Personal Injury & Wrongful Death

It was learned last week that Federal safety officials are investigating the Yamaha Rhino, which has been linked to 30 deaths. The Consumer Product Safety Commission (CPSC) decision to investigate the Yamaha Rhino was based on accident and death reports involving the vehicle as well as the high number of product liability suits that have been filed by people who claim they were injured using this product. Unlike another class of off-roaders all terrain vehicles (ATV’s), are subject to safety standards. Unfortunately the Consumer Product Safety Commission has not set safety standards for vehicles like the Rhino, which it classifies as a utility terrain vehicle, or UTV.

Although off-road vehicles are involved in hundreds of accidents every year, critics say the Yamaha Rhino is even more likely to be involved in one particular type of mishap – rollover accidents. Critics allege that the Yamaha Rhino is top heavy and it has tires that are extremely narrow. These design defects make it for more likely that the Yamaha Rhino will tip and rollover while going through a turn even when the vehicle is traveling at a slow speed and is on a flat surface.

Victims of ATV and UTV rollover accidents usually experience severe lower extremity injuries such as broken or crushed legs, ankles or feet. In some cases, victims have been permanently disabled and have had limbs amputated following such accidents.

As Georgia injury lawyers we often see people who have been injured by dangerous prescription drugs. The Federal Drug Administration (FDA) is now warning doctors about severe skin reactions in alcoholism patients who use Vivitrol, an injectable treatment made and marked by Cephalon, Inc. Doctors and patients should watch for swelling, injection, and other complications where the drug is injected. The FDA emphasizes that the proper needle must be used when administering Vivitrol. Also, the drug should be injected into muscle, not fatty tissue.
More than 200 reports of skin problems have been reported among patients. A Cephalon spokesman said the company believes some problems stem from improper injections.
If you or someone you care about was seriously injured by a dangerous drug, you should speak with an attorney at Finch McCranie, LLP.

According to a report by the American Assocaition for Justice, the U.S. insurance industry has trillions of dollars in assets, enjoys average profits of over $30 billion a year, and pays its CEOs more than any other industry. But insurance companies still engage in dirty tricks and unethical behavior to boost their bottom line even further. The current economic turmoil affecting the insurance industry onWall Street has only made the outlook bleaker for consumers living on Main Street. Insurance companies are likely to demand huge rate hikes and refuse more claims than ever. Some of America’s most well-known insurance companies—the same ones that spend billions on advertising to earn your trust—have endeavored to deny claims, delay payments, confuse consumers with incomprehensible insurance-speak, and retroactively refuse anyone who may cost them money.

The report describes some of the most egregious ways the insurance industry attempts to make money at the expense of consumers. These are some of the tricks described in the report:

Denying Claims

In November of 2000, while ballots were being counted in Florida, I stood in the trauma unit of the Orlando Regional Medical Center with my daughter who had been assaulted. Over the month she was there, one helicopter after another landed on the roof of the trauma unit delivering victims of automobile accidents and motorcycle accidents with severe injuries. Many of them died and many of them sustained severe brain injuries. Many of those traumatic brain injuries occurred because the person riding the motorcycle had no helmet on at the time of the collision. Georgia has a mandatory helmet law requiring all people operating or riding motorcycles to wear helmets – no exceptions. Florida law does not require the use of helmets if you are at least 21 years old and “covered by an insurance policy providing for at least $10,000.00 in medical benefits for injuries incurred as a result of a crash while operating or riding on a motorcycle.” Four states still have no helmet law whatsoever, Illinois, Colorado, New Hampshire and Iowa. The Centers for Disease Control (CDC) in Atlanta publishes statistics on traumatic brain injuries by state and the numbers, while high, are not surprising when comparing the two states. For example in 1998, the number of nonfatal TBI hospitalization cases in Georgia was 5,581. The number in Florida was 12719, more than twice that of Georgia!

In our Georgia injury practice our lawyers have seen many serious accidents, including automobile accidents and truck accidents, which result in brain injury of varying degrees. Traumatic Brain Injuries (TBI’s) contribute to a substantial number of deaths and cases of permanent disability annually. The Centers For Disease Control (CDC) estimates that at least 5.3 million Americans, about 2% of the U.S. population, currently have a long-term or lifelong need for help to perform activities of daily living as a result of a TBI.
The severity of a TBI may range from “mild”, i.e, a brief change in mental status or consciousness to “severe”, i.e., an extended period of unconsciousness or amnesia after the injury. Approximately 1.4 million people sustain a traumatic brain injury each year in the united States. Of those: 50,000 die; 235,000 are hospitalized; and 1.1 million are treated and released from an emergency department. Among children ages 0 to 14 years, TBI results in an estimated 2685 deaths; 37,000 hospitalizations; and 435,000 emergency room visits. The number of people with TBI who are not seen in an emergency room department or who receive no treatment are unknown.
Some of the statistics relating to traumatic brain injury are surprising. For example, males are about twice as likely as females to sustain a TBI. The two age groups at highest risk for TBI are 0 – 4 year olds and 15 -19 year olds. African Americans have the highest death rate from TBI.

Over the years, we have noticed that client’s who have suffered a brain injury as a result of an automobile accident or truck accident often complain about feeling unusually fatigued or tired. An interesting study confirms that following a recovery from brain damage, patients may have to use more of there brains then they did before the brain trauma.
The study published in the September 9th issue of Neurology found that patients who sustained diffuse axonal injury and returned to pre-injury levels of functioning in either school or work requires more regions of their brains to perform tasks related to executive functioning and working memory.
These findings are significant because it may explain the frequent complaint of mental exhaustion in performing routine tasks by victims of brain trauma.

