Articles Posted in Personal Injury

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.

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.

As a plaintiff’s personal injury trial lawyer in Atlanta, Georgia, I have tried many personal injury cases on behalf of very deserving clients. My job is to persuade the jurors my client is deserving of money damages to compensate them for the injuries they have received that may be permanent, something they’ll have to deal with the rest of their lives. The best way to convey this message, quite simply, is to ask the jurors to put themselves in your client’s shoes and see how they would feel, right? But did you know in Georgia, in personal injury cases, I am forbidden from even making that argument to the jury? Doesn’t make alot of sense, does it? But Georgia Law limits what I can say and it would be error for me to use what is often referred to as The Golden Rule, i.e., asking the jurors “how they would feel” if this horrible injury had happened to them.

Now that’s in a personal injury case in which your client survived whatever tragedy befell them. In a wrongful death case in Georgia, it’s different, because the law in Georgia regarding the measure of damages in a wrongful death case is “the full value of the life of the decedent, from the decedent’s perspective.” So this necessarily means I must ask the jurors to see things from the perspective of the person who died to be able to place a value on his or her life.

Defense attorneys often attempt to limit my argument in a wrongful death trial citing The Golden Rule. They often cite a Georgia case for authority for their position, Myrick v. Stephanos, 220 Ga. App. 520 (1996), which is not a wrongful death case. It was a tractor-trailer wreck case involving severe personal injury to the plaintiff. But the plaintiff lived. The measure of damages in a personal injury case are different than in a wrongful death case. Damages in a personal injury case in which the injured plaintiff is living is not measured from the perspective of the plaintiff. This is why the Myrick court reversed the trial court on the basis of the “Golden Rule” argument made by Plaintiff’s counsel. The Myrick court note that such an argument in a personal injury case “is improper because it asks the jurors to consider the case, not objectively as fair and impartial jurors, but rather from the biased, subjective standpoint of a litigant. 75A AmJur2d, Trial, § 650 (1991).” Myrick v. Stephanos, 220 Ga. App. 520, 522, 472 S.E.2d 431, 435 (1996).

The drama at Lake Lanier that has been playing out over the last ten days has been absolutely heartwrenching. Our prayers go out to the Prince family, who lost two sons, Jake, 9 and Griffin, 13, in that tragic boating collision that occurred on Lake Lanier during the evening hours of June 18, 2012. The body of Griffin Prince was not recovered until this past Wednesday, June 27. Paul J. Bennett, 44, of Cumming is suspected of being the driver of the other boat that collided with the Prince pontoon boat and now faces possible homicide charges. He was arrested and charged with boating under the influence at Bald Ridge Marina in Cumming, not far from the crash site, according to Maj. Walter Rabon of the Georgia Department of Natural Resources. DNR Law Enforcement Section Maj. Stephen Adams said that while boating is a safe activity, “especially at night, it can be dangerous if you are under the influence, not paying attention or operating recklessly.”

The Atlanta Journal and Constitution has been doing an excellent job in covering this story and in looking more in depth at the problem serious boating accidents onGeorgia’s lakes. It is not surprising that Lake Lanier is at the top of list of boating accidents and fatalities. There were seven boating fatalities on Lake Lanier alone in 2011. Many of these may have involved boat operators who were under the influence of alcohol at the time. Georgia law treats boaters a bit more leniently than drivers of motor vehicles on Georgia roads, in that a boater is not considered to be under the influence until his blood alcohol content (BAC) is .10. For the motoring public on Georgia roads, that threshold is slightly reduced to .08. The AJC points out that there are few rules about the operation of boats and under Georgia law, anyone over the age of 16 can operate a boat even without any sort of license or training. There have been attempts to lower the BAC limit for a B.U.I. in the Georgia General Assembly with little success. This year, the legislation — which was put forward by state Rep. Kevin Cooke, R-Carrollton — got further than any past bill, overwhelmingly passing in the House only to die in committee in the Senate.

“Politically, you have to navigate through things, but I do wish we could get that law changed,” he said. “”I would love to see our (blood-alcohol content) levels mirror what it is on the highway.”

In a few days I will be asking a Fulton County, Georgia jury to return a verdict for the plaintiff for the full value of the life of a young man who was 31 years old when he died, a husband and a father of two young sons. What the value of life is is a subject I contemplate often, given the fact that I find myself trying so many wrongful death cases in Georgia these days as a plaintiff’s personal injury lawyer.

Interestingly, in Georgia, the jury is to view the value of life from the decedent’s eyes, not from their own and not from loved one’s. We typically show that by having friends and family come into court and testify about what the decedent enjoyed doing, how he spent time with his friends and family, his Faith, his priorities in life, his values, his moral character, his love. In Georgia, we have the Wrongful Death Act, “§ 51-4-2. Homicide of spouse or parent; survival of action,” in which the negligent death of a person is called an “homicide.” The surviving spouse is allowed to bring the cause of action and if there is no surviving spouse, the decedent’s children bring it and if there are no children, the decedent’s parents bring it and if there are no parents an appointed administrator brings it. Under Georgia law, O.C.G.A. § 51-4-1, the “full value of the life” is defined as follows: “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 lived.

