Atlanta Injury Lawyer Blog

Seat Belts Save Lives

March 27, 2008 | Robin Frazer Clark

The Atlanta Journal and Constitution’s Editorial Board came out on Monday in favor of legislation currently pending in the Georgia General Assembly that would toughen penalties for teenagers who are caught not wearing their seatbelts while they are driving or riding in a car. The legislation, HB 924, is currently “dead” because it was not passed by one house prior to “cross-over” day, the deadline for legislation to pass at least one house to be considered by the other house. The sponsor of the legislation, Representative Melvin Everson (R-Snellville), will be looking at other bills still alive to which he could attach his seatbelt legislation.

This legislation is a good idea. As both a personal injury trial lawyer in Atlanta and a mother of a teenager, any law that would stiffen penalities for teenagers who don’t wear their seatbelts will save lives. Too often I have sat here in my office with parents who have either lost a child or had one seriously injured because they weren’t wearing their seatbelts at the time of a car wreck. Parents often tell me they insist on their children wearing seatbelts while riding with them, but it is a different story when those same teenagers are in a car with their friends. Their parents’ rules of wearing seatbelts are quick to fly out the window.

And it has been proven in recent medical studies that teenagers simply don’t have the brain development necessary to be able to make good judgment calls, such as always wearing seat belts. These new studies show teenagers are more likely to demonstrate impulsive behavior rather than sound judgments because the frontal lobes of their brains, that area where high thinking or executive functioning takes place, is not fully functional during teenage years. Teens simply don’t have the appropriate level of brain functioning to make good judgmental decisions such as always wearing their seatbelts.

Car Accident Victims Really Are In Pain

March 19, 2008 | Robin Frazer Clark

wrecked%20car.jpg Finally, scientific proof that car accident victims aren’t crazy, they really are in pain. If only their doctors would listen to them and take them seriously when they say, even a full year after the car wreck, they are still in pain. A recent study published on Monday in the medical journal Archives of Surgery showed a year after the injury, 63 percent of car wreck victims reported that they still experienced pain related to the injury, with most having pain in more than one region of the body. On average, the patients assessed their pain at 5.5 on a 10-point scale — a level at which they would be expected to have moderate to severe interference with daily activities. The overall conclusion of the study: physicians need to offer better treatment for their patients.

As a plaintiff’s personal injury attorney here in Atlanta, Georgia, whose practice consists largely of helping people who have been severely injured in car wrecks or trucking wrecks, I have heard this from my clients consistently over the last twenty years. Yet, they often can’t seem to get the right treatment from their doctors, or even appropriate referrals to other physicians who might be able to help with alternative treatments. I have always suspected the physicians, strapped for time due to health insurers’ controlling their practices, just aren’t listening to their patients’ complaints. This study seems to confirm exactly what I have thought, and validates the complaints of many of my clients. Doctors simply need to do a better job listening to their patients.

The physician who led the study admitted as much. “I was surprised that the pain was as common and as severe as they reported it to be,” said Dr. Frederick Rivara of the University of Washington in Seattle, who led the study. “The implications are that we need to do a much better job of identifying pain in these patients, treating it adequately and treating it early,” Rivara added in a telephone interview.

Weak Roofs on SUV’s Kill SUV Passengers

March 17, 2008 | Robin Frazer Clark

Plaintiffs personal injury lawyers across the nation are resisting the urge to say “I told you so” after the recent study by the Insurance Institute for Highway Safety (IIHS) confirms what we have been saying all along: if SUV manufacturers would simply make the roofs of SUV’s stronger, it would save lives. The study concludes that more than 200 deaths could have been prevented in rollovers in 2006 if just a few more SUVs had roofs as strong as the best one it tested, and, of course, it follows that thousands of serious personal injuries, likewise, could have been prevented.
The IIHS study is extremely important because it proves what plaintiffs’ lawyers have been saying all along; that inadequate roof strength can be the cause of death of an occupant in an SUV during a rollover. That an SUV will, in fact, experience a rollover is a given, and manufacturers are supposed to design and plan for that occurrence. The study is also important because it exposes the National Highway Traffic Safety Administration (NHTSA) for what it is, a co-conspirator with automobile manufacturers to require only the most minimal of “standards,” (if they can even be called that) so that automobile manufacturers can continue to make hundred of millions of dollars on the backs of American citizens without reasonable attention to safety. Automobile manufacturers for years have defended against such cases by claiming to have complied with the NHTSA “standards,” but this study shows such compliance is mere window dressing, and really meaningless when it comes to actual occupant safety. Much research has been done that shows for less than $100.00 per car a manufacturer could double the strength of the roof regarding strength to weight ratio. It is unfortunate that American car companies care more about their bottom line than their customers’ safety.