The 2nd U.S. Circuit Court of Appeals has issued a ruling which begins to chip away at the anti-consumer arbitration clauses used by many credit card companies to deny justice to consumers. The court held that plaintiffs could not be forced into arbitration because American Express was not a signatory to the MasterCard, Visa and Diners Club credit card agreements that

In the multidistrict currency conversion case, cardholders are claiming that card companies and major issuing banks have engaged in a Sherman Act conspiracy to fix higher fees for transactions involving foreign currency. The plaintiffs charged in their complaint that American Express conspired with other major card companies “to fix, maintain, and conceal the artificially inflated” foreign currency fees. They alleged that American Express conspired against them in part by holding a series of meetings on including compulsory arbitration agreements to thwart consumer litigation.

The 2nd Circuit reversed a lower court decision in favor of American Express. It held that arbitration is a matter of contract, but the plaintiffs did not enter into a contract with American Express, let alone any contract containing an arbitration clause.

Georgia injury lawyers will closely watch an upcoming U.S. Supreme case having to do with dangerous drugs and the doctrine of pre-emption. The Supreme Court is scheduled to hear arguments today in a case that has major implications for consumers who have been harmed by prescription medications. Drugmaker Wyeth Pharmaceuticals and the Bush administration are challenging a $6.7 million verdict to a Vermont musician whose arm was amputated after medical staff improperly administered the Wyeth-produced drug Phenergan. Wyeth and the administration argue people who are harmed by drugs approved by the Food and Drug Administration should not be able to pursue damages under state laws. At issue is whether the federal government can limit lawsuits by consumers who have been harmed by prescription medications. In the case before the Supreme Court a Vermont jury awarded the plaintiff $6.7 million, agreeing that Wyeth should have been clearer in its warning label about the risks of improperly administering the drug. Wyeth and the administration, however, are asking the court to rule that drug makers may not make changes to labels without the approval of the Food and Drug Administration and that people cannot sue under state law for harm caused by an FDA-approved drug. In other words, if the FDA has approved the labeling, the drug manufacturer is immune from suit. In recent years, the Bush administration and business groups have aggressively pushed limits on lawsuits through the doctrine of pre-emption – asserting the primacy of federal regulation over rules that many times differ from state to state and which often provide greater consumer protection than what is afforded them under federal law, in federal courts.

For Georgia lawyers handling nursing home abuse and negligence cases, we are seeing new litigation hurdles to overcome. Nursing home owners are creating new corporate structures to disguise the actual ownership of the nursing homes. It is a “corporate shell game” where the actual owners set up holding corporations to avoid responsibility. If you look at the way the facility is established, there will be a contractual relationship between a management company and a nursing home, where the same human being is on both sides of the contract and the management company is being paid a disproportionately high amount of money compared to its services. Another common scenario is for an owner to set up a real estate investment trust that leases real estate to the nursing home at rates that sometimes exceed the entire value of the property. A separate LLC holds the nursing home license, but the owner sucks all of the money out the facility via management fees or rent so that there is no money in the corporation that owns the license.
Another scenario that we are seeing is that owners of nursing homes are electing not to insure the nursing home to make it appear that they are “judgment proof” and to discourage claims. This significantly increases the amount of work involved in a case to ferret out the corporate assets of the nursing home but it can be done.
Fortunately, there are a number of legislative developments in the nursing home area. The Nursing Home Arbitration Act which would ban pre-dispute mandatory arbitration agreements in nursing home contracts, recently passed Committees in both Houses of Congress. Another recently introduced bill, The Nursing Home Transparency and Quality of Care Improvement Act, HR7128, would improve reporting and transparency of nursing home ownership.

You don’t have to be an Atlanta injury attorney to know that nursing home abuse and negligence is alive and well in Georgia and across the country. For most elder people, their greatest fear is being put in the dreaded nursing home and for good reason. In our practice, we have noted that more often than not these homes are understaffed by unqualified employees.
The Office of the Inspector General of the Department of Health and Human Services recently completed a study and issued a report that has found that over 91% of nursing homes were deficient in quality of care and other services in each of the past 3 years. The report also found that a higher percentage of for-profit nursing homes were deficient than non-profit nursing homes. With the aging baby-boomer population leading to increased demand for the services of nursing homes, nursing home litigation has been growing in recent years. According to U.S. Census Bureau statistics, 38.7 million Americans are 65 or older. By 2030 that age group will represent 20% of the population. Typical allegations against nursing homes have been abuse and neglect, inadequate staffing and medical errors.
The study found that the most common categories where nursing homes fell short were quality of care, resident assessment and quality of life. almost 74% of nursing homes in the survey were cited for quality of care deficiencies in 2007. Accident hazards were one of the most common issues. About 58% of nursing homes were cited for resident assessment problems involving professional standards and the qualifications of service personnel. Over 43% of facilities were cited for quality-of-life deficiencies, such as loss of dignity. In addition, almost 43% of homes were cited for dietary service violations. The report found that 17% of nursing homes in 2007 were cited for causing actual harm or immediate jeopardy, and that there is a trend toward violations that are more severe and broader in scope than in the previous 2 years. In Georgia, the average number of deficiencies per nursing home for the year 2007 was 6.5. Also, in Georgia, the percentage of nursing homes surveyed with deficiencies in the year 2007 was 88.1%.