Georgia General Assembly Category Archives - Atlanta Injury Lawyer Blog Published by Atlanta Personal Injury Lawyer

Georgia’s Attorney General Would Certainly Ban Abortion Medication Mifepristone

March 26, 2024 | Robin Frazer Clark

What is mifepristone, the abortion pill at center of US Supreme Court argument? | CNN
Today the United States Supreme Court is hearing oral arguments in Case No. 23-235 FOOD AND DRUG ADMINISTRATION V. ALLIANCE FOR HIPPOCRATIC MEDICINE, a case in which certain physicians have sued the FDA alleging permitting the use of Mifepristone violates their rights. Much of the oral argument focuses on “standing,” i.e., whether these physicians even have the right to bring such a case against the FDA. I am listening right now live to the the SCOTUS oral arguments and even the super Conservative Justices seem extremely skeptical about standing. Here are the questions presented before the Supreme Court today:

QUESTION PRESENTED:

This case concerns mifepristone, a drug that the U.S. Food and Drug Administration

Would Frozen Embryos Be Considered “Unborn Children” in Georgia? You Bet They Would

March 12, 2024 | Robin Frazer Clark

By now we have all heard of the Alabama Supreme Court decision holding that frozen embryos are “unborn children” under Alabama State Law. This was the holding in LePage v. Center for Reproductive Medicine, issued on February 16, 2024. Although much hay was made out of a concurring opinion that quoted the Bible extensively, the primary opinion was based squarely on Alabama State Law only, specifically the Alabama Wrongful Death of a Minor Act. You can read the full, actual opinion here.

In LePage, three couples had their frozen embryos destroyed in an incident at a fertility clinic. The plaintiffs in the Alabama case had undergone IVF treatments that led to the creation of several embryos, some of which were implanted and resulted in healthy births. The couples paid to keep other embryos frozen in a storage facility at the Mobile Infirmary Medical Center. A patient in 2020 wandered into the area and removed several embryos, dropping them on the floor and “killing them.”

The justices ruled that wrongful death lawsuits by the couples could proceed. Justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child “applies to all unborn children, regardless of their location.””Nothing about the [Wrongful Death] Act narrows that definition to unborn children who are physically “in utero.”

Georgia Supreme Courts Celebrates 175 Years

December 3, 2021 | Robin Frazer Clark

Oyez, Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of Georgia, are admonished to draw near and give their attention, for the Court is now sitting. God Bless the State of Georgia and this Honorable Court. May it please the Court.

Yesterday, I was honored to speak in the Georgia Supreme Court as part of the Court’s 175th Anniversary Celebration. The Celebration began Wednesday evening with a lovely dinner at The Commerce Club. Thursday was a full day of seminar on the history of the Supreme Court and biographies of various former Justices. I spoke about the creation of the State Bar of Georgia in 1964, which was approved by the Georgia Supreme Court and five years later held to be Constitutional in two separate cases. It was one of the highest honors of my career. I am sharing with you below my presentation.

We are very fortunate to have the Georgia Supreme Court and the State Bar of Georgia, which, together, protect your rights to live in a Just society, grounded in the Rule of Law, so that all may reap the benefits and rewards that our system of Justice provides.

Joshua’s Law and Other New Georgia Laws Go Into Effect on July 1, 2021

June 30, 2021 | Robin Frazer Clark

July 1 always welcomes in the new laws passed by the Legislature in the last Legislative session. Tomorrow Georgia will have several new laws that go into effect, many of which you may not be aware.

The first you should know about is “Joshua’s Law,” codified at O.C.G.A. § 40-5-10. The genesis of this law is the untimely and unnecessary death of Joshua Brown, son of LuGina and Alan Brown back on July 1, 2003. It is ironic that the law in his name goes into effect on the 18th anniversary of Joshua’s death. I had the distinct honor of representing LuGina and Alan in a successful wrongful death lawsuit in Fulton County against the Georgia Department of Transportation. We tried that case to a jury and settled it on the last day of trial. Joshua then was 18 years old at the time of his death. He had been admitted to the Berklee School of Music and wanted to be a musician. I can remember when LuGina testified she talked about visiting Berklee with Joshua and when she saw the campus and all the students walking around she saw “a hundred little Joshuas.” I have never forgotten that moment in trial. It was so moving. Our lawsuit involved the negligent maintenance of the road Joshua was on when he lost control of his truck due to hydroplaning, ran off a steep, unprotected hillside and crashed into a tree. The Browns immediately threw their grief into action by creating “Joshua’s Law” and began lobbying the Georgia General Assembly for passage of the law that would mandate driver education in every high school in Georgia. The Browns were the recipients of the Georgia Trial Lawyers Association’s Courageous Pursuit of Justice Award for their relentless pursuit of justice against the Georgia Department of Transportation and for the creation of the new law “Joshua’s Law.” The substance of the new law is as follows:

