Articles Posted in Medical Malpractice

The latest news on the Healthcare Bill is that a federal judge recently struck the whole thing down as unconstitutional on Monday. The judge did not, however, enjoin the federal government from continuing to enact the law. The Justice Department is going to appeal, and the case will likely be heard right here in Atlanta before the 11th Circuit. In the meantime, people continue to wrestle daily with the complexities of insurance and hospital bills.
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Atlanta medical malpractice lawyers and doctors have not exactly been unaware of the fact that hospital errors spike substantially in the month of July. There is even a name for this phenomenon, and it’s called the July Effect.

Studies conducted earlier have shown a substantial increase in medication errors in the month of July, but there have been no conclusive results from these studies until very recently. However, doctors have always believed that this increase is because of inexperienced new medical residents, who turn up at hospitals in July. A new study now confirms this.
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The Georgia Supreme Court unanimously set aside a Georgia law that limited the amount of money a jury could award to victims of medical malpractice. No longer will those injured by medical negligence in Georgia be subjected to the $350,000 cap on pain and suffering set be the Georgia legislator.

The Court emphasized in its decision that the cap on non-economic damages violated the constitutional right to a jury trial which is mandated by the Georgia Constitution. This is a large victory for those injured in medical malpractice cases. Equally important, the decision seems to have sent a clear message to the Georgia legislators that attempts to pass new laws with similar limits will not be upheld by the Court since the right to a jury trial is derived from the Georgia Constitution.

Punitive damages are also something that may be considered in Georgia, if the conduct complained of rises to the level that warrants the imposition of punitive damages, which are allowed under O.C.G.A. § 51-12-5.1 as follows:

(a) As used in this Code section, the term “punitive damages” is synonymous with the terms “vindictive damages,” “exemplary damages,” and other descriptions of additional damages awarded because of aggravating circumstances in order to penalize, punish, or deter a defendant.

(b) Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

(c) Punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.

(d) (1) An award of punitive damages must be specifically prayed for in a complaint. In any case in which punitive damages are claimed, the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made. This finding shall be made specially through an appropriate form of verdict, along with the other required findings.

(2) If it is found that punitive damages are to be awarded, the trial shall immediately be recommenced in order to receive such evidence as is relevant to a decision regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case. It shall then be the duty of the trier of fact to set the amount to be awarded according to subsection (e), (f), or (g) of this Code section, as applicable.

(e) (1) In a tort case in which the cause of action arises from product liability, there shall be no limitation regarding the amount which may be awarded as punitive damages. Only one award of punitive damages may be recovered in a court in this state from a defendant for any act or omission if the cause of action arises from product liability, regardless of the number of causes of action which may arise from such act or omission.

(2) Seventy-five percent of any amounts awarded under this subsection as punitive damages, less a proportionate part of the costs of litigation, including reasonable attorney’s fees, all as determined by the trial judge, shall be paid into the treasury of the state through the Office of the State Treasurer. Upon issuance of judgment in such a case, the state shall have all rights due a judgment creditor until such judgment is satisfied and shall stand on equal footing with the plaintiff of the original case in securing a recovery after payment to the plaintiff of damages awarded other than as punitive damages. A judgment debtor may remit the state’s proportional share of punitive damages to the clerk of the court in which the judgment was rendered. It shall be the duty of the clerk to pay over such amounts to the Office of the State Treasurer within 60 days of receipt from the judgment debtor. This paragraph shall not be construed as making the state a party at interest and the sole right of the state is to the proceeds as provided in this paragraph.

(f) In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm, or that the defendant acted or failed to act while under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to that degree that his or her judgment is substantially impaired, there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor but such damages shall not be the liability of any defendant other than an active tort-feasor.

(g) For any tort action not provided for by subsection (e) or (f) of this Code section in which the trier of fact has determined that punitive damages are to be awarded, the amount which may be awarded in the case shall be limited to a maximum of $250,000.00.

