Trial Attorney Blog

Until a few years ago, a plaintiff in a personal injury or serious injury lawsuit had to take the deposition testimony of all treating physicians in order to be able to introduce the deposition for a jury’s consideration. This is because testimony by a doctor without being subject to cross-examination would be considered hearsay and therefore not admissible. To resolve the problem and expense associated with every single plaintiff’s lawyer representing a personal injury claimant having to take medical testimony by way of depositions, and to dispense with the necessity of scheduling doctors’ time to provide such a testimony, the law was changed to provide that medical narrative reports written by a doctor could be introduced into evidence even if the doctor were not subject to cross-examination.

The operative statute is found at O.C.G.A. § 24-3-18. This statute basically states that any report which sets forth in story form the doctor’s assessment of the patient’s history, diagnosis and treatment shall be admissible into evidence. If a written notice is provided to the opposing party attaching the narrative and giving them ample opportunity that a plaintiff’s lawyer, for example, wishes to utilize the report in support of his client’s claims then, in that event, the defense has the right to take the deposition of the doctor at their expense, otherwise the report can come into evidence and be read to the jury without having to have the doctor’s testimony sworn and deposed before a court reporter.

The advantages of the medical narrative statute are obvious. First, the plaintiff, who is already injured and may not have any income, no longer has to pay for the deposition of a doctor. When dealing with a surgeon for example, an hourly deposition fee might be $500.00 per hour, not to mention the cost of the court reporter whose job it is to transcribe it. If the deposition is videotaped so that it can be shown to the jury, yet another expense is involved. In short, it is not uncommon for there to be a $1,500.00 expense in connection with taking a surgeon’s deposition. If the same surgeon, however, writes a narrative report and charges $250.00 for the time he takes to dictate and narrate the report, then in that event, the medical narrative is admissible and the expense of deposing the doctor would then shift to the defense if they wish to depose him further in connection with his report.

In a Wrongful Death case, Georgia law allows recovery for “the full value of the life of the deceased with deduction for ordinary and necessary expenses had he/she lived.” See O.C.G.A. § 51-4-1 et. seq. The term “full value of life” is somewhat elusive on its face but nonetheless, Georgia law is quite clear that the measure of damages in a wrongful death case includes both economic and non-economic damages.
One of the unique features of Georgia law is that damages in a wrongful death case must be assessed from the deceased’s standpoint not from that of his/her husband, wife, children or any other survivor. The measure of damages is the same for a person who has survived his injury but who was totally and permanently disabled as a result of it. Damages for the deceased are just the same as for a living plaintiff with a permanent and total disability except that there are no future special damages such as medical and other expenses. Of course, the measure of damages in a Georgia wrongful death action is not the subjective value that the deceased would have placed upon his own life, rather the damages in a Georgia wrongful death case must be assessed from the deceased’s standpoint. The question is what he or she lost rather than the perspective of what the husband, wife or children lost.
Under Georgia law, the term “full value of the life of the deceased” has two components. First, the “economic value” of the deceased’s normal life expectancy and second, the “non-economic component,” an intangible element incapable of exact proof which is measured only by the enlightened conscious of the jury. The economic value of the deceased’s life is based upon lifetime earnings. By computing how much money the deceased would likely have earned given his/her age, educational background, earnings record and life expectancy, the jury can determine what the economic value of the deceased’s normal life expectancy would equal. However, when someone loses their life, they lose much more than what they would have earned had they survived. They also lose the “non-economic value” of their life, which obviously, is the more important component of a wrongful death claim in Georgia. The intangible or “non-economic” component of a wrongful death claim arises out of the destruction of the deceased’s relationship with his loved ones. The deceased’s loss of his relationship with their husband, wife or children and associated factors such as society, advice, counsel and companionship are all part of the “full value” of the deceased’s life to be assessed as damages based upon all the facts and circumstances involved.
One of the essential points of proving damages in a Georgia wrongful death case is that life has value aside from one’s economic producing potential. If it did not, there would be little or no recoverable right for the wrongful death of children, poets, monks and others who have no significant earning potential at the time of their death. In this regard, Georgia law is unique in establishing the value of a life from the standpoint of a person whose life is lost. How did that person live his or her life? That question alone may allow a jury to determine that one who may have been incapable of producing vast economic wealth nonetheless had an extremely valuable life in terms of his or her enjoyment of it and what they derived from it. Indeed, there are many housewives and older people whose lives are extremely valuable and in many cases based on the quality of the life lived much more valuable than would be an executive’s life who, while he or she might have great earning capacity, might not have lived a full life otherwise.

