Nobody accused of a federal crime should be penalized for exercising their Sixth Amendment right to trial.  And yet, because of the trial penalty, that happens all too often.[1]

The trial penalty refers to “the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial.”[2]  At least in part because of the trial penalty, federal criminal trials are on a steep decline.  Thirty years ago, 20% of federal criminal cases went to trial.[3]  Today, fewer than 3% of federal criminal cases result in a trial, and more than 97% of criminal cases are resolved by plea.[4]  As the National Association for Criminal Defense Lawyers (“NACDL”) has accurately observed: “[t]he Sixth Amendment right to trial [is] on the verge of extinction.”[5]

The trial penalty can be traced back to the sentencing reform push of the 1980s, which led to the creation of mandatory minimum sentencing provisions and the sentencing guidelines, and in turn, more powerful prosecutors and less powerful judges with more limited discretion.  Charge and fact bargaining, excessive guidelines ranges, departure provisions conditioned on pleading guilty, and statutory mandatory minimums, are all key reasons for the emergence of the trial penalty.  For example, rather than reserving mandatory minimum sentencing provisions for the most culpable defendants, prosecutors have at times used them “to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.”[6]

A dog bite or an attack can be devastating.  Ranging from children to adults, dog bites/attacks can result in serious injury, permanent scarring, disfigurement, or even death.  Consequently, a dog bite can raise multiple theories of liability.

For a dog owner to be held liable for a dog bite or attack, the injured party must prove the dog owner knew the dog had a vicious propensity or was not properly restrained in violation of a local leash law.  O.C.G.A. § 51-2-7.

Vicious propensity is proven by demonstrating the dog’s history of aggressiveness and that the owner was on notice of such aggressiveness.  Steagald v. Eason, 300 Ga. 717, 797 S.E.2d 838 (2017).  Evidence that the dog has engaged in aggressive behavior in the past, such as snapping at people, can demonstrate a dog’s viciousness.  Steagald v. Eason, 300 Ga. 717, 797 S.E.2d 838 (2017).

Subrogation is a complicated concept and likely one that you had not heard of until getting involved in a lawsuit. Narrowing the scope of this blog to personal injury cases, subrogation allows an insurance provider to stand in the shoes of the injured party.  In the context of personal injury claims, the question is who should pay for an injured party’s medical expenses and how much should be paid.

Let me illustrate.  Say you are injured in a car accident at no fault of your own and you are rushed to the emergency room.  After being discharged, you begin treating with an orthopedist.  Subsequently, you need surgery and are required to undergo weeks of physical therapy.  The whole time, your health insurance is paying for all or a portion of your treatment costs.  You decide to sue the at-fault driver.  Now the question is whether the at-fault driver’s insurance should reimburse your health insurance for the treatment it paid for.  The thought being that you, the injured party, would never have needed this treatment but for the actions of the at-fault driver and thus the at-fault driver’s insurance should be paying for your treatment.  Subrogation would allow your health insurance company to stand in the shoes of you, the injured party, to recover those costs of treatment that had been paid.

Subrogation, however, is not an automatic right.  Just because a health insurance or benefit provider paid for your treatment resulting from an accident does not mean the health insurance company is automatically entitled to reimbursement from the at-fault party’s insurance.

To start off, lets define what a demand is. Demands come in many forms, but when it comes to personal injury, a demand is a written formal request for payment to settle an outstanding claim or legal matter.  More simply, its an offer stating the amount of money it would take for your client to settle all claims and dismiss or refrain from filing a lawsuit against the party that caused harm.  Accordingly, it is important that it is presented well.

Writing a demand is an art form. It is an opportunity to lay your cards on the table and show the seriousness of your claim or case.  The language that you use needs to strike a balance between presenting the objective facts and being persuasive. You need to build your case and demonstrate the consequences if the terms of your offer are not met (i.e., that suit will be filed, attorney’s fees incurred, etc.).

There are multiple pieces needed to create a persuasive and effective demand.  To start, consider dedicating a portion of the demand to introducing your client.  Give a background.  Humanize the name and the injuries sustained.  Next, discuss liability.  Demonstrate the facts that indicate who is at fault.  Following, go through the damages.  In a personal injury case, that will mostly mean going through your client’s medical treatment resulting from the incident.  Do not skim over the damages.  Take time to articulate the affect/impact of the negligence on your client.  Next, outline the terms of your settlement. Identify the monetary amount that would be required to settle, set a deadline for response and payment, and describe the nature of the release you are providing.  Finally, close your demand out with a punchy conclusion, reiterating your offer and position.

Damages in a medical malpractice case are no different from those in a typical personal injury case.  A plaintiff is entitled to recover both general and special damages.  General damages, obviously, include compensation for physical and mental pain and suffering, both past and future, as well as a diminished capacity to work, labor, and earn money.  These are elements encompassed in the definition of pain and suffering as well.

Because pain and suffering is considered an element of general damages, it is awarded to a plaintiff to compensate for non-pecuniary losses and hardships whether mental, physical, or both.  The measure of such damages is the enlightened conscious of fair and impartial jurors.  Roberts v. Chapman, 228 Ga. App. 365, 492 S.E. 2d 144 (1997).  If a plaintiff can show that he or she will likely continue to suffer physical and mental pain as a result of injuries into the future, then the jury may award damages for future pain and suffering.  Bennett v. Haley, 132 Ga. App. 512, 208 S.E. 2d 302 (1974).  Again, a plaintiff’s diminished capacity to labor and earn money is an additional element of general damages which can be included in a pain and suffering award.  Baxter v. Bryan, 122 Ga. App. 817, 178 S.E. 2d 724 (1970).

Special damages in a medical malpractice case can be extensive.  If malpractice occurs and a plaintiff is hospitalized for weeks, if not months (and we have had cases where the plaintiff was hospitalized for over a year) the medical expenses can be extraordinary.  Such damages, of course, are deemed to be special damages under O.C.G.A. § 51-12-2.  Special damages include medical expenses, past, present and future, lost wages, future earnings and lost profits.

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.

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.

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

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.

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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