Atlanta Injury Lawyer Blog

Georgia Presumption that Physician Automatically Acted with “Due Care” is Unfair

January 17, 2013 | Robin Frazer Clark

I am in intense trial preparation this week for a medical malpractice trial I start on Tuesday in the DeKalb County State Court. As a plaintiff’s personal injury lawyer, I take just about any sort of case, including cases like the one I will try next week, against a physician for a medical error he committed during surgery. This type of case is known as a “medical malpractice” case, but all “malpractice” really means is “negligence,” and all “negligence” means is “carelessness.” In preparing for this trial I filed a Motion in Limine, which is a particular type of motion that seeks to limit the type of evidence that a jury is allowed to hear at trial. Part of my Motion in Limine is to prohibit argument or the charging of the jury on what is known in Georgia Law as the “presumption of due care.” It is a law that says doctors in Georgia are presumed to have used “due care” in their treatment of a patient, even though they are now being sued for it.

This strikes me as fundmentally unfair. No other Georgia citizen gets the benefit of a presumption by the jury that he or she exercised “due care.” This is even more unfair given the fact that to file a lawsuit against a Georgia doctor you have to attach to the Complaint an Affidavit by another doctor that says the Georgia doctor did, in face, commit malpractice, i.e., did not exercise due care. Presumption rebutted! Already!

Here is a portion of my Motion in Limine on the unfair “presumption of due care.”

Landlord’s Failure to Provide Smoke Detectors the Real Cause of Four Siblings’ Deaths

January 15, 2013 | Robin Frazer Clark

It was a tragic story of unspeakable loss when we learned of four siblings’ deaths in a Conyers, Georgia fire in a duplex on January 8, 2013. As a plaintiff’s personal injury lawyer, I so often help families deal with unexplainable loss and sorrow. We have since learned that the fire was started by a six year old brother of the four siblings who died. Apparently, the young boy was playing with a cigarette lighter in the stairwell of a duplex the family rented. I say “started the fire” instead of “caused their deaths” because the real “proximate” cause of the deaths was the lack of any smoke detectors in the rented duplex. “Investigators… determined that the only smoke alarm in the duplex was downstairs and that it had no battery in it. Dwayne Garriss, state fire marshal, said it is state law that smoke detectors must be placed outside any sleeping area. However, he said the landlord will face no liability, because the law carries no penalties for a first offense. It provides a $25 fine for a second offense.”

That’s a crime in and of itself, isn’t it? Certainly, failing to have the mandatory smoke detectors in place as required by law and then renting the duplex to a family with five small children is criminal. Under Georgia law (O.C.G.A. §25-2-40) an approved battery operated smoke detector is required in every apartment, house, condominium, and townhouse constructed prior to July 1, 1987. The smoke detector is to be located on the ceiling or wall at a point centrally located in the corridor or other area giving access to each group of rooms used for sleeping. Where the dwelling has more than one story, detectors are required on each story including cellars and basements, but not including uninhabitable attics. The detectors must be listed and meet the installation requirements of NFPA 72. The law is to be enforced by local building and fire code officials.

It seems that the landlord, at the very least, recklessly subjected the family to exactly this type of risk of death. Obviously, had there been smoke detectors, the alarms would have gone off and would have awakened the mother in time for her to save her childrens’ lives. Instead, they are dead and she is left with horrible burns on most of her body.

Georgia Highway Deaths Total 19 Over Thanksgiving Holiday

November 26, 2012 | Robin Frazer Clark

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It is a rather morbid statistic that the Georgia State Patrol keeps but it is helpful to keep track of, and that is the number of deaths on Georgia Highways during a holiday. For the just completed Thanksgiving Holiday, that unfortunate number is 19. This is an increase in the number of highway deaths from last year’s total at this same time of 13. There were also another 263 injuries from Georgia motor vehicle wrecks this year, down from 303 last year. Almost all of the fatal crashes involved either speed, alcohol, or the victim failing to use a seat belt.