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Lately there has been a lot of publicity about the death of a 17-year old track star due to her use of the common muscle relaxant sports cream Bengay. As I was reading these articles, it reminded me of case I handled several years ago involving a similar product called Icy Hot. In that case, a diabetic client that I represented had used the product and apparently due to her diabetic condition, developed topical salicylate poisoning due to the main ingredient found in the Icy Hot product she used called Methyl Salicycate. This is the same ingredient used in Bengay.

I am sure it is inconceivable to the parents of this young track star that Bengay could have caused her death. I do not know all the facts but I know from prior experience that these topical treatments can be dangerous. Salicylate poisoning can lead to a marked decrease in blood sugar which, in turn, can lead to a seizure which seems to be the case involving this young teenager’s death. For obvious reasons, a decrease in blood sugar could also adversely affect a diabetic. In my client’s case, due to circulation problems in her feet (a common problem for diabetics) severe burns requiring surgery resulted from the use of this product.

This young teenage runner allegedly used the Bengay treatment to excess. She may have been taking an excessive amount of aspirin as well. In any event, she developed toxicity in her blood and apparently died from complications due to a marked decrease in her blood sugar. The question, of course, is whether this young teenager and/or any other consumer would conceivably be aware of the dangers connected with these over the counter products.

Lawyers in Georgia who handle serious injury and wrongful death cases are often confronted with situations where their clients are hospitalized and later acquire a Staph infection which greatly complicates their recovery. We also see cases where clients call complaining about the development of an infection while hospitalized for one condition where the infection becomes much more serious than the condition for which they were originally treated. Regrettably, many people die from these infections.
It just so happens that I ran across an article recently that very succinctly describes this problem. As can be seen, this is not only a problem in Georgia but also a nationwide problem. Because litigation seems to be the best solution we have to deal with this problem, it would seem that the best theory to pursue these cases on would be a failure to warn theory.
Hospitals are always advertising the quality of their services but at the same time are often times concealing their infection rates. If a hospital has a significant infection rate and a patient has no idea when they enter the hospital that they are subject to being exposed to such deadly infections, query whether the best possible legal theory of recovery for such an innocent victim of hospital negligence would be on a failure to warn theory?
Perhaps a review of the article below might stimulate further thoughts along these lines:

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In the summer of 2006 MSNBC.com reported that each year as many as 1.5 million Americans suffer a serious injury or death because of errors made in the dispensing, prescribing or taking of prescription drugs. In an earlier report published by the Institute of Medicine of the National Academies, it was estimated that each year more than 7,000 people in the United States die from pharmacy related medication errors. Last year, in the nationally syndicated program 20/20, ABC News reported extensively on this problem. Regrettably, from all statistics, it appears that pharmacy negligence is on the rise.
“It doesn’t take a rocket scientist” as one would say to recognize the cause for these rising errors in the pharmacy business. Many of the pharmacists working at nationally recognized chains are often overworked pulling lengthy shifts sometimes back-to-back. The pressures upon them can lead to fatal mistakes. If a pharmacist makes a mistake and dispenses the wrong drug to the wrong patient with the wrong condition, a serious injury or death can occur and, unfortunately, it may too late before the victim of the negligence can take steps to protect themselves from the mistake.
Because errors by pharmacists and national pharmacy chains can cause irreparable harm to innocent patients, one would think that the national chains would decrease the burdens placed upon the pharmacists charged with the dispensing of increasingly powerful drugs. Nonetheless, the ever-increasing demand for profits at these businesses creates ever increasing demands on the pharmacists with ever-increasing mistakes being a concomitant result of placing profit over safety. As the recent news reports have shown, this problem will not go away unless changes in the pharmacy industry occur.

Just this past week, clients retained our firm’s services with respect to a serious motorcycle injury. As is often the case, because motorcycle riders are unprotected except for the helmet they wear, whenever an accident occurs involving a motorcycle, typically, serious injuries are involved.