Georgia Landowners Should Remain Responsible for Their Premises

March 10, 2008 | Robin Frazer Clark

The Georgia General Assembly remains in session today, and with every day, some other Georgia citizen’s rights are limited or even eliminated by that body. The latest example is the attempt by the Georgia Senate to extinguish a landowner’s liabilty when that landowner operates, for profit, a business that could loosely be described as agricultural in nature. This would include lucrative dove and quail hunting plantations, as well as the pick-your-own strawberry and pumpkin patches that many of our school age children go to on school sponsored field trips. The Georgia Trial Lawyers Association has consistently opposed giving immunity to the landowner in that scenario, especially where the landowner has advertised to get you to come onto their land and then has charged you a fee for being there. I think any normal Georgia citizen would believe and expect that landowner to make sure his premises were safe for his customers in that setting. But the current bill, passed by the Georgia Senate last week, would allow that landowner to get off scott free from any responsibility for injuries his property, if not kept in good repair, may cause a paying business visitor.

The editorial board of the Atlanta Journal and Constitution has published an opinion against the bill in today’s paper and I have copied it for you below. The bill now goes to the Georgia House to be voted on. Georgia citizens should call their respective State Representatives and ask they vote “no” on the so-called Agritourism Bill, Senate Bill 449. It is a cop-out for wealthy landowners and leaves ordinary Georgia citizens, like you and me, and our precious children, to hang out to dry. Whatever happened to taking responsibility for your actions? Under this bill, landowners could take your money and never worry about whether you’re safe on their property. Outrageous.

OUR OPINIONS: No immunity for agritourism

Health Insurance Carrier Caught Red-Handed

February 25, 2008 | Robin Frazer Clark

Congratulations to Patsy Bates of Los Angeles, California, who just was awarded a $9 Million arbitration award by an arbitration panel against HealthNet, her health insurance carrier, for it’s illegal cancellation of her coverage at the beginning of her treatment for breast cancer. The award came a day after the Los Angeles city attorney sued Health Net, claiming it illegally canceled the coverage of about 1,600 patients. City Attorney Rocky Delgadillo also said the company illegally ran an incentive program in which it paid bonuses to an administrator for meeting targets of policy cancelations. Health Net acknowledged that such a program existed in 2002 and 2003 but was subsequently scrapped.

This is a clear example of the callousness, and sometimes outright illegality, of the way in which insurance carriers attempt to avoid payment of legitimate insurace claims. Only this time, HealthNet got caught. This was an unusual situation because, apparently, there was an arbitration clause in the health insurance policy that allowed for pain and suffering damages. Most issues regarding payment of claims by a health insurance carrier are preempted by ERISA, and the injured policyholder is unable to sue in court to assert his or her rights under the policy.

Can we presume insurance carriers right here in Georgia are doing the same thing, i.e., cancelling a policy to avoid paying out on a legitimate claim? Yes, probably, they are. The little guy who is injured must continue fight the denial decision, and often at a time in that person’s life when he or she needs to be focusing on another fight, like one against breast cancer, as Ms. Bates did. Fortunately, we have Georgia trial lawyers, like me, ready to take on that fight!

Georgia Trial Lawyers Condemn the Solicitation of Victims of the Savannah Sugar Refinery Blast

February 18, 2008 | Robin Frazer Clark

I am proud to be a Past President of Georgia Trial Lawyers Association. It is made up of true trial lawyers who love representing the underdog against enormous odds. Our members are some of the finest lawyers in the State of Georgia and professionalism in all aspects of the practice of law is our hallmark.

The Atlanta Journal and Constitution has reported that following the Savannah Sugar Refinery blast last week, a lawyer from Texas took out a full page advertisement in the Savannah paper soliciting victims of the blast. There have also been reports that lawyers from a silk stocking law firm here in Atlanta, with an office in Augusta, has been soliciting victims who are currently being treated in the burn clinic in Augusta. This silk stocking (meaning big and expensive) firm typically defends very big corporations rather than representing individuals who have been harmed by the negligence of big corporations.

To be absolutely clear, the leadership of Georgia Trial Lawyers Association (GTLA) condemns such solicitation. These victims and their families need to be focusing on healing, not on such high pressure tactics as direct solicitation of victims immediately after the tragedy. Below is a statement from the President of Georgia Trial Lawyers Association, Joe Watkins, on behalf of Georgia Trial Lawyers Association, condemning the practice and rightfully putting focus on the needs of the victims and their families. Our thoughts and prayers are with them during this difficult time.

Georgia DOT Untrustworthy

February 6, 2008 | Robin Frazer Clark

Georgia citizens are being placed at risk by the Georgia Department of Transportation. Two Georgia DOT bridge inspectors have now admitted they lied when they certified 54 Georgia bridges as being safe. David Simmons, who worked in a team with Gerald Kelsey, admitted to filing reports for 54 bridges they hadn’t actually inspected, according to DOT. Steve Henry, director of operations at DOT, misses the point when he says “If we ever thought a bridge was unsafe we’d shut it down,” because without the actual inspections having been done, the purpose of which is to determine whether a bridge is safe for the traveling public, there is no way to know whether they are safe.

