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minor child has paid or agreed to pay the expenses,
(2) when the minor child is legally responsible for payment, such
as by reason of emancipation, or the death or incompetency of
his parents, (3) when the parents have waived or assigned their
right of recovery in favor of the minor child, or (4) when recovery
of expenses is permitted by statute." The Court noted there are
no Kansas cases on point, and concluded that prior cases suggest
Kansas follows the general rule. The opinion acknowledged that
Kansas has long held that a minor is bound by his or her contracts
for necessaries, and the Court agreed that medical expenses are
necessaries, but determined that this is not an exception to the
general rule vesting in the parent the right to recover medical
expenses incurred for a minor child.
The unfairness of this decision, and its implications, are important
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to note for every Kansas case involving injury to
a minor. Claims for medical expenses incurred on behalf of children
are governed by the two year statute of limitations pertaining
to the parents' claims, even though the statute of limitations
on the child's claim is eight years (or at least one year after
reaching the age of majority). In birth injury cases in particular,
where long-term costs can be catastrophic, the extent of injuries
to children are not necessarily apparent early on, and evolve
over the first years of life. Parents often do not even seek legal
representation until the baby is a toddler falling behind in development.
Therefore, claims for medical expenses may be barred by the statute
of limitations before there is any realization of a need or right
to sue.
The Wilson case leaves open the issues of future medical
expenses, and how to make an assignment of the claim.
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In cases of significant injury requiring intensive care over
the child's projected life expectancy, the question is whether
claims for future medical and custodial expenses - which may be
catastrophic - are vested exclusively in the parents and governed
by the parents' statute of limitation. If so, then the Wilson
decision may add insult to catastrophic injuries to children who
have to look to their parents to pay medical expenses that the
parents cannot afford and which cannot be recovered in their lawsuits.
On the basis of the Wilson decision, it will be
important to get parents' claims on file before the two year statute
of limitations expire whenever possible, and to have the parents
execute an assignment of their right of recovery of medical expenses
in favor of the minor child.
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