physicianson a daily basis, we’re able to connect our clients withthe top medical providers in the region. So, if your child has been injured, contact a lawyer assoon as possible to protect your son or daughter’s rights.Consulting a lawyer early in the case could make the 17
  • 20. LITTLE KIDS, BIG ACCIDENTSdifference between whether your child is taken advan-tage of or receives fair compensation. 18
  • 21. LITTLE KIDS, BIG ACCIDENTS CHAPTER 4 Do You Have A Case? The fact that a child died or was injured in an ac-cident doesn’t mean a claim can be maintained. A per-son or business entity who caused the death or injuryhas to be deemed negligent, or at fault, under the law.Someone is at fault when it is his responsibility to act orbehave in a certain way, but fails to, which causes injuryor death. There’s a lot of nuance to negligence law, butthat’s a boiled down version of the concept. In addition to negligence actions, claims can bebrought on behalf of children who were intentionallyhurt or abused by someone. Winning a lawsuit probably would seem like ahollow victory compared to the injury suffered by achild or the loss to a parent through a child’s death, butthe court system is purposely set up to allow us to workout our differences with other parties in a civil, organ-ized way. The insurance industry, acting in concert withstate and national chamber of commerce organizations,have worked their propaganda machines overtime topaint everyone who files a lawsuit as a money grubber.That’s ridiculous and it’s shameful. People shouldn’t bemade to feel guilty for pursuing legitimate claims, espe-cially when a child was injured or killed as the result ofnegligent conduct. You have nothing to be ashamed ofwhen you look out for the best interests of yourself andyour family. 19
  • 22. LITTLE KIDS, BIG ACCIDENTS VERY YOUNG CHILDREN ARE NOT NEGLIGENT FOR CAUSING INJURIES In many cases, children injure other childrenwhether through play or some careless act. Children under the age of 7 are not liable for theirconduct as a matter of law. For example, if a child lessthan 7 years old injures someone by running into themwith a bicycle, the injured person will not be able to suc-ceed on a negligence claim against the child, no matterhow severe the injuries. The idea behind the rule is that children who areless than 7 years old are simply incapable of fully appre-ciating how their acts may impact others. Therefore, thereasoning goes, it would be unfair to hold them respon-sible for injuries caused by accidental or even recklessbehavior. This can be an important issue if a child under theage of 7 gets injured in an accident caused partially bythe child’s actions. Under Ohio law, juries can weigh thenegligence of the person who caused the accident andthe injured person. The concept is called comparativenegligence. So, let’s say that the driver of a car runs astop sign at a 4-way stop intersection, and a 6-year-oldchild on a bicycle also fails to stop at the intersectionand is struck while crossing the car’s path. In that situa-tion, the 6-year-old cannot, as a matter of law, be foundto be contributory negligent. Therefore, the driver of thevehicle would be solely responsible for causing thechild’s injuries. Children 7 or older - and adults, for that matter – 20
  • 23. LITTLE KIDS, BIG ACCIDENTSalso cannot be held liable for causing injuries that occurduring recreational activities such as games of tag orbaseball, unless their conduct was somehow reckless. Inother words, a child who injures someone during sometype of play activity won’t be held liable for a run-of-the-mill accident. And, the recreational activity doesn’thave to be confined to sports. For example, if a child ac-cidentally wacked someone with a hammer while build-ing a tree fort, they likely couldn’t be found negligent.That may not seem fair to the injured person, but that’sthe law in Ohio. In some situations, a parent can be liable for achild’s negligent conduct. If the parent entrusts the childwith something like a gun or a car that is potentiallydangerous to others because of the child’s age or inexpe-rience, a claim can be made against the parent.Parents also can be liable if they don’t exercise theproper control over a child despite knowing that thechild’s conduct could cause an injury, or if the parentsomehow consents or directs a child’s wrongdoing. 21