Effective: July 1, 2021

Fortunately, Georgia Legislature Fails to Make It Illegal to Videotape Your Loved One’s Care in a Long-Term Facility

April 9, 2021 | Robin Frazer Clark

You may remember I wrote recently about the Georgia Supreme Court’s opinion in Nuckles v. State, 853 S.E.2d 81 (December 2020) in which the Supreme Court made it crystal clear that a loved one has the absolute right to place a hidden camera in a loved one’s room in an assisted living facility or long-term care home and that video from such a camera is admissible in court. And, of course, it should be. The resident or patient is considered an “occupier” of that property, i.e., his or her room, and may videotape what occurs on his “property.” Nuckles is a well-reasoned, common sense opinion authored by Judge Carla Wong McMillian and concurred in by all the other members of the Georgia Supreme Court, except Justice Warren who simply didn’t participate in the opinion for some reason.

That you should be able to videotape what treatment your loved one is getting in a long-term care home, and then when that videotape shows abuse by a caregiver, that you should be able to admit such videotape into evidence at trial does not seem to be a partisan or political position at all, does it? Don’t both Republicans and Democrats alike want the very best care for their aging loved ones and don’t Republicans and Democrats alike want to hold someone who would abuse their loved one accountable? That only makes sense, doesn’t it?

Well, not so fast. Enter the Republican-controlled Georgia House of Representatives and the Republican-controlled Georgia Senate with the help of the nursing home lobby. The Georgia Legislature decides it’s not such a good idea to be able to hold abusers accountable through hidden camera videotape, taken in the resident’s own room (their “castle” so to speak) and file a bill to undo Nuckles. This march to overturn Nuckles legislatively only two months later started with HB 605. This bill actually provided for criminal prosecution of anyone who set up a “nanny cam” in their loved one’s long-term care room. So imagine this: your parent suffers from dementia and lives in an assisted living home. You suspect he is being abused both physically and emotionally by the staff, so you set up a hidden camera to see how they treat him while you are not present. Sure enough, your “nannycam” video shows a staff member slapping your parent. You want to bring criminal charges against the person for abusing your parent. But HB 605 would have actually authorized criminal charges against you! That bill passed the House. So on to the Senate. It was placed on the calendar to be voted on on the last night of the General Assembly session. There, Senator Jen Jordan, and several other open-minded Senators, successfully amended the bill to eliminate the criminal prosecution provision in the scenario I laid out above. So the Senate passed that bill as amended. Now back to the House, during the final hours on the final day of the 2021 session. But once the piece in the bill making it illegal to have hidden cameras was no longer in the bill, the bill lost its only reason to exist in the first place! No need to pass a bill that essentially says nothing. The folks behind this bill wanted a law against hidden cameras because they can be used to hold these homes and “caregivers” liable for harming their residents. The House refuses to agree (by the narrowest of margins) to the Senate Substitute and so no law passes. The vote on this was 88 against and 77 in favor, so only an 11 vote margin. This law now is still out there to be picked up again by the Legislature when they begin their 2022 General Assembly Session.

Covid-19 Liability Concerns Lead to Short-Term Tort Reform in Georgia

July 22, 2020 | Robin Frazer Clark

During the on-going global pandemic many states have adopted additional liability protections for the healthcare industry. Governors in New York, New Jersey, and Michigan have all signed executive orders codifying additional protections. In Georgia, Governor Kemp has signed a number of executive orders that provide different levels of legal immunity for those working to help with the state’s response to the public health emergency. Georgia’s most notable executive order regarding liability protections, was signed into action by the governor on April 14th.

