Atlanta Injury Lawyers Blog

Published on: March 23, 2010

Georgia Medical Malpractice Damage Limits Struck Down

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.

Published on: March 21, 2010

Georgia Workers Eligible for Discounted COBRA Payments

by Robert J. Fleming

Workers in Georgia who have recently been terminated should carefully consider whether they can continue to be covered under the employer’s healthcare plan and pay only 35% of the normal COBRA premium.

As part of the Stimulus Package that recently have taken effect, involuntarily terminated workers who are let go by March 31, 2010, must only pay 35% of the normal COBRA payment to remain under the employer’s health plan. The balance of the payment is repaid to the employer in the form of a federal tax credit.
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Published on: March 17, 2010

Georgia Estate Law Governs Wrongful Death Damages

by Robert J. Fleming

Under Georgia law, when a death results from a crime or negligent act, the estate of the deceased (the “Estate”), is entitled to recover two general types of damage. The first is damages from the negligent party for funeral expenses, medical expenses, and any other expenses flowing from the injury or death. This portion of the wrongful death damages is limited and precise (and known as special damages in legal terms). The second element of damages is not.

In addition to the above, the measure of wrongful death damages in Georgia includes the full value of the life of the decedent without deducting for any of the personal expenses had the decedent lived. In other words, the Estate can also recover the amount equal to what the deceased would have recovered from the negligent party had the deceased lived but rendered totally disabled.
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Published on: March 16, 2010

Highway Accident Fatalities across U.S. Are at Lowest Levels in Decades

by Robert J. Fleming

Last year, the number of deaths in highway accidents across the Georgia and the U.S. dropped to approximately 9% lower than in 2008. That heartwarming news comes to us via the Department of Transportation which has just released data into highway fatalities for 2009. According to the D.O.T., last year, there were 33,963 deaths in highway accidents across the country.

Transportation Sec. Ray LaHood says that three factors have been responsible for the declining death rates.
1. The rates of seatbelt use have increased tremendously.
2. Automobiles today are much safer and do a far better job of keeping motorists and occupants safer.
3. Stronger law enforcement efforts have contributed to a decline in drunk driving accident rates over the past few years.

While these factors certainly have contributed to a decrease of car accidents nation-wide, a lot of car accidents continue to happen in the Atlanta, Georgia area due to driver error, inattentive driving, faulty or improperly maintained equipment on the cars such as brakes and steering, unsafe road conditions, falling objects that are being transported on the interstate by truckers, and many others.

Published on: March 13, 2010

Atlanta Dog Bites

by Robert J. Fleming

As a loving parent of two young girls, I am deeply concerned about the recent surge of Atlanta dog bite cases in 2010. As a Georgia lawyer who specializes in representing dog bite victims, I am outraged at the number of dog owners who break the law and allow these attacks to happen by failing to control their dogs. There are two things you should know up front: (1) these dog attacks (which are happening in and around Atlanta quite frequently) cause serious long-term injuries; and (2) the dog owner is responsible to the dog bite victim for all of the damages which flow from the attack.

Once a dog attack occurs, the first inquiry is: which dog control law applies? In the greater Atlanta area, there are a number of animal control laws (or leash laws) which may apply. For instance, in the Atlanta area, the applicable law which we use to establish liability on the dog owner, can be a code from one of the cities we live in such as the City of Atlanta, City of Decatur, Marietta or a county law such as the laws in place in DeKalb County, Fulton County, Gwinnett County, Clayton County or any of the other surrounding counties.

Once the applicable jurisdiction is identified, the next step is to establish the dog owner’s negligence and liability for the injuries. This is done by proving that the law (or code) was violated and that the violation caused the injury. Often, this is not hard. Most codes essentially require the dog owner to either keep the dog adequately contained on the owner’s property or keep control over the dog when it is off the property. Hence, with few exceptions, if the dog attacks someone (usually a defenseless child), it is impossible for the owner to argue that he complied with the law. In other words, if the dog owner had complied with the law and had the dog under control, the dog would not have been able to attack.

Unfortunately, many dog owners break the law, giving their unfriendly dogs the opportunity to attack. These attacks are often on defenseless children and result in serious injuries.

Many Atlanta children are left with permanent physical and emotional scars. For instance, as this article is being written, 8-year-old Erin Ingram lays in Children’s Healthcare of Atlanta. She has undergone 3 surgeries after being attacked by two aggressive American Staffordshire terriers (Pit Bulls). You do not have to look any further than recent blogs on this site to know that this scenario is far too common. An Atlanta child being mauled by one (and often more) Pit Bulls.

These children often sustain deep and permanent scars on the face, lips, forehead, neck, arms, legs and hands. This requires extensive and painful plastic surgery to correct, if possible. Many times, it is not possible to remove he scarring and the child must walk around with these scars for life. Many young children suffer permanent psychological wounds and require long-term treatment for post-traumatic stress disorder, anxiety, fear of dogs, fear of going outside, and depression caused by their scarred appearance.

These injuries are severe and the negligent dog owner should be held fully liable and must fully compensate the victim’s family.
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Published on: March 11, 2010

Understanding Traumatic Brain Injury in Georgia

by Robert J. Fleming

Many serious accidents result in Traumatic Brain Injury (“TBI”). TBI results in abnormal cognitive behavior which affects the injured person’s ability to communicate, remember, analyze, think or interact with others. While most people focus on the physical injures that are suffered in a wreck, the mental and emotional injuries can sometimes be more severe than the physical injuries. Since the TBI injury is not as apparent (in other words, a physical injury such as a gash on the head or a broken leg can be seen, but TBI cannot), it often goes undetected.

