Written by Sarah Kathryn Stahling, Esq.
Edited by Bill Pfund, Esq.
Two separate causes of action arise out of an injury to a child– one on behalf of the child for pain and suffering, injury, and loss of earning capacity in adulthood and one on behalf of the child’s parents for loss of services and earning capacity while the child is a minor and for medical expenses incurred for the child’s treatment. Moses v. Akers, 203 Va. 130, 122 S.E.2d 864 (1961). Since July 1, 2013, however, the claim for medical expenses now belongs to both the minor and the parents. Va. Code § 8.01-36.
You’re likely familiar with a child’s claim for personal injuries that includes the parents’ claim for medical expenses incurred on behalf of the child. This type of action is stems from Va. Code § 8.01-36(A), which provides that
[w]here there is a pending action by an infant plaintiff against a tort-feasor for a personal injury, where the cause of action accrued prior to July 1, 2013, any parent or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses . . . either in the action filed in behalf of the infant or in a separate action.
Section 8.01-36(B) goes on to provide that where the cause of action accrues on or after July 1, 2013, the past and future expenses for medical treatment for the child are recoverable by the infant in a cause of action against the tort-feasor and the parents will have a lien and right of reimbursement against the infant’s recovery.
This statute codifies the parents’ right to recovery that is rooted in common law – a parent can only recover for his loss of the child’s services and earnings (present and future until the child turns 18) and the medical expenses incurred in the child’s treatment. See Stevenson v. W.M. Ritter Lumbar Co., 108 Va. 575, 581, 62 S.E. 351, 353 (1908); Keane v. Yates, 81 F. Supp. 2d 655, 656 (W.D.Va. 2000).
It is important to note that Va. Code § 8.01-36 does not require that a parent join his cause of action in the child’s lawsuit and does replace the parent’s right to being a stand-alone suit for loss of services or medical expenses. When contemplating this very issue recently, a Circuit Court judge in Norfolk offered the following explanation – “I do not interpret Va. Code § 8.01-36 as requiring an action by the infant for personal injuries as a precondition to the parents’ right of action for medical expenses. These separate and distinct causes of action exist as at common law, and the better reading of Section 8.01-36 is that it provides a procedural rule whereby if the underlying action by the infant has been filed, the parents’ claim may be asserted in that case or in a separate action in the same court.” Pancho v. Johnson, 94 Va. Cir. 64 (Norfolk 2016) (citing Keane, 81 F. Supp. 2nd at 656).
In personal injury cases, a minor has until his 20th birthday to file suit against the tort-feasor – 2 years after the minor turns 18. Va. Code §§ 8.01-243, 229. According to the general statute of limitations provision, a parent’s right to bring a stand-alone suit for expenses incurred for medical treatment of a child is treated like any other property damage claim and must be brought within five years of the cause of action accruing. Va. Code § 8.01-243(B).
In the end, it’s important to know that a parent may bring a claim for medical expenses she has incurred on behalf of the child within the statute of limitations, while the child waits until his twentieth birthday to bring a personal injury action in his own name that encompasses the remaining elements of the personal injury claim – pain and suffering, inconvenience, loss of future earning capacity, etc. On the other hand, the child can wait until his twentieth birthday to bring an action that includes all of the damages, including medical expenses that were actually paid for by his parents.