Atlanta Injury Lawyers Blog

Published on: November 17, 2016

Medicare’s Right of Reimbursement in Georgia Personal Injury Settlement Proceeds

MEDICARE’S STATUTORY RIGHT OF REIMBURSEMENT

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.

Published on: November 16, 2016

Considerations for Closing Arguments In Georgia Trials

by Robert J. Fleming

I. INTRODUCTION

“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).

Published on: November 15, 2016

Georgia Car Accident Liability

by Robert J. Fleming

As the below sample complaint for damages shows, there are not a lot of elements to a simple car accident lawsuit. Georgia is known as a notice pleading state. In Georgia, in order to file a lawsuit, the plaintiff must only allege duty, breach, and causation. In other words, the plaintiff must allege that the negligent driver had a duty to not drive negligently (which every driver on the road in every state has); that the negligent driver breached this duty (by driving negligently and causing the wreck); and that the negligence caused the injuries that the plaintiff is complaining of in the lawsuit. Proof of the specifics of the lawsuit (and damages) is not needed at this stage of the litigation.

COMPLAINT FOR DAMAGES

COMES NOW, Plaintiff in the above-styled action, by and through his undersigned attorney, and files this Complaint for Damages against the Defendant, showing this honorable Court as follows:

Published on: November 14, 2016

The Legal Measure of Damages in Georgia Wrongful Death Lawsuits

by Robert J. Fleming

The official code of Georgia, O.C.G.A. § 51-4-1 governs the measure of damages in a Georgia wrongful death case and states, in pertinent part: ” [The] Full value of the life of the decedent, as shown by the evidence means the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he [or she] lived.” While the measure of damages for wrongful death varies by state, Georgia is unique in that the laws of Georgia allow for damages to be calculated based on the value of the decedent’s life to him. With this in mind, it follows that the measure of damages in a Georgia wrongful death lawsuit are the same as those calculated in a negligence case in which the injured victim survives but is rendered permanently disabled by the negligence. The only exception, obviously, is that the wrongful death litigant cannot recover for future medical and living expenses, since they are no longer living. The full value of life is made up of 2 categories: (1) the economic value of the deceased person’s normal life expectancy and; (2) and “an intangible element incapable of exact proof.” (See, Peeler v. Central of Georgia Railway Co., 163 Ga. 784 (1927). When the jury considers the evidence of the decedent’s life from the decedent’s perspective to determine what he lost rather than from the perspective of what the plaintiff’s loss was, the value is not what the decedent would place on his life. Any charge by the Judge to the jury, should make clear that the value of the life is not that which the decedent would place on his or her own life, but the value is, in fact, based upon what the decedent lost. While, from a practical perspective, this may seem like a distinction without a meaningful difference, it is important that the jury charges accurately reflect the law and the correct methodology that the jurors must employ in calculating damages. Otherwise, one risks a mistrial or the verdict being overturned on appeal. A decedent’s personal expenses (such as income taxes) are not to be considered by the jury when calculating wrongful death damages in Georgia. A properly instructed jury, which returns a substantial verdict in a wrongful death case, will not be overturned or disturbed, absent proof that they were guided by improper considerations.

It might be surprising to learn that punitive damages are not available to in a wrongful death action in Georgia. This is so because the damages are already in the nature of a civil penalty against the defendant and to impose punitive damages in this type of case would be duplicative. Punitive damages are, however, recoverable by the estate in connection with the injuries and pain and suffering endured by the deceased before the death. In other words, if there is proof of “that willful misconduct, malice, fraud, wantonness, oppression,” or “that entire want of care which would raise the presumption of conscious indifference for the life of another,” punitive damages can be recovered by the estate of the deceased.

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.

Published on: November 11, 2016

Sample Georgia State Court Jury Charges

by Robert J. Fleming

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____.

Published on: November 11, 2016

Claims for Loss of Consortium in Georgia

by Robert J. Fleming

When one’s spouse is injured and is involved in a lawsuit, damages for loss of companionship and loss of services for the other spouse are known as loss of consortium claims. Damages for loss of consortium run from the date the spouse was injured and continue until the injury no longer interferes with society, companionship, affection and all other matters arising from marriage, or the termination of the marriage.

