Atlanta Injury Lawyers Blog

Published on: January 4, 2009

Elements of a Georgia Medical Malpractice Case — Duty

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.

Published on: January 3, 2009

Elements of a Georgia Medical Malpractice Case

by Robert J. Fleming

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.

Published on: January 2, 2009

Georgia Nursing Homes Don’t Fair Well in Government Evaluations

by Robert J. Fleming

Kudos to the federal government for implementing a simplified approach to evaluating nursing homes. Unfortunately, the streamlined ratings expose Georgia’s nursing homes for being inadequately staffed. According to a recent U.S. News and World Report Article, Georgia lags behind every other state except Louisiana in the percentage of nursing homes in the state that are adequately staffed and properly caring for patients and inadequate staffing and lack of proper staff training are two of the biggest contributors to nursing home malpractice that I am aware of.

This is not surprising, considering the horrific accounts of neglect, abuse and mistreatment that are reported about many Georgia nursing homes, mental institutions and treatment facilities. Not only is there not enough staff to care for the residents, many times the staff members that are on duty do not possess the training and skills to properly carry out their duties. This leads to inattentiveness, mistakes and, ultimately, inadequate care. Nursing home residents deserve better than this. They are our loved ones. They have worked their entire lives and, at this stage of their life, they deserve to be cared for adequately and to be treated with dignity and compassion at all times (not just when family and friends are in their room visiting). I have lobbied for a law that would require all nursing homes to have video-tape surveillance in all general areas so that anyone can see the care and treatment being recieved by the residents at all times. This would be a huge advancement and would provide a good bit of transparency to the nursing home industry. Of course, the nursing home industry wants not part of this. Why? Because it would provide accountability for much of the sub-standard care that is provided in nursing homes today.

Nursing home lawsuits involve the same legal standards as most other personal injury cases: Duty, breach, causation and damages. In order to prevail, the plaintiff in a nursing home abuse lawsuit must show that the nursing home owed the plaintiff a duty, that the duty was breached; and that the breach caused the damages that the plaintiff is complaining of in the lawsuit. The difference in nursing home cases, is that the plaintiff must submit an affidavit with the original complaint from an expert opining that at least one act of malpractice has occurred and providing the basis for that opinion.

Published on: December 30, 2008

Anatomy of a Georgia Medical Malpractice Case — Part I

by Robert J. Fleming

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.

Published on: December 11, 2008

Recently Involved in an Atlanta Auto Accident? Suggestions

by Robert J. Fleming

I get many calls from potential clients who have recently been involved in wrecks in the Atlanta, Georgia area. While each case is different, here are some general suggestions that can help during a very stressful time when you might be injured or not thinking clearly due to be involved in a wreck.

CONSULT WITH A QUALIFIED ATTORNEY

Obvious advice coming from a law office, right? While many people resist hiring an attorney because they feel they can “do better” without one, this simply is not the case. Many times, an experienced and qualified attorney is needed to evaluate the case, timely gather and preserve critical evidence, interview potential witnesses, identify potentially liable defendants (many of whom may not be readily apparent), identify available sources of insurance coverage, comply with statutory notice requirements and properly present your case to the insurance companies for prompt settlement or trial. With that said, here are some other nuggets of wisdom that I have gleaned over the years that should prove helpful in protecting your rights and maximizing your recovery:

DO NOT TALK TO ANYONE UNTIL YOU TALK TO YOUR LAWYER FIRST
Generally speaking, you should not talk to anyone about the accident except your lawyer and their staff. Obviously, you must cooperate with the police investigation. In addition, you are required to talk to your own insurance company, but your lawyer is entitled to be present. Do not talk about your injuries or the accident with the other party’s investigators, lawyers or insurance adjusters. Trust me: nothing you say will help you; anything you say will be used against you. If you doubt this, ask yourself a simple question: Whose interests are these people working to protect? Answer: Not yours. They are working hard to build a case against you, to make sure you get nothing, or very little, certainly less than you deserve. Do not help them.

POLICE REPORT / WITNESSES

As soon after the wreck as possible, you should obtain a copy of the police report and forward this to your attorney. If you know of any witnesses to the incident, please write their name, address and telephone numbers down and provide your attorney with a copy without delay. You would be amazed at how quickly witnesses disappear, memories fade, addresses change, telephone numbers are disconnected and the like. It is your attorneys’ job to quickly gather witness information and preserve it for settlement or trial preparation.

DIARY A LIST OF PROBLEMS CAUSED BY YOU BEING INVOLVED IN THE WRECK

Please keep a diary of problems that you confront because of your injuries. This should include when you are experiencing pain and suffering, activities that you are not able to perform or are able to perform, but must do so with pain and other problems. Be honest and truthful but don’t short change yourself either. When journaling, write out exactly how you feel both physcially and emotionally. In most cases, this will include worry and fear that you are experiencing because of being involved in the wreck. Not only is this process helpful to documents the pain and suffering that you are experiencing, but many clients find this to be theurapuetic and it seems to help them deal with the situation in the most positive light. After all, that is what you want: to get better, resolved your lawsuit as quickly as possible, and move on with your life.

