Articles Posted in Personal Injury

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Most times, if a plaintiff has suffered a serious personal injury, there will be a claim for lost wages. As can be expected, defendants may claim that plaintiff is not entitled to lost earnings because of a few reasons, such as:

  1. Plaintiff was unemployed at time of injury.
  2. Plaintiff’s can not show amount of earnings that will be lost with certainty.
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Many times a doctor expert is deposed but the chance to follow up with documents is not realized because of the lack of a notice to produce being sent with the deposition notice. This notice is also referred to as a Duces Tecum in some jurisdictions. Whatever the nomenclature, the notice requests pertinent documents that allow the opposing lawyer to follow up on questions with the produced documents. It is a very valuable pleading in many civil litigation cases. Below is a sample Notice of Intention to Take Oral Deposition and Duces Tecum.


DUCES TECUM, OF DR. ________

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Georgia Law now provides that medical testimony may be given in a narrative form that has been signed and dated.  It is no longer necessary to disrupt a doctor’s busy schedule to give a deposition. In some cases, it is beneficial to use a medical narrative from a subsequent treating physician in a lawsuit. Narratives are typically used in auto accident lawsuits in Georgia state courts to secure testimony regarding a doctor’s care and treatment of the plaintiff to be used at trial. Of course, the content of the narrative will depend on the facts and circumstances of each case, however there are a few areas that will appear in most narratives. They are:  

1. A brief curriculum vitae or resume (usually by attaching the doctor’s CV to the report);

2. How the patient came to see the doctor;

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The landscape related to Medicare and personal injury settlements has changed. 42 U.S.C. §1395y(b)(2) and § 1862(b)(2)(A) of the Social Security Act, provide that Medicare may not pay for a beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance.” If responsibility for the medical expenses incurred is in dispute and other insurance will not pay promptly, the provider, physician, or other supplier may bill Medicare as the primary payer. If the item or service is reimbursable under Medicare rules, Medicare may pay conditionally, subject to later recovery if there is a subsequent settlement, judgment, award, or other payment. In situations such as this, the beneficiary may choose to hire an attorney to help them recover damages. Under 42 U.S.C. §1395y(b)(2(B)(ii) and §1862(b)(2)(B)(ii) of the Act and 42 C.F.R. 411.24(e) & (g), Medicare may recover from a primary plan or any entity, including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received a primary payment.

If you are a personal injury attorney and you represent a medicare beneficiary (or a person who may be eligible for medicare benefits within 30 months of the resolution of your case), one of your first steps in the representation of that client should be to contact Medicare and request a conditional payment letter. Since the lead time in receiving a response from Medicare can be quite long, it is best to initiate the process early in your representation so that getting a Medicare Conditional Payment Letter will not hold up resolution of the case. Notice of representation requires sending a copy of the fully executed retainer agreement to Medicare along with a letter explaining your case and the injuries that your client is complaining of in the lawsuit. 

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“Closing argument is the time to use the lawyer’s skill as a teacher, purveyor of the truth, and speaker. It is the phase of the case when artistry of the lawyer’s accumulated education, experience, intelligence, and ability can and should exhort the strength of the case or the validity of the defense.”

Generally, the courts give attorneys wide latitude when making closing arguments. However, there are limitations and it is the duty of the advocate to vigorously argue the case within the bounds of the law. Prior to conducting any closing argument, every lawyer should have a good understanding of the process, which arguments are permitted and which arguments are not allowed. Armed with this knowledge, the advocate can zealously argue without worrying about running afoul of the law. This will allow you to clearly present your case to the jury, attack (yes, attack) the other side’s arguments, set the framework for the juror’s deliberations and empower the jury to do the right thing (e.g., find in your favor).

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As an Atlanta personal injury lawyer, usually one of the first questions I’m asked by potential clients is how they have to pay my fees. In cases seeking damages for injuries and deaths arising from auto accidents, bicycle accidents, dog bites, slip and fall accidents or other types of cases of personal injuries or wrongful death, damages caused by the negligent actions of others are typically structured in contingent fee agreements.

In contingent fee agreements, clients do not have to pay a fee unless the case is settled for a dollar amount or attached to a money verdict. Ordinarily, the contract specifies that the lawyer will receive 33% or one-third of the gross settlement’s total if the case is settled without needing to file a lawsuit.

Generally, gross settlement means the sum of the settlement amount before legal costs or expenses are subtracted. Deposition fees, expert fees, filing fees, photocopy fees, fees associated with acquiring medical records, and so on typically comprise legal fees. Such expenses are paid out of the client’s share of the settlement’s gross.

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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.
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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 from 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.
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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.

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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 U.S. 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 warfarin, 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.
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