  • 24. LITTLE KIDS, BIG ACCIDENTS CHAPTER 5 Smart Moves to Help Your Child’s Case TEN TIPS TO MAXIMIZE YOUR RECOVERY If your child has been injured in an accident, theinitial steps you take can make a big difference to theoutcome of the case. We’ve compiled ten tips to helpyou avoid insurance company traps and receive faircompensation for your child’s injuries.1. Seek treatment immediately. The best thing you can do for both your physicaland financial health is to get the proper medical treat-ment for your child’s injuries. You need to go to yourfamily physician or to the emergency room to make surethat your child gets the treatment necessary to recoverfrom the injuries suffered in the accident. Once you go to the doctor, follow his or her or-ders so your child can make the best recovery possible.If your doctor tells you to take your child to a physicaltherapist, do it. This makes sense not only for your child’s physi-cal health, but for the child’s financial health as well. Aninsurance adjuster is going to base any settlement offeron the medical care received because it provides a wayto measure your child’s injuries and resulting pain. Get-ting treatment demonstrates to the insurance companythat the injuries are legitimate. Compensation for thepain and suffering your child endured as a result of theaccident will be based to some degree on the amount of 22
  • 25. THE LITTLE KIDS, BIG ACCIDENTSthe medical bills.2. Don’t rush to settle your child’s claim quickly. If you’re reading this book because your child re-cently was involved in an accident caused by anotherdriver, you may already have received a call from an in-surance adjuster trying to settle the claim. Typically, anadjuster will wave a few thousand dollars under yournose to settle the claim quickly. It sounds good until yourealize your child may be hurt more seriously than youanticipated or the medical bills end up eating into thatmoney. If you’re tempted to settle the case below its valuejust because you need money for your child’s medicalbills, hold off. If you hire an attorney, the attorney oftenwill be able to work out an arrangement with yourhealth-care provider that allows your provider to be paidout of the proceeds of any settlement. This allows thechild to continue getting the necessary treatment, whileensuring the doctor is paid at the end of the case.3. Don’t underestimate the insurance adjusters. Insurance adjusters handle claims for a living.They’re judged by their bosses by how they settleclaims and how much money they save for the company.This doesn’t make them bad people; they’re just doingtheir jobs and looking out for the best interests of theiremployers. It’s up to you and your lawyer to look out foryour child’s interests. So, when an adjuster representing the person who 23
  • 26. LITTLE KIDS, BIG ACCIDENTScaused the accident gives you a call, keep in mind wheretheir loyalties lie. They’ll likely be extremely pleasant,but they have one goal: to settle your child’s claim ascheaply as possible. They do this for a living, all dayand every day. Because this is probably the first timeyou’ve been in this situation, you are at an obvious dis-advantage. Be smart when you’re dealing with them – orbetter yet, hire a lawyer who deals with insurance com-panies on a daily basis. After all, the insurance compa-nies have professionals working for them, so you shouldtoo.4. Don’t provide a statement to the adjuster. If an insurance adjuster contacts you, don’t makeany statements about the accident, your child’s physicalcondition, and whether your child is being treating by adoctor. The adjuster may be recording your conversationand certainly will be taking notes. You can settle anyclaims dealing with the damage to your vehicle, but anystatements you make about your child’s injuries couldcome back to haunt you. Simply thank the adjuster forcalling, state that you don’t want to make any state-ments, and that you or your lawyer will call back at theappropriate time. You don’t have to be rude, but youneed to be firm. The adjuster can’t make you talk. One way to avoid awkward conversations with anadjuster or making statements that could hurt your caseis to contact a lawyer to represent you. Your lawyer willstop the adjuster from having any further contact withyou or your child. 24
