Atlanta Injury Lawyers Blog

Meridia (sibutramine) is a prescribed drug that patients in Atlanta take orally to manage obesity during the losing and maintaining of weight. It is the first orally taken serotonin and noradrenalin reuptake inhibitor (SNRI). It influences the appetite control center in the brain to lessen food consumption by raising satiety Sibutramine that is thought to support weight loss.

Abbot Laboratories, the manufacturer of Meridian, conducted a voluntary recall in October of 2010 after the FDA called for the removal from the market. Meridia, a diet drug, was found to cause serious cardiac side effects and could even cause death. 12 months after the FDA voted that the risks associated with the taking of Meridia outweighed its benefits, the drug was approved nonetheless.

Meridia’s side effects include, anorexia, constipation, dry mouth, headaches, heart disease, insomnia, increased blood pressure, increased heart rates, mental impairment, seizures, strokes, and increased sweating. Meridia is also linked to serious and deadly side effects such as pulmonary hypertension (PPH). Other side effects include heart valve disease or cardiac valve dysfunction.

Continue reading "Meridia Fiasco Shows Need for Watchful Eye Over the FDA" »

As a personal injury lawyer in Atlanta and father of two young girls, this kind of news always catches my attention. A lawsuit has been filed against Taco Bell over last year's Salmonella poisoning outbreak that affected 68 people in 10 states. The lawsuit has been filed on behalf of a 22 year old woman in Oklahoma who claims she was infected with Salmonella poisoning after she ate at Taco Bell. She alleges that she was ill for two weeks and is seeking $75,000.

Taco Bell claims that investigators found that not all who ate at Taco Bell had gotten sick. Therefore, Taco Bell suggests that the problem probably originated with their supplier before being delivered to Taco Bell restaurants. Salmonella illnesses were reported in Iowa, Kansas, Michigan, Missouri, Nebraska, New Mexico, Ohio, Oklahoma, Tennessee, and Texas form October through January of last year.

Taco Bell is no stranger to outbreaks of food borne illness. In 2000, green onions were the cause of a hepatitis outbreak. In 2006, tainted lettuce caused an E. coli outbreak that sickened 71 customers in five states. And in 20010, Taco Bell was linked to another Salmonella outbreak that sickened 155 people.

Continue reading "Taco Bell Sued Over Salmonella Poisoning" »

Actos (pioglitazone) is a drug that is used by many patients in Atlanta to treat Type 2 diabetes. Individuals who use the drug are put at a greater risk of experiencing a heart attack, congestive heart failure, heart disease, and death. Actos use has also has been associated with a greater chance of developing bladder cancer, kidney damage, liver damage, and bone fractures.

Actos is usually prescribed as a substitute for Avandia because it was once thought that Actos was much safer. In 2010, a study confirmed that both Actos and Avandia put patients at the same risk of experiencing heart problems and death. Following those findings, the FDA imposed stricter constraints on Avandia use, but ignored Actos use.

In August of 2011, the FDA approved more up to date drug labels for Actos. The newer labels informed users of the bladder cancer risks associated with Actos use. An increased risk of bladder cancer was seen among patients who used Actos the longest, as well as in patients who were prescribed the largest dosages.

The black-box warning is the result of data that was collected over the first five years of 10-year study. The study showed that patients who take Actos for a year or more are 40 percent more likely to develop bladder cancer. More information is expected be released in future moths as the FDA continues reviewing Actos.

Pradaxa is a blood-thinner that is prescribed to many patients in Atlanta to lessen the chance of stroke and blood clots in people with atrial fibrillation (AFib) not caused by heart valve trouble. It has only been available to patients for two years; however, the side effects associated with the use of Pradaxa have already caught the attention of the US Food and Drug Administration (FDA).

The latest studies suggest that Pradaxa use poses an increased risk to the heart. Though the blood-thinner is used in the treatment of atrial fibrillation patients to protect them against the possibility of stroke, the newest fear is that dabigatran can cause a Pradaxa Heart Attack. Seven studies have found a 33 percent increase in Pradaxa heart attacks or chest pain (angina) compared to patients using another drug, like warfin, or a placebo.

Though the chance of a Pradaxa heart episode is small at 1.19 percent in contrast to .79 percent, even so it is a risk. Interestingly, the data used from the seven studies was gathered from clinical testing that encouraged the FDA to approve Pradaxa two years ago. The results of the meta-analysis have been published in the Archives of Internal Medicine.

Continue reading "Pradaxa Under the FDA's Watchful Eye" »

With the recent changes in immigration law, many immigrants in Georgia are shying away from utilizing the court system for fear of being deported. This is unfortunate and unwarranted because Georgia law is clear: evidence concerning a party’s immigration status is irrelevant to the issues of negligence and damages in a lawsuit. This type of evidence is highly prejudicial and has no probative force as to the issues involved. E.g., Evans v. State 433 S.E.2d 426 (Ga. App. 1993).

