Articles Posted in Personal Injury

SEXUAL ABUSE BY GEORGIA DOCTORS IS BEING REPORTED MORE THAN IT USED TO BE

In my opinion, I don’t think there is more sexual abuse of patients by doctors. It is just simply being reported more than it was in the past. News reports during the past year have highlighted only a small portion of the latest cases of sexual abuse by doctors. Among them, Indiana’s medical board suspended a doctor’s license over allegations of repeatedly touching and propositioning female patients. After one woman came forward with an accusation, more cases were uncovered, according to the state’s Attorney General’s Office. This is a common situation, in that, once one victim comes forward, many more victims come forward to expose the predator. In this case, the sexual predator is a doctor.  In Minnesota, a 71-year-old doctor was arrested on two criminal sexual conduct charges after a female patient complained to police about inappropriate sexual touching and kissing during medical treatments. She reportedly took video of one incident. A Kansas psychiatrist agreed to an indefinite license suspension after being accused of having sex with three patients, including one who overdosed on opioid painkillers he prescribed. Unbelievably, this predator masquerading as a doctor remains licensed to practice medicine in the state of Missouri. In New Mexico, a psychiatrist was arrested and charged with sexually assaulting six female patients. Among the allegations were that he fondled patients in the guise of exams, and that he told patients he would provide painkillers in exchange for sex. Once again, to be sure, these are just a few examples that have been publicized, while

Now, allegations of sexual about a North Georgia doctor and his female patients have surfaced in based on sealed court records that were once unsealed. The document reportedly described how Georgia’s medical board investigated the doctor’s alleged involvement with a married, addicted patient. The doctor claimed the woman was no longer a patient when their sexual relationship started, and he denies having relationships with three other women, the document notes. Obviously, we don’t know the answers to these factual questions and the investigation would turn on them.

Many people do a quick internet search for “the best lawyer in Atlanta” or “Best Atlanta Lawyer” or “the best personal injury lawyer in Atlanta” or something to that effect. What usually pops up is an ad from a large advertiser, not necessarily the best lawyer but maybe the best marketing law firm (quite the difference to say the least). As an Atlanta Personal Injury Lawyer who has been practicing law for over 25 years, I have seen the transition from word-of-mouth referrals to internet searches as the main source of lawyer referrals during this time. In other words, when I first started focusing my law practice on plaintiff personal injury work, I received ALL of my referrals from other lawyers. Yes, ALL. Now, to be sure, that was a long time ago. I have to say, that was probably a better method of selecting a lawyer for some, while worse for others. If you were a professional and had a lot of friends who personally knew lawyers, you could probably do well by talking to your friends, co-workers or trusted professionals that performed services for you and find a good lawyer to represent you. But what about those who did not have access to such a network? The internet, in some respects, was probably the “equalizer” for them. But as we have seen above, the may not wind up with the best lawyer in Atlanta, but rather may be bombarded with some of the slogans and tag lines from some of the more popular law firm advertisers such as the following:

Accident happen. We can help

Because you need someone in your corner who cares

The Justice Department and the SEC are investigating Johnson & Johnson over concerns the company’s baby powder may have contained asbestos in addition to talc. J&J was subpoenaed in the wake of several jury trials that awarded millions in damages to plaintiffs who claimed the J&J’s talc products including Shower to Shower and Johnson’s Baby Powder were tainted with asbestos and caused their cancers. The agencies seek documents that may shed more light on those matters and other suits Johnson & Johnson faces filed by shareholders and pension holders over the situation.

About 13,000 plaintiffs have filed claims in pending lawsuits involving talc-based body powders. “The Company is cooperating with these government inquiries and will be producing documents in response,” Johnson & Johnson said in an SEC filing Wednesday.

In some of the earliest trials that usually set a barometer for future settlement negotiations, state courts in New Jersey and California awarded damages to plaintiffs who claimed Johnson & Johnson talc products contained asbestos and caused their mesothelioma. In July, a St. Louis jury awarded $4.7 billion to 22 women who said asbestos in the company’s talc powder contributed to their ovarian cancer. In the SEC filing, Johnson & Johnson said, “The Company believes that it has strong grounds on appeal to overturn these verdicts.” According to J&J, “Decades of independent tests by regulators and the world’s leading labs prove Johnson & Johnson’s baby powder is safe and asbestos-free, and does not cause cancer. We intend to cooperate fully with these inquiries and will continue to defend the Company in the talc-related litigation.” This comes on the heels of reports in The New York Times and the Reuters business journal which revealed documents suggesting the company knew about the risk of asbestos in its powders for decades and sought to keep the issue quiet. If true, this is indicative or a decades-long effort by Johnson & Johnson to potentially mislead regulators and consumers about the safety its talc products, which may have resulted in long-term harm for men, women and children who used Johnson & Johnson baby powder.