  • 27. LITTLE KIDS, BIG ACCIDENTS5. Don’t sign any medical authorization forms. Insurance companies often try to get accident vic-tims to sign and return authorization forms that allowthem to obtain their medical records. The forms usuallyare drafted so the insurer gains access to all of the in-jured person’s medical information, not just informationcaused by the accident. It allows an insurance companyto go on a fishing expedition for any other medical prob-lems that might explain the pain your child is experienc-ing. If your child’s injuries are serious, you shouldconsult an attorney to deal with these issues. Your attor-ney will ask you to sign medical authorization formsthat will be used to obtain the information that’s relatedto your child’s accident. This helps control the flow ofprivate information to the insurance company.6. Document everything connected to your child’s case. Make sure you keep every bill, police report, anddocument connected to your child’s claim. The insur-ance company has a right to see evidence of medicalbills for which you’re seeking reimbursement. Certifiedcopies are available through your child’s healthcare pro-vider. If your attorney handles a significant number ofinjury cases, he or she will know how to obtain theseimportant records.7. Honesty is the best policy. Be honest when it comes to dealing with your 25
  • 28. LITTLE KIDS, BIG ACCIDENTSchild’s injury claim. Be honest with the insurance ad-juster, be honest with your doctor, and be honest withyour lawyer. Nothing will kill your child’s claim fasterthan being caught in a lie.8. Don’t hide information from your lawyer. This tip goes hand-in-hand with our advice aboutbeing honest. You’ll be making a big mistake if you hideinformation that is embarrassing or that you think willhurt your child’s claim. You may get away with it, butusually the truth comes out. And if it comes out at thewrong time in a deposition or at trial, your child’s casemay be damaged beyond repair. Your lawyer needs thecomplete picture in order to provide your family withthe best possible representation. Don’t put your lawyerin a bad situation by hiding something.9. Don’t exaggerate the impact of your child’s injury. You’re entering a world you likely didn’t knowexisted. As we’ve said earlier in this book, insurancecompanies prosper by paying accident victims as littleas possible. In an effort to do that, they may resort towhat you may regard as underhanded behavior. Theymay hire a private investigator to spy on your family,they may have someone engage you in conversationabout your child’s injuries, or they may videotape yourchild at play. If you exaggerate the extent of your child’s inju-ries and then your child is filmed doing back flips on theplayground, don’t be surprised when the case tanks. 26
  • 29. LITTLE KIDS, BIG ACCIDENTSDon’t play games when it comes to dealing with yourchild’s injury case.10. Hire an attorney devoted to personal injury cases. Earlier, we wrote about insurance adjusters whonegotiate settlements every day. They’re good at it be-cause it’s their profession. That’s why you’ll need a law-yer to handle your child’s case. Your lawyer not onlywill deal with the insurance adjuster, but he’ll navigateyou through the complex world of personal injury litiga-tion. And it’s crucial to hire an attorney who special-izes in personal injury and child accident cases. Thatjust makes sense. For instance, while most doctors areextremely smart people who worked hard to get throughmedical school, generally you look for doctors whohave the knowledge and skills to help you with a spe-cific problem. For instance, if you need brain surgery,you aren’t going to consult a doctor who specializes inknee operations. Similarly, if your child has been injuredin an accident, it wouldn’t make sense to seek out a law-yer who specializes in corporate law. You need a lawyerwho understands the many nuances of injury law. Armed with knowledge of the law and the ploysof adjusters, a lawyer can help you obtain a fair settle-ment for your child’s case. Numerous studies haveshown that you’re far more likely to end up with moremoney at the end of a case if you hire a lawyer ratherthan trying to settle the case on your own. By virtue ofhandling injury cases every day, lawyers develop a 27
  • 30. LITTLE KIDS, BIG ACCIDENTSsense of how much a case is worth. Furthermore, you’re not likely to have experiencewith the types of arguments you’re going to hear frominsurance adjusters. Hiring a lawyer lessens the amountof hassles you’ll face and you’ll almost certainly netmore money for your child, even after attorney fees andexpenses are subtracted. 28
