Articles Posted in General Negligence

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Experts serve an important role in Georgia medical malpractice and dental malpractice lawsuits. In malpractice cases, doctors an dentists and other experts are frequently asked to offer expert opinions regarding standard of care, causation and damages. The subject matter of their testimony often relates to the the injuries that the plaintiff complains of in the lawsuit, the medical and/or dental treatment rendered to Plaintiff and the resulting injuries, limitations and damages.  The subject matter of the tyestiony also includes, in almost all cases,  testimony addressing changes in Plaintiff’s quality of life and future needs for medical and dental care due to the injuries sustained as a result of the negligence of the defendant doctor or dentist.

Experts base their opinions on their training, education and experience in their fields of expertise, the medical and dental records relating to Plaintiff, their examinations and treatment of the Plaintiff (if they have, in fact, examined the Plaintiff either as a treating doctor, expert or during an independent medical examination “IME”), information disclosed during discovery (including depositions, interrogatories, requests for admissions and other pleading in the case) and the testimony of other witnesses who have have knowledge of facts of the case or any other types of information that experts typically rely upon in forming their opinions.  

The facts on which the experts base their testimony include, but are not limited to, past medical history, histories taken of the patient by other medical and dental providers, history of chief complaints, physical examinations, medical records, hospital records, death certificates, autopsy reports, operative reports, results of diagnostic tests, therapeutic treatment plans, x-rays, CT Scans, MRI’s, other imaging studies, photographs, results of therapy and medication, either performed or prescribed by each of the experts or by others in the medical or dental profession that the testifying expert takes into account when rendering the opinion. 

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The ban due to the Covid-19 pandemic has been lifted and we should see some civil actions such as dental malpractice, medical malpractice and other personal injury type cases going to trial soon.

Chief Justice Harold D. Melton issued an order last night that lifts the suspension of jury trials in Georgia, “effective immediately.” With today’s order, which is the 12th he has signed extending the Statewide Judicial Emergency due to the COVID-19 pandemic, trial courts may resume jury trials, “if that can be done safely and in accordance with a final jury trial plan developed in collaboration with the local committee of judicial system participants and incorporated into the court’s written operating guidelines for in-person proceedings.” Obviously, the onus is on “safety” and it is up to the judiciary, of which I and other members of the State Bar of Georgia, are a part of, to craft wasy that we can get back to conducting jury trials in a way that does not compromise the safety of the litgants, court staff, jurors, judges and attorneys.

Since the first announced Statewide Judicial Emergency on March 14, 2020 shortly after COVID-19 became prevalent in Georgia nearly a year ago, Georgia state and supeior courts have remained open, but jury trials were suspended due to the number of people required to gather at courthouses. There was a short repreive in October 2020, but then Chief Justice Melton was forced to re-implement the ban due to a significant increase in coronavirus cases.

