Personal Injury & Wrongful Death

Atlanta, and other metropolitan areas in the state of Georgia have seen a rapid expansion in the numbers of same-day surgery centers. Yesterday, the Journal of the American Medical Association published an article suggesting that lack of infection practices are common in the nations more than 5000 outpatient surgery centers.

The study was prompted by a hepatitis C outbreak in Las Vegas. This outbreak was caused by unsafe injection practices at two outpatient surgery centers.

Failure to wash hands, wear gloves and clean blood glucose meters were among the reported problems found by the study. The study also found that many outpatient centers reuse devices meant to be used only by one person or dipped into single dose medicine vials for multiple patients.

When it comes to torts committed by the government and/or its employees, the beginning and ending place for any analysis is the Federal Tort Claims Act (FTCA). See 28 U.S.C. § 1346. The Federal Tort Claims Act provides a limited waiver of sovereign immunity and allows for money damages against the government for damages, loss of property, personal injury or death. In order to recover under the FTCA, one must show that the damages claimed resulted from a wrongful or negligent act of a government employee acting within the scope of his employment under circumstances where the United States, if a private person, would be liable to the injured person in accordance with the law of the place where the act or omission occurred. See 28 U.S.C. § 1346(b). As we will address in subsequent entries on this subject, there are potential land minds for those who would seek to recover under the Federal Tort Claims Act but who are not familiar with its provisions. The purpose of these blogs therefore will be to provide some general guidance as to how one should go about perfecting a tort claim against the United States of America. In future blogs, we will address the key steps that must be taken in order to do so.

Under Georgia law, a sheriff and only a sheriff is vicariously liable for the negligent acts of his or her deputies. A county sheriff employs the deputy and the deputy reports to the sheriff. Thus, if a deputy sheriff is negligent, the sheriff is liable not the County. Notwithstanding this legal liability, however, there is a confusing element of Georgia law when it comes to perfecting claims against sheriffs and their deputies.
While the law is somewhat ambiguous in this regard and in many ways unsettled, anyone that has a claim against a sheriff or deputy sheriff should consider serving an ante-litem notice upon the county where the sheriff’s office exists. Under O.C.G.A. § 36-11-1, there is a provision which specifies that counties should be served with ante-litem notices for claims against counties. Again, a county cannot be vicariously liable for the acts of a deputy sheriff. Nonetheless, until the law is properly resolved, the more prudent approach for the time being would be to file an ante-litem notice with the county and the sheriff’s office if someone has a claim against a deputy sheriff based on allegations of negligence and damage caused thereby.
The county ante-litem notice provides that written notice of claim must be served on a county within twelve (12) months of the date of an occurrence. Thus, even though the statute of limitation for a personal injury claim in Georgia is two (2) years, in reality, if one has a claim against a county, one should assert it out of an abundance of caution within twelve (12) months even if the claim is against a sheriff or a deputy sheriff. Again, the law is somewhat unsettled in this regard although many defense attorneys would contend that it is absolutely settled and that such notice is required. A more prudent and cautious approach for practitioners is to serve an ante-litem notice on both the sheriff and the county where the sheriff is employed so as to preserve all legal rights. This needs to be done until the law is completely clarified and until there is no ambiguity one way or another on the question.

In a case involving serious injuries which threaten to impair or impede altogether one’s ability to be gainfully employed, a Functional Capacity Evaluation can be critical in helping to establish the extent of the disability. Functional Capacity Evaluations are performed according to objective criteria which have been proven to be reliable in determining the extent of job related restrictions and limitations. If a client submits to a Functional Capacity Evaluation and is proven by such objective criteria to have limited abilities, such evidence can be critical in helping to convince a jury of the legitimacy of the claim. This can be extremely important in cases where someone complains of neck or back pain, for example. It is often difficult for a jury to understand the degree to which someone is suffering from neck or back pain. Such claims can be embellished or magnified, but a Functional Capacity Evaluation performed by a competent practitioner can weed out claims of embellishment and malingering because the test as designed can detect such claims as opposed to legitimate claims.
In a case where someone has a legitimate back or neck injury and they are truly restricted in their activities, a Functional Capacity Evaluation can help to establish the extent of the restrictions and limitations and can help prove the degree to which the pain caused by the neck or back injury is limiting the victim’s ability to engage in gainful activity. If a client cannot work, for example, and is reduced to sedentary activities, this can be demonstrated on a Functional Capacity Evaluation.
We recommend to our seriously injured clients in many contexts that they voluntarily submit to a Functional Capacity Evaluation. Because such tests are based on objective criteria, when a client is truly seriously injured a Functional Capacity Evaluation will confirm or corroborate claims of serious bodily injury.

