Atlanta Injury Lawyers Blog

Published on: March 28, 2009

Georgia Homes May Be Tainted by Chinese Drywall

If the current economic problems and real estate collapse is not enough, there is another potential hazard for Georgia homeowners. Class action lawsuits are being filed in Florida claiming homes there have been built with potentially toxic drywall. As we have seen in the past with children’s’ toys, dog food and other consumer products, the defective product (in this case drywall) was allegedly manufactured in China and shipped to the United States to be used in the construction of new homes.

Recent testing by the Florida Department of Health shows that Chinese-made drywall emits a sulphur gas that corrodes copper wires in air conditioning and other units. If your home was recently built or remodeled and you suspect that it contains defective Chinese-made drywall, you should investigate further to protect your family from harmful toxic exposure. You also may be able to recover your damages due to this defective product.

The potential danger of Chinese-made drywall was uncovered when buyers of new homes in Florida noticed a strange smell, which officials now believe to be from high sulfur content in Chinese drywall. It now appears that the problem may be more widespread than just Florida.

Published on: March 10, 2009

Sound Advice for Georgia Workers Who Lose Their Job

by Robert J. Fleming

According to recently released government statistics, the official unemployment rate is over 8% and climbing steadily. Georgia Department of Labor Web Site. No one needs to be told how tough times are these days and it’s any one’s guess as to when the job market will rebound. Conventional wisdom dictates that if you currently have a job, hang on to it. If you have just been fired, the following steps are advisable:

(1) Do not sign anything until you have had a chance to consult with an experienced attorney who represents workers. Many times, a severance package and check will be presented to you by your employer under the express condition that you sign a complete release in order to get your severance and money. As tempting as this may be, do not sign anything until you have had a chance to review the documents in detail and consulted with a lawyer. Getting the money quickly may be appealing, but in order to do so, you may be signing away valuable legal rights. If you sign the release, your right to sue may be lost forever. In addition, the money you get could be costly, in the form of future restrictions to compete against your former employer and/or call on their customers.

(2) File for unemployment benefits. If you are eligible, this may be what you need to make it through these certain tough times ahead. This should be done as soon as possible. Delaying the filing for unemployment does not help you in any way and a long delay may cost you to forfeit some benefits that you otherwise may have been entitled to.

Published on: March 9, 2009

Right to Sue in Georgia For Dangerous Drugs Upheld

by Robert J. Fleming

On March 4, 2009, the Supreme Court upheld a $6.7 million award to a woman whose arm had to be amputated due to complications she suffered after being injected with the popular anti-nausea drug, Phenergan. The woman was injected with the drug to combat nausea related to migraine headaches and subsequently lost her arm after gangrene set in. Although the drug was supposed to go into her vein, the needle accidentally struck an artery, which allowed a greater amount of the Phenergan to enter her body of a short period of time.

Prior to the injuries she suffered from the Phenegren complication, Levine was a professional guitarist and pianist. Once she contracted gangrene, doctors were forced to amputate her hand and forearm and her music career was ended.Read Full Supreme Court Opinion.

The importance of this decision cannot be stressed enough for the citizens of Georgia who have suffered personal injuries or death due to unsafe drugs. One of Governor Sonny Perdue’s stated top priorities was to insulate drug companies from Georgia State Court suits based on the theory argued by the drug company in the Wyeth v. Levine lawsuit, i.e., that since the FDA approved the drug, state court actions are preempted. Fortunately, the Supreme Court rejected this argument and it is not the law in Georgia. While it is not a complete defense to personal injury lawsuits, or in other words, a basis for summary judgment in Georgia, drug manufacturers and other defendants who have been sued for using an unreasonably dangerous drug do raise the defense to the jury. In these cases, the defendant’s argue that it is perfectly reasonable to use a drug since it has been approved by the FDA, and the doctor should not have to do any further investigation into the drug’s safety, other than to check to make sure it is approved by the FDA.

Published on: March 4, 2009

Georgia Doctors May Require Full Payment in Advance

by Robert J. Fleming

Many patients who are being treated for personal injuries are finding that a co-pay is no longer sufficient to visit the doctor’s office. In a new trend, doctors’ offices are demanding full payments up to the deductible amounts, often before the doctor will see the patient. An industry analyst says that, as insurance companies and employers have started requiring consumers to pay more of the costs of care, doctors’ offices have shifted their fee recovery to consumers. Read Full Article.

One of the most important concerns for accident victims in Georgia is being able to pay for and receive the proper medical care needed to recover from the accident. If you are seriously injured in an car accident, for example, and suffer a back injury (herniated disc or bulging disc in the back) which requires surgery, your medical bills pile up quickly. This new approach by the medical providers could cause problems. I advise clients to utilize the medical payments coverage that comes with their car insurance policy and then to use health care coverage.

Robert J. Fleming has successfully represented many clients in Atlanta and the surrounding areas who have been injured due to the negligence of others in many different types of accidents. One of the first things we do when you hire us to represent you is to determine which methods you have available to pay for the medical treatment you need to recover from the accident. If you have been in a bad wreck, you likely will not be in the best emotional position to make these determinations. However, this is what we do for our client every day. We can sit down with you and, in any orderly fashion, figure out your best course of action to make arrangements to pay your medical bills. We also take great care to determine responsible parties and all available insurance to pay for the damages that you have sustained in the car accident or other type of accident. If you have been seriously injured in a car accident, slip and fall on commercial premises, or some other type of accident that was not your fault and would like to discuss your case in complete confidence, contact us today for a free initial consultation to discuss the specific facts of your case.