The admission of this evidence at trial would improperly influence the jury and result in a jury decision based on bias and prejudice, rather than on the relevant facts of the case.

In Georgia state court, admissibility of this type of evidence is governed by O.C.G.A. § 24-2-1. Evidence that is irrelevant to the issues at trial is NOT admissible. Evidence is relevant if it has a logical relationship to the fact to be established. In a typical personal injury lawsuit, the citizenship and immigration status of the plaintiff simply have no relevance to the issues at hand (typically liability and damages) and are only sought to be introduced by the Defendant to bias the jury.

In federal court, references to citizenship and immigration status are governed by Federal Rule of Evidence 402, which excludes all evidence that is not relevant. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. FRE 401.

Evidence related to a Plaintiff's citizenship or immigration status is irrelevant and should be excluded by the trial judge in both federal and state courts in Georgia.

Not only are the issues of citizenship and immigration status inadmissible in Georgia trials, a recent federal court decision has held that this information is not discoverable during pre-trial discovery. Rodriguez v. Niagara Cleaning, No. 09-CV-22645, 2010 WL 2573974, at *3 (S.D. Fla. June 24, 2010). In the Rodriguez case, the Defendant attempted to discover pretrial information on the Plaintiff’s citizenship and immigration status. In denying Defendant’s motion to compel Plaintiff to produce this information, the Rodriguez court correctly noted “courts that have examined this issue have nearly unanimously found that defendants typically are not entitled to information related to the immigration status of plaintiffs.”

Continue reading "Citizenship and Immigration Status Often Not Admissible in Georgia Trials" »

Brain injuries are some of the most devastating injuries, and for Atlanta brain injury attorneys, it has always been a matter of concern that there are such limited treatment options for these injuries. However, there have been some studies into the field of traumatic brain injury treatment that have yielded intriguing results over the past few years. One such study now indicates that a combination of calories and proteins, administered within 24 hours after a brain injury, could actually accelerate the process of recovery.

The study was based on an analysis of several previous studies into the use of nutrition to treat a traumatic brain injury. The analysis was conducted by the Institute of Medicine which had been commissioned by the US military. The military has been especially invested in discovering new treatments for the treatment of traumatic brain injury, because of the large number of vets in Afghanistan and Iraq who are left with serious brain injuries.

The analysis of the studies - none of which was more than 20 years old - indicates that an infusion of calories and proteins administered within 24 hours of an injury can actually help reduce inflammation significantly. The researchers found that the best results could be seen if this infusion of calories and proteins was administered for a period of two weeks after the brain injury.

Continue reading "High Calorie Diet Could Help Treat Brain Injury" »

Police pursuit cases unnecessarily claim many innocent lives and cause thousands of serious injuries every year. Until recently, the defendant police departments have made good faith arguments in court against liablity based on these premises:

1) Unless the police car intentionally touched the fleeing suspect's car, there can be no waiver of liability under Georgia Code Section OCGA 33-24-51 for negligence;

2) If the fleeing suspect causes a wreck after fleeing, the suspect's decision to flee rather than the police officer's decision to pursue the suspect is, by law, the cause of the wreck; and

3) Negligence and reckless disregard are completely different standards
of liability. If the Plaintiffs rely on the negligent use waiver under OCGA 33-24-51 discussed above, then the Plaintiff is precluded from establishing the requisite reckless disregard standard under Georgia Code Section OCGA 40-6-6(d).

The Georgia Court of Appeals addressed all of these arguments in McCobb v. Clayton County, 2011 WL 1348398, and ruled that none of these arguments are sound.

Continue reading "Georgia Appeals Court Clarifies Law on Police Pursuit Case" »

As any other Atlanta brain injury attorney, I have been following the case of former federal Atlanta judge Jack Camp and his scandal with a stripper. Since then, we have also learned that the former judge suffered from bipolar disorder, a result of a traumatic brain injury suffered during a bicycle accident a few years back.

In March, Camp was sentenced to 30 days in prison for crimes that he committed during a relationship he had with a stripper. Among other things, he apparently used drugs with her, and paid her money to purchase drugs. After those allegations, his wife came forward to say that the former judge had suffered a bicycle accident back in 2005, and suffered a brain injury in that accident. Camp confirmed those claims, saying that he developed bipolar disorder as a result of the traumatic brain injury he suffered.

Those revelations have cast serious doubt on cases that Camp had handled during his tenure. Already US Atty. Sally Yates has confirmed that her office will be considering requests from people whose cases were handled by Camp after his brain injury.

Continue reading "Former Atlanta Judge Scandal Puts Focus on the Effects of Brain Injury" »

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.

Continue reading "Injured Atlanta Patients to Benefit From Pledge to Limit Radiation Exposure" »

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."

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.

Continue reading "Georgia Law on Proximate Cause An Essential Element of Persona Injury Cases" »

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 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.