Governor Kemp’s April 14th executive order offered nearly all healthcare workers and facilities the same protections as “auxiliary emergency management workers,” pursuant to O.C.G.A 38-3-35. This code offers sweeping protections against liability during a state of emergency. It states that the parties outlined cannot be held liable for death, injury, or damage to property, except in cases of willful misconduct, gross negligence, or bad faith. The specific designations of who is considered an “auxiliary emergency management worker,” are outlined in O.C.G.A. Codes, 31-7-1(4)(A), 31-7-1(4)(C)-(G) and 31-7-1(5). Based on these codes all active hospitals, nursing homes, ambulatory care facilities, surgical centers, testing lab facilities, birthing centers, imaging centers, or public health centers are protected. These protections went into effect upon the governor’s signature on April 14th and will be in place until the public health state of emergency ends.

Even with executive orders in place to shield the healthcare industry from liability, Georgia lawmakers continued to work toward constructing additional protections. The Georgia house of representatives introduced House Bill 167, which offered increased protections for all Covid-19 related cases, and sought to make them permanent. This specific bill bounced between the Georgia house and senate, until many of the key considerations were absorbed into Senate Bill 359. On the final day of the legislative session SB 359 was adopted, superseding the governor’s April 14th executive order. The bill currently awaits the governor’s signature to be passed into law. Given the governor’s record, the signing of the bill should be considered a formality.

The Harsh Reality of Sovereign Immunity of Georgia Counties

February 3, 2020 | Robin Frazer Clark

There have been some stories on the news lately about a student who was burned during a chemistry experiment performed during class. Back in August of last year, a teacher in a DeKalb County School performed a demonstration of lighting a dollar bill on fire using ethanol and water. She apparently had performed the same demonstration using just alcohol with little success. When the teacher tried the demonstration using ethanol, the dollar bill, in a glass, caught on fire, broke the glass and traveled across a table onto the student, who had his head down on the table. It severely burned the student. The student hired counsel who has sued the teacher and the school. They are now reports in the news that the school system won’t pay for his reconstructive surgery.

This really is neither surprising or shocking. The DeKalb School system enjoys the benefit of “sovereign immunity,” which means it is immune from suit. County school systems, county agencies, county departments, really anything to do with counties, cannot be sued successfully for most causes of action. Sure, you can file suit against them, but 9.9 times out of 10 it will be dismissed on summary judgment based on sovereign immunity.

There are a few exceptions. One example would be a lawsuit for violation of the Americans with Disabilities Act (ADA). Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subject to discrimination by an such entity.” A disabled person who falls within the class of persons protected by the ADA may successfully sue a county for violation of the ADA, for things such as failure to maintain a sidewalk in the county that inhibits that person’s ability to move on the sidewalk. For example, if a person is confined to a wheelchair, she must be able to use the sidewalk as any capable-bodied person, so the sidewalk must have proper curb cuts to allow the wheelchair to gain access to the sidewalk and there must not be any holes in the sidewalk that would prevent the wheelchair from easily moving over the sidewalk. Sovereign immunity does not protect a county when it has violated the ADA and it grants the disabled citizen a private cause of action to enforce it. It is important for private citizens to be able to hold Georgia counties accountable for ADA violations as the number of people in the United States who are disabled in some form continues to rise. For example, it is estimated that one in 4 U.S. adults – 61 million Americans – have a disability that impacts major life activities, according to a report in CDC’s Morbidity and Mortality Weekly Report. Of those disabled citizens, 13.7% have a mobility disability and an estimated 4.6% have a vision impairment. So you can why it is important that even counties not be immune for failure to comply with the ADA. Disability affects us all.

Can a Georgia County Sheriff Be Liable for Failure to Prevent the Suicide of an Inmate?

January 6, 2016 | Robin Frazer Clark

Can a County Police Officer be held liable for failing to prevent the suicide of an inmate under his custody? That is the interesting question in the case below, which was argued before the Georgia Supreme Court this week. Below is the Court’s summary of the case. It gives you some of the pertinent facts and then a synopsis of the arguments and positions of both sides in the case. For court watchers and trial junkies this is a helpful tool provided by the Court (presumably written by one of the Court’s clerks; I did not write it) to be able to follow along in oral argument. By the way, the Georgia Supreme Court’s oral arguments all can be viewed through their livestreaming capability found on its website.

And if you can’t catch them live, the arguments are taped and available for your leisure viewing on the website, as well.

Pearce v. Tucker will be a case I’ll be watching as it turns on the old “discretionary v. ministerial” argument trap that really needs to be abolished in favor of including all such claims against counties as part of the Georgia Tort Claims Act. This would give this area law the predictably it desperately needs. Hopefully, the Georgia Legislature will address that one day. In the meantime, every time there is a case against a county employee, like the one below, the Court must go through this time-worn analysis of whether the employee’s conduct was discretionary, for which the employee has immunity, or whether it was ministerial, for which the employee does not have immunity. Stay tuned. Should be interesting.

