Articles Posted in Personal Injury

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I have handled hundreds and hundreds of car wreck cases in Georgia.  Very often I hear this common theme from prospective clients:  “I Could Have Been Killed!”  And it is often very true…they could have been killed, but thankfully, they weren’t.  So do you have a case when you could have been killed but you weren’t?  Or better put, do you have a case when you could have been killed but you weren’t physically harmed at all?

I thought of this because this morning while perusing the headlines I came upon this story about a JetBlue plane that experienced a blown engine and made an emergency landing.  Smoke filled the cabin, oxygen masks magically came down, and flight attendants yelled “Brace!  Brace!  Brace!” as they landed, which fortunately, they did so safely without injury.  Watch the video and you will see that many people on board thought they were about to die.  And, in fact, they had a long time to think that as the plane, which was over water, had to turn around and go back to California to land. They all could have been killed, but they weren’t.

Therein lies the conundrum.

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Let’s say you have been injured in a car wreck because of negligent maintenance of a right of way owned by the County.  Can you sue the County for your injuries?

Of course, I have tried to teach my readers the short answer is always yes, you can sue anybody for anything. The real question then is if you sue the County, will your lawsuit be successful? The answer there, unfortunately, is probably not.

Counties in Georgia enjoy wide immunity from being held accountable through lawsuits. This is called “‘sovereign immunity,” which simply means you can’t sue the King. Were your car wreck to have occurred on a State-owned right-of-way, maintained by the State of Georgia, you would have a viable lawsuit against the State of Georgia under a statute known as “The Georgia Tort Claims Act,”  O.C.G.A. Section 50-21-20 through -37.   The State of Georgia, in passing “The Georgia Tort Claims Act,” recognized the inequity of a situation that would allow a Georgia citizen to be able to sue and recover from a private individual or corporation if they were negligent but not from the State of Georgia if it, acting through its employees, were negligent.  The trade-off agreed in the statute for doing away with sovereign immunity for the State is an individual employee may not be personally sued (so it protects State of Georgia employees from litigation) and recovery is capped (regardless of injury) at $1 Million.  This seems like an inherently reasonable trade-off…good for all citizens of the State of Georgia.

Today I read a funny article about a jury trial in Florida in which the jury sent the trial judge a note asking for a whiteboard and markers and a “big bottle of wine.”   I thought that was pretty cute.

Going to trial is a big decision. Although I have tried many, many trials in many counties in Georgia, most of my clients have never been involved in any trial and the trial  of their personal injury case will be the one and only time they will ever step foot in a courtroom and the one and only time the case will be about them. You can imagine this might produce some anxiety.jurycourtroomdrawing

One of the questions often asked is, if we go to trial, who will decide my case? The answer to that question for all of the cases I try is the jury. I try only jury trials.  If a  judge decides your case, which can happen in Georgia if no one requests a jury trial (very rare in personal injury cases ) or if both parties consent, it is called a Bench Trial. You may be familiar with the trial of Oscar Pistorius going on right now in South Africa.  Mr. Pistorius is being tried for murder in the death of his girlfriend.   In South Africa, such a trial will be decided by the very judge who is presiding over the case. Just recently it was announced that the judge will render a verdict in that case on September 11, 2014.

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Do I have a case against my insurance agent?  I feel like my insurance adjuster cared more for the insurance company than for me, her client.  Who does my insurance agent really work for?  Me or the insurance Company?

Good question! No doubt many of us think our insurance agent, with whom we have worked with, confided in and trusted, is our friend and our agent, not the insurance company. But as I often say in these blogs:  Not so fast!  Although the term “agent” is loosely thrown around in all sorts of scenarios, the actual word “agent” is loaded with ambiguity. Natch, if I have purchased my car and homeowners insurance through my “agent” I would assume that person works for me and would always have my best interests in mind. But, unfortunately, especially under Georgia Law, it doesn’t always operate so smoothly.