LOST WAGES

Be certain that you have the name and addresses of all employers from which you lost wages due to the wreck. If you are self-employed, try to obtain records that will show your wage loss. Keep an accurate record of all days lost from work due to the incident and/or your injuries. Similarly, if you are self employed you will want to keep track of all job opportunities/lost income that you sustained due to you inability to work after the wreck.

DAMAGE TO YOUR AUTOMOBILE AND PERSONAL PROPERTY

They say, “a picture is worth a thousand words.” Please take pictures of all damages to your car, and to the other vehicles involved in the wreck. Err on the side of caution and take a lot of pictures to ensure that you capture the full visual impact of the damage to the vehicles. Also, keep copies of repair bills and estimates. If you are disfigured in any way due to the wreck, you will certainly want to take pictures of this as well. In most cases, pictures taken of you right after surgery are very helpful. So are pictures of you shortly after the wreck which show bleeding, swelling, or other types of painful conditions that you sustained as a result of the wreck.

DOCTOR VISITS

The most important thing is for you to get well and to hopefully fully recover from your injuries. This is what you should concentrate on after the wreck and the lawsuits will be handled by your attorney. Therefore, follow your doctors’ advice and continue being treated by your doctor and subsequent doctors that you are referred to until you are well. This is equally applicable to any physical therapy to which you have been referred. Many times, physical therapy is a long and tedious process. However, you must complete the program to reap the benefits. If you are patient and follow the program, most times your condition improves. Remember, the most important concern is your health and recovery.You should be aware that insurance companies and defendants look very closely at medical records and try to allege that the plaintiff did not follow doctors’ advice and that is why the injury is so bad. Do not give them this opportunity. Follow your doctors’ advice.

HOSPITAL, MEDICAL AND DRUG BILLS

Obtain and keep receipts and records of all these expenses.Your are entitled to recover for these as part of your damages. Many times, bills while you are in the hospital after a wreck are sent by many different health care providers, not just the hospital that you were being treated at. For instance, if you are inolved in a car accident and are taken to the Emory Hospital Emergency department and then transferred to Emory Hospital for care after the ER visit, you might get billed separately from Emory ER, Emory Hospital, the doctors’ group who provided the ER care, the radiologist who conducted the x-rays and any number of other health care providers. The point is: don’t assume the hospital bill contains all of your medical bills while you were hospitalized. In most cases, it doesn’t.

PHYSICAL EVIDENCE

If your injury requires a cast, brace, traction, or other medical device, please save it. As discussed above, if you have pictures or other physical evidence, give them to your attorney. They may be used as evidence down the road. Once again, err on the side of caution and let your attorney decide what is worth preserving. Many times, some issues that were never being contested become issues way down the road.

TRAFFIC COURT

If you receive notice of a traffic court date for the other driver, attend and testify regarding who was at fault. If you receive a subpoena, you must attend. Many times a guilty conviction can be used against the other party at the trial of your case. If you don’t show up at the traffic court trial, you run the risk of the other driver’s ticket being dismissed, which will not help your case.

CALL YOUR LAWYERS OFFICE WITH ANY QUESTIONS

You hired your attorney to help you and that is exactly what they want to do. If you are not sure of something, call. It is better to communicate and get a clear understanding of what you are wondering about, rather than guess and make a mistake. In school they always said, “the only stupid question is the one that was not asked.” The same applies here when you are being represented by a law firm due to a serious car accident or other injury.
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Published on: December 9, 2008

Atlanta Residents Injured By Faulty Escalators

by Robert J. Fleming

We hear about it during the busy Atlanta summer travel season. We hear about it during the busy Georgia holiday shopping season. Boys and girls of all ages being seriously injured when their little hands or feet are suddenly sucked into the openings by the moving stairs of escalators. While Marta, the large department stores and airports try to lay blame on the popular Crocs-type shoes, the real culprits are faulty escalators.

For instance, in 1996, long before Crocs were even on the market, a young boy in Houston lost three toes when his tennis shoe was sucked in by an escalator. “If escalators were designed properly and met all the standards, it wouldn’t matter that they [the injured children] were wearing Crocs,” said Scott Anderson, of Houston, Texas whose 4-year-old son was was seriously injured in the 1996 escalator accident.