And therein lies the conundrum…because really, isn’t a life priceless? If you Google “value of life” there are plenty of ideas on what that means, but very little on what’s it’s worth. There is even a Wikipedia entry on “value of life.” This is what Georgia juries must do in every courthouse in the State of Georgia on a weekly or at least monthly basis…determine the value of someone’s life in real money, not terms of art. And we plaintiffs’ attorneys trust that juries make the right decisions. We know juries take their solemn oath seriously and work hard to do justice and impartially find the right outcome. We cannot, as citizens, ask for more.

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In my personal injury law practice here in Atlanta, I have had the honor of representing individuals who are in need of a transplant. The recipients of these vital organs know that while they rejoice in the gift, another family had to suffer a tragic loss for the organ even to be available.

Such a tragic loss occurred to the Dillard Family of Gwinnett County yesterday. Jhrarell Dillard, a fifteen year old junior in high school, died yesterday after eating a cookie that unknowingly contained nuts. Jhrarell had a known severe allergy to peanuts. Jhrarell immediately went into antiphalactic shock and died from eating the cookie. His parents, at a time that must have been excrutiateingly painful for them, chose to donate his organs. Jhrarell has apparently already saved seven other lives through donation of his organs. Truly amazing. I know those seven lucky families are rejoicing today in their gifts of life, but we must continue to hold the Dillard Family in our prayers as they mourn the loss of their son.

Georgia Department of Early Care and Learning is drafting an emergency rule change one week after the death of 2-year-old Jazmin Green, according to WSB-TV. My question, as an Atlanta plaintiff’s personal injury trial lawyer, is this: Why does a child always have to die first before our Georgia Agencies do their job? The job they were created to do in the first place? How many Georgia children have to die before Georgia Agencies like Georgia Department of Early Care and Learning (DECAL) or Georgia Department of Family and Children Services (DFACS) do what they are supposed to do, i.e, protect Georgia children?

The death of Jazmin Green was a horrible realization that these State Agencies are woefully inadequate and give “protection” of Georgia children lip service. Little Jazmin simply should not have died if DECAL had not been asleep at the switch. Yet DECAL knew of potentially death-causing deviations of the required standards by this day care center, Marlo’s Magnificent Day Care, as evidenced by DECAL’s own inspection reports, and did nothing. A civil wrongful death suit can be brought against Marlo’s, as it should be, for the wrongful death of Jazmin. But no such civil suit can be brought at DECAL due to sovereign immunity. We know, however, that a civil jury would do the proper thing to DECAL to get its attention and tell DECAL what it is doing regarding the safety of our children is not working. A jury made up of mothers and fathers would let DECAL know what it did wrong here, but, unfortunately, that won’t happen. The parents of Jazmin need justice. Her heart has now been sealed for thy courts above. The Courts here in Georgia need to render justice for those Jazmin left behind.

As an experienced Atlanta, Georgia trial lawyer, I’ve successfully argued numerous day care personal injury and wrongful death cases over my years of practice. Nothing is more heartbreaking and frustrating than a preventable death, especially if the victim happens to be a child. So when I first learned of the recent news that a 2 year-old girl died under the noses of local day care employees, my heart sank.

The victim was left unattended for nearly two hours in a van, where temperatures quickly soared to a sweltering 140 degrees. Confined by the straps of her car seat with no means of escape, the child was left to suffer a lengthy, horrific end to such an abbreviated life. Police arrested Marlo Maria Fallings, the administrator of Marlo’s Magnificent Early Learning Center near Jonesboro, Georgia and her staff member, Quantabia Shantell Hopkins, on Tuesday, June 21. They are both being charged with involuntary manslaughter, cruelty to children and reckless conduct. They have already been released on $35,000 bond. These charges certainly fit the crime, however, more action needs to be taken in order to send a message to day care centers throughout the state that negligent conduct is a serious offense and will not be tolerated.

There may have been warning signs about the Clayton County Day Care Center. In March, Bright from the Start, the State agency that regulates day care centers, cited the center for not documenting a field trip and the children who were transported, according to the report. The report itself says the regulation was only “partially met” but, really, it was totally unmet. The report states:

Jury awards MARTA lieutenant $700,000 verdict

ShareThisPrint E-mail By Bill Rankin

The Atlanta Journal-Constitution

Just when I thought it was safe to go into the water, it is reported this morning that a young woman has died in a boating incident on Lake Lanier and police authorities have charged the man who was driving the boat at the time with BUI, Boating Under the Influence. This comes right on the heels of my last blog entry in which I reported the good news that the Georgia Department of Resources had indicated the Fourth of July Holiday was safer than expected in Georgia, with BUI’s on Georgia waters as being down this year from last year. My heart goes out to the family who has lost a loved one in this preventable incident.