For example, if an insurance “agent” is independent and sells policies for multiple insurance companies, chances are he or she would be considered an “agent” of the insured who must favor the insured’s interests over the company’s. If, however, the insurance “agent” is an employee of the insurance company and not independent, then chances are this type of insurance “agent” is actually an agent of the company, not of you, and that type of “agent”/employee would put the interests of the insurance carrier over your own.

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Do I have a case?  I am asked this countless times…at church, over cocktails, in the gym…anywhere where someone who knows I am a trial lawyer who represents injured individuals finds me and grabs me to ask. Do I have a case?  Four little words, but so very complex.

In the world of personal injury law practice, I am a generalist. I take all variety of personal injury cases. The only limitation for me is whether I think I can prove the case and whether the damages justify my representation. So “Do I have a case” depends on many things, but first is can we prove one?  The plaintiff in a personal injury lawsuit has the burden of proof, meaning the plaintiff must prove the case and the defendant really has no burden. The plaintiff must prove, by a preponderance of the evidence, four things:  1)duty; and 2) breach of duty; and 3) causation and 4) damages.  “Preponderance of the evidence”  is a cute little phrase that means nothing more than it is more likely than not.  “Preponderance” is used in law school and should never be used again anywhere else, but especially not in a courtroom to a jury.  The burden of proof simply means that a jury agrees it is more likely than not that this thing happened.  And the plaintiff must prove all four necessary elements;  three out of four is not good enough.

Sometimes determining whether someone owed you a duty not to injure you is simple. Like in a car wreck case in which you have been rear-ended.  Every driver on our Georgia roads owes every other driver on our roads a duty not to follow too closely and not to rear-end the car in front of them. So if you have been rear-ended in a car wreck, you can easily prove #1 and #2, duty and breach. In our car wreck case example, it is #3 and #4 that get a little harder.  Damages means you have an injury to which you attribute to the car wreck. Damages are simple enough usually…if you suffered a broken leg in a car wreck, a leg which was perfectly fine before the car wreck, you have both damages and causation, meaning you can prove the broken leg was caused by the wreck and not from something else, not from some other force. If however, you believe you have injured your back or neck in a rear-end car wreck but no broken bones, the task of proving causation, that the force of the car wreck caused the neck or back injury and nothing else, gets a bit harder. Factors involved here on whether you can prove causation include your past medical history and whether you had ever been treated for neck or back problems before the wreck.  For example, let’s say you were involved in our rear-end car wreck on the way to the hospital for back surgery for a chronic back problem.  It would be pretty difficult to prove the car wreck caused you to have a back injury that now needs surgical treatment.  You were already on your way to get that surgical treatment before the wreck ever occurred!  See how this works? Those are the tougher cases and they often come down to expert testimony from your treating physicians about what they believe caused your back injury.

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As a plaintiff’s personal injury trial lawyer in Atlanta, Georgia, I often check Georgia statistics regarding the number of car wrecks, bicyclists wrecks and pedestrian accidents, including fatalities. I noticed that Richmond County, Georgia has initiated a new program that targets jaywalking pedestrians or pedestrians caught not using crosswalks to educate them about the rules of the road for pedestrians and why they are so important to follow. So far this year, the Richmond County Sheriff’s Office has reported nine traffic fatalities. Four of the incidents involved pedestrian-versus-vehicle collisions. In 2013, police responded to 26 fatal traffic accidents, eight of which involved pedestrians.

Earlier this month, three teens and an Augusta man were struck by vehicles on Richmond County roads. The man and two of the teens died as a result of their injuries. The third teen remains hospitalized.

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Unfortunately, Georgia and South Carolina, rank among the worst in the country for pedestrian and cycling fatality rates. And many of these incidents are hit-and-run crashes, where the at-fault driver hits a pedestrian and can easily make a quick get-away as his victim lies helpless and injured on the pavement. I have such a case pending right now in which the current issue is the filing of an uninsured motorist claim against the plaintiff’s own insurance carrier, State Farm Insurance Company, as they have denied coverage in every way possible under the sun. I blogged about this case awhile back and about the fact that when you are on foot and hit by a car as a pedestrian, you have an uninsured motorist claim against your own car insurance. Few people know this and most policies do everything they can to hide the fact that you have such a claim.

