When Children Sue

Children who suffer personal injuries have the right to sue but can do so only through a guardian. Usually a child’s parent serves as the guardian. In a recent Pennsylvania case, a trial judge substituted a lawyer as guardian ad litem for an injured child, but on appeal the child’s mother regained the right to manage the lawsuit.

The child was a 15-year-old-girl who suffered from seizure disorder, global developmental delay, and¬†hearing problems. She was fed by a feeding tube and relied on daily nursing assistance for her routine care. One of the assigned nurses preferred to care for the child at her own home rather than at the child’s home, but that arrangement was not permitted by the agency. The nurse and the mother secretly agreed that the nurse would care for the child at the nurse’s home, only on the days the agency reviewed or monitored the nurse would she and the child stay at the mother’s home.

Parents have a fundamental right in Pennsylvania law to make decisions regarding the care and control of their children.

While at the nurse’s home, the child was extensively bitten by the nurse’s dog, resulting in serious facial and eye injuries. The eye injuries required a series of surgeries, and it was expected that the child would require future surgeries as well.

After a period of delay, but before the time for filing suit expired, the mother sued the nurse and the agency for negligence and negligent supervision. The mother hired an attorney who filed the lawsuit and also entered into serious settlement negotiations. The agency and the nurse’s homeowners’ insurance company made substantial offers, but as the case proceeded to¬†trial, confusion arose about the amount and detail of the offers.

Just before trial, the trial judge appointed an attorney to take over the mother’s role and act as guardian ad litem for the child. The judge was critical of the mother’s failure to accept substantial settlement offers and concluded that she was not¬†sufficiently focused on the child’s best interests but was instead motivated to get a larger offer or award for her own financial gain.

The mother immediately appealed, and on appeal she won the right to act as sole guardian in the case. The Pennsylvania Superior Court held that a trial court does have the authority to substitute an attorney for a parent guardian in a personal injury case involving a child. But in doing so, the court must give valid reasons before setting aside the parent. Parents have a fundamental right in Pennsylvania law to make decisions regarding the care and control of their children. Largely due to the fact that the parties all disputed the history of the settlement offers and counteroffers, the appeals court found that the trial judge did not have enough reliable evidence that the mother was not acting in her daughter’s best interests.

Parents are entitled to bring lawsuits for their children and are permitted to hire attorneys to do so. Trial judges may substitute an attorney as guardian ad litem for a child if sound reasons support the conclusion that the parent is not managing the litigationadequately,

Resolution of legal issues depends upon many factors, including variations of facts and interpretations of Pennsylvania law. This newsletter is not intended to provide legal advice on specific subjects, but rather to provide insight into legal developments and issues. The reader should always consult with legal counsel before taking action on matters covered by this newsletter.