Has your business ever encountered an unsatisfied customer? It’s likely the answer is – yes!
When a health care provider faces this situation, they often find themselves weighing a number of variables before taking a course of action that fits their situation best. Pediatric health care providers often face an additional factor that other business don’t encounter. When you are determining the best course of action, consider – cost of settlement, attorneys’ fees, litigation costs, and public opinion. Where the merits of the matter justify it, the cost of settling the dispute may be less than the risks and expenses of a prolonged legal battle.
Health care providers typically negotiate disputes with the allegedly harmed individual themselves (pro per) or through their attorney. However, this is a little different with pediatric health care providers. They may find themselves in an unusual situation where they are not negotiating with the party that allegedly sustained harm – the patient who is a minor. Often the parent or parents of the minor will negotiate on their minor child’s behalf with the health care provider, provided that the minor’s parents have not retained counsel or are attorneys themselves. The problem with this is that while the parents could represent themselves without an attorney, they cannot represent their children. Moreover, if a minor signed a waiver and release of his or her own rights it would not be enforceable. Once the minor reached the age of 18, they could affirm the release at that time, but it is unlikely that would happen.
California Probate Code § 3500 provides a solution to this problem by allowing the parents of the minor to “compromise, or to execute a covenant not to sue on or a covenant not to enforce judgment on, the claim…only after it has been approved, upon the filing of a petition, by the superior court.” This means that the parents of the minor may enter a waiver and release of the child’s rights to their claim, provided that they file the required petition with the court and the petition is approved. After judicial approval of the petition, a health care provider would be assured that the parents of the minor have the authority to enter into a final settlement on their child’s behalf. Once the waiver is executed, the minor would be barred from bringing an action against the provider, based on the same alleged injury, at a later date.
However, the filing of a petition pursuant to California Probate Code § 3500 will undoubtedly increase the cost of any proposed settlement and may require that the minor’s parents retain counsel in order to assist with the drafting and filing of the petition. This additional expense represents the cost of finality of the dispute. Pediatric health care providers should be aware and cognizant of this provision in the California Probate Code and its use should be weighed in any settlement negotiation decision involving a minor.