Atlanta Injury Lawyer Blog

Bias in The Medical Community

October 15, 2023 | Robin Frazer Clark

In the past, we’ve discussed medical malpractice and wrongful death, but we don’t often consider exactly how someone with years or decades of training could overlook or outright refuse to treat patients with real concerns. Overweight women in particular have to contend with sex-specific ailments that tend to cause even OBGYNs to attribute every type of pain to “obesity” in general. Everyone can agree that being “healthy” is ideal, but isn’t that the point of going to the doctor in the first place? When doctors ignore their patients’ concerns, it can lead them to make poor choices that lead to injury or even death for their patients.

Non-Collaborative Treatment Plans

Every individual seeking medical care needs a specific treatment plan that fits their lifestyle and treats their concerns. The trouble with that is doctors aren’t specialists in every field. Complaints of stomach pain to a general practitioner may lead them to believe that a patient’s issues are simple to treat with over the counter medication; while a gastroenterologist may be better equipped to pinpoint what’s causing the pain. The trouble is getting to that specialist and for them to take your issues seriously.

Understanding Comparative and Contributory Negligence

September 15, 2023 | Robin Frazer Clark

Georgia has a thriving tourism industry and people from all over the world want to visit our amazing cities. As great as it is for our economy, it also brings thousands of drivers with different driving styles and oftentimes different personal injury laws. Like many states in the U.S., Georgia follows an “at-fault” system, otherwise known as comparative negligence, for determining liability in personal injury cases. Conversely, some of our neighboring states follow contributory negligence, which can add a layer of complexity to personal injury cases. Understanding these concepts may be helpful when traveling or if you’re in an accident that involves an out of state party.

The Foundations of At-Fault Systems

In an “at-fault” or “tort” system, determining fault is essential in personal injury cases. Comparative and Contributory Negligence are two legal doctrines used to allocate fault and assess liability for damages which impacts the amount of compensation for affected parties.

Duty of Care: Are Property Owners Liable for Crimes on Their Property?

August 15, 2023 | Robin Frazer Clark

When you go shopping, the last thing you want is for someone to run in and endanger everyone inside with a weapon. Similarly, if you’re sitting in your apartment, unwinding after work, you don’t want to have to worry about someone breaking into your car or through the front door. Becoming a victim of violent crime is never your fault, but based on some recent Georgia Supreme Court rulings, property owners may be liable for neglecting their duty of care. Premises liability regarding shootings and crime have become significant concerns in public and private settings, like apartments, malls, and parking lots. Under certain circumstances, if you’re harmed by violent crime in these places, you may be entitled to compensation.

Duty of Care and Business Owner’s Responsibility

Business owners have a “duty of care” to provide a safe environment for their visitors and patrons. This duty typically means they need to maintain their property and keep things in a reasonably safe condition. Sometimes, particularly in “high crime” areas, that means taking precautions to prevent foreseeable crimes or harm. For example, a mall owes its patrons the greatest duty of care because they are inviting them in to shop and there is a reasonable expectation of safety when they arrive. Malls in areas that have experienced a significant number of crimes may have a duty of care to provide appropriate security measures to prevent harm.

High Time for Georgia’s Antiquated, Outdated “Impact Rule” To Be Scrapped

July 24, 2023 | Robin Frazer Clark

A recent opinion by the The Georgia Court of Appeals, our Intermediate Appellate Court in Georgia, regarding Georgia’s obsolete “impact rule” certainly caused an impact, and not a good one. In Holt v. Rickman, A23A0612, 2023 WL 3858619 (Ga. Ct. App. June 7, 2023) an apartment guest brought action against owners and manager of apartment complex, asserting claims for premises liability and negligent hiring, retention, and supervision after she awakened to discover maintenance worker in her bed.

The facts of Holt are startling, to say the least. A guest of a resident staying in one of the apartments woke up to find an intruder lying next to her on top of the covers on the bed. The intruder was actually a maintenance employee of the apartment complex. He pulled the covers down saying he wanted to “see what she looked like under there.” As he did so, he touched the top of her head. The woman pretended to reach for a weapon and that caused the intruder to flee. As you can imagine, this bizarre incident had to have been frightening. During litigation it was discovered that the apartment complex hired the intruder/maintenance employee in 2016 despite a background check showing he had two pending child molestation charges. He had pled guilty to lesser charges of sexual battery against a child under the age of 16. He was on the Georgia Sexual Offender Registry. The Defendant, with this knowledge in hand, continued to employ him as a maintenance worker with access to a master key, which led to his ability to break into the apartment and to attempt to sexually assault the plaintiff.