The standard jury charge for loss of consortium in cases that involve non-permanent injury to the spouse is:

Consortium; Definition; Determination of Value; Generally

Published on: October 17, 2016

Dental Standard of Care Requires Use of Antibiotics to Protect Heart Patients

by Robert J. Fleming

Changes in the American Heart Association Guidelines may impact the use of antibiotics by dentists during tooth extractions and root canal treatment. The impetus for the new guidelines appears to be concern for prophylactic use of antibiotics when the are not indicated, which can lead to treatment resistant infections down the road. However, the standard of care, i.e., what a reasonably prudent dentist would do under like or similar circumstances, does require the use of antibiotics by dentists in a number of important situations in order to avoid catastrophic results. One such use involves protection of the heart from infection due to tooth extraction or root canal therapy. Infective endocarditis is a bacterial infection of the heart lining, heart valve or blood vessel. Although rare, it can occur when bacteria enter the bloodstream through breaks in the gums during invasive dental procedures or oral surgery. It can cause serious injury or even death if untreated. A common group of bacteria that cause this infection is Viridans Group Streptococci or VGS. Importantly, dental patients with existing heart conditions, including those with prosthetic heart valves, are more susceptible to the infection, while dental patients with normal heart valves develop the infection less often.

In 2007, the American Heart Association changed its guidelines, recommending patients take antibiotics before invasive dental procedures only if they are at risk of complications from infective endocarditis. This includes patients with artificial heart valves, transplanted hearts with abnormal heart valve function, previous infective endocarditis and people born with heart defects. However, the guidelines were careful to note that the giving of preventative antibiotic treatment should be limited when not indicated, as noted above. Dental patients should ask their primary care doctor or cardiologist if there is any question at all as to whether they should continue to take preventive antibiotics based on the new guidelines. Patients and their families should ask careful questions of their doctors and dentists anytime antibiotics are suggested before a medical or dental procedure. Similarly, if they are aware of a condition that they have that requires the use of antibiotics prior to dental treatment, they should be careful to note that on the dental office intake forms and to bring this to the attention of their dentist or oral surgeon.

They should also be aware that overuse of antibiotics when they are not indicated, can lead to a worse outcome than if they were not used at all. Because of the overuse of antibiotics, there has been an increase in the number of antibiotic resistant bacteria. When this happens, new and much more complex antibiotics must be created to kill these new bacteria. The new bacteria are typically more severe and can cause more serious illnesses.

Published on: October 14, 2016

Dental Malpractice Leads to Heart Infections and Death

by Robert J. Fleming

There are many incidents of dental malpractice. According to a recent article, a lack of protocol to ensure sterilization has lead to numerous cases of bacterial heart infections and one death. The dental board investigated three initial reports of bacterial endocarditis, a type of heart infection, after a physician at the local Medical Center noticed that two patients had contracted the unusual disease and had one thing in common — both had been treated by the same dentist. The dental board did not suspend the dentist, but rather it ordered him to improve his infection prevention protocols. Apparently, the dental board is continuing its investigation of the matter and further action could be taken against the negligent dentist. This is highly likely considering there are a total of 15 people who have suffered greatly due to the lack of proper standards and protocols at this dental practice.

According to the article, an inspection of the dentist’s office revealed clear violations of the dental standard of case such as the use of a single use vial of Propofol for more than one use; pre-filled syringes of medication; expired vials and multi-dose vials of medication; non-sterile preparation of instruments and poor documentation of medication units. These types of infractions are apparent from the records kept by the practice and were probably uncovered after a thorough investigation and multiple interviews with the dentist and his staff.

