Atlanta Injury Lawyers Blog

Published on: December 7, 2010

Georgia Auto Accident Deaths Linked to Drugged Driving

A new study by the National Highway Traffic Safety Administration or the White House Center for Drug Control Policy, indicates that drugged driving or driving under the influence of prescription and non-prescription drugs, has been increasing in the US. The study, which looked at traffic accident fatalities in 2009, found that there has been an increase of 5% in the number of fatalities with drugs in their system, at the time of the crash compared to previous years.
Overall, drugs were reported in the system of approximately 4,000 drivers who died in accidents in 2009. That makes it 18% of the approximately 22,000 drivers who were killed in accidents last year. In 2005, drugs were linked to 13% of driver fatalities that year.
It actually gets worse. According to the researchers, the numbers could actually be higher, because only one in every five drivers killed in accidents had a drug test performed on them. Besides, there were variations in the tests conducted in different states. Overall, in 2009, among the drivers who were killed in accidents and had drug tests performed on them, 33 percent tested positive for drugs.
The drugs that were found in the victim’s bodies were not just illegal narcotics, like heroin and cocaine, but also legal prescription drugs, like painkillers and antidepressants. In fact, as an Atlanta car accident attorney, I am more worried about people who are driving under the influence of prescription drugs. As many already know, prescription drug abuse is rampant these days and many drivers on Atlanta roads are impaired, either by the legal amount of prescription drugs that they are taking or by prescription drug abuse.
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Published on: December 3, 2010

Injured Atlanta Patients to Benefit From Pledge to Limit Radiation Exposure

by Robert J. Fleming

I recently posted a blog reporting on the overuse of x-rays and other types of diagnostic tests related to dental procedures. According to a recent article in the Atlanta Journal Constitution, a panel of medical experts has pledged to put new general protocols into place to limit radiation exposure to patients.

While a doctor or dentist should never perform a procedure prior to doing all image tests necessary to properly diagnose and treat a condition, unwarranted x-rays are a waste of money and can potentially lead to cancer in patients. There are many radiographical tests available to medical professionals that allow them to review different parts of the anatomy without having to conduct invasive surgery to view them. MRI’s, Cone Beam CT Scans, X-rays, and Ultra sounds are just a few of them. While these tests are available and many injured patients are sent through a battery or test, it would surprise many injured clients as to how many tests are conducted but not reviewed by the treating doctors. This presents a problem for the doctors in many dental malpractice and medical malpractice cases that I handle. For example, in a case that I handled a few years back, the dentist’s chart contained many references to a Cone Beam CT Scans (“CBCT”)and there were a number of discs produced in discovery which contained CBCT scans of the patient and her injuries. Only through deposition, did the dentist admit that he could not read the discs because he did not know how to read CBCT scans. While this may have been due to the fairly new technology of CBCT scans at the time, it does illustrate a point: many medical professionals either don’t know how to, or don’t take the time, to properly review radiology tests. It has been my experience that if these tests are sent out to radiologists, you are more likely to get a proper and thorough reading of the scan, however, if the treating doctor or dentist reviews the scan herself, the likelihood of the medical provider just perusing it (as opposed to taking her time an review it thoroughly) is much greater. Often, this become, yet another, basis for bring the malpractice claims against the defendant dentist or doctor.
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Published on: December 2, 2010

Cotton States Mut. Ins. Co. v. Brightman Allows For Conditional Policy Limits Demand in Georgia Injury Cases

by Robert J. Fleming

Often, Georgia Injury Lawyers represent clients who have sustained such serious injuries that the medical bills and lost wages far exceed the at-fault driver’s insurance coverage. In this situation, the lawyer must ensure that all additional insurance policies are identified and that claims are made under these policies as well. Additional insurance may be available through a “resident relative” or employer of the at-fault driver.

