Personal Injury & Wrongful Death

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, 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 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.

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.

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.

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.

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.

On March 28 of this year, the Georgia Court of Appeals held that innocent passengers unwittingly involved in a high speed pursuit case can sue the police for damages caused, in part, by a reckless disregard of proper police procedure. In so ruling, the Court of Appeals noted that the police pursuit statute found at O.C.G.A. § 40-6-6(d)(2) was enacted by the Georgia Legislature to protect the rights of the innocent. Whether an innocent person is either inside or outside of a vehicle is not relevant. The question is, whether the injured party filing a claim against the police was innocent of wrongdoing. If innocent, whether a passenger inside the vehicle or a pedestrian outside the vehicle or any other third party, the Georgia Court of Appeals held that such a person could bring a claim, again, provided they were innocent and were injured, in part, by a reckless disregard of proper police procedure.
Fleeing suspects who are injured or killed as a result of a high speed pursuit may not bring a claim for damages even if the police violate proper police procedure during the pursuit. The simple reason is that drivers who flee cannot be innocent. They are violating the law by fleeing which is in Georgia a felony. A passenger who has nothing to do with the flight and who does not control the vehicle and, in fact, asks that the vehicle be stopped so that they are not involved in a pursuit can pursue a remedy if they suffer damages as a result of a reckless disregard of proper police procedure. In the cases of McCobb and Powell v. Clayton County, the Georgia Court of Appeals held that innocent passengers who are injured during a high speed pursuit can sue not only the fleeing driver but also the police provided, of course, that not only are they innocent but that there is evidence of a reckless disregard of proper police procedure either during the decision to initiate the pursuit or continue the pursuit which contributed to or caused their damages.
Most high speed pursuits involve non-violent suspects who are either violating traffic laws or are wanted for some other non-violent offense. If during a pursuit third parties are unnecessarily and recklessly endangered thereby, proper police procedure requires that such a pursuit be terminated. It is not worth killing innocent persons to apprehend a suspect for a non-violent offense. However, if the suspect being pursued is a murderer, rapist or armed robber and is otherwise known to be dangerous and violent, then the dangers to the public can be justified even during a high speed pursuit because the need to apprehend is equal to or greater than the danger to the public caused by the pursuit.

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There is an old saying that a picture is worth a thousand words. In legal cases presented to a jury, this is particularly true. If you have photographs of an automobile collision’s aftermath and can graphically demonstrate the damage to the vehicles involved, this is much better and more persuasive evidence than is an oral description of the same damage. Likewise, if there are x-rays or photographs of a client’s injuries, this too is very persuasive. Where original photographic evidence or videotaped evidence is not available, oftentimes, demonstrative evidence can be created which depicts what occurred.
An effective use of demonstrative evidence is the use of medical illustrations. If someone has sustained a complex comminuted bone fracture, as an example, a medical illustrator can be retained to draw the fracture, which then can be authenticated by a doctor during his or her deposition in which the doctor describe the injury and the resulting treatment, which oftentimes may result in the implantation of screws, pins and other medical devices. This is very effective and truly “demonstrative” of the associated pain and suffering. The use of a demonstrative illustration can also be used to demonstrate how a particular automobile accident occurred, what the intersection looked like and what the drivers could see. Using such evidence is an effective tool for the advocate in presenting their case to a jury, assuming the case cannot otherwise be resolved by means of compromise and settlement.
Demonstrative evidence can take many forms. Again, we can prepare medical illustrations of a client’s injuries, or we can have computerized animation recreations of how accidents occurred authenticated by forensic engineers, as an example. We can also prepare summary charts of damages totaling the medical expenses and lost wages. Again, the purpose of such demonstrative evidence is to present evidence to a jury in the manner that is most likely to have an impact upon them, to convince them of what being asserted. Something that is heard and seen is more likely to be remembered than something that is merely heard, thus, the importance and value of liberally using demonstrative exhibits during the trial of any serious personal injury case. While a picture is worth a thousand words, the creative use of demonstrative exhibits can be just as valuable in serious injury litigation.

Oftentimes clients like to refer to news articles about some substantial jury verdict or settlement in favor of a plaintiff in a particular case. Our advice when these comments are made is that it is very dangerous to compare apples to oranges. Literally speaking, no two cases are alike and it is difficult to compare one person’s case to another. On the other hand, the paramount goal of our attorneys is to make sure that our clients receive the best possible result given the facts of their particular case. Here, we like to compare apples to apples insofar as possible.
In order to achieve justice for our clients, we have to conduct an investigation of the facts, analyze all available and pertinent materials, compare them with the database of hundreds, if not thousands, of jury verdict research services concerning verdicts and settlements of similar cases in the past and then try to advise our clients what fair compensation would mean for their particular case. Each case has its own settlement value. If a case has clear liability such as a drunk driver running a stop sign and clear damages such as broken bones, which can be demonstrated with x-rays and other diagnostic tests, such a case is fairly easy to evaluate, however, if the case involves disputed issues of liability such as who ran the stop sign or who failed to yield and disputed issues of damages, such as did the plaintiff have a pre-existing back injury, was the back injury aggravated or is the back injury either new or non-existing injury, the case is more difficult to evaluate. As can be seen, the facts largely dictate what would constitute reasonable compensation for a particular case.
Our advice to our clients is that if they can get a settlement offer during settlement negotiations which is equivalent to or better than what a jury is likely to return in a verdict, then they should strongly consider accepting such an offer. If the offer made is less, in our judgment, than what a jury would likely award, then we usually advise our clients that they could consider rejecting such an offer. Oftentimes clients wish to settle cases even though we may not advise that they accept the offer and in some instances, clients want more than we recommend is reasonable.

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Effective January 1, 2013, Georgia’s New Rules of Evidence go into effect. The new provisions are found generally at O.C.G.A. Title 24, Chapter 1 through 10. The new code applies to all cases filed on/or after 1/01/13 and to all trials commenced on/or after said date. What this means is that the new Rules of Evidence will apply to any case in Georgia beginning on January 1, 2013, and going forward.
By in large Georgia’s New Rules of Evidence are patterned after the Federal Rules of Evidence. This is a change in the right direction for trial lawyers because the Rules of Evidence are now codified. Previously, Georgia Rules of Evidence were a hodge-podge of various statutory and common law rulings which had to be located in different sections of the code. Now the Rules of Evidence are codified in a single title in ten (10) chapters. Because the new rules are patterned after the Federal Rules there is an abundance of case authority interpreting these rules for practitioners to rely upon when determining whether a particular piece of evidence is or is not admissible under the rules.
All the Rules of Evidence are designed to insure that only reliable evidence is presented for a jury’s consideration. The purpose of the rules is to make sure that in any dispute, whether it is civil or criminal, that a jury only be given reliable evidence which is trustworthy. Unreliable, prejudicial evidence is generally excluded under these rules. Because there are many different types of evidence offered during jury trials whether the evidence be from video recordings, medical records, financial records or otherwise the new rules are designed to make sure that evidence will only be admitted from trustworthy and reliable sources and that any verdict rendered based on such evidence is likewise more reliable than would otherwise be the case.

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