  • 31. LITTLE KIDS, BIG ACCIDENTS CHAPTER 6 The Probate Process and Your Child SETTLEMENTS MUST BE APPROVED BY PROBATE COURT Any lawsuit brought on behalf of an injured childis done in the name of the parent or legal guardian. Theparent or guardian is presumed to act in the best interestof the child. Therefore, any settlements, either before orafter the lawsuit is filed, must be agreed to by the par-ents. Parents, though, don’t have complete control overthe settlement. Some parents have the mistaken beliefthat they are entitled to collect their child’s settlementproceeds and do what they want to with the money. Thesettlement is for the benefit of the child and should beprotected until the child turns 18. Sometimes parentscan get a portion of the settlement for loss of consor-tium, but it’s usually a relatively small amount ofmoney. The county’s Probate Court acts to protect thesettlement so the funds are available when the childreaches adulthood. For all settlements over $10,000, the county’sProbate Court will conduct a hearing to ensure that thesettlement is in the best interest of the child. Getting theProbate Court to approve a settlement for a child addsadditional time to the process. Unfortunately, this can’tbe avoided, but an experienced attorney generally canmove the settlement through the system in an efficientmanner. 29
  • 32. LITTLE KIDS, BIG ACCIDENTS An application to settle a minor’s claim must firstbe filed in the Probate Court. The application provides abreakdown of the settlement as well as the expensescoming out of the settlement. It lists the unreimbursedexpenses, medical and otherwise, the attorney fees, andany money going to the child’s parents for loss of con-sortium. The application also tells the court where thechild’s money will be kept until the child is 18. Some-times the money will be kept in an interest bearing CDor bank account. In other situations, depending on thechild’s age and the amount of the settlement, the moneywill be placed in a structured settlement that will dis-perse payouts to the child over a period of years. We’vewritten more on the tremendous benefits offered bystructured settlements in the next chapter. After receiving the application, the Probate Courtsets a hearing that the parents and child must attend. Insome cases, one parent will file a document with thecourt waiving his or her appearance and consenting tothe settlement. This can be helpful if one parent mayhave a hard time getting time off from work. At the hearing, the judge or magistrate will re-view the settlement proposal in order to make sure it isin the best interest of the child. The judge or magistrateasks the parents if they approve the settlement and asksthe attorney for specific information about the deal. Perhaps the most important thing parents can doto protect their child’s interest is to find an attorney ex-perienced at handling injury cases, particularly those in- 30
  • 33. LITTLE KIDS, BIG ACCIDENTSvolving children. These cases can be complicated for thereasons we’ve discussed above, but the Probate Courtapplication process and hearing require a certain amountof legal sophistication. 31
  • 34. LITTLE KIDS, BIG ACCIDENTS CHAPTER 7 Protect Your Child’s Recovery PROTECTING YOUR CHILD’S MONEY WITH A STRUCTURED SETTLEMENT Attorneys who are experienced at handling childinjury cases understand that one of the best ways to helpthe child in cases involving significant recoveries is tostructure the settlement. A structured settlement pays out a set amount ofmoney to the child over a period of years, typicallystarting when the child turns 18. In most cases involvinga large settlement, a structured settlement makes sense. For instance, let’s say a young child is seriouslyinjured in a car accident. The settlement for that case isplaced in investments guaranteed to produce a certainamount of money every year once the child is 18. Thestructure can be set up in a variety of ways. For exam-ple, the child could receive a lump sum at age 18, andthen get set payments every month or year for a certainperiod of time. Often, parents will agree to a structuredsettlement that provides most of the money in yearlysums payable when the child is ready for college so tui-tion payments can be covered. Usually, the structure plan is funded by an annuitypurchased through a life insurance company. The insur-ance companies are highly rated and regulated by thestate to ensure that the money actually will be therewhen the child reaches 18. Structured settlements have a number of benefits. 32
