Articles Posted in Personal Injury

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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.”
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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. While this is hard to imagine or to understand why, it is based on scientific evidence and appear to be peer-reviewed, which tends to lend credence to the results or conclusions of the study.

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 U.S. 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. While the mechanism of the brain injuries are different for those suffered in the military vs. those suffered in car accidents and other incidents which involve the negligence of a third-party, the “take-away” is the same.

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. Reducing inflammation, as we are learning more and more recently, seems to the key in fighting a whole host of illnesses and injuries. Now, it appears that this is the way to mitigate the damages of a brain injury, so long as it done soon after the injury occurs.
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Police pursuit cases can 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 liability 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 O.C.G.A. § 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 O.C.G.A. § 33-24-51 discussed above, then the Plaintiff is precluded from establishing the requisite reckless disregard standard under Georgia Code Section O.C.G.A. § 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.
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As any other Atlanta brain injury attorney, I have been following the case of former federal Atlanta judge Jack Camp and his scandal involving an ATM machine, a handgun and a stripper. Since then, we have also learned that the former judge allegedly suffered from bipolar disorder as 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 allegedly committed during a relationship he had with a stripper. Among other things, he allegedly 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 U.S. Attorney Sally Yates has confirmed that her office will be considering requests from people whose cases were handled by Camp after his brain injury.

Severe head injuries also known as Traumatic Brain Injury (“TBI”) usually result from crushing blows or penetrating wounds to the head when a bicyclist is involved in a wreck but is not wearing proper head protection. Such injuries crush, rip and shear delicate brain tissue. This is the most life threatening, and the most intractable type of brain injury. Typically, lengthy hospital stays are required to treat these types of brain of injuries. Frequently, severe head trauma results in an open head injury, one in which the skull has been crushed or seriously fractured. Treatment of open head injuries usually requires prolonged hospitalization and extensive rehabilitation. Typically, rehabilitation is incomplete and for most part there is no return to pre-injury status. Closed head injuries can also result in severe brain injury. TBI can cause a wide range of functional short or long-term changes affecting thinking, sensation, language, or emotions. TBI is also thought to cause epilepsy and increase the risk for conditions such as Alzheimer’s disease, Parkinson’s disease, and other brain disorders that become more prevalent with age.
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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. There are many radiographical tests available to medical professionals that allow them to review different parts of the anatomy without having to conduct invasive surgery to view them. MRI’s, Cone Beam CT Scans, X-rays, and Ultra sounds are just a few of them. While these tests are available and many injured patients are sent through a battery or test, it would surprise many injured clients as to how many tests are conducted but not reviewed by the treating doctors. This presents a problem for the doctors in many dental malpractice and medical malpractice cases that I handle. For example, in a case that I handled a few years back, the dentist’s chart contained many references to a Cone Beam CT Scans (“CBCT”)and there were a number of discs produced in discovery which contained CBCT scans of the patient and her injuries. Only through deposition, did the dentist admit that he could not read the discs because he did not know how to read CBCT scans. While this may have been due to the fairly new technology of CBCT scans at the time, it does illustrate a point: many medical professionals either don’t know how to, or don’t take the time, to properly review radiology tests. It has been my experience that if these tests are sent out to radiologists, you are more likely to get a proper and thorough reading of the scan, however, if the treating doctor or dentist reviews the scan herself, the likelihood of the medical provider just perusing it (as opposed to taking her time an review it thoroughly) is much greater. Often, this become, yet another, basis for bring the malpractice claims against the defendant dentist or doctor.
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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.” As defined by Black’s Law Dictionary, proximate cause is “that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the results would not have occurred. that which is nearest in the order of responsible causation. That which stands next in causation to the effect, not necessarily in time or space but in causal relation. The proximate cause of an injury is the primary or moving cause, or that which, in a natural or continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one that might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence or the act or omission.

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.
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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 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. While the facts and damages of each car wreck case are unique, most insurance companies look evaluate case value, at least to some degree, based upon: (1) the venue in which the defendant would be sued if the case were to go into litigation; (2) whether there is clear liability or whether there is a question about who caused the accident; (3) the injuries sustained in the wreck; (4) the amount of property damage to the cars involved in the wreck; (5) whether the injured person is taken by ambulance from the scene to the Emergency Room; (6) whether the plaintiff has continuity of medical treatment or whether there are large gaps in the treatment; (7) whether the plaintiff has been out of work due to the wreck and the amount of lost wages claimed by the plaintiff; (8) whether there is a permanent injury caused by the wreck; (9) the amount of medical bills; and (10) the quality of the plaintiff and defendant.

This is not an exhaustive list, and case value can vary greatly, based on many other intangibles that could add value to your case and cause the case to lose a bit of value. These intangibles sometimes will become clear once the case is developed and the settlement package is being prepared. Other times, facts come out during the litigation process that greatly impact case value.
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A herniated disc is one of the most underrated injuries that can result out of a car accident, or slip and fall. A herniated disc occurs when the cushion or jelly between the spinal vertebrae is pushed out from the sudden impact. When this happens, the jelly comes in contact with the sciatic nerves, causing intense pain that radiates down the back and legs. Herniated discs are also known as slipped discs or ruptured disks. These can also occur as a result of workplace trauma, car accidents, premises liability slip and fall cases, and many other type of accidents.

A herniated disc can cause intense pain that can make it impossible for the injured person to go resume normal activities. The pain typically occurs as a kind of electric shock pain. These shock waves of pain travel down the arms in the case of a herniated disk in the cervical region. In the case of a herniated disc in the lower back region, there may be sharp pricks of pain radiating down your legs and into the feet. You may also have other painful and uncomfortable tingling, and sensations of numbness. There may also be muscular weakness and fatigue, which often will worsen over time unless prompt medical care and treatment is sought by the injured party.
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The Atlanta City Council is expected to approve the settlement of a lawsuit brought against the City by a 62-year-old woman who was jailed for asking a police officer “why” she and friends had to move from a sidewalk where they were talking about an upcoming funeral.

A council committee has accepted the city attorney’s recommendation to settle the case, but the settlement must be approved by the entire city council. The claimant spent almost 10 hours in jail on a charge of disorderly conduct brought by an officer who already had a troubled history with the Atlanta Police Department.
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Congratulations to Attorney Robert J. Fleming for once again being selected as one of Georgia’s top lawyers by Georgia Super Lawyers Magazine. Only 5% of attorneys in Georgia receive this distinction. Selection to the Super Lawyers list provides third-party validation of a lawyer’s practice and positively influences client hiring decisions by providing an additional objective reason to select a Super Lawyer in Georgia.

Mr. Fleming also enjoys the highest rating (“AV”) in both legal professional ability and ethical standards awarded by the Martindale-Hubbell Legal Directory. Ratings are based on confidential and candid evaluations submitted by lawyers and judges throughout the world. Over one million lawyers are rated with less than 15% achieving an “AV” rating.  This distinguished rating signifies that a lawyer has reached the height of professional excellence. Mr. Fleming has been named many times as one of Georgia’s “Super Lawyers” by the publishers of Law & Politics Magazine and Atlanta Magazine. He has been admitted to practice in all Georgia and Texas State Courts, and the Northern District of Georgia and Southern District of Texas federal courts*.  Mr. Fleming has successfully litigated catastrophic  and complex lawsuits throughout Georgia and the rest of the country in association with local counsel in a number of states.

Attorney Robert J. Fleming has been handling wrongful death cases, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits 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 in and around Atlanta, Georgia and its surrounding areas, 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 and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.
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