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As a plaintiff’s personal injury trial lawyer in Georgia, I often represent the loved ones of someone who was killed in a car or tractor-trailer wreck. More and more of my trials in Georgia now involve the death of someone due to someone else’s negligence or carelessness (carelessness is simply another word for negligence). In these wrongful death trials I must suggest to the jury a dollar number I feel adequately represents the full value of the life of the decedent, from the perspective of the decedent, which is the Georgia standard on which a jury must decide wrongful death damages.

Recently, while reading about the numerous salary deals various Major League baseball teams have made with players, it made me wonder: is the value of your life worth a Major League Baseball player’s salary? For example, Freddie Freeman, the Braves beloved first baseman, just signed an 8 year $135 Million contract with the Braves. That’s more than $14 Million per year. Craig Kimbrel, the Braves’ awesome closer, just signed a contract to receive $40 Million for four years. If you were asked as a juror to value another Georgian’s life for the purpose of damages and holding the wrongdoer responsible, would you agree a person’s life is worth at least the same amount as an 8 year contract to play first base? What if we asked to value your own life…or better yet… to value the life of your son, or your daughter? They are priceless, right? And yet Georgia law, in a wrongful death lawsuit, says a juror must use nothing more than their “enlightened conscience” of the twelve person jury to decide this dollar figure.

This evaluation of the “full value of the life” of a Georgian includes both an economic component (past and future lost wages) and a noneconomic component (the intangible quality of life damages). I often tell a jury that we know the noneconomic component is worth much more because when a loved one is hurt, what is the first thing you ask? You ask: “Are they OK? Are they hurt? Are they suffering? Will they be OK?” You don’t ask: “How much income will they lose because of this?”

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So often in personal injury lawsuits I have filed in Georgia involving injuries sustained during a car wreck, the defense attorney boasts that the plaintiff wasn’t wearing her seat belt, the jury will know it and, voila! Defense verdict! Not so fast!! Many times, even a seat belt won’t prevent a serious or even fatal injury in a car wreck. I was reading some Georgia news about car wrecks recently and came across a tragic incident in which a pregnant mother was killed in a car wreck even though she was wearing her seat belt at the time of the wreck. This happened in Cherokee County, Georgia, just north of Atlanta. The young woman was alive and alert at the scene, but died at the hospital as the doctors there tried to deliver her baby by C-section. She also had a three year old in the car at the time of the wreck who was in a proper car seat, had visible injuries at the scene, and, thankfully, survived.

Many times in my car wreck cases I will hear the defense attorney say that my client must not have had his or her seat belt on or otherwise she or he never would have been thrown from the car, or never would have ended up with any part of her or his body on the outside of the car. But, again, not so fast! The empirical evidence keeps coming in that regardless of wearing a seat belt, sometimes your body ends up being thrown outside of your car during a wreck. For example, recently, in Effingham County, Georgia, a driver was seriously injured . This car wreck involved an overturned SUV in which the driver ended up under his SUV, pinned by it, even though he was wearing his seat belt. We know he was wearing his seat belt because the police officer who came to his rescue had to unlatch his seat belt to get him out. “[Officer] Gideon said the only way to reach the young man was through the back window. Gideon crawled through and released the driver’s seat belt. “He told me his hand was stuck up underneath the roof of the car and said that he was in a great deal of pain,” Gideon said of the driver.”

The fact that Officer Gideon (great name, by the way) had to crawl through the back window of the SUV to get to this driver reminds me of the time 19 years ago now in which I was driving a mini-van and was t-boned by a drunk driver. I was wearing my seat belt and when the van finally came to a stop on Juniper Street in Midtown Atlanta, the van was on it’s side and I was hanging from the seat belt. Several wonderful eyewitnesses walked through the back window of the van and unlatched my seat belt and helped me out of the van. I suffered a pretty severe injury from this wreck.

