Representing a minor catastrophically injured by a negligent third party can pose a number of unique legal and procedural challenges that need to be carefully navigated in order to put on a successful case. One treacherous and frequently overlooked pitfall involves significant limits on the damages minors are legally entitled to recover.
Past and future medical expenses are typically a substantial part of a minor’s economic damages. However, many plaintiffs attorneys are unaware that under an archaic, but still enforced, Pennsylvania common-law doctrine, minors can be prohibited from recovering medical expenses incurred before their 18th birthday. This doctrine often shields negligent defendants from any obligation to pay for the medical care and treatment of minors, leaving the children on the hook for financially ruinous medical expenses. Despite intense criticism by both Pennsylvania’s Supreme Court and Commonwealth Court, Pennsylvania continues to adhere to this antiquated and unfair common-law rule. In light of the judiciary’s hesitancy to overturn this flawed doctrine, it is now incumbent upon the legislature to take corrective action.
The common-law doctrine prohibiting minors from recovering medical expenses prior to reaching the age of majority is premised upon an outdated and absurd idea that minors are merely “property interests” of their parents and it is therefore the parents’ moral responsibility to pay for their medical expenses. Thus, because parents are expected to pay for the medical expenses of their children (their “property interest”), the parents can sue to recover these expenses, but minors cannot. Although the parents of a minor are technically allowed to recoup medical expenses, as a practical matter they frequently find themselves barred from doing so. Unlike minors, who are permitted under a modified statute of limitations to bring suit for injuries up to two years after their 18th birthday, parents seeking to recover medical expenses must bring suit within the traditional two-year limitations period. The unfortunate reality, however, is that for a variety of reasons, including the precarious medical condition of their catastrophically injured child, parents are frequently not in a position to file suit within two years. In these circumstances, the common-law doctrine will foreclose any recovery of medical expenses incurred prior to the child’s age of majority. This result is grossly unfair to minors and is also entirely inconsistent with modern economic realities. Depending on the severity of a minor’s injuries, expenses for medical care and treatment can cost hundreds of thousands of dollars. It is very rare that parents can afford to pay such exorbitant amounts, and often the child incurs this debt. Despite these economic realities, which lead to children incurring ruinous levels of debt, under Pennsylvania’s current common-law rule, minors are nevertheless prohibited from making a claim for reimbursement of these expenses.
In 2008, Commonwealth Court Judge Renee Cohn Jubelirer issued a well-reasoned opinion criticizing the inequity of this common-law rule in Shaffer-Doan v. Department of Public Welfare, 960 A.2d 500 (Commw. Ct. 2008). In Shaffer-Doan, the parents of a minor brought a suit against the defendants in connection with negligent medical treatment that left their child with extensive and permanent brain damage. The parents brought suit on behalf of their child and also asserted their own claim seeking to recover past and future medical expenses. However, because the parents’ claim for medical expenses was brought more than two years after the alleged
malpractice, the defendants were granted summary judgment as to the claim.
The child’s negligence claim was eventually settled for $14.8 million. Because the Department of Public Welfare paid a portion of the child’s medical expenses, it asserted a lien. The plaintiffs objected to the DPW’s lien, contending that the settlement did not include medical expenses incurred by the child. Citing Pennsylvania’s common-law rule that only permits parents to recover the medical expenses of a minor, the plaintiffs argued that none of the $14.8 million settlement could be attributed to past medical expenses because the trial court had thrown out the parents’ claim as time-barred. Thus, according to the plaintiffs, reimbursement for past medical expenses was not included in the $14.8 million settlement and the DPW had no lien.
After a thorough and well-reasoned analysis, Jubelirer allowed the DPW to pursue its lien, but she did so based on her statutory interpretation of Pennsylvania’s Fraud and Abuse Control Act, 62 Pa. Stat. Ann. § 1401 et seq. Although she did not overturn the common-law bar to minors recovering medical expenses prior to the age of majority, she did criticize the rule in strong language as outdated and unprincipled.
“The prohibition against a minor receiving compensation for medical expenses during minority is a common-law anachronism, and … our continued reliance on the principle calls to mind the philosophical dictum by which Ralph Waldo Emerson has, over the years, comforted judges … stating that a ‘foolish inconsistency is the hobgoblin of little minds,’” Jubelirer said.
More recently, the Pennsylvania Supreme Court agreed with Jubelirer’s assessment of the common-law doctrine in E.D.B. v. Clair, 987 A.2d 681, 688 (Pa. 2009).
In E.D.B., the Supreme Court acknowledged that the common-law rule preventing an injured minor from recovering medical expenses prior to the age of majority is an “anachronism … rooted in a now-repudiated tradition that considers children to be property of their father.” But despite acknowledging that the common-law doctrine is an anachronism and criticizing its application, the Supreme Court stopped short of overturning the rule. Instead of abolishing the rule, the Supreme Court followed Jubelirer’s lead and sidestepped the issue by broadly interpreting the statutory language of the Fraud and Abuse Control Act.
Indeed, the court was careful to note that “the broad question of the continuing vitality of the common-law doctrine that bars an individual from bringing suit for medical expenses incurred during his or her minority is not before us and is not the basis for our decision.” Thus, the Supreme Court explicitly passed on the opportunity to overturn a rule it conceded was flawed and unfortunately allowed the bar to minors recovering medical expenses to stay in place.
The criticism of the common-law doctrine by the Supreme Court and Commonwealth Court is justifiable. The rule is not only antiquated in its treatment of children as property interests, it ignores the modern economic reality that minors often incur substantial debt for medical expenses. In light of the incongruence between the common-law restrictions on minors recovering medical expenses and contemporary notions of economics, philosophy and fairness, it is time for this doctrine to be abolished in Pennsylvania. The Supreme Court has acknowledged the doctrine’s unfairness, but seems reluctant to have the judiciary overturn it. Because of this reluctance and because another appeal to the Supreme Court could take years, it is time for the state legislature to step up and banish this archaic and unfair rule. Otherwise, children suffering from catastrophic injuries will continue to unfairly pay the dire economic consequences caused by negligent third parties.
James P. Goslee is an attorney at Cohen Placitella & Roth and focuses his practice on personal injury, medical malpractice, subrogation and complex civil litigation.
Stewart Cohen is a shareholder at the firm and focuses his practice on complex civil litigation, including medical malpractice, workplace accidents and class actions.