  • 35. LITTLE KIDS, BIG ACCIDENTSFirst, the settlement will be worth significantly morethan it would have been had it just been paid out at theconclusion of the case. For instance, our office handleda case where the child would have received approxi-mately $60,000 in a lump sum payment, but under thestructured plan, she’ll receive approximately $160,000by the time the payments are made. Obviously the num-bers change based on the settlement, the age of thechild, interest available at the time of the settlement, andthe structure plan chosen. Structured settlements also offer the benefit ofproviding tax-free income to your child. Personal injurysettlements are not taxed, but any income generated byinvesting the settlement will be taxed. In a structuredsettlement, the money paid to your child every month oryear does not have to be claimed as income. Contrastthat to what would happen if you placed your child’ssettlement in a bank or money market account. Whilethe principle couldn’t be taxed, any income generated bythe investment could be. So structuring a large settle-ment makes good sense when considering the tax conse-quences. Structured settlements also take a burden off par-ents who may be unsure how to best manage theirchild’s settlement. Parents will know as soon as theychoose a structured settlement exactly how much thesettlement eventually will yield and what their child willreceive through the periodic payments. That’s differentthan parents who try to manage the settlement on theirown because there aren’t a whole lot of investment vehi- 33
  • 36. LITTLE KIDS, BIG ACCIDENTScles that guarantee a decent fixed return. And, again, anyinvestment income yielded would be taxable if notstructured. Structured settlements have the further advantageof letting parents set up plans that hedge against unwiseexpenditures that some 18-year-olds might make. Wecan probably all relate to the teenaged kid whose biggestpriority is buying an expensive car. We’ve representedplenty of teenagers who can’t wait to get their hands ontheir money to buy a new sports car. While many of uscan relate to similar desires when we were that age,most parents would probably not want their child toblow through the cash in less than a year by makingthose types of impulsive purchases. The structured planspreads the payments out over time, which preserves thesettlement over a period of years. In some tragic situations, we’re not dealing withfun decisions like how a fully recovered kid wants tospend his newfound wealth. Sometimes children are in-jured so severely that they’ll have medical expenses andpain that will last a lifetime. Provided that there’senough insurance coverage to pay for those expenses, astructured plan would be particularly beneficial. Pay-ments made in monthly increments hopefully would besufficient to pay for a lifetime of treatment and livingexpenses. If your child is injured, speak with your attorneyabout whether a structured settlement makes sense. It’simportant to make the decision before you accept anysettlement money. You can’t accept a lump sum pay- 34
  • 37. LITTLE KIDS, BIG ACCIDENTSment and then try to enter a structured plan because youlose the tax-free benefit that makes structures so appeal-ing. 35
  • 38. LITTLE KIDS, BIG ACCIDENTS CHAPTER 8 Dealing With the Loss of A Child Wrongful death claims are mostly controlled byOhio Revised Code §§ 2125.01, 2125.02, and 2125.03.Those code sections come from the state’s probate laws. The law allows the executor or administrator ofthe deceased child’s estate to bring a claim against theperson or entity whose negligent conduct or wrongfulact caused the child’s death. A case can be brought if the child could havemaintained a claim for negligence or wrongful conducthad the death not occurred. That means the executorwould need to show that the other party acted in a negli-gent or wrongful way and that conduct caused the death.Wrongful death cases can be brought for negligent actssuch as car accidents and medical malpractice, or crimi-nal acts like murder and manslaughter. To prove the case in a negligence context, the ex-ecutor must show that the defendant owed a duty of careto the child; that duty of care was breached; the breachcaused the child’s injuries and death; and that the child’sestate and beneficiaries suffered damages. The case must be proven by a standard called“preponderance of the evidence,” which essentiallymeans that the evidence must tilt more in the favor ofthe executor than the defendant. Attorneys often explainthe standard by telling jurors they just need to provetheir case by 51 percent, which is well short of the rea-sonable doubt standard that we’ve all seen in television 36
