Trial Attorney Blog

Time Limitations in Georgia Medical Malpractice Cases

Published on: October 21, 2020 | By Finch McCranie, LLP

In most instances, medical malpractice cases in Georgia are subject to a two-year statute of limitations from the date of injury or death. See O.C.G.A. § 9-3-71(a). Medical malpractice cases differ from automobile cases and other types of tort cases in that it typically takes much longer to prepare and file suit. In many instances, it takes a minimum of three months from when the case first comes in to 1) obtain certified medical records, 2) find an expert to review the case, 3) prepare the Complaint and expert Affidavit and 4) file and serve the defendant(s). In any medical malpractice case where the relevant statute of limitations will expire in six months or less, a practitioner should carefully scrutinize the potential case and act quickly in either moving forward with the case or notifying the potential client in writing, preferably via certified mail or using some other verified service method, that they will not accept the case.

While the typical medical malpractice case is subject to a two-year statute of limitations, there are exceptions:

In “foreign object” cases involving leaving objects inside patients during surgery, such as sponges, needles, broken scalpels, etc., may be brought any time within one year of discovery of the object. See O.C.G.A. § 9-3-72.

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Trucking Accidents and Commercial Vehicle Accidents in Georgia

Published on: October 14, 2020 | By Finch McCranie, LLP

Georgia trucking accidents and commercial vehicle accidents are significantly different than typical motor vehicle collisions that involve two individuals driving privately in vehicles and are not working on behalf of their employer at the time of the wreck. The primary reason for this is that tractor-trailers and other commercial vehicles are governed by the Federal Motor Carrier Safety Regulations, which have also been adopted by the State of Georgia. A “commercial vehicle” is defined as any vehicle used on the highway or interstate transporting people or property with a gross weight lading of 10,001 pounds or more. This means that if the vehicle, trailer, and load equals more than 10,001 pounds, the vehicle is a “commercial vehicle.” And subject to the Federal Motor Carrier Safety Regulation (“FMCSR”).

The FMCSR is a comprehensive framework of policies and procedures governing the operation and maintenance of tractor-trailers and other commercial vehicles. Every company that operates commercial vehicles is subject to these regulations and the State of Georgia and all over the Country. A company can be held liable for any trucking accident or commercial vehicle accident that resulted from a violation of the FMCSR. Every driver of a commercial vehicle must perform a Pre-Trip inspection which involves inspecting the service brakes, parking brake, steering mechanism, lighting devices and reflectors, tires, horn, windshield wipers, rear vision mirrors, and coupling devices. The driver must document this Pre-Trip inspection and the driver’s employer must maintain these Pre-Trip inspection forms and keep them on file.

For drivers operating commercial vehicles in excess of 26,001 pounds, employers are required to conduct a comprehensive background check of the driver prior to beginning their employment. A driver applying for a job with a trucking company must complete an Application disclosing any moving violations or accidents for the 3-year period prior to the date of application and identifying each employer for whom the driver has worked for the past ten (10) years. In turn, within thirty (30) days of hiring a driver, the trucking company must send written inquiries to the driver’s prior employers for the 3-year period prior to the date of their employment and also must obtain a Moving Violations Report (“MVR”) from any state that has issued a license to the driver for the preceding 3-year period. The driver is also required to undergo an examination by a physician and obtain a Medical Examiner’s Certificate of Fitness. A Pre-Employment Drug and Alcohol Screening is also mandatory.

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The Right to Confrontation in an Era of Videoconferences

Published on: October 12, 2020 | By Finch McCranie, LLP

Videoconferencing has skyrocketed in popularity because of the pandemic. Just check Zoom’s stock. Seemingly overnight, what used to be an irregular method of business communication has become commonplace.