Continue reading "Southern General v. Holt Holds Georgia Insurance Companies Liable For Bad Faith" »

Atlanta Pharmacies are subject to regulation by the Georgia Board of Pharmacy. As an experienced Georgia injury lawyer, I have handled a number of prescription misfill cases that have resolved successfully. Today, I will break down the basics of a pharmacy malpractice case in Georgia.

What is the basis for a Georgia Pharmacy Malpractice claim? Under the requirements of the Georgia Board of Pharmacy, a pharmacist is trained as to the proper dosage of drugs, and has available to her the same texts and references as those utilized by doctors. These references clearly cover potential drug interactions, side effects and warnings for each drug.

What is the pharmacist's duty? A pharmacist is responsible for interpreting prescriptions and to consult with the prescriber (the doctor) if there is any doubt as to the prescription. Potential doubt includes not being certain about which medication is being prescribed, at what dose and how it should be applied. Any doubt should be resolved by the pharmacist communicating with the doctor to ascertain this information.

The pharmacist's failure to comply with this duty to interpret leads to most prescription misfills and related malpractice claims against pharmacists and the drug stores for whom they work. [In Atlanta, Georgia, most prescriptions are filled by Walgreens, CVS, Target, RiteAid, Kroger or Publix. Although quite a few more are filled at pharmacies located inside hospitals].

When a prescription is filled incorrectly due to misinterpretation of the prescription, the pharmacist generally is at fault because the pharmacist is the last link in the drug distribution channel. In other words, the pharmacist has the last chance to catch any error. Almost every pharmacist malpractice case that I have handled as a Georgia injury lawyer could have been prevented if the pharmacist had simply taken the time to verify the prescription with the patient or double checking to make sure the drug being dispensed is appropriate to treat the patient's condition. The failure to do this is the foundation of almost all malpractice suits against Atlanta area pharmacies.

There are new laws in place which affect how Plaintiff lawyers must handle personal injury settlement funds in Georgia.

Starting July 1, 2009, insurance companies are subject to new reporting requirements which may hold up the settlement and payment to residents of Georgia who have been injured in car accidents and other types of personal injury claims.

Pursuant to the new laws, liability insurers (including workers' compensation insurers and group health plan plans) are required to determine whether any individual who files a claim against the insurer or any entity insured or covered by the insurer would be entitled to Medicare benefits. If so, the insurer must provide Medicare with that person's identity and any other information that may be required by the Secretary of Health and Human Services (Secretary). This information must be furnished to Medicare within the time specified by the Secretary after the claim is
resolved through settlement, judgment, award or other payment, regardless of whether there has been an admission of liability.

Failure of the insurance companies to comply with these new requirements could result in penalties.If an insurer or other Responsible Reporting Entity fails to notify Medicare in accordance with these guidelines, a civil penalty of $1,000 per day will be charged per claimant. In addition, Medicare now has the right to audit these entities who pay out to injured plaintiffs, and these entities must comply with the new registrations requirements.

I came across an article which appeared in The Atlanta Journal-Constitution's Take to Task section. An Atlanta citizen wrote the newspaper complaining that a very large concrete storm drain cover was dislodged and causing a hazard. The storm drain is located on Memorial Drive in front of Oakland Cemetary.

What caught my eye is that the Atlanta citizen who complained about the damaged storm drain cover noted that there was accumulated dirt and weeds growing in and around it. This strongly indicates that the damaged storm drain cover has been dislodged and causing this dangerous condition for over a year. This is important because the City of Atlanta, as a municipality, is liable for all injuries caused by the defective storm grate once the City knew or should have known of the defective condition. Once this is established, the defective condition is considered a nuisance and liability attaches to the City. Other ways in which the knowledge of the City can be proven is by establishing that other people have been injured by the defective condition and filed claims against the City or by showing that others have complained to the City about the defective condition prior to the injury in question.

The problem with particular storm grate cover is that part of the cover rests in the gutter and the other end is thrust up in the air where it can easily snag bicyclists or pedestrians who are trying to pass by.

Continue reading "City of Atlanta Potentially Liable For Hazard" »

On July 4, 2006, a family was traveling along Rte 29 when the limb from an oak tree fell on their car. Due to the fallen tree limb, the husband suffered a broken neck and permanently lost the use of his right arm. The driver lost control of the SUV after the tree limb landed on the car, which caused the SUV to hit the guard rail on the opposite side of the road.

The verdict was against the State for failing to properly maintain the roadway, as the oak tree had apparently been weakened by flooding and showed signs of rot, yet the State failed to take appropriate action to ensure the roadway was safe. $6 Million Article.

If a private property owner in Georgia has prior knowledge that their tree is unsafe they will likely be liable for damages that stem from the tree throwing off limbs or falling. "Prior knowledge" can be established by a letter sent to the property owner putting them on notice or by obvious conditions that would indicate that the tree is unsafe such as falling limbs, rot or decay.