  • 39. LITTLE KIDS, BIG ACCIDENTSdramas depicting criminal trials.Relatives are beneficiaries Under state law, wrongful death suits are broughtin the name of the executor of the child’s estate in thename of various beneficiaries. A beneficiary is someonewho is entitled to financial compensation should thecase be proven. In Ohio, the beneficiaries in a case involving achild’s death are relatives such as parents and siblings. Aparent who a court determines had abandoned a minorchild may not be a beneficiary in a wrongful death claimstemming from the child’s death. The probate court judge determines how a settle-ment or award is to be distributed among the potentialbeneficiaries based on the relationship to the child andthe degree of loss to the beneficiary. If all the beneficiaries are at the same level in thelaw’s eyes – for instance a group of siblings – they candecide among themselves how to divide up the moneyand ask the court for approval. Beneficiaries under 25 years old can be treateddifferently by the Court in order to protect their inter-ests. The Court can create a trust for beneficiaries under25 and order that the money be held in trust until thebeneficiary turns 25 or that it be distributed in accor-dance with the terms of the trust.Damages available to beneficiaries Though it offers little consolation to people who 37
  • 40. LITTLE KIDS, BIG ACCIDENTShave lost a child, our court system compensates thebeneficiaries of a decedent by awarding money. Dam-ages – the term used to refer to the various reasons forwhich financial compensation can be awarded – areavailable for the estate and to the beneficiaries. The estate of the deceased child can be compen-sated for the medical bills incurred to treat the childprior to death and for the pain and suffering the childexperienced as a result of the accident or wrongdoing. Under state law, the following damages are avail-able to the beneficiaries in all wrongful death cases, notjust those involving children: Loss of society – Under this category, beneficiar-ies can seek financial compensation for such things asthe loss of companionship, care, assistance, protection,advice, guidance, and education provided by the dece-dent. Obviously, whether we’re talking about the deathof a child or an adult, it is difficult to put a dollar figureon these types of damages because they’re not easilyquantifiable. For instance, you can’t look in a book tofind a dollar amount that would compensate a mom ordad deprived of the time and companionship they wouldhave had with their deceased child. That’s the job ofyour attorney – to place a dollar amount on the loss of achild’s society and to justify that amount with a rea-soned argument to a jury. Though it’s not readily quanti-fiable, it’s certainly a huge and legitimate loss to thebeneficiaries – a loss for which they deserve to be com-pensated. 38
  • 41. LITTLE KIDS, BIG ACCIDENTS Mental anguish – Family members can beawarded compensation for the mental anguish they en-dured as a result of the loss of their loved one. Like lossof society, this may be a hard figure to quantify becausethere’s no formula for setting a dollar value on one’spain stemming from the loss of a child. Nonetheless, itcan account for a significant amount in a damagesaward because most people can relate to the grief ex-perienced as the result of the death of a family member. Making a case for mental anguish is similar toasking for pain and suffering damages in a routine per-sonal injury case. Your attorney could ask the jurors toaward money based on the anguish endured over a settime period such as months or years. Your lawyer maytake a different approach by not suggesting a formulaand simply asking the jurors to determine a fair figure tocompensate family members for the mental anguishthey’ve suffered. Loss of prospective inheritance – Under thiscategory, beneficiaries can seek financial compensationfor the inheritance they might have received from thedecedent had the decedent lived a normal lifespan. Thislikely wouldn’t apply in a case involving the death of achild. Loss of support – This refers to the lost earningcapacity of the decedent had he or she not died. The fac-tors taken into consideration for loss of support wouldbe the salary at the time of the decedent’s death as well 39
