Articles Posted in Personal Injury

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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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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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