Kelly on Malpractice

Does a minor have the right to sue for pre-majority medical expenses incurred as a result of personal injury, or does the right belong exclusively to the parents? In the ordinary personal injury action, a minor has until his or her 19th birthday to file suit against a person responsible for harm. If a minor has the right to sue for medical expenses arising out of a personal injury, then the minor may wait until his or her 19th birthday to assert such a claim. However, if the cause of action for pre-majority medical expenses belongs solely to the parent, then the action for recovery of those pre-majority medical expenses must be brought within the one year statute of limitations.

Before 2006, the authority was muddled. The common law and statutory law in 2005 appeared to prevent a child from recovering premajority medical expenses incurred by the parents-that the right belonged exclusively to the parents. TENN. CODE ANN. § 20-1-105. The statute of limitations would bar the parents’ recovery of a child’s premajority medical expenses if the parent did not file suit for the child within one year. This meant that the parents had to bring their claim for medicals spent on the child before the one year statute of limitations expired. Otherwise, thousands of dollars in medical expenses could be lost because the premajority medical expense claim would be time barred. Plaintiff lawyers already struggle with the time limitations in a case where the child’s injury is not known well enough to sue within a year. Moreover, some lawyers are confused by nature of the medical claim itself; i.e., who owns it—the parent, the child, or both? This ambiguity has caused problems particularly in birth trauma cases, which are medical malpractice cases.

The Court of Appeals tweaked the law on premajority medical expenses in the case of Palanki v. Vanderbilt Univ., 215 S.W.3d 380 (Tenn.App.2006). In Palanki, the plaintiff brought a medical malpractice action on behalf of her minor child “as next friend and mother.” The case was a tragedy. It involved the negligent removal of ninety-nine percent of the child’s bladder. The mother sought recovery of all medical expenses incurred during the child minority on behalf of the child. The proof showed that the child incurred some $300,000 in premajority medical expenses. The defendant objected to this proof due to the statute of limitations, because the mother did not file her suit against Vanderbilt within one year of the negligent surgery.

The Court of Appeals disagreed with Vanderbilt’s argument. The Court found that the right conferred by § 20-1-205 to maintain an action for the pre-majority expenses is “not exclusive to the parents.” This means that the parent or the child may bring a claim for premajority medical expenses. In so doing, the Court adopted a waiver rule, which allows “a child under circumstances “where the parent has acted as next friend” to maintain an action for his or her own premajority medical expenses provided that the parent has paid for them … or is legally obligated to pay them.” In so doing, the parent waives his or her individual claim that to recover the child’s pre-majority medical expenses. This eliminates the concern of double recovery for pre-majority medical expenses by both the child and the parent(s). The lesson of Palanki is that when your client is a child, have the parent or guardian sue as “next friend” of the child if the statute of limitations expires. Put this in the caption. It could be worth thousands in medicals in a Life Care Plan.