Courts have embraced the craze, frequently holding hearings and other meetings by video. But there are limits to what a court can permissibly accomplish by video. While some observers have suggested videoconferencing is a potential solution to the problem of requiring live, in-person testimony during a pandemic spread by airborne particles, the Supreme Court of Michigan held in a recent criminal appeal that “two-way, interactive video testimony violated the defendant’s Confrontation Clause rights.”[1]

U.S. Supreme Court Precedent on the Confrontation Clause

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Georgia Medical Malpractice Cases in the Time of COVID-19

Published on: October 8, 2020 | By Finch McCranie, LLP

Prior the COVID-19 pandemic, in order to successfully bring a medical malpractice claim in Georgia, a plaintiff was required to offer expert medical testimony to the effect that the defendant physician or healthcare provider failed to exercise that degree of care and skill which would ordinarily have been employed by the medical profession generally under the circumstances. See Boling v. Foster, 254 Ga. App. 374 (2002). The legal duty owed by medical professionals was to exercise “a reasonable degree of care and skill.” See O.C.G.A. § 51-1-27. This is the standard that applied in the vast majority of medical malpractice cases. A narrow exception existed for the provision of emergency medical care in a hospital emergency department or obstetrical department, where it is necessary to prove by “clear and convincing evidence” that the physician or healthcare provider’s actions showed “gross negligence.” See O.C.G.A. § 51-1-29.5(c).

This threshold for proving liability in Georgia medical malpractice cases changed with Governor Kemp’s Executive Order entered April 14, 2020 concerning the Covid-19 crisis. Executive Order 04.14.20.01, limits liability for any harm done by the employees, staff, and contractors of healthcare institutions and medical facilities during the “Public Health State of Emergency” as to negligence, but not gross negligence, regardless of whether such service is related to the Public Health State of Emergency. “Gross negligence” is the absence of even slight diligence, and slight diligence is defined as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” Gliemmo v. Cousineau, 287 Ga. 7 (2010). The Executive Order applies to all clinics, hospitals, nursing & assisted living facilities, as well as ambulatory surgical centers.

The Executive Order further provides that “The employees, staff, and contractors of healthcare institutions and medical facilities shall be considered auxiliary emergency management workers pursuant to Code Section 38-3-35.” O.C.G.A. § 38-3-35(b) provides that auxiliary emergency management workers are immune from liability for harm, including death, sustained by persons as a result of “emergency management activity”, unless such emergency activity causing the harm was due to willful misconduct, gross negligence, or bad faith. O.C.G.A. § 38-3-3(2) defines “emergency management” broadly, as “the preparation for the carrying out of all emergency functions … to prevent, minimize, and repair injury and damage resulting from emergencies … These functions include, without limitation … emergency medical services … together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions.” This means that “auxiliary emergency management workers” are immune from liability even if they acted negligently in providing medical care to a patient in Georgia. Instead, in order to recover a plaintiff must prove that the medical care provided constituted gross negligence.

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DOJ’s Focus on PPP Fraud and Some Investigative Considerations in Evaluating a Client’s Exposure to Prosecution

Published on: September 10, 2020 | By Finch McCranie, LLP

In the early days of the Coronavirus pandemic, Congress passed relief legislation authorizing unprecedented federal aid to states, businesses, and individuals. In short order, a torrent of federal spending flowed. While those days may seem long gone as initial relief dollars have dried up and Congress is now debating additional relief programs, the Department of Justice (“DOJ”) remains focused on investigating and prosecuting fraud schemes arising from relief programs rolled out at the beginning of the pandemic.^[1]

One of the relief programs receiving special attention from DOJ is the Paycheck Protection Program (PPP), administered by the Small Business Administration (SBA). Through the PPP, participating banks lent money to qualifying businesses, which loans the SBA guaranteed. Subject to certain conditions, the SBA agreed to forgive the loans. Some of the key loan conditions included, for example: the requested loan was to be used to pay costs eligible for forgiveness (e.g., payroll, mortgage interest, rent and utility costs); payroll was to be capped at $100,000 per employee, annualized; the borrower was not to reduce salaries or hourly wages by more than 25 percent for any employee during the relevant period.^[2] To obtain the loan, the borrower had to sign and certify the PPP loan forgiveness application.

DOJ’s initial investigations of PPP fraud schemes have appeared to focus on the eligibility of borrowers (i.e., whether they had a real business with real employees, whether the size of the payroll matched representations in the loan application, etc.) and the use of the proceeds (i.e., whether the proceeds were spent on permissible items). Thus far, DOJ’s prosecutions for PPP fraud have involved allegations of egregious misconduct. As DOJ’s enforcement efforts continue, it is likely that DOJ will start bringing prosecutions concerning conduct that may be closer to the line and that may fall in gray areas.

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What Damages Are Available In Wrongful Death Actions?