Effort in Georgia To Eliminate Your Seventh Amendment Right to a Jury Trial

February 11, 2015 | Robin Frazer Clark

Did you know there is underway right now an effort in the Georgia Senate to eliminate your Seventh Amendment right to a jury trial in medical malpractice cases? That’s right. A bill has been introduced (again), SB 86, that seeks to eliminate jury trials in medical malpractice claims. This bill was introduced by Senator Brandon Beach from Alpharetta, and this is, at least, the second time around for the bill. Last year the same bill was introduced and a coalition made up of odd bedfellows, the Georgia Trial Lawyers Association (GTLA) and the Medical Association of Georgia (MAG), opposed it and it died a slow death. Like Lazarus, it has now been resurrected.

Supporters of the bill make the wild claim that this bill would reduce so-called “defensive medicine” where doctors supposedly order unnecessary medical tests. I find such a claim outrageous and offensive. Doctors should, likewise, be offended by this strategy. I have talked with many doctors and taken many depositions of doctors. I have never found them to order what they know are unnecessary medical tests. For a doctor to order what he or she knows to be an unnecessary test (and get paid for it, by the way) would be fraudulent and would violate every ethical oath the physician has ever taken. So that cannot be the real issue with this piece of legislation.

Who is behind it? Not the doctors themselves, as evidenced by the opposition of MAG, the doctors’ professional association. Not the citizens of Georgia. There has been no rallying cry that doctors shouldn’t be held accountable as every other citizen may be with he or she commits negligence that results in injury to someone. There have been no “runaway” verdicts in Georgia, either. Statistics show that doctors and hospitals win almost 85%-90% of all medical malpractice trials in Georgia.

The Unintended Consequences of Apportionment: Part I

January 15, 2015 | Robin Frazer Clark

What is apportionment? How does it affect my case? What does it mean? Can I ever get justice in my case with it?

These are typical questions I often get from my clients in personal injury cases. The issue of apportionment comes up now in just about every case filed. Apportionment is the premise of Georgia law that says a jury may (but is not required to) apportion other people or entities, who are not even being sued in the lawsuit, a percentage of fault should the jury so choose. In a lawsuit, a defendant may claim some other person or company is to blame also and may ask the jury to consider assessing some percentage of fault or blame to that other person or company who is not named as a defendant in the lawsuit. This is known as “apportionment,” i.e., the jury apportions fault or blame to whoever they think is at fault. Apportionment came into Georgia jurisprudence in 2005 through the wisdom of Georgia Legislature, part of sweeping reforms then known as “tort reform.” Interestingly, nearly all of these so-called reforms have now been elimimated as unconstitutional by our appellate state courts, e.g., a cap on non-economic damages. That cap lasted only as long as it took for a case with a verdict higher than the Legislature-imposed cap to make its way to the Georgia Supreme Court, where the Court promptly held the cap on damages to violate the Georgia Constitution. That case is Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010). Notice the Nestlehutt case was decided in 2010, so there were five years between the creation of that unconstitutional law and the undoing of it. There is no telling how many Georgia citizens were victims of malpractice during those intervening five years who didn’t receive justice.

When the law of apportionment first reared its ugly head, many practitioners and prognosticators, including mediators, declared certain types of cases “dead.” I can remember many of these folks pronounced the premature death of negligent security cases because the defendant apartment complex or defendant business would simply be able to blame the criminal defendant who perpetrated the crime and get off Scot free. Well, in the words of Coach Lee Corso, “Not so fast!” Fairly quickly after the implementation of apportionment, and after every defendant tried to blame everyone else in the world for their negligence, including a criminal, known or unknown, that myth was disproven. For example, in the Martin v. Six Flags Over Georgia case, in which a young man was severely beaten by a gang at Six Flags, for no reason other than the gang (some of whom were Six Flags employees) wanted to beat someone up, the jury returned a verdict of $35 Million. The Cobb County jury attributed to the gang members a total of 8% of that $35 million verdict, and split between the four of them, it came out to 2% per gang member/roughly $750,000 each. This means that Six Flags had to pay the remaining 92% totaling roughly $32 million dollars in damages.