Continue reading "Tree Limb Accident Ends in $6 Million Verdict" »

The more things change, the more they stay the same. Today's news talks about how misaligned storm grates on Atlanta streets are causing a safety hazard for Atlanta bicyclists. While this has been reported on this site before, the news is that it is not getting any better.

The problem is that the City of Atlanta is not installing the storm grates properly. When properly installed, the slots of the grates should run perpendicular to traffic and when the City of Atlanta installs them parallel to traffic, a safety hazard occurs. In legal terms, this type of hazard is known as a nuisance and once the City of Atlanta is aware of the hazard, or should have been aware, it is liable for all damages that the nuisance causes.

What is particularly troubling about these hazards is that the danger posed is potentially deadly. When a bicyclist rides over the storm grate (and the slots are running parallel to traffic), the bicycle wheels get stuck in the grates and this causes the bicyclist to lose control, often falling head-first onto the pavement or into oncoming vehicles.

It truly puzzles me as to why the City of Atlanta allows these nuisances to exist since the cost to remedy the nuisance is so minor and the potential harm caused by the nuisance is so great .

Continue reading "Atlanta Road Grates Still Not Safe" »

On October 2, 2009, MADD Georgia will hold its annual 5K walk to help raise the public's awareness of the Georgia drunk driving. The event, previously known as "Strides for Change," is called "Walk Like MADD" and will be held at Zoo Atlanta.

As experienced personal injury lawyers who represent victims of Georgia Drunk Drivers, we applaud the efforts of Mothers Against Drunk Driving ("MADD") and wish them great successes in this worthy event.

For more information about the cause and how you can help, go to http://support.madd.org/site/PageServer?pagename=wp1_homepage

A 28 year-old woman visited a dental clinic to have 3 upper molars removed. Due to a mistake by the dentist and clinic, the dentist negligently removed all of the woman's upper teeth. Article.

Because of this clear case of dental malpractice, the victim has lost all of her upper teeth (of which 13 were apparently in good condition), endured tremendous amounts of pain; will be forced to undergo future corrective surgeries, and suffered from potential future medical complications such as her sinus cavity sagging due to the missing teeth and her facial bones moving because of the decreased bony structure.

Recently, a jury awarded the victim $2 million in damages. The money will be used to compensate this victim of dental malpractice for her pain and suffering and loss of her body parts; and to help finance the future dental procedures, gum surgeries, and other corrective procedures that the woman must undergo in order to replace all of her upper teeth.

Continue reading "Dental Malpractice Results in 16 Pulled Teeth" »

In a moment, I will reproduce the long and confusing letter I received last week from my insurer. But before I do, I want to give you the free legal advice I promised: Do NOT reject the revised uninsured motorist coverage that is now being offered to all Georgia drivers. I can provide this advice without knowing you. Without knowing your financial status, without knowing your age, income, driving history, medical history, neighborhood in which you live, or anything else about you. Why? Because the new law benefits all drivers. You see, the insurance industry fought hard against this law because it requires them to provide more coverage for a very small added premium.

I am sad to say that many potential clients have come to me after sustaining catastrophic injuries resulting from the negligence of an un-insured (or under-insured) driver. This is the exact situation in which your uninsured mototist coverage should kick in to help you. But under the old law, your insurance company was entitled to a "set-off" which reduced the amount of your uninsured motorist coverage by the amount of the at-fault parties liability insurance. Many times, this setoff wiped out your uninsured motorist coverage and resulted in the insurance company not having to pay you anything for you injuries. This unjust outcome is now addressed by the new law, unless you reject this added coverage in writing. Simply stated once again: don't reject the added coverage, it is invaluable and costs next to nothing.

The following is a reproduction of the letter I received from my insurance company. To be sure, it is long and it is confusing. My firm belief is that the insurance company has done this on purpose, in the hopes that some who are confused by the letter will reject the new coverage. Here is the letter:

"According to our records, your policy contains Uninsured Motorist Coverage. This important coverage provides protection for you, your family, your passengers while occupying your vehicle, or another driver operating this car with your permission, when another at-fault driver is legally responsible for your injuries or property damage but tht driver does not have any automobile liability insurance. Coverage may apply if the at-fault driver has liability insurance but the amount of insurance is less than the damages you sustained in the accident. the actual terms of this coverage are governed by Georgia law.

During the 2008 Session of the Georgia Assembly, a law was passed that requires us to provide revised Uninsured Motorist Coverage unless you reject this coverage in writing. We refer to this new coverage as Uninsured Motorist Coverage-Added on to At-Fault Liability Limits, hereinafter referred to as "New Uninsured Motorist Coverage". This New Uninsured Motorist Coverage provides additional protection at a higher premium than the coverage you currently have.

If you or other eligible insureds are injured or have property damage caused by an uninsured or underinsured motorist, the New Uninsured Motorist Coverage provides protection that will pay for your damages in addition to the at-fault drivers Liability Coverage limit up to your New Uninsured Motorist Coverage limit.