There are several popular medications used by those who suffer from asthma which have an increased market share presence. These include Serevent, Advair and Foradel. All these medications use inhalation powders containing long acting beta agonists, commonly known as “LABA.” Beginning as early as November of 2005, the Food and Drug Administration issued a public health advisory concerning these three drugs informing doctors and patients that the use of these products could increase one’s risk of developing severe asthma and/or possibly having a fatal reaction. This safety bulletin was updated in February of this year based on the FDA’s review of studies showing an increased risk of exacerbation of asthma related symptoms. The studies showed that “LABAs” used in the treatment of asthma could be safe but the use of which was nonetheless contraindicated without the use of an asthma controller medication such as an inhaled corticosteroid. In short, the clinical studies showed that if “LABAs” were used by themselves and not in conjunction with inhalers, long term patients using “LABAs” could be at increased risks of developing severe asthma and/or possibly having even more complications which could lead to death. Regrettably, a study issued in May of this year indicates that nearly one-third (1/3) of asthma patients continue to use “LABAs” alone and not in combination with other control medications. In short, despite years of warnings from the Food and Drug Administration going back to 2005, patients are continuing to use these products by themselves and not in conjunction with inhalers which increase the risk of severe asthma episodes and/or the possibility of death.
Some FDA Advisory Panel members have advocated that “LABA” products be withdrawn from the market because of their increased risks for children in particular. Whether a product liability case exists in this context, obviously is a factually specific inquiry but for the time being, those who suffer from asthma should their use of these medications closely and follow all of the safety advice provided by the Food and Drug Administration.

A very common issue is a serious injury case is whether there exists any vicarious liability of a third party. If a truck driver runs into a motorist stopped at a stop sign and seriously injures them the question is whether the truck driver alone can be sued and/or their employer. Under longstanding legal principles, an employer is vicariously liable for the acts of the employee. As long as the employee was acting within the scope of his employment at the time of the incident and injures the innocent third party, the employer will be vicariously liable for the damages caused by such negligent acts even if the employer did not approve of the acts and/or had company policies prohibiting such negligent behavior. The reason is because an employer is by definition responsible for the acts of employees acting within the scope of their employment.
In a serious injury case, the insurance carrier for the employer is likely to contend that the employee was not acting within the scope of their employment. If vicarious liability can be contested, the company can try to contend that there is no legal liability for the victim’s claims. Usually this is a defense used by the insurance carrier defending a company which is trying to avoid paying the claim. Even if the claim is legitimate and even if the victim is extremely injured and/or killed, in many cases, if the company’s insurance carrier can avoid liability by denying vicarious liability they will do so. Again, this issue turns on whether the employee, at the time of the act which caused the injury was acting within the scope of his/her employment.
Anytime there is an issue concerning vicarious liability, and if the case involves a serious injury, obviously, counsel should be retained as soon as possible. The victim’s rights need to be protected through an adequate investigation of these claims in order to establish vicarious liability. If it can be established that a particular employee was acting within the scope of their employment, then the victim’s rights can be protected by suing not only the negligent employee but also their employer. As this has obvious implications on the company’s insurance coverage, the extent of the coverage and the amount of the coverage available to satisfy the claim, any person with a serious injury involving possible third party liability should confer with experienced counsel as soon as is practicable to address this issue.

In a personal injury lawsuit, it is always difficult for the trial lawyer representing the injured victim to talk about money in the context of pain and suffering. How does one fairly compensate an individual who is suffering as a result of the acts of a third party? Someone who is sitting still at a stop sign and who is rear-ended by a commercial truck, for example, and who sustains a broken neck or back is going to be faced with a lifetime of pain and suffering. How does one fairly compensate such an individual with money? This is a difficult determination which juries must wrestle with and which trial lawyers must address in their presentations on behalf of their innocent clients.
One of the things I think about as a trial lawyer is the ridiculous salaries that are paid to sport figures. There is a recent Georgia Tech graduate, whose name will not be repeated here, who is in the NBA that I read in a news article recently who is making over $50 million per year for a NBA team that did not even make the playoffs. This staggering amount of money, obviously, is way too much money for a basketball player, who has no skills other than being able to shoot a basketball. And yet, if I stand up in front of a jury on behalf of someone with a broken neck or back and I were to ask for $50 million, I would be subject to ridicule and scorn even though my client with a broken neck or back might have to live for as long as 40 to 50 years with incredible pain and suffering. While I agree that 40 to50 million dollars is greatly excessive for such a claim, the disconnect comes when one looks at the value of a single year of basketball for a losing team verses 40-50 years of life in suffering for an innocent victim who did nothing wrong.
The good news is that juries are typically comprised of people from the community with a great deal of common sense. Most juries compromise on issues such as this and reach the best decision they can as to what award of compensation would be fair to provide some financial relief for the innocent victim who is subjected to a lifetime of pain and suffering. Obviously, none of us ever want to be in the position of having to ask a jury to give us fair compensation. This is because none of us want to be subjected to a lifetime of pain and suffering. And yet, in modern society, there are those among us who will be injured, through no fault of our own, and who will have to appear before juries asking that they be treated fairly. The great thing about the American judicial system that is as a rule American juries are fair.

