For a parent, perhaps the only thing worse than something bad happening to you is something bad happening to your child. Particularly with small children who are still learning to talk or express feelings of pain or discomfort, it can be challenging to know when they are sick enough to need a doctor. This also makes it problematic to determine if your child has been the victim of medical negligence by a doctor, nurse, or other healthcare provider. Because adults are not always able to easily identify such negligence in their own care, even older children or teenagers may not recognize when something is not right in their care. Add to that the fact that a minor cannot file a medical malpractice claim for themselves, and it is no wonder that families are often confused and uncertain about what to do.
Fortunately, an experienced New Mexico pediatric medical negligence attorney with Erin Marshall Law may be able to assist with determining whether your child experienced medical negligence, gathering evidence to support a claim, negotiating a settlement, and, if necessary, representing you and your child in a lawsuit. Call (505) 218-9949 to schedule an appointment and learn more about your child’s legal rights and options.
How is Medical Malpractice Different for Minors?
Medical malpractice is the same for minors in some ways, such as the requirement for the case to go before the New Mexico Medical Review Commission for evaluation before filing in court. However, it is different for minors than adults in several critical ways.
Identifying That Malpractice Occurred Is More Difficult
Determining whether medical negligence has occurred can still be challenging when an adult individual is the patient. However, the patient is often able to recognize that something is not as it should be. For example, they may realize that an infection that develops after surgery may indicate their provider was negligent. They may be given a medication that they have been given before and later find that the amount prescribed was far less or far more than they had previously been prescribed. They may be able to tell that the symptoms or complications they are experiencing after treatment are unusual. This is often due to life experience, previous experience with medical care, and learning from others about their experiences.
Children do not have the same experiences and therefore, do not have that frame of reference to judge their feelings and the care they receive to determine a problem. Small children, or children with special needs, may be unable to express their feelings meaningfully, allowing the parent to understand what is happening. Teenagers may be embarrassed or uncomfortable and fail to tell their parents about an infection or other complication that may indicate negligence. Therefore, parents must pay careful attention to their children when they undergo medical treatment, including asking lots of questions about how the child is feeling and noting even minor changes or potential issues, such as fevers, indications of pain, or anything else out of the ordinary.
Liability May Be More Complex
New Mexico uses a pure comparative negligence system, even in medical negligence cases. This means that individuals can be partly or primarily responsible for their injuries and recover compensation. However, cases involving children can create additional complexities. For example, if an adult patient does not disclose to their healthcare provider that they are taking a particular medication and the provider prescribes another medication that interacts with that undisclosed medication, a judge may hold the patient partly responsible for the interaction injury. Unless that patient is incapacitated and someone else is speaking on their behalf, they are the only individuals who could be liable outside of a healthcare provider.
However, if that patient is a teenager, and they are using illegal drugs or consuming alcohol and do not disclose this information to their parents or their provider, the liability becomes more complex. A judge must decide whether they believe the parents did not know and could not disclose that information. The teenager may be liable for failing to tell their parents or the provider. The provider can be liable if they did not exercise reasonable care in determining what other medications or substances the patient may have been using. This is just one way that liability can become confusing and complex due to the number of potential people involved who may or may not contribute in some way to the negligence.
Minors Cannot File a Claim
Minors, or individuals under the legal age of eighteen, cannot file any lawsuit on their own, including one for medical negligence. This is because a minor lacks the legal capacity to do so. This simply means they are not old enough to fully comprehend a lawsuit’s legal implications. They are also not old enough to enter a binding agreement, which would be necessary to hire an attorney or agree to a settlement.
The Statute of Limitations Applies Differently
NMSA 1976 § 41-5-13 provides three years from the date of the negligence for individuals to file a medical malpractice claim. However, when the claim involves a minor, the statute of limitations does not apply the same way. Instead, it can be “tolled” until the child turns eighteen, at which point they have one year to file the claim.
How Are Medical Malpractice Claims Filed If Minors Cannot File a Claim?
While the statute of limitations allows minors to file lawsuits once they turn eighteen, this does not often happen, especially if the child involved is an infant or a very small child. One reason many lawsuits are not delayed until the child is eighteen is that over time, evidence can be lost or destroyed, and witnesses may forget what happened or be difficult to locate.
The law allows parents to file the lawsuit on their child’s behalf, acting as their legal representative, known as a “next friend” in New Mexico. The court may appoint a guardian ad litem to protect the child’s interests, and the court might also need to approve the parent’s actions and any potential settlements to ensure that the child’s best interests are being met.
How the Statute of Limitations Works for Minors
While adults have three years from when the negligence occurred to file their claim, minors cannot. Therefore, the statute of limitations is “tolled” for children. This means that it can be paused until the child turns eighteen. Once the child is eighteen, they can file a negligence claim as long as they do so within one year of their eighteenth birthday.
While cases involving infants or young children are often brought by their parents rather than waiting, for older children such as teenagers, waiting until they are eighteen may be a better option. The extended deadline offers more time to gather information, allow the injuries sustained to become clearer, and better understand the long-term effects of the injuries. This can allow for the full scope of the impact on the child’s education, development, and future earning potential. This information can then be used to accurately assess the child’s future therapeutic, medical, and educational needs, which can be factored into the damages sought. An experienced New Mexico pediatric medical negligence attorney at Erin Marshall Law may be able to review your child’s case and offer guidance regarding when to file the claim.
Calculations and Payment of Compensation
When the patient experiencing medical negligence is a child, the calculations and payment of compensation are also slightly different if the parents file the claim before the child turns eighteen. Once the child is eighteen and files themselves, calculations and payment are generally the same as in any other medical negligence case.
Compensation Calculations
Determining fair compensation for medical negligence for a child is more difficult than for an adult. Children are still growing and developing, which means that what could have been a minor injury for an adult could have a much more significant impact on a child. Additionally, their youth means that any lifelong effects will be more expensive than they would be for an adult, due to the child’s longer lifespan.
The complexity of determining how a medical injury has or will affect a child’s development and growth long-term is one reason that some families prefer to wait until the child is eighteen to file a claim. This allows more time to understand those effects and potentially be better prepared to negotiate compensation. For other families, it is the impact the injury has that causes them to pursue the claim immediately. Significant injuries may require treatments, therapies, and supplies that the family cannot afford without the compensation they may receive.
Compensation Payments
If the claim is successful, compensation is typically paid as a lump sum or structured settlement that pays the compensation out over time. When the case involves a child, compensation is usually paid as a structured settlement to ensure that money is always available for the child’s care. Additionally, adults would receive compensation paid directly to them unless they put it in a trust or other alternative. A child’s compensation is often managed by the court, but parents may be able to have it placed in a trust. Whether a lump sum or structured settlement, court-managed or in a trust, the compensation will always be paid to the child’s estate, not directly to the parents. Parents may want to consult with an attorney to learn how to access the money required to pay for the child’s care.
How a New Mexico Pediatric Medical Negligence Attorney May Benefit You
Medical negligence is a complicated, confusing situation even for adults. When the patient is a minor, it can become even more so, both medically and legally. An experienced New Mexico pediatric medical malpractice attorney may be able to assist families in navigating the legal process, including offering guidance regarding whether to file on behalf of your child or let them file when they become an adult. Call Erin Marshall Law at (505) 218-9949 to schedule your appointment and learn more about you and your child’s legal rights and options.