If you reject the ew Uninsured Motorist Coverage, you may select ew Uninsured Motorist Coverage-Reduced by At-Fault Liability Limits hereinafter referred to as "Traditional Uninsured Motorist Coverage". This coverage is comparable to the coverage you currently have. Traditional Uninsured Motorist Coverage provides less coverage than the New Uninsured Motorist Coverage, but the Traditional Uninsured Motorist Coverage is available at a lower premium. Unlike the New Uninsured Motorist Coverage that provides up to a full limit of protection over and above the at-fault drivers liability coverage, Traditional Uninsured Motorist Coverage will only pay up to the difference between the at-fault drivers Liability Coverage and your Traditional Uninsured Motorist Coverage. This means Traditional Uninsured Motorist Coverage will allow you to collect from the at-fault driver and your Traditional Uninsured Motorist Coverage, combined, up to the same limit of Traditional Uninsured Motorist Coverage you have purchased.

The two uninsured motorist coverage choices do not differ if the at-fault driver responsible for your injuries or property damage does not have any Liability Coverage. In such cases, both New Uninsured Motorist Coverage and Traditional Uninsured Motorist Coverage will up to the amount of Uninsured Motorist Coverage purchased. We understand that these coverage choices can be confusing..."

Continue reading "Free Legal Advice for Georgia Car Owners" »

If you are an Atlanta cyclist and ride along the shoulder of Howell Mill Road, you will see first hand a City of Atlanta nuisance. As reported in the Atlanta Journal Constitution, about 50 feet south of the Peachtree Creek bridge is a hazardous storm grate. If you travel this stetch of road, you will see that there are two storm grates. One is correctly place so that the grates run perpendicular to traffic. The other storm grate, however, poses a severe hazard because the grates run parallel to traffic.

As an experienced Georgia injury lawyer, I cannot overemphasis how dangerous this condition is. The danger occurs when a cyclist's tire gets stuck in the grate. This can cause the cyclist to lose control and veer into oncoming traffic. It goes without saying that a whole host of catastrophic bicycle injuries can occur when cyclists loose control of their bike and collide with cars. Some common resulting injuries are coma, concussion, closed head injuries, broken bones, road rash, severe lacerations, and even death.

While governmental agencies such as the State of Georgia and the City of Atlanta enjoy a certain amount of immunity from wrongful acts, many times they are liable for the damages caused by a nuisance, such as the above example. In Georgia, damages recoverable on account of a nuisance are all the direct damages resulting from the nuisance, including personal injuries, medical bills, lost wages, pain and suffering, and in the proper case, attorneys' fees and expenses of litigation.

Continue reading "Atlanta Road Grates Are Nuisance For Cyclists" »

According to an article in today's New York Times, the risk of accident caused by drivers who text while operating vehicles sharply exceeds previous estimates.

The study placed cameras in the cabs of 18-wheeler trucks. It found that when the drivers texted, they were 23 times more likely to be involved in an accident. The researchers believe that these findings are generally applicable to car drivers as well.

The issue of texting causing accidents has recently been highlighted by several highly publicized crashes caused by texting drivers, including a trolley car accident in Boston and a recent incident in Atlanta, Georgia when a passenger photographed a MARTA train operator texting while operating the train.

It takes about 5 seconds for a driver to take their eyes off the road, text and return their attention back to the road. This is about the time it takes for a car or truck traveling at normal highway speeds to cover the length of a football field. Clearly too long for one's attention to be diverted while operating any vehicle.

Continue reading "Texting Causes Georgia Accidents" »

As an experienced Georgia Injury lawyer, clients frequently ask me whether they are entitled to recover attorneys' fees as part of their damages. In this context, "attorneys fees" are those fees awarded by the court (either by the judge or the jury) to be paid by the opposing party as part of the damages awarded. The short answer is: yes, attorneys' fees are available as an element of damages, but recovering them is never guaranteed.

Under OCGA Section 13-6-11, a plaintiff is entitled to attorneys' fees when: (1) the plaintiff has specially pleaded and has made a prayer to the court therefore; and the defendant has either (2) acted in bad faith; (3) has been stubbornly litigious; or (3) has caused the plaintiff unnecessary trouble or expense.

If the plaintiff in a legal action in Georgia can prove one of these elements, the plaintiff would be entitled to attorneys' fees and expenses of litigation, in addition to all of the damages he or she is entitled to under the law.

Continue reading "Attorneys' Fees Recoverable in Georgia" »

On our web site, you can find the Motorcycle Accidents page which explains the legal aspects of a motorcycle accident. However, I recently came across a report on motorcycle accidents that I would like to share. It is called the Hurt Report and a full copy is available for ordering. Since it is a 1981 report, many people would discount it as not being up-to-date or relevant. However, to me, it appears just as accurate and pertinent today as it was almost 30 years ago.