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There are many elements of damages in Georgia Personal Injury cases. Some that come to mind immediately are medical bills and past lost wages. Those are easy to quantify and prove. In other words, they are what they are, they have already happened and there are hard numbers associated with these damages. These types of damages are called hard or special damages. The other extreme in regard to damages is what most people know as pain and suffering. We at Katz Wright Fleming & Dodson LLC, LLC tend to stay away from the use of “pain and suffering” because many people have a negative connotation of this phrase. All it really means is: in what ways, other than special damages that you can affix a dollar amount to, has the injury affected the Plaintiff? So, the pain and suffering damages are at the other end of the spectrum from special damages — they are real, but they are for the enlightened conscience of the jury to decide what they are (the jury will not be given any receipts to prove these damages). In between these two extremes are damages that can be proved with expert testimony by using an economist or other expert. One aspect of these damages is proving an inability to work in the future or a decreased capacity to work. Typically, the following questions form a framework when trying to convey the extent of these damages to our client.
1) Has the plaintiff been injured in such a way that her ability to earn and labor has been affected? Not all injuries involve these types of damages, but most serious injuries do.
2) Can the plantiff return to work and perform the same job that she was doing prior to the injury she sustained? If so, the inquiry ends, as the only lost wages would be past lost wages.
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While it is true that federal laws related to privacy regarding medical records and treatment (“HIPAA”) imposes universal standards on covered entities who provide medical care and treatment to protect a patient’s privacy, HIPAA does not explicitly create an individual right of action for patients affected by the privacy violation. This has been an impediment to bringing lawsuits against these medical providers where a clear HIPAA violation has occurred. It has been stated many times that an individual does not own a private right of action to bring her own complaint against a medical provider who fails to comply with HIPAA and releases her private medical information. Rather, this individual must file a complaint with the Department of Health and Human Services or the appropriate Georgia authority such as the Georgia Attorney General’s office or the Georgia Board of Medicine. Usually if the federal or state agency decides to pursue a victim’s complaint, it may impose fines against the covered entity and force them to implement a set of standards to avoid future pitfalls of violating HIPAA. However, for the injured patient, i.e., the one who suffered because of the erroneous release of the private information, and the one who suffered damages in the form of invasion of privacy, mental anguish, lost income or job opportunities, etc. due to violation of their HIPAA rights, there has been little relief available in state court. This present a predicament as there is a harm without the corresponding available relief to a plaintiff who has suffered due to the negligence of a doctor or hospital.

This lack of a private cause of action seems inconsistent with the notions of fairness and justice. In other words, the one that is injured by the release of their medical records and information should be allowed to sue in Georgia state court for the damages caused by the medical provider who released the information. This type of cause of action would be similar to a medical malpractice lawsuit, but would sound in negligence and be based on the unlawful release of private information.

These cases are not brought under the HIPAA laws, but rather are brought in Georgia state court under traditional negligence theories with the negligence supported by an evidentiary showing that the medical provider was negligent by disclosing a patient’s private information and arguing that the medical provider is responsible for all damages caused by the HIPAA violation and must be held liable for damages. In this scenario, HIPAA provides an objective standard for examining a covered entity’s negligence in disclosing a person’s protected health information or “PHI.”  While the lawsuit will not be brought under the applicable HIPAA laws, these laws will provide the plaintiff with the framework to bring these causes of action. If the plaintiff can prove HIPAA violations, that should support a finding of negligence against the medical provider in state court, even though the HIPAA laws are federal in nature. At least, that is the theory.

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Proper notice to governmental defendants in Georgia is an important legal requirement which must be addressed well before suit is filed. The Georgia Court of Appeals issued a ruling in Davis v. Morrison, A17A2095, 2018WL796323, which apparently expands the existing ante litem notice requirements under O.C.G.A. 36-11-1 to include individual notice to sheriffs who are sued in their official capacity. 

Davis was an automobile wreck case in which the plaintiff was struck by a sheriff’s deputy while the deputy was driving a county-owned truck and on business related to his duties as sheriff. Pursuant to O.C.G.A. § 36-11-1, the plaintiff sent a proper and timely ante litem notice was timely served on the County, and addressed to the County Board of Commissioners, the County Administrator, and the County director of human resources. It is undisputed that the sheriff’s department was not served an ante litem notice. Plaintiff sued the County and the deputy individually and in his capacity as an employee of the county. The defendants moved for summary judgment, arguing (i) that the County cannot be liable for the negligence of the deputy sheriff; (ii) that the deputy sheriff cannot be sued the official capacity as an employee of the County; and (iii) even if Plaintiff had named the Sheriff of County, Plaintiff did not properly serve the sheriff (as opposed to the County) with an ante litem notice.

The Trial Court held that because no ante litem was served on the sheriff, plaintiff was barred from recovery, citing O.C.G.A. §§ 36-11-1, 36-92-1 and Ray v. City of Griffin, 318 Ga. App. 426 (2012). Curiously, the trial court made this finding in exactly one sentence, with no discussion of how it arrived at this conclusion. Ray v. City of Griffin only discusses O.C.G.A. § 36-92-1; there is no ante litem discussion.