Published on: June 5, 2013 | By Finch McCranie, LLP

In Georgia when an innocent person is killed due to the negligence of a third person, the survivors have a claim for wrongful death damages. The full value of the life of the decedent includes both economic and non-economic components. The economic components are more readily deduced. If you take the earning capacity of the decedent, you multiply it over their projected work life expectancy and come up with a calculation as to what future lost wages would be due to the wrongful death. This is easier with a proven track record of earnings but more difficult for a child with no such record. Even in such cases, wrongful death damages can be estimated by an economist based on the educational background of the decedent’s parents.

In addition to the economic lost wages caused by a wrongful death, the survivors who have the cause of action are entitled to recover the “non-economic” damages due to the death. Such damages are measured from the standpoint of the decedent, however, and not the survivors. This means that a jury is required to look at what the decedent lost when he/she died. What did they lose by the way of companionship and life experiences? In short, what were all the intangible (non-economic) losses due to the wrongful death, which, of course, includes life itself and how many years of the enjoyment and richness of life itself were lost, which is based on the projected life expectancy of the decedent.

All wrongful death cases are quite tragic for surviving family members. When a young person dies or even a middle aged person, its very, very tragic for the survivors. Even those in the latter years of their life have their lives cut short because of the negligence of third parties which entitles their survivors to compensation for s life that was wrongfully taken and wrongfully cut short. While all cases are factually specific, under Georgia law, the age of the decedent, of course, factors into exactly how much was lost from both an economic and non-economic perspective.

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Challenges Associated With Serious Burn Injury Cases

Published on: June 4, 2013 | By Finch McCranie, LLP

Our firm regrettably has encountered several tragic cases involving serious burn injuries. These cases arise in a variety of contexts. Some of our clients have had chemical burns, others have had burns suffered in fires caused by defective products. We have handled wrongful death cases involving the death of young children due to defective air purifiers and serious disfigurement caused in automobile collisions and/or tractor-trailer accidents. Regardless of the factual context, for the victim who is innocent in the premises and suffers serious burn injuries due to chemicals, fire or otherwise, the effects of such injuries can be not only traumatic and extremely painful but also permanent, as oftentimes such injuries are disfiguring.
After the initial trauma, the question in these cases is the degree of disfigurement and how long it will impact the innocent victim. Burn injury victims oftentimes have difficulty being in the sun at all and must cover themselves. They have trouble with hot water when showering, bathing and otherwise. The disfigurement and scarring associating with burns, obviously, can be a part of the traumatic injury itself with the greater the disfigurement, the greater the future damages. In addition, plastic surgery is oftentimes necessary to revise scars which can result in increased medical expenses over and above those immediately following the traumatic injury.
If someone is involved in an accident, such as a tractor-trailer, collision where a vehicle catches fire, not only do victims oftentimes suffer orthopedic injuries, as an example, but also burn injuries. Such an injury can make the situation even more traumatic because the pain associated with multiple injures, obviously, compounds the trauma sustained by the victim. In all serious burn injury cases, it is extremely important that counsel gather all pertinent information, not only concerning the original injury but also the impact upon the client as they go forward in life. The greater the disfigurement and scar tissue, the longer it is that the victim will suffer and/or incur medical expenses and possibly lost wages all of which has to be taken into consideration in achieving a just result for the innocent victim of such injuries.