Since we cover the law on our web site, this is simply an instructional piece which illustrates HOW motorcycle accidents happen. Once we know HOW they happen, we can glean WHY they happen. Then, once we know HOW and WHY they happen, our readers can hopefully use this information to become safer bikers and drivers.

Some points of interest:

-About 1/4 of all motorcycle accidents are single vehicle accidents;
-1/3 of all single vehicle motorcycle accidents were due to something other than rider error such as roadway defects (i.e., potholes), vehicle failure, and animal involvement;
-When the motorcycle accident involved another vehicle, the driver of the other vehicle violated the motorcycle rider's right of way and was at fault 2/3 of the time;
-The number one cause of motorcycle accidents is the failure of other drivers to see the motorcycle on the road, with the most common infraction being a car making a left-hand turn and cutting off the motorcyclist who is traveling straight in the left-hand lane;
-Motorcycle riders between the ages of 16 and 24 are over-represented in accidents, while riders between the ages of 30 and 50 are under-represented;
-Almost half of fatal motorcycle accidents involve alcohol consumption;
-The likelihood of injury from a motorcycle accident is very high--over 96%;
-Groin injuries were very common;
-The use of a helmet is the single most critical factor in reducing serious head injuries to motorcycle riders.

Considering that there were over 1,500 motorcycle riders killed in Georgia accidents last year, the above information should prove informative and helpful. It is our sincere hope that all Georgia motorcycle riders can ride safely.

Continue reading "Georgia Motorcycle Accident Findings" »

Three 15-year-old girls were injured when they were ejected from the ATV they were operating. According to a recent article in the Atlanta Journal Constitution, the girls lost control of the four-wheeler ATV as they rounded a curve on the roadway and overturned. While the girls were rushed to Atlanta-area hospitals, police charges are pending, as none of the girls were licensed, they were not supposed to be on the roadway and no one was wearing a helmet.

While the girl's injuries do not appear to be life-threatening, this serves as yet another reminder of the need for extreme caution when operating ATV's and the need to wear helmets to avoid serious injury.

Continue reading "Atlanta Teens Injured in ATV Crash" »

Reglan Side Effects

On January 26, 2009 the FDA issued an alert warning against chronic use of any medication containing metoclopramide, the most widely know being Reglan. Reglan can cause a serious and potentially life-threatening neurological disease known as tardive dyskinesia.

Tardive dyskinesia is more likely to occur if Reglan is used for longer than 3 months or when used in the elderly (especially elderly women). Tardive dyskinesia causes uncontrolled bodily movements of the face, mouth, tongue arms or legs. These uncontrolled movements can be permanent. You should seek medical attention immediatetly if you have been taking Reglan and are experiencing any uncontrolled bodily movements. There is no treatment for tardive dyskinesia, but in some cases symptoms may lessen or stop once use of the drug is stopped.

Especially at risk are patients who have been prescribed Reglan for acid reflux, pregnant woman who were prescibed Regland for morning sickness, breastfeeding mothers, elderly woman, and children who were prescribed Reglan for nausea caused by migraine headaches.

Metoclopramide is available in several forms including:

• Reglan Tablets
• Reglan Oral Disintegrating Tablets
• Metoclopramide Oral Solution
• Reglan Injections

Continue reading "FDA Warnings Regarding Reglan" »

I would like to start off by wishing all of our proud and deserving Georgia veterans a happy and healthy 4th of July, or more appropriately, Happy Independence Day. Without these brave veterans, we could not celebrate this day. Any celebration would not be complete without acknowledging their heroic efforts and monumental sacrifices in all of our wars and "police actions."

I am a proud Army veteran. I joined the army at the age of 17. I signed up for a two year enlistment. I proudly served my Country as a Military Policeman. But, fortunately for me, the Army gave me so much; much, much more than I gave back. In exchange for two short years of service, I received the opportunity to go to college and to make something of myself. After all, I was able to complete my Army tour and finish college in about the same time it took to simply go to college. However, not all of our veterans are as fortunate. Of course, too many have given the ultimate sacrifice while defending our Country, their lives. Many have suffered crippling physical injuries while defending our Country. Many more have suffered horrific emotional injuries from the ravages of war. Clearly, these worthy veterans gave much more to our Country than they received. We owe them our deepest gratitude. What made me think of this was a recent visit I had with a great American and staunch Veteran Advocate, Marshall Berman.

A few weeks ago, we had the pleasure of hosting a small brunch for Marshall and his family. Marshall is a special person. You see, he cares a lot about other people, and one of his life-long goals is to help our military veterans. He has done great things for our veterans in the past. For instance, while he worked at the Georgia Department of Labor, Marshall was instrumental in improving the lives of our south Georgia military veterans by making it more convenient for them to receive the medical and employment-related services many of them so dearly needed.