The Georgia Court of Appeals held that Georgia’s antiquated “impact rule” applied to the situation and affirmed the grant of summary judgment to the apartment complex. Case dismissed. The “impact rule” is not state-of-the-art science about how an event can affect someone emotionally or psychologically. In fact, it was created in 1892, when there was very little understanding, if any, of psychological trauma. The “impact rule” says that when a person suffers no physical injury as a result of the incident that forms the basis of the claim, there is no recovery for emotional distress. Georgia’s “impact rule” provides that “[i]n a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” Ryckeley v. Callaway, 261 Ga. 828, 828, 412 S.E.2d 826 (1992). To satisfy the rule, a plaintiff must show that she (1) suffered a physical impact that (2) resulted in a physical injury which (3) caused her mental suffering or emotional distress. Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 586 (I), 533 S.E.2d 82 (2000). A plaintiff’s failure to meet any one of the three requirements of the impact rule bars recovery even in cases “in which the circumstances portend a claim of emotional distress.” Id.

988 Suicide and Crisis Lifeline Marks One Year Anniversary

July 17, 2023 | Robin Frazer Clark

July 16 marks one-year anniversary of 988 Suicide & Crisis ...
Many of you know that I often write about suicide prevention. I hope you have read my latest blog on the Crosland Chroma Suicide Means Prevention art installation on top of the Georgia Institute of Technology library. Also, when the 988 Suicide Prevention and Crisis Lifeline was introduced, I wrote a blog about that. I hope you will take the time to read these two special blog posts.

The National Suicide and Crisis Lifeline, 988, marked its one year Anniversary yesterday. United States Health and Human Services Secretary Xavier Becerra observed the anniversary by noting “Through 988, our message to Americans in crisis is clear: support is here. And thanks to President Biden, millions of Americans have been able to seek out help. Nearly 5 million calls, texts, and chats have been answered over the past year – saving countless lives.

Anecdotally, we know 988 is working. For example, in Nebraska, before implementation of the new 988 lifeline in July 2022, the Boys Town National Hotline in Omaha was the home of the Suicide Prevention Hotline. In a natural evolution, Boys Town became the call center for 988 as well as the Nebraska Family Helpline. In 2021, before the existence of 988, Boys Town received 8,777 calls to the Suicide Prevention Lifeline. Since 988 Nebraska’s implementation, that number has more than doubled to 18,300.

Increased Tractor-Trailer Truck Weight Limits Could Have Devastating Impacts

July 15, 2023 | Robin Frazer Clark

The massive size and weight of commercial freight trucks are an impressive sight, and their use can be very convenient for our supply-chain needs, but their presence is an ever-looming threat. The number of large trucks on the road has increased over the last 20 years, but the danger they pose has not been appropriately mitigated. Recent Georgia legislation increased the intrastate truck weight limits to over 80,000 lbs for certain commercial industries. However, just because trucks of a certain size are limited to using certain roads and highways does not mean they’re any less dangerous.

Truck Safety Failures

The additional weight carried by trucks and trailers significantly impact the safety of their drivers and the drivers around them. It’s basic physics; the heavier the object, the more effort it takes to stop once it’s in motion. Truck drivers are trained professionals, but there are still many safety factors to consider aside from possible negligence. Increased weight can affect multiple moving parts, including brake systems, tires, suspension, and early impact detection systems. This leads to significantly longer stopping distances, reduced overall maneuverability, and increased chances of parts failures for brakes and tires. No matter how much training a licensed commercial driver has, it will not prevent the possibility of a crash or limit the severe consequences for other vehicles involved. Regardless of how fast a truck is going on the road, if the driver fails to pay attention for a single moment, it could cost lives.

Medical Malpractice: When Professionals You Trust Violate an Oath

June 15, 2023 | Robin Frazer Clark

When you visit the doctor for a checkup or for a more serious matter, you’re entrusting them with immensely private information that is supposed to help them help you. But what happens when a medical professional violates that trust, and you end up being harmed in the process? Medical malpractice can have a devastating impact on a patient’s life and can lead to long-term physical, emotional, and financial consequences. Although it’s impossible to tell which doctors are more likely to be negligent than others, understanding the impact can give you a better idea of how to move forward after experiencing this kind of injustice.

What Constitutes Medical Malpractice?

