This post will deal with the tolling of claims due to death and up until the appointment of an administrator.
Remember, a wrongful death action consists of two categories of claims:
those that belong to the decedent’s survivors and consists of the “full value of the life of the decedent,” and those that belong to the estate and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages.
As mentioned in Part I, punitive damages are not available as part of the wrongful death claim. They are, however, available in connection with the estate’s claims for the decedent’s predeath injuries and pain and suffering. Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 701 (1985).
Like with the wrongful death claim itself, punitive damages were not allowed under common law.
They are statutory in nature, and consequently, they are strictly construed.
This is Part I of a discussion concerning what damages are available in Georgia wrongful death cases. Part II will be published next week.
Wrongful death claims in Georgia are typically divided into two separate claims: (1) the wrongful death per se as measured by the “full value of the life of the decedent” without deducting for any of the necessary or personal expenses of the decedent had he or she lived; and (2) the estate claims, or the claims that would have accrued to the decedent had they lived and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages.
The “full value of the life of the decedent” is measured from the decedent’s perspective. This is different from many other states which focus on the impact the decedent’s death has on the surviving family members/party plaintiffs. The “full value of the life” concept has two distinct components, one is economic and the other is non-economic. The economic component consists of the “items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value.” The non-economic portion comprises those “intangible items whose value cannot be precisely quantified, such as a parent’s “society, advice, example and counsel . . . .” Consol. Freightways Corp. of Delaware v. Futrell, 201 Ga. App. 233, 233 (1991).
Finch McCranie LLP has handled dozens of wrongful death lawsuits in Atlanta and throughout the State of Georgia for over 50 years. When a person’s death is caused by the negligence of another person or company, the surviving family members have a legal right to file a wrongful death lawsuit. In Georgia wrongful death cases, knowing who is entitled to sue on behalf of the deceased person (and their estate) is an important, and sometimes complicated, decision to make.
Wrongful death claims in Georgia are typically divided into two separate claims: (1) the wrongful death per se as measured by the “full value of the life of the decedent” without deducting for any of the necessary or personal expenses of the decedent had he or she lived; and (2) the estate claims, or the claims that would have accrued to the decedent had they lived and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages. The estate claims are filed by the estate’s Administrator or Administratix. The proper plaintiff in the Georgia wrongful death claim, however, depends on the decedent’s surviving relatives. See generally O.C.G.A. § 51-4-1 et seq.
If the decedent was married when they died, Georgia law makes the surviving spouse the proper plaintiff. Representing the spouse will be the most straightforward and advantageous scenario. The surviving spouse then brings the suit on behalf of themselves and any of the decedent’s children. This is not limited to children born to the decedent and the surviving spouse; the Georgia code specifically includes out-of-wedlock children. While the spouse must act prudently, absent exceptional circumstances, the spouse controls any potential action and need not consult or get permission from the decedent’s children in settling the matter, nor – again, absent exceptional circumstances – can the children pursue the claim on their own behalf. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1311 (11th Cir. 2009) (collecting Georgia cases illustrating when Georgia courts exercised their equitable powers to allow children to file, such as when “the surviving spouse is absent, disabled, has declined to pursue the claim, or has no relation by blood or law to the surviving children.”)
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.
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