What is especially fascinating about Marshall is that, at 70 years old, he has more energy and drive than anyone I know. He is always thinking; always trying to improve; always trying to help; always trying to "make a difference." And most often, his efforts are directed at helping our deserving veterans. When we last visited, Marshall was concerned. He deals with needy veterans on a daily basis. He knows that many Georgia veterans need legal help. Yet, he also knows that many of our Georgia military veterans don't have the resources to hire quality lawyers to assist them. The end result, is that many Georgia veterans "go without." They go without the assistance of quality lawyers to advise and counsel them. They go without simple things like wills. They go without knowing their legal rights when they are involved in car accidents, harassed by debt collectors, taken advantage of in the business world, injured on the job, wrongfully accused of crimes, and in many other instances.

I share Marshall's concern about this situation and I am committed to coming up with a solution that will enable our deserving Georgia military veterans to have access to quality legal help when they need it. But until then, please join me in wishing them a Happy Independence Day. They deserve it!

According to an Atlanta police spokesman, an unidentified motorcyclist "struck a bridge abutment and was killed instantly" this morning. This appears to be yet another catastrophic single vehicle Atlanta accident.

As an experienced injury lawyer who has litigated similar accidents, I feel it is important to note that a full investigation of the facts of this case should be conducted in order to determine liability and all potential defendants. As I pointed out in a recent post on this blog, others have been able to recover against County or City governments in cases where the roadway conditions cause of contributed to the accident. In the Totten's case, they were able to recover, even though it was a single vehicle accident. The legal theory under which the Tottens traveled was that the County was liable for the fall because it promoted the road as a bike path but failed to maintain it in a safe condition. An important fact in the case was that the County allowed a hole around the paving marker to grow deeper with each road paving. Full article.

I think these types of cases address the question often asked by people who have been injured, i.e., why do I need a lawyer? Qualified Georgia injury lawyers earn their fee on every case because they leave no stone unturned. One of the initial tasks on every new case is to look past the obvious facts (i.e., a single vehicle accident apparently no other "at fault" person). Every case is unique and must be fully investigated to identify every potential liable party and all available insurance.

Continue reading "Atlanta Motorcycle Wreck Warrants Investigation" »

The U.S. Food and Drug Administration (FDA) has issued a formal warning to consumers to stop using certain Hydroxycut diet supplements manufactured by Iovate Health Sciences, Inc. Hydroxycut Recall Full Article. This is in response to numerous reported cases of adverse health effects caused by the recalled product, such as liver failure, seizures, heart complications, and muscle damage. There has been one reported death caused by liver failure and two reports of Hydroxycut users undergoing liver transplants.

If you are using any of the recalled Hydroxycut products, you should discontinue use and seek immediate medical attention. The recalled products are:

Hydroxycut Caffeine-Free Caplets
Hydroxycut Caffeine-Free Drink Packets
Hydroxycut Carb Control
Hydroxycut Hardcore Drink Packet (Ignition Stix)
Hydroxycut Hardcore Liquid Capsules
Hydroxycut Hardcore RTD
Hydroxycut Liquid Shot
Hydroxycut Max Aqua Shed
Hydroxycut Max Caplets
Hydroxycut Max Drink Packet
Hydroxycut Natural
Hydroxycut Rapid Release Regular Caplets
Hydroxycut Regular Drink Packet
Hydroxycut 24

Continue reading "Hydroxycut FDA Recall" »

Regardless of how they are commonly referred to as: car accidents (also known as car wrecks; or car collisions; or road wrecks; or vehicular accidents; or trucking accidents; or trucking wrecks) happen frequently in Atlanta. That's something we all agree on. It's just a part of life in the big city. What happens once an accident occurs is interesting though. The recent trend of drivers wisely choosing smaller, more fuel efficient cars, changes some of the dynamics. Now more than ever, even low impact collisions can result in major property damage to the vehicles and severe injuries.

According to the Insurance Institute for Highway Safety, repairs to smaller cars involved in low speed collisions could cost up to $3,701.00. According to the Institute, a low-speed crash is one that occurs at speeds of 3 to 6 miles-per-hour. While this is not news to those people who have suffered severe injuries in low impact collisions, it does quantify what we have long known: there is no direct relationship between the speed of the collision and the resulting property damage to the vehicles or the severity of the injuries sustained in the wreck.

As an experienced injury lawyer, I have been fortunate to have represented many clients who seriously injured in car wrecks. Based on my experience, the general rule is that the higher the speed of collision the greater the extent of property damage and injuries sustained in the accident. However, there are exceptions to every rule. Sometimes there is just no relationship between the speed of the wreck and the injuries. As the Insurance Institute for Highway Safety confirms, a lot of damage can be done by a low-impact collision.

At Robert J. Fleming, P.C., we have had great successes in helping seriously injured clients fully recover for their injuries. We do this by fully investigating every case. If you or a family member has been seriously injured or killed in an auto wreck, please contact us so that we can help properly evaluate your case.

