Atlanta Injury Lawyer Blog

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).