As our firm handles police chases for innocent victims tragically caught up in these dangerous pursuits through no fault of their own, and as we have witnessed many different tragedies in this context, we obviously pay close attention to other similar cases throughout the country. Just this past week we read three different articles about three different pursuits in three different states in which innocent bystanders were killed during these dangerous pursuits. In none of the pursuits that we read about were any of the fleeing suspects being pursued for a felony. One suspect fled from a routine traffic stop, another female suspect was fleeing for reasons unknown to the police in which her baby was killed and a third was fleeing for traffic violations. In all of these cases, the death penalty was imposed upon an innocent third party who had committed no violation of the law and was hit by the fleeing suspect. Had the suspect been safely apprehended, it is likely they would have been given a fine and let go by the court system based on the minor offenses committed. This is an all too familiar pattern.
We have blogged repeatedly about the dangers of high speed pursuits. It makes little or no sense to impose the death penalty on an innocent third party in order to immediately apprehend a non-violent suspect. Thirty-five to forty percent (35-40%) of all police chases end up in crashes. Many of these chases, because of the high speeds involved, involve serious injuries and/or deaths. It is estimated that there may be as many as 1,000 deaths per year in high speed pursuits nationwide. Given these well known statistics, the better approach, which is being followed more and more by enlightened police jurisdictions, is to have a restrictive policy which allows the police to chase only for forcible or violent felonies. Those departments that still allow their officers to chase for non-violent offenses such as minor traffic violations, obviously, are all too willing to risk serious injury or death in order to immediately apprehend a non-violent suspect. We reiterate this makes little or no sense and we have witnessed first hand the tragedy involved in these cases.
We here at Finch McCranie will continue to litigate these cases. We think it is an important public service. If the police adopt restrictive pursuits, research has shown that the number of pursuits will not increase nor will crime increase as this has been documented over and over again. Who can argue against such policies? They save lives, the do not increase crime nor do they increase the number of pursuits in general. It is simply a good policy that should be followed. Until the majority of departments follow these restrictive policies, we intend to litigate against those who refuse to do so and who unnecessarily expose members of the public… the innocent members of the public… to the needless risks of serious injury or death. Let the minor offenders go. It is not worth killing someone to catch them.

Our military service members stand ready to put their lives on the line to protect the freedoms upon which our country is based. Yet, they are not provided the basic remedies available to other citizens who are victims of medical malpractice.

Under a 60-year-old Supreme Court ruling known as the Feres doctrine, service members are banned from suing the federal government for even the most egregious medical errors.

Pending before Congress is a bill that would remove that inequity. Rep. Maurice Hinchey, D-N.Y., is the lead sponsor of the bill, the Carmelo Rodriguez Military Medical Accountability Act, which would amend federal law to “allow members of the Armed Forces to sue the United States for damages for certain injuries caused by improper medical care, and for other purposes.”

An outbreak of 19 E-coli related illnesses in Michigan, Ohio and New York may be linked to shredded romaine lettuce sold to grocery stores for use in salad bars and delis, according to the Food and Drug Administration (FDA). Yesterday, the FDA announced a recall of the potentially dangerous produce.

Escherichia coli (abbreviated as E. coli) are a large and diverse group of bacteria. Although most strains of E. coli are harmless, others can be extremely harmful. Strains of E. coli can cause diarrhea, urinary tract infections, respiratory illness, pneumonia, and other illnesses.

The lettuce has been recalled by Freshway Foods, a closely held company based in Sidney, Ohio, according to the FDA press release. Twelve of the 19 people with confirmed cases of E. coli have been hospitalized, including three with potentially life-threatening complications.