The American Association for Justice ranks the ten worst insurance companies in America (2008). Based on reams of court documents, papers uncovered during litigation, trial testimony, state insurance department complaints, government records and news accounts of insurance company practices, the AAJ's study is detailed and comprehensive. The following ten insurance companies made the list:

1. Allstate
2. Unum
3. AIG
4. State Farm
5. Conseco
6. Wellpoint
7. Farmers
8. UnitedHealth
9. Torchmark
10. Liberty Mutual

A detailed explanation as to why each insurance company made the list is contained in the article. However, for the sake of brevity, let's just say that if you have suffered an insurable loss, you may not want to be in the "good hands" of Allstate and with neighbors like State Farm, you may want to live out in the country-miles from any neighbors.

Insurance "bad faith" describes a tort claim that an insured person may have against an insurance company for its bad acts. Under Georgia law, and the law of most jurisdictions in the United States, insurance companies owe a duty of good faith and fair dealing to their insured. This duty is often referred to as the "implied covenant of good faith and fair dealing" which automatically exists by operation of law in every insurance contract. If an insurance company violates that covenant, the insured person (or "policyholder") may sue the company on a tort claim in addition to a standard breach of contract claim. The contract-tort distinction is important because as a matter of public policy, punitive or exemplary damages are unavailable for contract claims, but are available for tort claims. The end result is that a plaintiff in an insurance bad faith case may be able to recover an amount larger than the original face value of the policy, if the insurance company's conduct was particularly egregious.

Insurance company bad faith occurs in a variety of settings. Some insurance companies systematically deny claims or force their insureds to accept low ball offers. Others retain high-priced consultants to train their adjusters on how to increase their rate of claim denials and lower the amount of money they pay out to the insured on each valid claim.

There are a number of Georgia and federal laws in place to protect against these type of unlawful insurance company business practices and they offer the insured policy holder a great deal of legal support. If you have been dealing with an insurance company and suspect that they are acting in bad faith, you should consult with a qualified business attorney to properly evaluate your case.

Robert J. Fleming is an experienced business trial lawyer. In addition to a law degree, Mr. Fleming has earned an MBA in finance, has acted as general counsel to a number of businesses, has successfully litigated many large fraud cases and has a successful business background. This unique set of experiences and skills has enabled Mr. Fleming to achieve record successes in this area.

If you would like to discuss your case with us, please call Robert J. Fleming, P.C. at (404) 923-7497 or contact us online. We are here to help.

Just prior to trial, an injured bicyclist and his wife settled their lawsuit for brain injuries he suffered when he was thrown from his bicycle. Jeffrey Totten, a former endurance athlete who now suffers from permanent brain injury, was thrown from his bike when he struck a survey marker in the road. Totten was in a coma for seven months after the accident, then treated at a physical rehabilitation center and now lives in a group home. Fortunately, the settlement will provide for around-the-clock care that Mr. Totten now requires as the result of his fall.

An interesting aspect of this case is that the Tottens were able to recover, even though it was a single vehicle accident. The legal theory under which the Tottens traveled was that the County was liable for the fall because it promoted the road as a bike path but failed to maintain it in a safe condition. An important fact in the case was that the County allowed a hole around the paving marker to grow deeper with each road paving. Full article.

I think this case addresses well the question often asked by people who have been injured, i.e., why do I need a lawyer? This case exemplifies why good lawyers earn their fee on every case. One of the initial tasks on every new case is to look past the obvious facts (i.e., a single vehicle accident apparently no other "at fault" person). Every case is unique and must be fully investigated to identify every potential liable party and all available insurance.

Continue reading "Injured Bicyclist Settles with County for $3.5 Million" »

A recent New York Times article chronicles how doctors' reports regarding injuries are not always free of bias. The examinations, often referred to by lawyers as "Independent Medical Examinations" are anything but "independent." The clear inference one takes from the article is: the doctor's report is often slanted to further the interests of the entity paying for the report. Many such reports are requested by insurance companies in order to evaluate a claim. However, as the doctor who was heavily quoted in the article states, "If you did a pure report, you'd be out on your ears and the insurers wouldn't pay for it. You have to give them what they want, or you're in Florida. That's the game, baby."

Unfortunately, for many injured people in Atlanta and other parts of Georgia, this is no game. It is a sad reality that must be protected against at all costs. If you are seriously injured in a automobile accident, trucking accident, or on the job, if your injuries are serious enough to file a lawsuit, the insurance companies will probably ask for an "IME."

At Robert J. Fleming, P.C, we take precautions to ensure that our personal injury clients' examinations are fair and accurate. This is a normal process when dealing with any claim that is based on a serious injury. There are many fine doctors out there who will provide a truly independent examination for you. You should not be examined by an insurance companies' "hired gun."

To read the complete article go to http://www.nytimes.com/2009/04/01/nyregion/01comp.html?_r=1