Although these two Georgia DOT rogue employees were forced to resign (shouldn’t they have been fired?), who knows what else is going on at the Georgia DOT and who knows whether Georgia citizens are really safe traveling on the roads and bridges in Georgia? We can only hope and pray that the good people of Georgia don’t learn of any more shoddy work by the GDOT the hard way, the way Minnesota citizens found out this past summer when a major Minneapolis bridge collapsed, killing several citizens. Georgia citizens deserve better.

Justice is Served: Oregon High Court Reaffirms $79.5M Jury Verdict in Philip Morris Case

February 1, 2008 | Robin Frazer Clark

Justice is Served…for the third time, no less. The Supreme Court of Oregon has reaffirmed a $79.5M jury verdict in a tobacco products safety case against Philip Morris. The award was for the family of Jesse Williams, a former Portland janitor who started smoking during a 1950s Army hitch and died in 1997 six months after he was diagnosed with lung cancer. A jury in Portland made the award in 1999.

The Oregon Supreme Court said in Thursday’s ruling that Philip Morris and the tobacco industry worked during the 1950s on a “program of disinformation” to create doubt about the dangers of smoking. Williams “learned from watching television that smoking did not cause lung cancer,” but, once he came down with it, said the “cigarette people” had lied to him.

What’s particularly satisfying about the Oregon Supreme Court’s decision is that it reaffirms, for the third time, that the jury in the American Civil Justice System knows best. Despite the repeated attempts by the United States Supreme Court to take away the plaintiff’s verdict in this case, the Oregon jury’s decision has finally prevailed, proving again the jury knows best and the jury system works. It seems that only when Big Corporate America loses a trial does it rail against what they term “activist”judges. What is surprising is, if there is any “activist” judges in this case, it is the United States Supreme Court justices. They tried and tried to take away the jury’s verdict and impose their own judgment on a trial that involved Oregon citizens and was decided by Oregon citizens. But, fortunately, the Justices’ attempts have failed and, hopefully, the jury’s verdict will now stand in this case.

Plenty of Blame to Go Around in Kentucky Comair Airplane Crash

January 31, 2008 | Robin Frazer Clark

You may recall the tragic Comair airplane crash in Lexington, Kentucky in 2006. The plane crashed after taking off from the wrong runway, killing 49 of the 50 people aboard. A federal judge Tuesday unexpectedly moved up by four months a trial to determine fault in the crash of Comair Flight 5191. In a hearing in federal court, U.S. District Judge Karl Forester set an Aug. 4 trial date for 29 families who have sued Comair over the August 2006 fatal crash at Blue Grass Airport.

There is plenty of blame to go around. The plane took off on a runway that was far too short for the aircraft. There was a construction project going on at the airport at the time and the maps the pilots had were not up to date. The National Transportation Safety Board found that the probable cause of the crash was pilot error. Comair, meanwhile, has sued the Federal Aviation Administration and Blue Grass Airport. It is appealing a ruling that the airport is immune from lawsuits because it is a government entity.

Kentucky law has been harsh to the families of the victims. The judge has ruled that those who lost loved ones in the 2006 crash of a Comair plane aren’t entitled under Kentucky law to sue the airline for loss of companionship. Kentucky is among four states that don’t allow jury awards for loss of companionship by surviving spouses. There also is no state provision for companionship damages for adult children or their parents, although the state does allow children younger than 18 to sue for damages when a parent is wrongfully killed.

Wealthy Insurance Companies Rob Their Own Insureds

January 31, 2008 | Robin Frazer Clark

It is happening in almost every personal injury case these days, a wealthy health insurance carrier grabbing a personal injury plaintiff’s settlement money under a roose called “subrogation.” It is robbery and every Georgia Citizen and every American citizen should be outraged. I recently saw an article that highlighted this tactic by health insurance carriers in the context of the Minnesota Bridge Collapse, which you will remember occurred earlier this year. The typical situation is you have a badly injured personal injury plaintiff who settles his or her lawsuit, and then his or her health insurance carrier steps in, having done absolutely NOTHING to procure the settlement, and recoups all of the money it has paid medical care providers for medical treatment for the plaintiff. What is even more repulsive is that the health insurace carrier has actually sold its account payable to a collection agency who then often fraudulently claims it is still the health insurance company acting. This is happening even though the Plaintiff has diligently paid his or her health insurance premiums all along.

It is a complicated analysis, but, fortunately, Georgia has the “made whole” doctrine, which says the plaintiff must first have been made whole before any third party, like the health insurance carrier, can just waltz in and take away the plaintiff’s settlement money unfairly. Fortunately, for Minnesota victims of the bridge collapse, Minnesota Lawmakers are trying to make up for bridge collapse survivors’ financial losses and out-of-pocket expenses and are brainstorming with attorneys about how they can keep health plans from recovering money meant for victims. I would urge the Georgia Lawmakers to do the same thing. Enough if enough.