Best Legal Defenses to a Child’s Damages for Injuries in the State of California
The following is not an exhaustive list of defense tactics; the list below represents some of the more common defenses I see in my child injury law practice:
Defense attack on pain and suffering damages: It should be expected that a defense lawyer will search out evidence that an injured child is exaggerating his or her injuries. Facebook and other online social media networks have been reviewed by defense attorneys and defense insurance companies looking for photographs showing various activities of the injured child, and at times, attempts are used to take the photos out of context to show the injuries were minimal to the child.
Failure to mitigate damages: At times, the defense may argue that any alleged pain and suffering could have been avoided through reasonable medical care; for example, any gap in medical care can be detrimental to your child’s injury claim just as it would be for an adult’s. Thus, it is extremely important to not delay in getting your injured child to a doctor right away after an injury. Doing so protects your injured child both medically and legally.
Conflicting expert opinion: The defense is entitled to one independent medical exam (IME) of your injured child, so long as there is a lawsuit filed, and the trial has not yet started. You can see my video on IMEs on my website, in the Video Center section. The IME defense doctor may come to a different medical conclusion than the child’s injury doctors; usually this conclusion is used to defend the case on pain and suffering, and what was reasonable and necessary for medical care.
Biomechanical force defense: This is a popular defense used regarding the amount of property damage to both vehicles in a car accident, or the biomechanics involved in a slip and fall or trip and fall accident. Property damage experts can be retained to give expert opinion on whether or not the forces of a particular impact could have produced enough force to cause harm to the child’s body. Other experts, like engineers on a slip/trip and fall case or a human factors expert, can be used to comment on this type of defense, too.
Research: Mark C. Blane, Esq., The Ten Secrets You Need To Know About Your Injury Case, Before You Call a Lawyer, Word Association Publishers, 2010. 86 International Classification of Diseases, Ninth Revision (ICD-9) 87 Gunnar BJ Andersson, Linda Cocchiarella Guides to the Evaluation of Permanent Impairment, Fifth Edition, American Medical Association.
Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, please order your free copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information that will help you protect your legal rights and it normally sells for $16.95. However, it is free to all California residents, or those injured in a California accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.