Medical malpractice is when a healthcare professional (like a doctor or nurse) or facility fails to provide adequate care, which results in harm or injury. This can include misdiagnosis, surgical errors, prescription errors, or birth injuries. For example, if a doctor fails to take a patient’s ailments seriously and fails to diagnose cancer, the cancer could spread and become more difficult to treat. Another example is if a surgeon makes a mistake during a procedure and results in injury or death to the patient. In some terrifying and notorious cases, surgeons have left tools or materials inside someone’s body, leading to later serious complications. All of these are examples of medical malpractice.

Reduce Suicide With Means Restrictions: The Crosland Chroma Project at Georgia Tech

June 13, 2023 | Robin Frazer Clark

This is my son, Chaz. He is an artist and an architect and I am very proud of him. As an artist he goes by chastainbernard. The colorful panels behind him were created by artist/architect Tristan al-Haddad who owns the studio Formations. Chaz works with Tristan now and he also worked with Tristan last year to design and create these colorful panels that were installed on the top of the Georgia Tech Library, Crosland Tower (shown below) on the beautiful Georgia Tech campus in Downtown Atlanta. It is called “Crosland Chroma.” You can learn more about the conceptualization of the project here. Chaz had the incredible opportunity to work on this project while he was studying for his Masters in Architecture at Georgia Tech. Tristan was one of his many inspirational professors. You can enjoy a short video of how they painstakingly created and installed these gorgeous panels and you might even see Chaz here and there in the video. They unveiled the Chroma Project shortly before Chaz graduated in May 2022. They make a beautiful prism through which to view the downtown skyline. Many students study or enjoy a cup of coffee on top of Crosland Tower and now they enjoy the colorful prismatic effect these panels have on their surroundings. It is truly beautiful.

What may not be obvious is that these beautiful panels also serve as a type of “means restriction” to prevent suicide by way of jumping off the top of Crosland Tower. These panels are made of a super-duty strong, heavy acrylic and are only a few inches apart from each other. They are anchored in concrete by large metal bolts. You can not possibly pull them or spread them apart to get to the edge of the tower to jump.

Those of us who study suicide in an effort to prevent it have found that “means restriction,” i.e., restricting whatever means someone might use to kill oneself, can help reduce suicide. According to the National Institute of Health, “Limitation of access to lethal methods used for suicide—so-called means restriction—is an important population strategy for suicide prevention. Many empirical studies have shown that such means restriction is effective. Although some individuals might seek other methods, many do not; when they do, the means chosen are less lethal and are associated with fewer deaths than when more dangerous ones are available.” Means restriction must be multi-faceted, to include various ways one could kill oneself, e.g., removal of narcotic drugs and alcohol, removal of ways to hang oneself, removal of guns from the home or office, prevention of jumping from high places, etc. In a suicide crisis, the length of time someone seriously contemplates suicide, tends to be short-lived. Over 25% of teens nationally said it was only 5 minutes from the time they made the decision until they acted on it. Another 30% said it was less than 24 hours. We know this from suicide survivors who have jumped from the Golden Gate Bridge in San Francisco, who have said the minute they jumped, they regretted it. If they had only been prevented by jumping for just a minute or two, they wouldn’t have done it. Now, The Golden Gate Bridge has installed large nets around it as a means restriction for those who want to jump to kill themselves by suicide. This particular Suicide Deterrent System is called “The Safety Net,” and it will, hopefully, prevent the 30 or so suicides every year on the Golden Gate Bridge.

Cobb County District Attorney Makes the Right Call Not to Retry Ross Harris for Murder

May 31, 2023 | Robin Frazer Clark

I am happy to see that the Cobb County, Georgia District Attorney has now made the decision not to retry Ross Harris for the murder of his child when he left his child, Cooper, in a hot car. You may recall that the Georgia Supreme Court reversed the conviction in a strongly worded opinion. The Cobb County District Attorney’s office waited for almost a year before making the decision not to retry Harris for murder. Tip of the cap to Mr. Harris’s attorneys, Max Kilgore, Carlos Rodriguez and Bryan Lumpkin, who never gave up even after their client was convicted back in 2016. They have always maintained that Harris was a loving father and the boy’s death was a tragic accident.“Ross has always accepted the moral responsibility for Cooper’s death,” they said in a statement after the charges were dismissed. “But after all these years of investigation and review, this dismissal of charges confirms that Cooper’s death was unintentional and therefore not a crime.”