Published on: February 6, 2009

Elements of a Georgia Medical Malpractice Case–Damages

by Robert J. Fleming

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.

Published on: February 5, 2009

Elements of a Georgia Medical Malpractice Case–Causation

by Robert J. Fleming

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.

Published on: February 4, 2009

Elements of a Georgia Medical Malpractice Case–Breach of Duty

by Robert J. Fleming

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.

Published on: January 24, 2009

Georgia Workers Helped by Broadened Definition of Disabled

by Robert J. Fleming

Effective January 1, 2009, the Americans with Disabilities Act (“ADA”) was amended to broaden the number of workers who are protected by the ADA. Under the ADA, workers are “disabled” if they suffer from (1) an impairment that substantially limits one or more major life activities; (2) possess a record of such impairment; or (3) are regarded as having such an impairment.

While this definition has not changed, the amendment instructs the Courts to take a broader construction of this definition, which, in turn, should include more American workers who suffers from impairments. In addition, the amendment instructs the Courts to broaden the definition of “major life activity,” which, once again, should result in more Americans who suffer from significant impairments being protected under the ADA.

The amendments seem to be coordinated to broaden the number of workers covered by the ADA. A welcome relief in these trying economic times. Georgia workers should benefit from this relief, as every Georgia worker is entitled to safe and humane working conditions.

Published on: January 23, 2009

Georgia Dog Owners Beware

by Robert J. Fleming

Most experienced injury lawyers agree that the owner of a chimpanzee shot and killed by police after it attacked a 55-year-old woman last week will likely be named in a lawsuit. The state could also be held liable in the incident because it should have known the animal was a risk to the public. The victim of the attack remains in critical condition at the Cleveland Clinic as doctors evaluate her injuries, according the the Hartford Courant.

In Georgia, a pet owner is held strictly liable for injuries caused by vicious wild animals belonging to her, because such animals are considered inherently dangerous. Candler v. Smith, 50 Ga.App. 667 (1935). A dog, as a matter of law, is not subject to the rules governing wild animals. Harper v. Robinson, 263 Ga. App. 727(1) (2003).

However, Georgia law provides for liability to pet owners who “knew or should have known of the [vicious] propensities.” OCGA Code Section 51-2-7. While the commonly quoted “one bite rule”, i.e., every dog is entitled to its first bite without the owner being liable to the bitten victim, illustrates one way in which an owner would be held liable, it is not the only way. For instance, even if a dog has never attacked or bitten someone before, the dog’s owner could be liable for damage caused by the dog if “the animal was required to be at heel or on a leash by an ordinance of a city [or] county and the animal was at the time of the occurrence not at heel or on a leash.” Id. In fact, most metro Atlanta, Georgia Counties, including but not limited to Cobb, Fulton, DeKalb, Clayton, and Gwinnett have leash laws that require the dog owner to have control over their dog at all times. For instance, Gwinnett Counties’ leash law makes it clear that the dog must, at all times, be controlled by the owner to avoid the dog attacking someone. The requirements are even stricter if the dog has attacked an innocent bystander before. When the is an applicable animal control statute (a/k/a leash law), the “one bite rule” is superseded by the leash law and the dog’s owner, in most cases, is what lawyer’s refer to as negligent per se. In other words, the fact that the dog was able to attack someone in the neighborhood, proves that the leash law was violated and the owner is liable for all the damages caused by the dog’s attack.

It is important to note that dog attacks result in physical and emotional damages. If one has ever been attacked by a dog, you know just how scary the attack can be. Most people who suffer dog bite attacks, are victims of post traumatic stress disorder from the attack, and are fearful of dogs long after the attack, if not forever.

Dog bites can be very painful and, in some cases, they can inflict long-lasting emotional impacts on victims. Care should be taken by all responsible dog owners to ensure that their dogs are not left in a position to attack and hurt innocent victims.
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Published on: January 19, 2009

Chimp Owner Potentially Liable For Injuries

by Robert J. Fleming

I’m sure most people caught the outrageous story of the 200-pound pet chimp who went berserk and attacked his owner’s house guest. Sure to draw attention due to the bizarre circumstances, the story appeared in most newspapers across the country including the Atlanta Journal Constitution.

Charla Nash, 55, was visiting her good friend, Sandra Herold, when Herold’s beloved 14-year-old chimpanzee, Travis, savagely attacked Nash, leaving her in critical condition at Stamford Hospital. The chimp could be heard in the background grunting while attacking Nash as Herold sobbed to the 911 dispatcher, “He’s killing my friend…My Chimpanzee…He ripped her apart…Shoot him…Shoot him.”

Herold admitted during an interview aired on NBC’s “Today” show that she had given Travis the anti-anxiety drug, Xanax, which had not been prescribed to him. As authorities considered criminal charges, Herold recanted this account and now denies that she gave the chimp the drug.