  • 42. LITTLE KIDS, BIG ACCIDENTSas the amount of money the decedent reasonably couldhave been expected to earn in the future had the deathnot occurred. Charts called “life tables” are used to cal-culate how long the decedent would have been expectedto live based on such factors as age at the time of death,gender, and race. As in the case of prospective inheri-tance, this probably wouldn’t be an issue for a case in-volving the death of a child. Loss of services – Damages for loss of servicesare available to beneficiaries. It’s a sort of vague claim,but essentially the law allows beneficiaries to collectcompensation for services the decedent provided thebeneficiaries. BOOKS FOR GRIEVING FAMILIES While we understand that literature is no substi-tute for human contact after the loss of a child, we havecompiled a list of books on the grieving process that canhelp explain some of the emotions you are dealing with.This Thing Called Grief: New Understandings of Lossby Thomas EllisWhen Bad Things Happen to Good Peopleby Harold KusnerLessons of Loss: A Guide to Copingby Robert A. Neimeyer 40
  • 43. LITTLE KIDS, BIG ACCIDENTSThe Bereaved Parentby Harriet Sarnoff SchiffWho Dies?by Stephen and Ondrea LevineOn Death and Dyingby Dr. Elizabeth Kubler-RossAwakening from Grief: Finding the Road Back to Joyby John E. Wishons 41
  • 44. LITTLE KIDS, BIG ACCIDENTS CHAPTER 9 Let Your Lawyer Be Your Guide HIRE A LAWYER EXPERIENCED WITH CHILD INJURY AND DEATH CASES All but the most straightforward of child injurycases can become very complicated even for experi-enced attorneys. Dealing with insurance adjusters,healthcare insurers, doctors, chiropractors, insurance-company attorneys, and structured settlement plans canmake resolving a child-injury claim a long, frustratingjourney. Hiring a lawyer to help you obtain fair compen-sation makes sense unless you’ve been involved in avery minor accident. If you hire a lawyer, he has a few options whentrying to resolve your child’s case. Some lawyers file alawsuit immediately, which has the benefit of puttingyou quickly on a trial track. The other path the attorneymight take is negotiating with the insurance adjuster toresolve the case without having to file a lawsuit. Mostattorneys, including those in our office, prefer the sec-ond approach. Lawsuits are time-consuming, expensive, and un-predictable. The benefit of settling a claim with the ad-juster is that we can give the parents and child a certainoutcome. We only file suit quickly if the adjuster makesan unfair offer that we know isn’t going to get any betteror if the statute of limitations is about to expire. For aroutine traffic accident case, the injured person has twoyears after the accident to file a lawsuit. The statute of 42
  • 45. LITTLE KIDS, BIG ACCIDENTSlimitations for a minor’s traffic-accident case is twoyears after the child turns 18. Even with our approach, you shouldn’t expect aquick settlement. As we stated earlier, we think it’s bestfor the child to follow a doctor’s treatment plan – even ifit takes more than a year – rather than settling the caseprematurely. This benefits the child’s health and case.Ultimately, the settlement or verdict will be based tosome degree on the cost and length of your child’s treat-ment. Sometimes going to trial becomes the only op-tion. When you’re looking for a lawyer, make sure youhire someone who is willing to try cases if necessaryand understands the nuances related to injury cases in-volving children. It can take a long time to get to trial,but it may offer your only chance of getting fair com-pensation for your child’s injury. If you have to go totrial, be prepared for a long wait because judges have tojuggle numerous criminal and civil cases. It’s not un-usual for a trial date to be set anywhere from six monthsto a year after the complaint is filed. YOUR LAWYER DOESN’T GET PAID UNLESS YOU DO People are understandably nervous about hiring alawyer. Fear that it will cost too much stops some fromconsulting an attorney, especially when expenses maybe adding up as a result of a recent accident. Child acci-dent victims, however, don’t pay their lawyer anythingunless a settlement is reached or they win in a trial. 43
  • 46. LITTLE KIDS, BIG ACCIDENTS Most attorneys who represent children injured inaccident cases take what’s called a contingent fee, whichmeans that the lawyer’s fee depends on his success inresolving the claim. If you win your case or get a settle-ment, the lawyer takes a fee. If you lose at trial or theinsurance company won’t settle, you don’t get anything,but you typically won’t owe the lawyer a fee. Usually,the lawyer takes one-third of the gross award or settle-ment, but the fee can increase if a trial becomes neces-sary. The arrangement works for both parties. The law-yer takes a risk that he or she won’t get paid if the casebombs. The client gets to pursue his claim without hav-ing to come up with thousands of dollars in legal fees.Without this arrangement, some people never would