Anti litem notices are required notices that must be given to governmental entities before they can be properly sued in Georgia. Great care must be used in identifying and notifying potential governmental entities that a lawsuit is being contemplated by the injured party. Sometimes the governmental entity does not identify itself as such and it is impossible to ascertain from the information supplied to the public that the potential defendant is, in fact, a governmental entity and entitled to anti litem notice.

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 negligence for over 20 years. He practices in and around the Atlanta, Georgia area including handling lawsuits in Fulton, DeKalb, Clayton, Gwinnett, Cobb and other counties and nearby cities such as Alpharetta, 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 and would like to discuss your case in complete confidence, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

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In most personal injury lawsuits, medical bills make up a large portion of the damages that the Plaintiff is seeking in the suit. Still, in others, the pain and suffering portion of the damages being sought are based heavily on the amount of medical bills. In other words, if the injured Plaintiff has a lot of medical bills, it follows hand-in-hand that she has suffered a great deal and should be awarded for this inconvenience, suffering and pain. In order to place the correct emphasis on medical bills, the proper jury charge is critical. One such charge addresses the concern that the jury may  assume there is health insurance which covers (and has paid for) the medical bills being sought by the Plaintiff and addresses the Georgia legal concept of collateral estoppel. It is as follows:

If you find the Plaintiff is entitled to damages,  you should give no consideration to other potential sources of payment or benefit to either party as you consider the issue of damages.  You are not permitted to consider or speculate whether the Plaintiff has  been or will be compensated, in whole or in part, by any other source or  whether some third-party has made or will make any payment for expenses  or damages that you find the Plaintiff has suffered as a result of the  matters alleged in this case.

In other words, it should be on no concern to the jury as to whether the Plaintiff has medical insurance that may cover some or all of the medical bills being sought in the case nor should the jury guess or speculate about this.  In addition, with the advent of document production and editing software, it is much easier to make redactions in  bills so that references to insurance are removed from the jury’s purview and this, at a minimum should be done in every case in which the medical bills will be going back to the jury as an exhibit to consider and take into account in order to arrive at an amount of damages that will fairly and adequately compensate the Plaintiff in the lawsuit.  In order to protect against the jury penalizing the Plaintiff for making the correct legal redactions, the Plaintiff attorney in the case should strongly consider a jury charge such as the following:

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In the news recently was the story of a woman who pretended to be a lawyer at the Towns County, Georgia Detention Center in April. She was arrested earlier this month by the Towns County Sheriff’s office and has been charged with practicing law without a license.

While your current lawyer may or may not be well suited to represent you, I doubt that you are in the position of being represented by someone who doesn’t even have a law license. Well, I certainly hope not. So, with that in mind, let’s look at what might be important to you if you ask: Is the lawyer I have the best choice for me and my case in Georgia?

There are many factors to take into account when trying to answer this question. First, you must ask whether the lawyer has the skill and training in the particular area of law in which your case falls. This is a pre-requisite for any attorney that you hire in Georgia. However, based on the news story at the top of this post, maybe the first questions should be whether person you hired is actually a lawyer (a thinly veiled attempt at humor). In any case, your lawyer should have adequate training and experience in the specific area of law that the case involves. Some common areas of law are car accidents, slip and falls, premises liability, medical malpractice, etc. All of these areas involve unique issues and laws that require a good amount of familiarity that usually can only be obtained by handling these cases over the course of many years.

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In Georgia, when a Plaintiff is injured by the negligence of another and the Plaintiff has a pre-existing condition or other peculiar situation which compounds the damages in the case, all of the damages suffered by the Plaintiff are recoverable in the lawsuit and it is not a good defense to argue that the damages are not what normally would occur based on the negligence.