Most times, if a plaintiff has suffered a serious personal injury, there will be a claim for lost wages. As can be expected, defendants may claim that plaintiff is not entitled to lost earnings because of a few reasons, such as:

1. Plaintiff was unemployed at time of injury.
2. Plaintiff’s can not show amount of earnings that will be lost with certainty.

Many times a doctor expert is deposed but the chance to follow up with documents is not realized because of the lack of a notice to produce being sent with the deposition notice. This notice is also referred to as a Duces Tecum in some jurisdictions. Whatever the nomenclature, the notice requests pertinent documents that allow the opposing lawyer to follow up on questions with the produced documents. It is a very valuable pleading in many civil litigation cases. Below is a sample Notice of Intention to Take Oral Deposition and Duces Tecum.

PLAINTIFF’S NOTICE OF INTENTION TO TAKE ORAL VIDEOTAPED DEPOSITION,

DUCES TECUM, OF DR. ________

Georgia Law now provides that medical testimony may be given in a narrative form that has been signed and dated.  It is no longer necessary to disrupt a doctor’s busy schedule to give a deposition. In some cases, it is beneficial to use a medical narrative from a subsequent treating physician in a lawsuit. Narratives are typically used in auto accident lawsuits in Georgia state courts to secure testimony regarding a doctor’s care and treatment of the plaintiff to be used at trial. Of course, the content of the narrative will depend on the facts and circumstances of each case, however there are a few areas that will appear in most narratives. They are:  

1. A brief curriculum vitae or resume (usually by attaching the doctor’s CV to the report);

2. How the patient came to see the doctor;

MEDICARE’S STATUTORY RIGHT OF REIMBURSEMENT

The landscape related to Medicare and personal injury settlements has changed. 42 U.S.C. §1395y(b)(2) and § 1862(b)(2)(A) of the Social Security Act, provide that Medicare may not pay for a beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance.” If responsibility for the medical expenses incurred is in dispute and other insurance will not pay promptly, the provider, physician, or other supplier may bill Medicare as the primary payer. If the item or service is reimbursable under Medicare rules, Medicare may pay conditionally, subject to later recovery if there is a subsequent settlement, judgment, award, or other payment. In situations such as this, the beneficiary may choose to hire an attorney to help them recover damages. Under 42 U.S.C. §1395y(b)(2(B)(ii) and §1862(b)(2)(B)(ii) of the Act and 42 C.F.R. 411.24(e) & (g), Medicare may recover from a primary plan or any entity, including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received a primary payment.

If you are a personal injury attorney and you represent a medicare beneficiary (or a person who may be eligible for medicare benefits within 30 months of the resolution of your case), one of your first steps in the representation of that client should be to contact Medicare and request a conditional payment letter. Since the lead time in receiving a response from Medicare can be quite long, it is best to initiate the process early in your representation so that getting a Medicare Conditional Payment Letter will not hold up resolution of the case. Notice of representation requires sending a copy of the fully executed retainer agreement to Medicare along with a letter explaining your case and the injuries that your client is complaining of in the lawsuit. 

I. INTRODUCTION

“Closing argument is the time to use the lawyer’s skill as a teacher, purveyor of the truth, and speaker. It is the phase of the case when artistry of the lawyer’s accumulated education, experience, intelligence, and ability can and should exhort the strength of the case or the validity of the defense.”

Generally, the courts give attorneys wide latitude when making closing arguments. However, there are limitations and it is the duty of the advocate to vigorously argue the case within the bounds of the law. Prior to conducting any closing argument, every lawyer should have a good understanding of the process, which arguments are permitted and which arguments are not allowed. Armed with this knowledge, the advocate can zealously argue without worrying about running afoul of the law. This will allow you to clearly present your case to the jury, attack (yes, attack) the other side’s arguments, set the framework for the juror’s deliberations and empower the jury to do the right thing (e.g., find in your favor).