beable to bring a claim because they couldn’t afford it. Trying cases can be expensive because court re-porters have to be hired to take depositions, those depo-sitions have to be transcribed, medical records have tobe ordered, expert witnesses such as doctors have to beconsulted, exhibits have to be compiled, and court costshave to be paid. The attorney usually will cover thoseexpenses because most people couldn’t come up withthat much money. If the case settles or the client wins attrial, the lawyer is reimbursed for the expenses he in-curred in handling the case. Again, this arrangementbenefits the client. Our firm handled one case where theexpenses alone were in the neighborhood of $100,000.If we hadn’t paid for those expenses, our client neverwould have been able to pursue his claim even thoughhe had an excellent case that eventually settled for 44
  • 47. LITTLE KIDS, BIG ACCIDENTSnearly $2 million. When you meet with a lawyer, you will have tosign an agreement that spells out how the attorney willbe compensated and how the expenses will be paid.Make sure that the contingency fee arrangement – typi-cally 33 1/3 percent of the gross settlement or award – isclearly spelled out in the contract. If you don’t feel com-fortable with the contract, don’t sign it. You’re in controlof the situation. If you have questions, make sure thelawyer answers before you sign the document. You canwalk away after the case starts, but the lawyer will beentitled to get paid for the time and expenses he’s in-curred out of whatever settlement another lawyer ob-tains. When the case is resolved, your child will get acheck that represents the award or settlement, minus theattorney’s fee and expenses. In some situations, the at-torney could be entitled under the contract to moremoney than the client ultimately receives after expensesand medical bills are paid off, but that shouldn’t happen.The attorneys in our office cut their fees so the client al-ways ends up with more money. 45
  • 48. LITTLE KIDS, BIG ACCIDENTS CHAPTER 10 Let Us Know If We Can Help We hope this book serves as a helpful referencetool for understanding injury and wrongful death casesinvolving children. Though the process can be long andcomplicated, an attorney can guide your family throughthis journey. When picking an attorney for your child’scase, select someone who handles a lot of personal in-jury cases, particularly those involving children. Per-sonal injury lawyers deal with the legal issues specificto this field of law on a daily basis. If you think we can help you with your family’scase, please call us at 419-241-1395 or 800-637-8170. Areceptionist will gather some information and connectyou with a lawyer. Calls that come into our office afterhours are forwarded to a lawyer. To learn more aboutour firm, visit our Web site We’ll schedule a free consultation with you andgive you our professional opinion about whether or notwe can help your family. You can also order one of theother books we’ve written about car accident cases, dogbites, workplace injuries, or wrongful death claims. Wehave six offices in northwest Ohio where we can meetwith you to discuss your situation. We’ll work hard toget the best result for your child’s case. 46
  • 49. NEED MORE FREE BOOKS? Name: ____________________________________________________________Cut here Address:___________________________________________________________ Email:_____________________________________________________________ Phone Number:_____________________ Fax Number:____________________ Number of FREE books requested: _____ The Ohio Accident Book _____ The Ohio Work Injury Book _____ The Ohio Dog Bite Book _____ The Ohio Wrongful Death Book Send this form back to us & we will send your FREE books IMMEDIATELY. Send us this form back one of three ways: Mail to: Book Request, 405 Madison Avenue, Suite 1200, Toledo, Ohio 43604 or Fax to: 419.241.8730 or Email to: There is no charge for these books and it does not establish an attorney/client relationship.Cut here Your information will not be disclosed to any third party. You will be added to our firm’s Free Newsletter Mailing List, The Boyk Bulletin, to receive important legal and insurance updates. If you do not want to be added to the list, please check below. _______ No, I do not want to be added to your mailing list to receive current legal news and information regarding insurance laws affecting drivers in Ohio. 405 Madison Avenue, Suite 1200, Toledo, Ohio 43604 | 419.241.1395 We have six offices in northwest Ohio to serve you. LKBA-2009