A typical jury charge (with supporting legal citations) which would be given to the jury by the trial judge to demonstrate this legal proposition at trial is: I further charge you that a previous medical condition, from whatever the cause or source, if aggravated, or made symptomatic, or made worse by the negligence of another, is compensable in damages to the extent of such aggravation or worsening, regardless of whether a new injury or new infirmity is created thereby. In this regard, it is the law of Georgia that a Defendant, when committing a negligent or wrongful act, takes a plaintiff as he finds him physically, and is not allowed to complain that the injury, if found to be negligently or wrongfully committed, would in a normal person cause less injury than it does in a person already impaired. The law is that an aggravation or worsening of a previous condition or a prolonged recovery from an original condition, through additional trauma negligently inflicted, is a compensable injury for which damages will lie. In regard to the above, recovery for damages is permitted to the extent that you the jury, find by a preponderance of the evidence, that there has been an aggravation, worsening or added injury proximately resulting from the negligence of the Defendant. Atlantic & Birmingham Railroad Company v. Douglas, 119 Ga. 658 (1903); Bary v. Latham, 81 Ga. 640 (1888); Cobb & Eldridge, Ga. Law of Damages (2d Ed.).

Another example of the same type of charge (with supporting legal citations) is: A driver who causes injury to another through negligence takes the injured person “as is.” The fact that the injuries and damages arising out of an incident were not anticipated will not relieve a person from liability and monetary damages for any and all injuries and damages that were proximately caused by negligence. Therefore, you are instructed that even if you find that the plaintiff in this case was unusually susceptible to injury and damage, that fact will not relieve the defendant from liability and monetary damages for whatever injuries and damages, if any, that you find were proximately caused by an act of negligence committed by the defendant. Modern Trials, 2d Ed., Vol. 5, Section 66.6 (9); Coleman v. Atlanta Obstetrics & Gynecology Group 94 Ga. App. 508, 390 S.E. 2d 856, 858.  The Defendant takes the Plaintiff in whatever condition he finds her. A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act is negligent. Restatement (2d) of Torts 461; Coleman v. Atlanta Obstetrics & Gynecology Group, 194 Ga. App. 508, 390 S.E. 2d 856, 858.

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PLAINTIFF’S REQUESTS TO CHARGE

Plaintiff respectfully requests the Court to give the charges attached hereto. Plaintiff requests the Judge to charge the following separate charges, each of which have been numbered separately and are to be considered a separate and distinct request, as if each numbered request to charge were submitted to the Judge separate from all other numbered requests to charge. This is expressly not a request to charge the following attached requests to charge collectively or en bloc. Plaintiffs reserve the right to submit additional charges as appropriate.

Respectfully submitted this the __________day of __________________, 20____.

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With the ringing in of the new year came the latest edition of the “Real” Yellow Pages and a host of imitators. I normally throw them right into the recycling bin because, as a hard-working and ethical lawyer who has built his practice on past performance in the courtroom and client satisfaction and referrals, it is difficult to read the Yellow Page Ads that some lawyers run. Truth be told, I know some of these lawyer and more importantly, I know the quality of law that they practice. To be kind–they are usually not the best choice when one is seriously injured and looking for a lawyer in Atlanta that will take the case on, work the case up, and resolve it or try it to a jury quickly. Rather it has been my experience that most of the heavy Yellow Pages advertisers are in the business of getting lots of cases in, settling the easy ones and referring out the hard ones to lawyers who will put the effort into getting a good result for the client by working the case up the proper way and pushing the case to fruition. This often entails written discovery, depositions of the parties, depositions of the experts, motion, oral argument and, if the case cannot be resolved at mediation, trying the case to a jury.

It is astounding, but the “best lawyers in Atlanta” are almost all NOT in the Yellow Page Ads. In addition, the two page spreads are dominated by law firm mills (heavy use of paralegals, advertising for low-lying fruit and who sign up and refer out to real trial lawyers the difficult but valuable cases).
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