Henry County Police Chase Ends In Death Of Teenage Passenger

Published on: May 21, 2013 | By Finch McCranie, LLP

On April 2 of this year, we blogged about an important decision rendered by the Georgia Court of Appeals on March 28, 2013 indicating that innocent passengers unwittingly involved in high speed police pursuits can file a claim for damages sustained if they prove a reckless disregard of proper police procedure by the police officer initiating or continuing the pursuit. The newspaper accounts of the incident in Henry County do not provide much by way of detail but apparently police officers were pursuing the vehicle and there may have been a PIT maneuver of some kind as the vehicle was struck by a police officer (and or the victim’s vehicle struck the police officer’s vehicle itself), which caused the victim’s vehicle to run off the road. It overturned several times and a female passenger was killed. There is no information about what really precipitated the pursuit and/or whether the female passenger had any involvement in any illegal activity. However, the current State of Georgia law is that a passenger unwittingly caught up in a police pursuit has a claim against the pursuing governmental entity involved if the pursuing officer recklessly disregarded proper police procedure.
In Georgia, police officers do not have to worry about being sued if they follow proper procedure during police pursuits. The public wants the police to pursue violent offenders and those who are a danger to the public. However, if the pursuit involves a minor offense and the public is unnecessarily endangered by the pursuit, innocent passengers have a right to expect that the police will not recklessly disregard proper police procedure during the initiation or continuation of what is a dangerous pursuit for a minor offense.
In the case in Henry County, we do not know whether the passenger has a claim nor do we know if the officer recklessly disregarded proper police procedure. All of these cases are factually specific. However, if the police were pursuing for a non-violent offense and they disregarded proper police procedure in general in the initiation or continuation of the pursuit, provided the passenger was committing no illegal acts nor was aiding and abetting the flight from the officer, then in that event, the passenger would have a right to seek damages. Once again, regardless of the actual facts, this case proves yet again just how dangerous and deadly high speed pursuit cases can be.

Filing A Federal Tort Claims Act Case Against the United States

Published on: May 4, 2013 | By Finch McCranie, LLP

As is true of any other claim against the Federal Government, if a tort has been committed for which a government employee was negligent which caused injury or damages to an innocent third party, the procedures of the Federal Tort Claims Act govern the claim. A Standard Form 95 with all supporting documents needs to be filed with the appropriate government agency involved before the expiration of two years. Regardless of the agency involved, the form must to be received by the appropriate agency/department. We use a hypothetical claim against the Postal Service here to address this important point.

With regards to claims against the Postal Service, effective August 23, 2011, the rules and regulations changed concerning where written communications should be directed. Previously, Notice of Claims were sent to the Chief Counsel National Torts Center in St. Louis, Missouri. Effective August 23, 2011, all written communications should instead be directed to the General Law Service Center, USPS National Torts Center, 1720 Market Street, Room 2400, St. Louis, Missouri 63155-9948.

When sending out a Form 95, where practicable, the local Post Master should be served with the Standard Form 95 as well as the Chief Counsel for the Torts Division at the address indicated. Indeed, we usually send out redundant copies of the Form 95 and with respect to Postal Service claims, we send it to the local Post Master, to the Chief Counsel of the Torts Division at the General Law Service Center address specified and also just to the General Law Service Center without the Chief Counsel’s address on it as a back up. In short, practitioners want to make sure that the Form 95 is received by the Postal Service and acted upon by the appropriate personnel. By sending redundant copies to multiple addresses, a claim with the Postal Service is likely to be responded to in a more expeditious manner.

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Legal Liability For Emergency Vehicle Negligence

Published on: April 15, 2013 | By Finch McCranie, LLP

In urban America it is not uncommon to see speeding government vehicles heading toward a variety of locations. Whether the emergency vehicle be a fire truck, an ambulance or police vehicle this is a common day occurrence in places like Atlanta. Regrettably, during some of these responses, the emergency vehicles collide with innocent motorists. When this happens, obviously, the issue is whether there is legal liability for the operator of the emergency vehicle/government.

Under O.C.G.A. § 40-6-6, emergency vehicles are permitted to disregard traffic rules and regulations otherwise in place. For example, if the speed limit is 35 miles per hour in a particular location, an emergency vehicle may disregard that speed limit, however, in order to do so, the emergency vehicle should display its lights and sirens and even when doing so must exercise “due regard” for the safety of the motoring public. Regrettably, this is not always done with the foreseeable result that innocent third parties at the wrong place at the wrong time are injured.

If a police vehicle is responding to a radio call for assistance at a suspected scene of a crime and the police vehicle is traveling in excess of the posted speed limit, unless the police vehicle has on emergency lights and siren and is otherwise exercising due regard for the safety of the motoring public, the government entity responsible for its operation can be held liable if an innocent person is injured or killed during a collision caused by the failure to exercise such due regard. Under Georgia law, there is a waiver of sovereign immunity for the negligent operation of governmental vehicles up to a maximum of $750,000.00. While many injuries and deaths due to governmental negligence can result in damages in excess of this statutory limit, nonetheless, currently, this is the extent of the waiver of sovereign immunity when it comes to the negligent operation of government vehicles.

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