Cotton States Mut. Ins. Co. v. Brightman, 580 S.E.2d 519 (Ga. 2003) allows Georgia Plaintiff Lawyers to condition their Holt demand on the receipt of additional information. A sample conditional demand is attached.
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Published on: November 30, 2010

Georgia Law on Proximate Cause Essential Element In Personal Injury Cases

by Robert J. Fleming

In order to maintain an action for negligence in Georgia, the plaintiff must show that the defendants’ conduct was directly responsible for the injury complained of. Many times, there is more than one wrongful act which cause the injury. In these situations, the plaintiff carries the burden against each defendant by proving that each wrongful act caused “or substantially contributed to” the injury. In other words, in order for the plaintiff to prevail at trial, she must show that it is more likely than not that the defendants’ actions, either alone or in concert, caused her injuries. Singleton v. Phillips, 494 S.E.2d 66 (Ga.App. 1997).

Many times, this issue is fiercely litigated in Georgia injury cases. In fact, this precise issue arouse in a recent Fulton County State Court case and the Judge gave the following charge to the jury:

“In order for the plaintiff to recover, you must find that the Defendant’s negligence was the proximate cause of her injuries. Proximate cause is a legal term. When a person’s act or failure to act directly and immediately causes an injury, it is the “proximate
cause” of that injury.

The proximate cause of an injury must be more than a remote or trivial factor. However, it does not have to be the only cause of harm. Liability may be imposed when a defendant’s conduct played a substantial part in bringing about the injury, even if some other forces for which the actor was not responsible contributed to the harm in some way.” As defined by Black’s Law Dictionary, proximate cause is “that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the results would not have occurred. that which is nearest in the order of responsible causation. That which stands next in causation to the effect, not necessarily in time or space but in causal relation. The proximate cause of an injury is the primary or moving cause, or that which, in a natural or continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one that might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence or the act or omission.

This is the proper charge and it illustrates very effectively how the jury should view the issue of negligence. While this is not the only way to charge the jury on this issue, it is the most appropriate.
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Published on: November 30, 2010

Despite Knowledge of Accident Risks, Georgia Motorists Drive Dangerously

by Robert J. Fleming

The Insurance Institute for Highway Safety has just published the results of a study conducted by the AAA Foundation for Traffic Safety. The report has findings that should be of interest to Atlanta car accident attorneys. According to the study, most drivers are fully aware of the risks from hazardous driving behaviors, like talking on a cell phone or texting while driving and speeding, but that doesn’t stop them from indulging in these practices at the wheel.

The study is based on a poll conducted of more than 2,000 motorists above the age of 16. Some of the findings:
• 92% believed cell phone use at the wheel was hazardous, and two-thirds said that other people using the cell phone while driving was hazardous to their safety. However, 24% admitted to using the cell phone at the wheel over the past month.
• Two thirds of the respondents believed that running red lights is dangerous, but at least one-third said that they had done so.
• 96% of the drivers found it unacceptable for drivers to operate a vehicle while fatigued, but more than 25% of them had operated a vehicle in a drowsy state over the past month.
• Two thirds believed it was unacceptable for people to be driving 15 mph above the posted limit, but 46% said they had broken those limits over the past month.
• Just about every respondent in the study found drunk driving extremely hazardous to public safety, but 11% said they had operated a vehicle during the past month when their blood alcohol level was close to, or at the .08% limit.
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Published on: November 29, 2010

Atlanta Red Light Cameras Do Not Promote Safety

by Robert J. Fleming

According to a recent City of Atlanta press release, the automated Red Light Cameras at numerous Atlanta intersections are there to “promote public safety.” As an Atlanta injury firm which handles many car wreck cases, we have doubted the accuracy of this statement, since it was made. Now, with the help of the Georgia State Department of Transportation, recent research shows that this is simply not the case.

The City petitioned the state department of transportation to allow it to keep the red light camera at the intersection of Freedom Parkway and Boulevard. Part of the rationale employed by the City of Atlanta to allow the automated ticket writer to stay was that the red light camera cut down on catastrophic accidents such as T-bone collisions at the intersection. The Georgia Department of Transportation studied the impact of the red light camera at this intersection and concluded there was little evidence that the device cut down on the type of collisions caused by cars running a red light at the intersection.