The Governor’s Office of Highway Safety (GOHS) hopes these statistics and their efforts “will encourage responsible driving practices, and create safer roadways throughout the communities. With this information it is our hope that individuals and organizations work to reduce the number of motor vehicle crashes that occur yearly on Georgia roads and highways.” You can find more helpful information at http://www.gahighwaysafety.org/.

In my plaintiff’s personal injury law practice, I deal with death of someone’s loved one on a daily basis. I know that each of those 10 killed represents a loving family missing a beloved family member and I know that family is grieving over their loss. My heart goes out to each and every one that they may receive comfort and healing.

Your Own Car Insurance Company is Not Your Friend

November 16, 2012 | Robin Frazer Clark

Most people don’t realize this, but your own car insurance company, the one you pay premiums to to protect you, is your adversary, not your friend. You must treat them like an adversary whenever you are involved in a car wreck, even when it is not your fault. If you have purchased a non-mandatory type of coverage called “uninsured motorist coverage,” the minute you attempt to file a claim under that coverage your own insurance company and even your own insurance agent become your adversaries. Their sole goal at that point is not to pay you one cent under the uninsured motorist coverage. It doesn’t matter that you may have been an insured with that particular company for 40 years; these insurance companies have no loyalty whatsoever. How else do you think the insurance company has made literally billions of dollars in a down economy?

For example, State Farm, one of Georgia’s largest car insurers, managed a $777 million profit nationally in 2009. In just one month, February 2012,Progressive made $106.3 million in profit for the company, up 41 percent from the month before. Profits at GEICO were $587 million in 2011. These numbers are, obviously, nothing to sneeze at.

One way in which car insurance companies build up their other-worldly profits is through denial of claims, especially uninsured motorists claims. This type of coverage is insurance you buy to protect yourself in case you are injured either by another motorist who has no insurance at all (uninsured) or a motorist who has minimum mandatory insurance which is not enough to cover your medical bills. Little do you know that when you voluntarily pay those extra insurance premiums, the car insurance carrier will do everything in its power to avoid having to pay you even a dime. It becomes all out war and nasty litigation.

Texting While Driving Is Still a Major Problem for Georgia Highways

November 9, 2012 | Robin Frazer Clark

Many of you know one of my favorite topics to opine upon as a plaintiff’s personal injury attorney in Atlanta, Georgia is distracted driving. I have seen too many families lose loved ones in car wrecks because of another driver’s ridiculous insistence on texting while driving. It is rampant in Atlanta and all over the State of Georgia. On nearly a nightly basis as I drive home from my Midtown office, stopped in bumper-to-bumper traffic, I see at least one driver texting while driving (TWD). I have lately even seem almost defiant drivers holding their IPhone or Blackberry in the same hand that is holding the steering wheel and texting while driving. This is NOT just a teenage driving problem; the violators I see on a daily basis almost all seem to be adults.

And now we receive a report that the tool Georgia legislators gave law enforcement officers to help reduce or eliminate texting while driving is not being used. In the two years after a ban on texting while driving in Georgia took effect on July 1, 2010, state records reveal that fewer than 50 people a month have been convicted of the offense, for a total of 1,281 convictions as of Sept. 17. Last year, there were 3,840 crashes attributed to cell phone use/distracted driving in Georgia, according to the Governor’s Office of Highway Safety. Nine were fatal and 955 resulted in serious injuries. So we know it remains a safety issue for Georgia’s motoring public.

There is no question that the message not to text while driving is being conveyed by various groups or corporations as public service messages. Three years ago, before a law was enacted against it, there was not public messaging about the evils of texting while driving. Now they seem to be everywhere, both in the private and public sector. For example, AT&T is campaigning across the country through its “Txtng & Driving … It Can Wait” program. Most news stations have public awareness campaigns against texting while driving, e.g., the “No Text Zone.” Car insurers, like State Farm Insurance Company, have joined the fight to reduce texting while driving, which makes sense given the fact that as one of Georgia’s largest car insurers, it must often have to pay for the mayhem caused by texting drivers. Billboards all over the state of Georgia implore you not to text while driving. One I saw recently said “TWD has G2G.”

