QuestionMy child was struck by an automobile in 2001. The lawyer I had told me to accept the settlement because my son ran into the street and the case would probably not be favorable if it went to trial. I was heavily sedated most of the time when these decisions were made and went with the advice of my counel at the time. I was in the Air Force and this happened while my child was at the baby sitter. I accepted the settlement as advised and the GAL ok'd the situation. My son suffers from a right hemiparesis, and has a significant limp now. His funds are in trust but I have state health insurance which is very limiting to the type of care he can receive. Can I reopen the case on the grounds that I was not thinking in my right state of mind. I was on 5 prozac a day practically and am still recovering. I feel I was taken advantage of. Please assist.
AnswerDear Jave,
I am sorry to hear that your child is suffering still from the auto accident. Hopefully there will be some treatment for the future care. The key to getting the settlement set aside may resolve more upon what was known—and especially what was unknown but has come to pass—about your child’s prognosis at the time of the settlement, NOT your own personal disability.
What you are asking me is whether or not you can set aside the settlement at this date because you did not understand what you were doing when, during the settlement proceedings, you stated that the settlement was fair. The answer is NO, you may not get the settlement set aside on those grounds.
In other words EVEN IF you could prove that you did not know the meaning of your child’s condition in regard to the amount of money to be paid, it is highly unlikely that a judge would set aside the settlement for that reason ALONE because it was deemed to be fair based upon the opinions of an independent attorney and a judge.
While it IS TRUE that the settlement COULD be set aside on different grounds, the allegation that you did not understand, in and of itself, is not going to get too far. Why?
Because your child had an independent Guardian ad Litem (GAL) on its side and an independent judge to review all of the medical reports and the GAL report and thereafter approve the settlement as being in the best interests of your child. Your opinion is only one of the factors that the GAL and the judge considered.
Let’s take a little review of that GAL and court approval process.
The reasons for an independent attorney to report on the adequacy of a settlement are sound, and if you want you can read an exposition on the entire process to settle minor insurance claims http://www.settlementcentral.com/page8017.htm Guardian ad Litem (GAL) will interview you and your child, investigate the accident facts, review the medical records and talk to doctors, write what is called a "GAL report", and present it to the court. The court will read the GAL report and the medical records. It will also be interested to know that the parent thinks this is a fair settlement.
Your point is that you were so incapacitated that you did not then understand that it was not a fair settlement. But because you appeared to be in control of your facilities at the time, and especially because the GAL and the judge found the settlement to be fair, there will be no chance to undo the judgment of the court on those grounds alone. HOWEVER, if combined with an allegation that follows, then there would be something to present to a judge as potential grounds to reopen the claim.
What are these other grounds to set aside the settlement? The best grounds that might work to set aside the settlement is if your son developed something new or some new complication that could not have been anticipated from his prior condition.
If his condition is just a worsening of what he had back then, that is not enough to set aside the settlement. In other words, if a doctor could have made a prognosis of this worsening, that is not enough to set aside the settlement. It has to be something that could not have been foreseen at the time of the settlement.
What I would do is to go to the GAL and ask him if he included the worsening of your child’s condition in his report and evaluation. Ask the doctor whose medical records formed the basis for the acceptance of the settlement why she did not include a prognosis that discussed the worsening of his condition. Those are the best places to start.
If the worsening of the condition was not discussed, then YOU NEED TO SEE AN INDEPENDENT ATTORNEY because this could be a case of professional negligence on the part of either or both the GAL and doctor since they failed to apprise the court of the probability that your child’s condition could worsen.
Thus, the first step is to figure out what your child’s condition is, and whether or not it is something new, and, FURTHER, whether or not it was anticipated and discussed by the doctor and the GAL. You might get a lawyer referral service attorney to look at the medical records and the court documents for you. Contact the state or county bar association and ask for their lawyer referral service. These attorneys are in part volunteers, and they bill at a greatly reduced rate, such as $30 to $50 an hour.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
Http://www.SettlementCentral.Com