It now seems clear that cities and other municipalities who implement red light cameras are interested little in safety, but rather are trying to drum up revenues. Not only do these devices not promote safety, they can almost certainly be counted on contributing to their fair share of auto accidents when drives, who would otherwise pass through the intersection without harm, panic when the detect the red light cameras and suddenly slam on their brakes.

In addition, WXIA-TV performed its own investigation and found that T-bone collisions actually INCREASED at five intersections in which the City of Atlanta had installed red light cameras. Despite these findings, the City of Atlanta petitioned the Georgia Department of Transportation to allow it to keep the red light camera at the Freedom Parkway intersection. There is little wonder why this would be the case. These red light cameras need to be removed from all City of Atlanta intersections. The safety and well-being of the City of Atlanta motorists is with much more than the increased traffic infraction revenue generated by the red light cameras.
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Published on: November 28, 2010

Sample of Georgia Complaint for Injunctive Relief

by Robert J. Fleming

The following is a reproduction of an actual pleading filed in a business dispute lawsuit to enjoin the other party from continuing its unlawful acts.

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA
Plaintiff Corporation, Inc., )
Plaintiff,

v.
Defendant

COMPLAINT FOR INJUNCTION AND TEMPORARY RESTRAINING ORDER

Plaintiff files this Complaint and shows the following:

1.

Defendant is a resident of Fulton County, Georgia, and is subject to the jurisdiction of this Court.
2.
Attached hereto as Exhibit 1 is a true and accurate copy of an agreement between Plaintiff and Defendant. Exhibit 1 is incorporated herein for all purposes by this reference. Despite the existence of a valid and enforceable agreement prohibiting Defendant from “soliciting or taking any action to take customers away from XXX ,” Defendant has contacted numerous XXX customers and attempted to persuade them to not do business with XXX . Upon information and belief, Defendant continues this wrongful conduct.
3.
As shown from the facts contained herein, unless defendant is immediately restrained from contacting Plaintiff’s customers, plaintiff will suffer immediate and irreparable injury in that some customers have stated they will use Plaintiff’s competitors instead of Plaintiff after talking to Defendant and other customers will do the same.
4.
Attached hereto is the certificate of plaintiff’s attorney showing efforts to give notice and reasons why notice should not be required.
WHEREFORE, plaintiff prays for the following:
That the Court issue a temporary restraining order prohibiting defendant from communicating with any XXX customers or companies that appeared on any customer lists while Defendant was employed by Plaintiff;
That the Court set down at the earliest possible time a hearing on an interlocutory injunction in this cause;
That upon said hearing in this cause that the Court issue an interlocutory injunction prohibiting defendant from communicating with any XXX customers or companies that appeared on any customer lists while Defendant was employed by Plaintiff;
That upon a final hearing in this cause, that said interlocutory injunction be made permanent;
For such other and further relief that the Court deems just and proper under the circumstances.
This _____ day of _________, 2016.
Respectfully submitted,

__________________

Robert J. Fleming Georgia Bar No. 263475 Attorney for Plaintiff
Katz Wright & Fleming LLC 2200 Resurgens Plaza 945 East Paces Ferry Road N.E.
Atlanta, Georgia 30326 (404) 923-7497
IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA
Plaintiff Corporation, Inc., )
Plaintiff, )
)
v. ) CIVIL ACTION )
Defendant ) FILE No.

VERIFICATION Personally appeared before me, an officer duly authorized to administer oaths, came __________ who states under oath that she is the authorized corporate representative of the plaintiff named in the above and foregoing Complaint and that the facts contained within said Complaint are true and correct.