Women Trailblazers in the Legal Profession

October 19, 2012 | Robin Frazer Clark

REMARKS TO GAWL GEORGIA ASSOCIATION OF WOMEN LAWYERS, JUDICIAL LUNCHEON-OCTOBER 17, 2012-

ROBIN FRAZER CLARK, PRESIDENT, STATE BAR OF GEORGIA

Thank you, Susan, for that kind introduction and the very nice invitation of the GAWL to be with you here today. I see some dear friends in the audience today, and it’s always nice to have smiling faces in the audience.

Atlanta Wrong Way Crashes Are a Sign of a Deeper Problem

September 3, 2012 | Robin Frazer Clark

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There has been a frightening number of wrong way car wrecks in Metropolitan Atlanta lately, four since August 15, and all involving fatalities. This is extremely alarming on numerous levels. First, at least two of these involved alcohol. There is evidence the wrong way driver, the “at-fault” driver, had consumed alot of alcohol before driving the wrong way on the Atlanta road. It is easily understandable how an intoxicated person can confuse entrance and exit ramps to a highway or interstate. But the other two, ostensibly, didn’t involve alcohol. So how does a driver who is not impaired in any way make the fatal mistake of driving the wrong way on Georgia roads?

These wrong way crashes in which the “at-fault” driver was not impaired is indicative of a deeper problem, that of roadway design and adherence to the Manual on Uniform Traffic Control Devices (MUTCD). These wrong way crashes may have very well have been prevented with better warning signs or directional signs, or warning markers actually on the roadway itself that would alert an impaired driver he is going the wrong way. The Georgia Department of Transportation is responsible for maintaining our state highways, including Federal Interstates. Georgia, like all other states, has adopted the MUTCD as its policy for proper traffic control devices, which includes not only traffic signals, but all other kinds of roadway signage, markings, paintings, tapings, or actual physical barriers to roads. Supposedly, on a Georgia highway that is properly marked pursuant to the MUTCD, wrong way collisions simply would never occur. The fact that they have suggests the DOT is failing the motoring public with lack of adequate markings or signage or warnings.

Suggestions include glass beads in the road that show up as red for the wrong way driver, or sensors that detect a wrong way driver and alert policeman in the area, or sensors that would automatically disable a wrong way driver’s car, or even spikes that would cut only a wrong way driver’s tires to stop him before he can get very far down the road. You see these spikes often in rental car lots. The GDOT has declined using them on exit ramps, however, claiming they aren’t designed for car speeds of 40 m.p.h.

Vote in Georgia Tomorrow, July 31

July 30, 2012 | Robin Frazer Clark

Friends: Tomorrow, we citizens of Georgia, get the opportunity to exercise one of our sacred rights: the right to vote. I urge each of you to do so.

Other than serving on a jury, voting may be the single most important thing you do as a citizen. During my personal injury trials I often tell a jury that a vote on a jury is even more powerful than a vote in an election because as a jury member, your vote is one of twelve, and in an election, your vote is one of thousands. But elections have consequences, and as responsible citizens we Georgians must vote our consciences to try to shape the consequences rather than simply complain afterwards.

The United States Constitution, in Article VI, section 3, stipulates that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The Constitution, however, leaves the determination of voting qualifications to the individual states. Over time, the federal role in elections has increased through amendments to the Constitution and enacted legislation, such as the Voting Rights Act of 1965.[1] At least four of the fifteen post-Civil War constitutional amendments were ratified specifically to extend voting rights to different groups of citizens. These extensions state that voting rights cannot be denied or abridged based on the following:

Boating Under the Influence: Is It Time for More Regulations in Georgia?

June 29, 2012 | Robin Frazer Clark

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.”