It is with some slight embarrassment that I admit to being a regular reader of the “Dear Prudence” advice column on Slate. Published every Thursday, the column was originated by Emily Yoffe, and it is now written by Mallory Ortberg. The readers’ questions, most weeks, range from mundane to life-altering, and the advice usually seems sound or at least thoughtful. This week, however, there is a question with legal implications, and an answer that is at best off-the-wall. Here is the exchange between Prudence and her reader (after the jump):
Dear Prudence,
I was driving and hit a 5-year-old child. I was not charged, as there was no speed or alcohol involved—he ran out onto the road while his mother was momentarily distracted. He was left with severe and permanent disabilities. I was a couple of days away from starting a new job but couldn’t work because I was in so much shock. I get panic attacks at the thought of driving and it’s difficult to even be around children. I was diagnosed with PTSD and I know I need help, but I have no insurance and can’t afford it. I was told I need to sue the parents of the child to get a payout from their insurance which would then pay for my treatment. On one hand, I desperately want some kind of psychological treatment. But the thought of suing the parents at the worst time of their life—that seems like pure evil. What would you do in my situation?
—Should I Sue?
What a horrible situation to be in. I don’t know who told you that your only option to pay for treatment is to sue the child’s parents, but I hope that you’re able to seek a second opinion before going down that road. I spoke to a lawyer (who does not specialize in personal injury), and she confirmed that this practice is a not infrequent one.
It’s pretty common to make a claim against someone else’s insurance company in situations like this. … It happens if you’re at a relative’s house and you fall on their icy steps and break an ankle, or get bitten by their dog and need medical care. This is one of the reasons why people have homeowner’s insurance in the first place, so that if accidents like this happen, they aren’t personally liable for the injuries. A personal injury attorney will help (you don’t have to pay up front, they get a commission) so you wouldn’t have to navigate this process alone.
After detailing some useful options for obtaining free or low-cost therapy (while strangely failing to mention the insurance subsidies available under Obamacare), Prudence concluded:
If there are any options available to you other than suing, I think you will suffer less, and gain more, in pursuing them. Leave the lawsuit as your last, worst choice. I hope very much that you take good care of yourself. I’m so sorry for everything that you and this family have had to go through. You also asked me what I would do in your situation. This is not my advice, just an honest answer: I don’t think I could do it.
It’s too bad that Prudence did not consult an actual personal injury lawyer, who no doubt would have informed her that (1) a lawsuit against the parents of a badly injured five year old would be doomed from the outset, because (2) a child that age cannot be found negligent, and (3) it is not parental negligence to be “momentarily distracted,” and in any case (4) the absence of a speeding or alcohol charge does not exonerate the driver from her own fault and civil liability; and (5) no lawyer would take such a case, especially on contingency, but (6) even if the case was somehow filed and successful, it would be years before a settlement, during which time the advice-seeker would still have to figure out how to pay for her own therapy.
In other words, the lawsuit is not a “last, worst choice.” It is no choice at all. Contrary to popular opinion, personal injury lawyers do not routinely sue everyone in sight, and in this case it would be pyrrhic to attempt to shift blame onto a disabled little boy and his mother, even if they do have homeowner's insurance.
I am sure Faculty Lounge readers can see other problems with Prudence’s legal analysis upon considering her entire answer, which can be read here. There is no arguing with Prudence's bottom line — forget about the lawsuit and get some therapy for yourself.
Steve, you missed the most important negative factor of all. A driver who sues the parents of the child will be the subject of continuing and prominent coverage in the local paper. If she thinks she has PTSD now, just wait until she's the town pariah.
The quality of Emily Yoffe's advice and writing style > Mallory Ortberg's. I still read it out of habit, but I probably won't in a year.
I tend to have a big mouth, the antithesis or a left version of Archie Bunker. It's time for me to heat up this discussion. The real issue here is TORTS: 1. The blow hard TV lawyers hawking for Talcum Powder, bad drug de jure, hip replacements, and vaginal mesh clients are a pox on my profession. 2. Substandard insurance companies like Direct Auto, Safeway, Apollo, Unique and lately, "Snake Charm," refuse to pay legitimate claim on clear liability. They clog up the courts and hurt real people. 3. So called "business interest" groups fighting to limit court access because of perceived "law suit abuse" when it is businesses that dominate trial dockets—ie substandards that "pay no dough to friend or foe." 4. Too many low speed rear ender soft tissue cases with years of chiro treatment being brought by attorneys who have no work and are in desperate shape to pay enormous student loan debts.
A problem here would seem to be that the driver would be suing the parent for negligent infliction of emotional distress.
Negligent infliction? Did the parent's negligent supervision of a five year old – assuming that there was any basis for a claim of negligent supervision based on momentary inattention – legally cause the driver's emotional distress, based on the fact that the driver ran the five year old down?
Duty? Breach? Causation? Is this a comparative fault jurisdiction?
One non-important quibble. The column was not originated by Emily Yoffe, but by Herbert Stein, but ultimately popularized by Margo Howard, the daughter of Ann Landers (real name Esther Lederer). Margo ran it for eight years, and while Mallory is no Emily, Emily is no Margo. They each have their own styles certainly.
PaulB – good point. It's one that was hinted at in the Prudence answer (she referenced the aunt who sued her young nephew's parents for him having "tackled" her) but wasn't as explicitly laid out as you did.
Steve – why do you assume the driver was female? Maybe I missed it, but did not see any hint of gender in the Prudence column.