You may recall that I wrote a blog post back in June 2022 when the Georgia Supreme Court reversed the conviction of Ross Harris for killing his child by leaving him in a hot car. I thought then it was a prosecutorial overreach and that Mr. Harris never should have been tried on murder charges for the death of his son. My reasoning was based upon study after study showing how easy it is to forget you have a child in a car seat in the back seat, especially if your usual daily schedule is changed ever so slightly. Now, there are numerous cellphone applications (“apps”) that tell you to check the backseat and make sure you don’t leave your child there in the car. Waze Child Reminder and Kars for Kids are a couple of examples. Also, some newer model cars include such reminder to check the back seat and there are now child seat alarms that will alert you if you accidentally leave your child in his or her car seat. One low-tech suggestion is to leave a stuffed animal in the front seat to remind you your child is in the back seat. When my husband and I were raising our children, who are now adults, we didn’t have anything like that to help and it was a constant worry for us. In fact, there was a news report yesterday that an 11 month old baby girl died in a hot car when her parents left her in their car while they attended church.

At trial, the Cobb County prosecutors admitted a lot of evidence regarding Mr. Harris’s communications through the internet with women he wanted to have sex with. Some of these people turned out to be minors. It seemed as if the prosecution was trying to prove that Harris was not a nice guy. And they did that. But that evidence had nothing to do with leaving Cooper in a hot car in his car seat in the back. The Georgia Supreme Court upheld Harris’ convictions on three sex crimes committed against a 16-year-old girl that Harris had not appealed. He received a total of 12 years in prison for those crimes, and he will continue to serve that sentence, the district attorney’s office said.

Virginia Appellate Opinion on Drug Overdose Amnesty Shockingly Defeats the Whole Point of the Law

May 16, 2023 | Robin Frazer Clark

I don’t often write about appellate opinions from appellate courts of states other than Georgia, but as I was reading some recent appellate opinions, the Virginia case of Morris v. Commonwealth of Virginia, No. 1194-21-2 (VA Ct. App. May 9, 2023) and not for good reasons. Morris involves Virginia’s overdose reporting statute, Va. Code Ann. § 18.2-251.03(B)(2). Georgia has a similar statute but ours is arguably not as restrictive as Virginia’s and hopefully, our Georgia Appellate Courts won’t interpret it as strictly.

In Morris, Henrico, Virgina police officers observed a white Ford Edge trying to turn onto the road next to an emergency room. The vehicle nearly struck a curb in the turn lane and then stopped in the middle of the road, blocking through-traffic. The officers approached the vehicle, driven by Morris, and asked him to park the car. Morris said that “he was there to get help,” telling the officers that he had smoked crack cocaine. The officers thought he appeared to be under the influence of drugs and escorted Morris into the emergency room. As medical personnel drew a blood sample, Morris “made suicidal statements.” In response to law enforcement questioning, Morris said that he worked at Food Lion; he was high while at work and asked to sit in his boss’s car to call his mother; he had called his mother “because he was thinking about committing suicide”; and he had driven away from the Food Lion and had driven around awhile before heading to the Short Pump emergency room. When asked whether his mother had told him to “go to the ER,” Morris said he “chose to do so himself” because “he was thinking about suicide.” When an officer asked why he was considering suicide, Morris responded, “drugs.” Morris said that he used heroin, fentanyl, and cocaine, that he had smoked crack cocaine in his boss’s car, and that he “came to the ER to get help for the suicidal thoughts and his drug problem.” Morris alerted the officers to a crack pipe in the vehicle, which they found tucked in the crevice of the passenger seat. Morris v. Commonwealth, 1194-21-2, 2023 WL 3310315, at 1–2 (Va. Ct. App. May 9, 2023).

The Virginia overdose amnesty statute provides full immunity from “arrest or prosecution” for qualifying individuals (prior versions had characterized the immunity as an “affirmative defense”). It was amended to cover not only someone who helps another experiencing an overdose, but also the person who “is experiencing an overdose”—assuming other criteria in the statute are met. Before these expansions, we observed that the “clear purpose” of the law was to “encourage … prompt emergency medical treatment [for] those who have suffered an overdose as a result of ingesting a controlled substance.” Georgia’s drug overdose amnesty statute is similar. But the Virgina statute has a curious requirement that the statute does not apply unless the individual “remains at the scene of the overdose or at any alternative location to which he … has been transported until a law-enforcement officer responds to the report of an overdose.”