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In previous articles, we have discussed the General Overview of a Georgia Medical Malpractice Case and the first three elements of this type of case i.e, duty, breach and causation. If a doctor treats a patient, a doctor- patient relationship exists. Once the relationship exists, the doctor has the duty to treat and care for the patient in a manner that a reasonably prudent doctor under similar circumstance would. A doctor, nurse or other medical care provider has a duty to exercise a reasonable degree of care and skill when providing medical care. By falling below this minimum level of care, a doctor, nurse or other medical care provider breaches the duty owed to the patient.n order for a person to prevail in a medical malpractice lawsuit, they must prove that the malpractice caused the injuries that they are complaining of in the lawsuit. Many times, it is necessary for the plaintiff to hire a medical expert to opine on causation and this issue is often hotly contested.

Today we will discuss the fourth element of a Georgia Medical Malpractice Case, i.e., damages. Once the other elements are proved, the measure of damages includes not only compensation for actual bodily injuries, but also damages for pain and suffering. The amount of the damages awarded is determined by the general principles which govern other actions for personal injury in Georgia. Common damages that a medical malpractice victim can recover in a lawsuit are past and future medical bills incurred due to the injuries caused by the medical malpractice, past and future lost wages, compensation for the bodily injuries sustained, and compensation for the pain and suffering caused by the medical malpractice. The standard for the award of these damages is “the enlightened conscience of the jury.” In other words, it is up to the jury to decide what the dollar value of the damages are and how much money to award to the medical malpractice victim. This is the law and Georgia, with one important exception.

In medical malpractice lawsuits, individual health care workers can be held liable for no more than $350,000 in non-economic damages (mostly pain and suffering). Even though this is true, many times damages in medical malpractice cases are recoverable well past this amount, since the other types of damages are not capped. These would include past and future medical bills, past and future costs for medical care, past and future lost wages, and other types of damages that are measured in “hard dollars” vs. pain and suffering. Many times, an economist and/or a life care planner are helpful in formulating these damages for a plaintiff.

In previous articles, we have discussed the General Overview of a Georgia Medical Malpractice Case and the first two elements of this type of case i.e, duty and breach. As discussed in previous posts, duty is satisfied by the existence of the doctor-client relationship and breach is proven when the patient can prove that the doctor provided care that was below the applicable standard of care for the care and treatment provided. The duty is what a reasonable physician would do under like or similar circumstances. This must be established through the  expert testimony of a doctor whose specialty is similar to that of the defendant or whose specialty has “substantial overlap” with that of the defendants. In other words, a doctor who does not share the same sub-specialty as the defendant, but who regularly performs the procedure in question, can provide standard of care testimony in the case. An example of this would be when both an Emergency Room doctor and an internist perform trauma care and tests, care and treatment. In this case, the internist can be hired to opine about standard of care violations of the ER doctor and the ER doctor can opine about standard of care violations of the internist, so long as it pertains to the care and treatment that “substantially overlap” between these two medical sub-specialties.

Today we will discuss the third element of a Georgia Medical Malpractice Case, i.e., causation. In this respect, a Georgia medical malpractice case is no different than any other legal cause of action in Georgia. Simply put, in order for a person to prevail in a medical malpractice lawsuit, they must prove that the malpractice caused the injuries that they are complaining of in the lawsuit. Many times, it is necessary for the plaintiff to hire a medical expert to opine on causation and this issue is often hotly contested.

Often, the best testimony regarding causation is obtained from subsequent treating doctors, as they are in the best position to make such a determination. Most times, the severity of the injury is well-documented in the records, and the subsequent treating physician simply testified from the chart. Other times, it is not so clear cut and an additional expert must be hired to link the injuries complained of in the lawsuit to the malpractice. With that said, we have covered another essential element of a Georgia medical malpractice case, i.e., causation.

In previous articles, we have discussed the general overview of a Georgia Medical Malpractice Case and the first element of this type of case i.e, duty. Duty is, most times established by the doctor-patient relationship and is rarely contested at the trial of a medical malpractice case in Georgia.