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As many of you know, I have tried a lot of cases over the last 25 years as a plaintiff’s personal injury trial lawyer here in Atlanta, Georgia. I also have appeared numerous times (37 at last count) in Georgia’s appellate courts and as a trial lawyer I handle my cases through completion, including the appellate process. I have had two appellate arguments this year, one in the Georgia Court of Appeals and one in the Supreme Court of Georgia, our state’s highest court, and so it is natural, I suppose, to have the issue of deference to a trial court by appellate courts on my mind and heart.

Appellate courts are courts that correct errors of law made in the trial court, sometimes called “the court below” in an apparent nod to hierarchy among our courts. As a trial lawyer, I believe I must win my case for my client in the trial court. I do not subscribe to the opinion, as some lawyers do, that, worse comes to worse, I can always win it in the appellate court. I want to win a verdict in the trial court and then hold on to that verdict, thus, I go out of my way to ensure there is no error from which the defendant could appeal in the trial. This strategy takes both extreme foresight and planning but also lightening speed decision-making in the trial.

Appellate courts must use certain “standards of review,” i.e., a specific framework in which to judge what happened in the trial court, according to the posture the case is in when it lands in the appellate court’s lap. These standards of review are well known and almost taken for granted, as if every lawyer and every judge in Georgia agrees to their meaning. The Georgia Court of Appeals even lists them on its website for easy, quick reference. But even though we can state the standards of review very plainly, it is not true that all lawyers and all judges readily agree on their meaning and application. That is when it gets fun.

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Well, I am writing from the witness room next to Courtroom 2F of the Fulton County State Court, Atlanta, Georgia. This has been my home-away-from-home for the last two weeks. I am waiting on a jury. This may be the most gut-wrenching time of a trial, although there are many. Trying personal injury cases in front of a jury is not for the feint-of-heart. This case is a medical malpractice case against an Atlanta hospital for the negligence of their nurses in inadequate monitoring of a 31 year old, post-surgical patient who had severe obstructive sleep apnea (OSA). The nurses failed to put a CPAP on him while he slept, even though there was an doctor’s order for a CPAP, then gave him a 3 mg. shot of Dilaudid, the strongest narcotic a nurse can deliver to a patient bedside, then the nurse went to lunch, leaving their patient completely unprotected without any monitoring. No pulse oximetry, no telemetry, no dedicated trained observer. You guessed what happened next, didn’t you? He obstructed, meaning his airway became completely blocked, due to the lack of the CPAP. He died. A 31 year old father of two boys and husband to my client.

The jury has deliberated now for a solid day. We are back for day #2 of deliberations after 7 days of trial. I have always said I trust the jury. And I do. But I can’t help but be nervous that justice is done for my client. The defense attorney is nice and good at his job. He never makes unforced errors so there are no gifts handed to you from a legal standpoint in such a trial. The judge, although a rookie, is great. She has done a fantastic job and if the jury doesn’t go our way it is not the judge’s fault. As trials go, this has been certainly a pleasant experience, right down to an extremely nice court reporter and Deputy who has made sure the judge and all of us, including our jurors, have been safe at all times. Thank you, Deputy! I appreciate you!

Medical malpractice cases are hard anywhere, but particularly hard here in Georgia. The deck is stacked against the plaintiff, legally, culturally and politically. Several things work against a medical malpractice plaintiff under Georgia law. The first that comes to mind is a presumption that doctors and hospitals acted with due care. No other profession and no other person gets the benefit of this type of presumption. It is special treatment for Georgia medical providers. It is unfair. The judge actually reads this presumption to the jury as Georgia law, even though the plaintiff has already rebutted the presumption by an affidavit of a qualified physician at the time the lawsuit is initiated with the Complaint. Presumption rebutted. The plaintiff further rebuts it with testimony from competent, qualified expert witnesses during trial. This is an evidentiary requirement in medical malpractice cases. Presumption rebutted. And yet the doctor still gets to have this law read to the jury as if there still may be some doubt that Plaintiff hasn’t yet rebutted the presumption. It is wrong and it is unfair.

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