Bacterial endocarditis is extremely rare and can be fatal. Often, the victim must undergo heart surgery and/or lengthy medication protocol to recover from the condition. In this particular case, the dentist who committed the malpractice would be liable to all of the patients who sustained injuries and damages. In order to recover for dental malpractice in Georgia, the Plaintiff must show that the dentist committed malpractice; that the malpractice caused the plaintiff’s injuries and the amount of damages, which usually consists of past and future medical bills, lost wages and pain and suffering. In order to file dental malpractice lawsuit, the plaintiff’s attorney must attach an affidavit from a dental expert who regularly practices in the filed of dentistry in questions and which lists at least one act of dental malpractice which caused or substantially contributed to the injuries that the plaintiff is complaining of in the lawsuit.

Published on: October 14, 2016

$1.5 Million Asbestos Related Recovery Precludes New Suit for Wrongful Death

by Robert J. Fleming

Many asbestos-related lawsuits involve the deadly condition called mesothelioma, which is a particularly aggressive form or cancer that: (1) is almost always fatal; and (2) has a very long latency period (sometimes as long as 30 years). The latency period is the amount of time between exposure to the toxic materials (in this case, asbestos) and the onset of the disease. In Deggs v. Asbestos Corp., the family of a deceased worker tried to bring a wrongful death suit after the worker had previously brought an asbestos-related lawsuit against nearly 40 asbestos defendants 15 years earlier. In the earlier lawsuit, the injured worked settled with a number of the defendants and obtained a $1.5M verdict at trial against the the sole remaining defendant which refused to settle. Unlike other cases that involve mesothelioma, the injuries in this particular case were lymphoma, pleural disease and asbestosis, as a result of many years of exposure to asbestos while the Plaintiff served in the Navy during World War II.

In denying the attempting wrongful death lawsuit, the Court found that “[a] wrongful death action accrues at the time of death as long as there is a subsisting cause of action in the deceased at the time of death subject to exceptions not present here.” Therefore, the Court found that the suit was time-barred.

Malignant mesothelioma is a type of cancer that occurs in the thin layer of tissue that covers the majority of your internal organs (mesothelium). Mesothelioma is an aggressive and deadly form of cancer. Mesothelioma treatments are available, but for many people with mesothelioma, a cure is not possible.

Published on: October 11, 2016

Dental Nerve Injuries from Implants

by Robert J. Fleming

According to a recent BBC News and Health article, which analyzed a study in the British Dental Journal, approximately 1% of dental implant procedures performed each year result in nerve injuries. Dentists should improve care before and after implant surgery, the study says. A dental implant is an artificial tooth root, which is screw or cylinder-shaped, that is placed into the jaw to hold a replacement tooth or bridge. Dental implants are generally used if someone has lost a tooth or teeth due to disease or injury. The type of nerve injury which can be caused by implant surgery has increased in recent years alongside a rise in implant surgery. Approximately 10,000 lower jaw implant procedures are performed each year in the UK and in 2007, 30% of all nerve injuries cause by dental work were associated with implants. This contrasts with 10% in 1997. This is almost certainly due to the increased acceptance and usage of dental implants after extractions. The King’s College London research team found that these injuries could have a significant impact on people’s quality of life with more than half of the 30 patients participating in the research suffering from constant pain or discomfort after surgery and 40% complaining of numbness. 30% of the implant injury patients reported psychological problems, including four who were diagnosed with depression. Most of the injuries revolved around the trigeminal nerves such as the inferior alveolar nerve, the mental nerve and the lingual nerve.

70% of the 30 patients were referred to a nerve specialist more than 6 months after surgery, despite evidence showing that removing implants soon after surgery reduces the risk of permanent damage. In addition, a referral after 6 months reduces the likelihood that the nerve specialist will be able to properly diagnose and surgically repair the injured nerve, if that is the course of treatment that is warranted. If the micro-neurosurgeon determines that the best course of treatment is surgical repair, the surgery must be performed as soon as possible. In other words, the longer the injury goes untreated, the less likely that the surgical repair will be successful. Many times, the dentist who caused the nerve injury is reluctant to refer the injured patient to a specialist and this is below the standard of care to not timely refer a patient with a dental nerve injury to a nerve specialist. However, the proper course of treatment is to refer the patient out in a timely manner and to have continuity of treatment.

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.