Many serious brain injuries are not accompanied by outward signs of injury (these are called closed-head injuries), it is critical to recovering the appropriate damages to be able to prove the extent of the injury. This is often achieved through the use of standardized tests, employment records, IQ tests, neurology records, psychological records, CT scans, MRI’s, and PET scans.

According to the Mayo Clinic, one helpful test for TBI is called the Glasgow Coma Scale. This 15-point test helps a doctor or other emergency medical personnel assess the initial severity of a brain injury by checking a person’s ability to follow directions and move their eyes and limbs. The coherence of speech also provides important clues. Abilities are scored numerically in the Glasgow Coma Scale. Higher scores mean less severe injuries.

Published on: March 11, 2010

Woman Killed in Atlanta Accident Involving Flying Tire

by Robert J. Fleming

Atlanta accident lawyers often see that there’s more than one way negligence can be involved in an accident. Last week, a woman was killed in a wreck that did not involve two vehicles coming into direct contact with each other. According to a news report, a tire from a passenger van became loose, flew off and crashed into a Hyundai Sonata on Interstate 285.

The deceased was a woman from Virginia traveling westbound on I-285 in her Sonata, when she was struck by the rear left tire of a Georgia State University passenger van. Another car was also struck by the runaway tire, but the occupants of that car, fortunately, did not suffer any injuries.
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Published on: March 5, 2010

Dangerous Atlanta Intersection Needs Correction

by Robert J. Fleming

Atlanta joggers, walkers, and bicyclists should use extreme caution while crossing the intersection of LaVista Road, Lindbergh Drive and Chesire Bridge Road. While the City of Atlanta is aware of the safety defects at this intersection, they have not been remedied. In addition to heavy traffic, the following road defects warrant extra precautions: (1) there is no cross walk on the eastern side of the intersection; and (2) one of the cross walk buttons is missing, while others do not work properly. This forces lawful pedestrians into the street and lead to a potentially dangerous situation.

As Atlanta Injury lawyers, we see many Atlanta pedestrian accidents happen as a direct result of unsafe road conditions that result from the City of Atlanta or the State of Georgia’s lack of attention to noted road defects. All Atlanta residents should use extreme caution as these types of busy intersections.

Legal claims against government agencies are difficult because the set of laws involved are biased to protect the governmental entity. This complex set of laws works to the disadvantage of the person injured by the wrongful acts of government employees, negligent operation of a government vehicle, or by a dangerous condition of public property. The law of governmental immunity (also known as sovereign immunity) in Georgia and other states has claims procedures that must be followed exactly and immunities that the government will attempt to use to eliminate a person’s claim and have it rejected from court, even when the facts show wrongful acts by the government or government employees, or dangerous public property. The Federal Tort Claims Act provides the same type of protection to the Federal government for personal injury and wrongful death claims against the Federal Government. Under both sets of laws, an injured person must send a written notice to the governmental entity putting the entity on notice of the injury and potential claim. The deadline to do this varies, depending on the type of governmental entity that you are suing. Because of this requirement, the complexity of the notice requirements, and the varying deadlines, it is essential that you hire an experienced attorney who can navigate these legal requirements on your behalf, properly preserve you claims against the city, county, state, or Federal Government and pursue your case in the courts.
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Published on: March 1, 2010

Atlanta Braces for More Snow and a Higher Risk of Car Accidents

by Robert J. Fleming

Meteorologists are predicting more snow and rain in the metro Atlanta area on Tuesday, increasing the risk of multiple accidents.

According to weather experts, there will be some rain and light snow on Tuesday morning, which may turn to all-snow for a while. Meteorologists are predicting slowed down traffic during rush hour, which is likely to be even more congested than normal.

The metro Atlanta area has seen colder than usual conditions this year. Last month was marked by severe snowstorms and showers that were blamed for a series of accidents. Given the dry conditions of the past few days, roads are likely to be very slippery, as the fresh rains mix with accumulated grease residues on the asphalt to create a slick mix of oil and water.
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Published on: February 25, 2010

Rockdale County Infant Dies in Atlanta Hospital After Being Crushed by Pit Bull Dog

by Robert J. Fleming

Sadly, another Atlanta child has died after being injured by a pit bull. A 5-day-old baby girl was crying in her crib when the dog (in what investigators deemed to be an apparent attempt to help the baby) climbed on top of the crib and crushed the baby’s skull. The baby died at Children’s Healthcare of Atlanta after doctors valiantly tried to save her young life. Four other Georgia babies were being treated for pit bull bites when the baby was brought to the hospital. After a thorough investigation, the police and investigators determined that this was an unavoidable accident and not the result of negligence or the result of the pit bull being vicious or dangerous. The baby’s mother was in the room seconds after the dog, but it was too late.

This case really is a tragic accident and one that will not result in a lawsuit because it was a family accident in the home. However, most dog attacks occur in the neighborhood or at local parks or business establishments. When someone is attacked under these circumstances, there is a real possibility that a lawsuit will ensue.

As noted in a previous article, when spring arrives in Atlanta, so does dog bite season. As an experienced Atlanta injury lawyer who has helped clients recover for injuries suffered in dog bite cases (and as a concerned parent), I hope and pray that Atlanta-area moms and dads are especially careful to keep their kids out of harm’s way. Please do the following if you or your child is bitten by a dog or other animal: