Posts Tagged ‘personal injury settlement’

Child’s Personal Injury Settlement Includes Claim by Parents

DECEMBER 30, 2013 VOLUME 20 NUMBER 49

Helene Jackson (not her real name) was a minor when she underwent heart surgery, and the outcome was not positive. She was seriously injured, and her parents Stephen and Jacqueline (also not their real names) ended up suing the doctors and the manufacturers of medical devices used in the surgery. The parents alleged that the devices failed, and that Helene’s injury was a result of that failure.

Stephen and Jacqueline also alleged that they were injured — they lost the right of “consortium.” That common-law concept recognizes that profound injuries to a family member can affect not only the person directly injured, but also the spouse, children and parents, who lose not only companionship and filial relationships but also the ability to rely on financial support from the injured person. In the case of parents that financial component can be both speculative and delayed, but nonetheless many states (including Louisiana, where Helene and her family lived) recognize that the “loss of consortium” claim has some value, as well.

Eventually the manufacturers of the device offered a settlement, and the plaintiffs agreed that the total amount was acceptable. That meant that there would be $8.25 million to pay past medical providers, attorneys fees, and legal costs. After that, the relative values of Helene’s, Stephen’s and Jacqueline’s claims would have to be determined. By this time Stephen and Jacqueline had gotten divorced, and they had separate attorneys representing them (individually and, in each case, in their roles as parent of Helene).

As the outlines of the settlement became clearer to Jacqueline, she apparently had problems with two things. First, she insisted that no one had told her that someone outside the family would have to be appointed to handle Helene’s money — and that there would be administrative costs associated with that arrangement. Second, she did not agree with the trial judge’s allocation of $65,000 of the total settlement to her as her recovery for the loss of consortium claim. She refused to sign the settlement documents, and final resolution of the dispute was delayed for almost eight months — during which time the settlement funds had to be held in a non-interest-bearing account.

Eventually the settlement was approved and the funds distributed. Jacqueline then sued the two law firms that had represented her and her daughter’s interests. She alleged that because no one had told her about the need for a conservatorship or trust arrangement for her daughter, and because no calculation of her share of the settlement had been made, she and her daughter lost interest on the settlement money and incurred substantial additional legal fees to resolve their concerns.

The law firms both moved for summary judgment — that is, for a determination that Jacqueline’s claim had no merit. Hearing on that motion was held before the judge managing the civil proceeding, and he agreed with the lawyers. After Jacqueline’s lawsuit was dismissed, she appealed the ruling. By this time a separate person had been named to represent Helene’s interest in the settlement and apportionment issues, and he joined in Jacqueline’s appeal.

Before the Louisiana Court of Appeal, Jacqueline raised several other issues. By not telling her about the need for a professional manager of Helene’s settlement, she argued, the law firms had violated lawyers’ ethical rules (the Rules of Professional Conduct, which in Louisiana are very similar to those adopted in almost every state). One law firm had consistently told her that she would be entitled to recover her lost wages (she had to quit work to take care of Helene), and the trial judge had ruled that she should not be allowed to recover that amount. The trial judge had applied an unacceptable method of apportioning her share of the damages, she argued. And, not least importantly, she pointed to the testimony of her expert witness — a law professor at Loyola University New Orleans College of Law — who had opined that her lawyers’ actions fell below the standard of care in the community.

After considering all of that information and Jacqueline’s arguments, the Court of Appeals agreed. They reversed the dismissal of the legal malpractice actions, and sent the entire case back to the trial judge for further consideration. They also sent back the allocation calculation, directing the trial judge to consider Jacqueline’s claims for lost wages and medical expenses incurred (in addition to her loss of consortium claim). Jones v. ABC Insurance Co., December 12, 2013.

At first glance it might seem that this appellate case offers little insight that would be useful in other large personal injury/malpractice/products liability settlements. But it does offer an opportunity to make a few observations about the process, with an eye toward helping plaintiffs (and family members) understand the process AND helping their lawyers think about how to handle litigation.

First, it is important to remember that the lawyers representing Helene, Jacqueline and Stephen had an inherent conflict of interest. Yes, all three plaintiffs shared the common goal of maximizing the settlement amount. But once a lump-sum settlement has been proposed, and the parties agree that it is in an acceptable range, the conflict becomes clear: every dollar assigned to Jacqueline, or Stephen, would be subtracted from Helene’s share. Because Helene is a child, the people usually authorized to consider her interests would be (you saw this coming) Jacqueline and/or Stephen. Parents involved in litigation on behalf of their children need to understand this delicacy from the earliest possible moment, and lawyers should take care to avoid making the conflict any worse.

Second (and perhaps more importantly), clients need to understand that it is very seldom possible for family members to manage the proceeds from a personal injury claim on behalf of their injured minor child — or, for that matter, claims on behalf of their incapacitated parents, spouses or other relatives. The courts will be involved in oversight, and there will be strict accounting requirements, and there will usually be professional management. In some cases that cost can be avoided by putting sharp restrictions on the kinds of investments and the access to funds, but that kind of arrangement is simply not going to work on a multi-million dollar settlement.