Today we will discuss the second essential element of a successful medical malpractice claim, i.e, breach of duty. A doctor, nurse or other medical care provider has a duty to exercise a reasonable degree of care and skill when providing medical care. By falling below this minimum level of care, a doctor, nurse or other medical care provider breaches the duty owed to the patient. In legal terms, the doctor, nurse or other medical care provider must exercise that degree of skill and care “which under similar conditions and like surrounding circumstances is ordinarily employed by the medical profession generally.” Put another way, there is a minimum level of care that all medical providers are required to provide to their patients, if a doctor fails to meet this minimum, he breaches his duty to the patient.

Robert J. Fleming is an Atlanta Attorney who has successfully handled many medical malpractice cases and have recovered millions of dollars for our clients.

The first element of a Georgia medical malpractice claim is duty. More specifically, “duty” means a legal obligation to conform to a standard of conduct or standard of care. Of all the elements we will discuss, this is often the easiest to prove. If a doctor treats a patient, a doctor- patient relationship exists. Once the relationship exists, the doctor has the duty to treat and care for the patient in a manner that a reasonably prudent doctor under similar circumstance would. The relationship between a health-care provider and patient is established when a patient knowingly seeks the care of a health-care provider and the health care provider knowingly accepts the patient for treatment. http://www.lawriter.net/cgi-bin/texis/web/caselaw/+lQeDKWFezxbnme7i2wezyAxwwxFqEnAo5n3AtKV1MG5coDwGzwDKWqvIFqqHE/svindex.html?doc=1

Absent unusual circumstances, the doctor-patient relationship is usually present, so we will focus more on the other elements of the Georgia medical malpractice claim in future posts.

Generally speaking, medical malpractice cases in Georgia are governed by the same basic principles as other negligence cases, with a few added requirements. In fact, while the term, “medical malpractice” is widely used and accepted by lawyers and non-lawyers alike, “medical negligence” is perhaps a better term because it more cogently conveys what this type of case is all about, i.e., negligence on the part of a medical provider that results in injury to the patient.

The basic elements of negligence in Georgia are (1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the breach of this duty and the resulting injury; and (4) some loss or damages suffered by the plaintiff as a result of the negligence. Strickland v. Vaughn, 221 Ga. App. 636 (1996).

In the following entries, I will examine each area in more detail. In turn, this will uncover the basic elements of a medical malpractice claim and shed some light on why some bad outcomes do not lead to meritorious cases while other most certainly do.

As an Atlanta attorney who has handled many medical malpractice cases, I receive many calls from potential clients and referring attorneys regarding medical malpractice claims. Evaluating these cases is a “necessary evil” of our practice. Most callers report horrible injuries such as loss of limb, death of the patient or of an unborn child, loss of bodily functions, loss of sight, paralysis. . . The list is endless and truly troubling, even for an experienced attorney who has pretty much seen and heard it all. According to the National Institute of Medicine, over 98,000 American deaths each year are caused by medical errors. However, it should be noted that not all bad medical outcomes are due to malpractice and, possibly an even more troubling truism, not all instances of “sloppy medicine” lead to actionable medical malpractice cases.

This is the sad reality in which we operate. Medical malpractice cases are expensive to litigate, take a long time to prosecute and require a tremendous amount of dedication and resources to pursue. With that said, there still are many meritorious cases; many cases worth pursuing and many more instances in which justice requires (perhaps demands) that a lawsuit be filed. In the next few posts, we will help you separate the wheat from the shaft and better understand the type of medical malpractice case that should be pursued.

Robert J. Fleming is and experienced medical malpractice attorney who has been handling medical malpractice, wrongful death, dental malpractice, bus accidents, car accident cases and premises injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of others for more than 20 years. He practices in and around the Atlanta area including handling lawsuits in Fulton, DeKalb, Clayton, Gwinnett, Cobb and other counties and nearby cities including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously from medical malpractice and would like to obtain quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.