_____________________________ Representative

Sworn to and subscribed before me this

____________ day of January, 2016.

_________________________ Notary Public
My Commission Expires:
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Published on: November 26, 2010

Have Radiation Risks from Atlanta Dental Scans Been Underestimated?

by Robert J. Fleming

Radiation diagnostic procedures have always been sparingly used among children and adolescents because of the risk of overexposure to cancer-causing radiation. However, the same kinds of precautions are not taken when children are in a dentist’s chair, getting an x-ray or a scan before a routine dental procedure. This is in spite of the fact that many dentists continue to use outdated x-ray film that expose patients to unnecessary excessive amounts of radiation. If used too frequently, these unnecessary and frequent radiation exposures could pose a serious health risk that simply is not necessary. At this point, it is axiomatic to say that frequent and/or unnecessary exposure to radiation should be avoided so as to avoid possible cancer and other health risks related to increased exposures to radiation.

That is not the only thing that should concern any Atlanta dental malpractice lawyer. According to the New York Times, more and more orthodontists and dental specialists around the country are now using a new scanning device that releases much more radiation than conventional diagnostic machines. The device is called a cone beam CT scanner, and is meant to provide 3-D images of the skull, including teeth, roots and jaw.

The technology has been heavily promoted by manufacturers, who say that it gives orthodontists and other dental specialist the chance to identify specific and precise problems, and devise treatment strategies more efficiently. What they don’t mention in all their marketing jargon, is that there is little scientific research to prove that these machines are safe. There have been few tests that have been conducted on the scanners to determine their efficiency that have not been sponsored or promoted by the manufactures of the scanners.
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Published on: November 22, 2010

Preserving Error in Georgia Bench Trials Under Georgia Code Title 24

by Robert J. Fleming

Sometimes, a strategic decision is made by plaintiffs to try their case to a judge only and not pursue a jury trial. Some plaintiff lawyers relax their approach to these types of trials. However, a relaxed approach should be avoided for a number of reasons. The Georgia rules of evidence provides a framework for preserving error. These rules of evidence are in place and should be complied with by Georgia litigators in order to allow the appellate court to determine whether any of the evidentiary rulings by the trial court were error–and if so, was it reversible error which mandates a new trial. From a more practical standpoint, preservation of error allows the trial judge to re-consider an erroneous ruling once she has had an opportunity to hear the evidence being offered. This should be kept in mind before and during the trial, in order to make sure that the judge has all of the correct evidence that she needs to make the correct decision–and one that will be upheld should it be appealed.
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Published on: November 21, 2010

Southern General v. Holt Holds Georgia Insurance Companies Liable For Bad Faith

by Robert J. Fleming

In Georgia, the insured owns a bad faith claim against his insurance company if the insurer does not accept the insured’s time-limited demand to settle within the policy limits. This claim was established by the seminal case in Georgia of Southern General Insurance Company v. Holt.

This scenario usually arises in a situation when there is a very serious personal injury which far exceeds the policy limits of the at-fault insured. The plaintiff’s attorney will usually send all the information that the insurance company could reasonably need to evaluate the case and make a 10-day demand to settle the case for the policy limits. This is commonly referred to by Georgia injury lawyers as a time-limited Holt Demand. While the facts and damages of each car wreck case are unique, most insurance companies look evaluate case value, at least to some degree, based upon: (1) the venue in which the defendant would be sued if the case were to go into litigation; (2) whether there is clear liability or whether there is a question about who caused the accident; (3) the injuries sustained in the wreck; (4) the amount of property damage to the cars involved in the wreck; (5) whether the injured person is taken by ambulance from the scene to the Emergency Room; (6) whether the plaintiff has continuity of medical treatment or whether there are large gaps in the treatment; (7) whether the plaintiff has been out of work due to the wreck and the amount of lost wages claimed by the plaintiff; (8) whether there is a permanent injury caused by the wreck; (9) the amount of medical bills; and (10) the quality of the plaintiff and defendant.

This is not an exhaustive list, and case value can vary greatly, based on many other intangibles that could add value to your case and cause the case to lose a bit of value. These intangibles sometimes will become clear once the case is developed and the settlement package is being prepared. Other times, facts come out during the litigation process that greatly impact case value.
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