It is tempting for personal injury lawyers to tell their clients that everything will be alright when the settlement is completed, and that they will be able to buy a new house, a new vehicle, a therapy pool, or whatever they want. At a time when it is important to keep the client focused on the negotiation process, it can be difficult to introduce an unwelcome concern. But it ultimately does a disservice to the client — and to the lawyer-client relationship — to gloss over the realities concerning management of settlement funds.

If nothing else, perhaps we can accomplish this much here: if parents involved in litigation search for “settlement of child’s personal injury claim” or similar terms, maybe they will reach this page. Then they can ask their lawyers for more clarification about how the settlement funds will be managed, and how their respective claims will be apportioned. It is important information that clients should have, even (perhaps especially) if it makes them unhappy.

Arizona Restricts Use of “Self-Settled” Special Needs Trusts

JANUARY 12, 2004 VOLUME 11, NUMBER 28

Last week Elder Law Issues described how a “Special Needs” trust can be used to protect the beneficiary’s access to public benefits programs like Supplemental Security Income (SSI) and Medicaid (in Arizona, AHCCCS or ALTCS). There is one glaring problem with Special Needs trusts just now in Arizona, however—the Arizona Long Term Care System (ALTCS) has aggressively attacked the use of Special Needs trust planning.

It is important to clarify at the outset that ALTCS’ scrutiny of Special Needs trusts has been limited to those funded with personal injury settlements or other funds once belonging to the beneficiary. So far, at least, ALTCS seems to understand that trusts established by parents with their own money for the benefit of children with disabilities should not be challenged.

What are often called “self-settled” Special Needs trusts, though, have come under increasingly intense attack by the ALTCS administration. The government challenges range from demands that the trusts be amended each year, to insistence that the trustee predict exact expenditures for a year in advance, to registering objections to payments for the benefit of the trust’s beneficiary.

ALTCS takes the position that they are not constrained by the straightforward language of federal law on self-settled Special Needs trusts. Although the State will be entitled to receive most, if not all, of the trust assets on the death of the beneficiary, the administrators’ approach seems to be calculated to make the use of Special Needs trusts as unattractive as possible.

Although federal law clearly contemplates that personal injury settlement money, for example, could be used to purchase a home for the beneficiary or pay for caretakers in addition to the care provided through the Medicaid benefit, Arizona imposes severe limitations on both types of expenditures. The State’s demand for an annual budget and its insistence on no deviation without 45 days’ advance notice makes it difficult (if not impossible) to employ the flexibility necessary in administration of the care provided to most disabled beneficiaries.

The practical effect of Arizona’s assault on self-settled Special Needs trusts has been to substantially increase the cost of administration of such trusts and to reduce the benefit to beneficiaries. It would be incorrect to say that Special Needs trusts are no longer useful for Arizona residents, but the ALTCS position makes it imperative that any proposal to establish a Special Needs trust be reviewed by an experienced attorney.

Special Needs Trust Can Protect Benefits After Personal Injury

JANUARY 5, 2004 VOLUME 11, NUMBER 27

Joseph is eighteen years old and requires total care. He has been in his current condition, unable to speak or move and unresponsive to most stimuli, for five years. His family believes his condition is a result of improper treatment he received during a hospital stay, and lawyers negotiated a substantial settlement of a claim made against the hospital at the time.

Bridget and Diane have similar stories, except that their injuries both occurred prior to or during birth. Both require full-time care that is both expensive and exhausting to arrange and manage. Both live with family members, who provide most of that care.

Each of these three individuals (whose names, and some facts, have been changed to protect their privacy) receives care that would cost over $100,000 per year if paid for privately. Each received a substantial settlement as a result of a lawsuit filed by family members years ago—but each would have used up all their settlement proceeds within less than ten years if they had been required to pay for all their care privately.

Joseph, Bridget and Diane are not alone. There are dozens of individuals with catastrophic injuries and substantial, but inadequate, personal injury settlements in our community, and thousands more around the country. Their settlements may have been insufficient because the facts were ambiguous, or the defendants inadequately insured, or the families emotionally ill-equipped to sustain the rigors of protracted litigation. But they all need services they can not afford.

These three individuals have benefited from a 1993 federal law permitting establishment of “special needs” trusts with their personal injury settlements. Although the requirements are stringent and the rules tend to shift, the trusts established for Joseph, Bridget and Diane can pay for transportation, supplemental therapy, supplies and housing, while each remains eligible for federal, state and school programs providing much of the care they require. In this manner, their personal injury settlements can be stretched to provide real benefits long past the time they would otherwise run out.

Establishment of a special needs trust to hold a personal injury settlement can be both a positive and a frustrating experience. Involvement of experienced and knowledgeable legal counsel is essential to successful implementation. There are often less expensive yet equally efficient alternatives available, and qualified counsel can help sort through the options.

Next week: Arizona attacks special needs trusts.

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