Since the beginning of this year, over 140 injury incident reports have been filed with Georgia state regulators, with the vast majority occurring at Hartsfield-Jackson International Airport, MARTA and the various Atlanta area shopping malls such as Phipps Plaza, Lenox Mall and Perimeter Mall. Although rare, some of these incidents result in severe injuries such as head traumas, loss of limbs and permanent disfigurement. If you or a family member is injured in an escalator accident, you should immediately contact an experienced personal injury attorney and then (through your attorney) report the incident to the U.S. Consumer Product Safety Commission (“CPSC”). The CPSC’s web site is www.cpsc.gov/cgibin/incident.aspx or they can be reached by telephone at 800-638-2772.

While not every injury that occurs on an escalator is due to someone else’s negligence, many are. If you are seriously injured on an escalator and you suspect that the injury was caused by faulty equipment or negligence on the part of the premises owner/operators (some common premises owners or operators are MARTA, AATC–which operates Hartsfield-Jackson International Airport for the City of Atlanta and the Airlines, and the various malls in the Atlanta area such as Phipps Plaza, Lenox Mall and Perimeter Mall).

Robert J. Fleming, P.C. has successfully represented many clients injured on the premises of others. If you have been seriously injured, contact us today for a free initial consultation to discuss the specific facts of your case.
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Published on: December 3, 2008

Car Wreck on Ponce de Leon Avenue in Atlanta, Georgia

by Robert J. Fleming

For those of you, like me, who live in Atlanta and regularly drive on Ponce de Leon, I wanted to post the attached video. The stretch of Ponce de Leon between Freedom Parkway and Emory University (Clifton Road) is especially dangerous. As the attached video illustrates there are so many accidents here. I travel this road almost every day and I have seen a number of serious wrecks (i.e, overturned cars and serious injuries) right in front of the Majestic Diner. So, please use extra caution.

Robert J. Fleming has been handling wrongful death cases, 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 another 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 injured in a car accident and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

Published on: December 2, 2008

Georgia Court Awards Attorneys’ Fees

by Robert J. Fleming

The Georgia Court of Appeals recently approved the award of attorneys’ fees in a case that was appealed from DeKalb County Superior Court. In Roofers Edge Inc. v. Standard Building Co. Inc. A08A1060; A08A2109 (11/17/09), the appellate court found that there was “some evidence” for the jury to conclude that the defendant acted in bad faith and to award attorneys’ fees to the plaintiff. In this case, the defendant, Standard Building Co., Inc., failed to pay the plaintiff, Roofers Edge, Inc. for subcontracted metal roofing work on a construction project; then denied the existence of a contract or that Roofers Edge had completed the work. It did, however, admit at trial that Roofers Edge was entitled to payment, less a setoff.

At first blush, this case appears to have little to do with personal injury litigation. However, this case is applicable to all litigation in Georgia state courts including auto accidents, slip and fall injuries, premises liablity and any other type of personal injury claim brought in Georgia. This case explains the circumstances under which a plaintiff may be awarded attorneys’ fees, in addition to other monetary damages which they may be entitled to.

As the court notes in its decision, Georgia state code OCGA 13-6-11 provides for the award of attorneys’ fees to a plaintiff when a defendant “has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. A refusal to pay in bad faith means a frivolous and unfounded denial of liability. Similarly, “stubborn litigiousness,” and “causing the plaintiff unnecessary trouble and expense” refer to a defendant’s forcing the plaintiff to sue when no bona fide controversy exists.” Many Georgia lawyers and judges refer to this as the “so sue me” attitude. Importantly, this issue (whether or not the defendant acted in bad faith, etc.) is an issue for the jury to decide. In other words, the jury decides whether the plaintiff is awarded his or her attorneys’ fees and expenses of litigation in addition to the other damages that the plaintiff is seeking in the lawsuit.

Published on: November 25, 2008

New Georgia Law Helps People Seriously Injured in Automobile Accidents

by Robert J. Fleming

The state of Georgia recently enacted a new law that allows the victims of automobile accidents to access more insurance coverage. Under the new law, car owners can purchase uninsured/underinsured motorist coverage that can be “stacked” on top of liability insurance of the driver who caused the accident. This is helpful when you are injured in an automobile accident by a negligent driver and the negligent driver does not have enough insurance to fully compensate you for your personal injuries.

As an experienced Georgia Injury Lawyer, I can’t over-emphasize how important this is here in Atlanta, where many drivers on the road carry minimum insurance limits. What is especially troubling about this situation is that these are usually the very same drivers that cause catastrophic wrecks and do not have the personal assets to satisfy a large judgment against them.

The new law enables you (the injured driver in an automobile accident due to the fault of someone else) to collect the other driver’s liability insurance and then access your own uninsured motorist coverage after the other driver’s insurance coverage is exhausted. Prior to the new law, many Georgia motorists who had paid premiums for uninsured motorists coverage would not be allowed to collect these benefits because their coverage would only “kick in” if the uninsured motorists coverage exceeded the at-fault driver’s liability coverage.