The worst case we handled was about 3 years ago when one of our partners represented a motorcycle rider who was hit by a drunk driver and almost killed. This drunk driver not only ran over the motorcycle driver, the motorcycle driver got caught underneath the drunk driver’s truck and was dragged down the road for about 1000 yards before he became disentangled. Virtually every bone in the client’s body was broken and it was truly miraculous that he survived his serious injuries. While we obtained a verdict in excess of $13 million for this client after a trial on the merits, unfortunately, the insurance recovered was insufficient to compensate our seriously injured client.

What we see in these cases is that if one chooses to drive a motorcycle or to be a passenger on a motorcycle, one should be extremely cautious about all safety issues in connection with this activity. Motorcycles are great fun and can be a tremendous recreational activity. It gets people outdoors and provides a great deal of freedom on the road. Nonetheless, it is extremely dangerous. It is well documented that many drivers simply are not accustomed to seeing motorcycles and somehow develop a blindness to their presence as they fail to yield so often to them particularly from a left turn situation.

A few days ago, we wrote an article about the importance of uninsured/underinsured motorist coverage in those situations where the at fault party has minimum limits of liability insurance coverage. Today we write about another reason why all Georgia motorists should consider carrying uninsured/underinsured motorist coverage in amounts at least as much as their liability insurance coverage and perhaps much more.
The distinction between liability coverage and uninsured motorist coverage is the fact that liability coverage protects the person you hit whereas uninsured motorist coverage protects you when you are involved in an accident with an uninsured or underinsured driver. In a hit and run accident where John Doe’s identity does not later become known and the innocent victim of the accident is left with medical bills, lost wages, pain and suffering and other expenses, typically, the only possible avenue for recovery is through one’s uninsured motorist coverage. If one has been prudent enough to buy a significant of uninsured motorist coverage, then in the event they are seriously injured, compensation can still be obtained via one’s own insurance policy. This results without any increase in premiums under one’s own policy because it is against the law for an insurance company to raise the premiums on a policyholder if they file a claim for an accident that is not their fault. Obviously, in a hit and run situation the accident is not the fault of the policyholder and therefore if the policyholder was prudent enough to purchase uninsured motorist coverage, there will at least be some recovery for the actions of the John Doe hit and run driver.
We recommend to all our clients, as well as all Georgia motorists. that they seriously consider purchasing additional uninsured motorist coverage to protect their personal interests in the event they become involved in an automobile collision, tractor-trailer accident or other unfortunate situation whereby they have to rely on their own resources, as opposed to the at fault driver, to protect their interests. As we stated previously, “it is better have it and not need it than to need it and not have it.”

Mesothelioma results from inhalation and exposure to asbestos. Mesothelioma is a specific form of lung cancer affecting the thin membrane linings of the abdomen and internal organs (cancer of the mesothelium). Because of exposure to asbestos, the cells of the mesothelium become abnormal and cancerous.

In Georgia and elsewhere, asbestos has been used in building materials, paper products and plastics. It is also found in textiles, packings and asbestos reinforced plastics. Nationwide, more than a quarter of a million people have been known to have died from mesothelioma. Sites where workers in Georgia may have been exposed to mesothelioma include textile mills, utility construction facilities, universities, colleges, power plants and other similar locations.

Unfortunately, mesothelioma symptoms may not appear until 30 to 50 years after exposure to asbestos. Shortness of breath and chest pain due to accumulation of fluid are often symptoms of this terrible disease. Treatment for mesothelioma depends on the location of the cancer and the stage of the disease as well as the patient’s general health and age. Options include surgery, chemotherapy and radiation therapy.

Uninsured Employers is a growing problem for injured workers in Georgia. In our practice we have seen a growing number of employees who have been seriously injured only to discover that their employers have no workers’ compensation insurance coverage. Many of those employers have no real assets and they are therefore “judgment proof.”
I recently read that on November 9, 2006, the Governor of Pennsylvania signed into law a significant change in the Pennsylvania Workers Compensation Act. Like Georgia, the Pennsylvania Workers’ Compensation Act covers all injuries to employees at work. It is a no-fault system, with the injured employee only having to prove that he was injured while working in the scope of his employment and is disabled. In Georgia, all employers who have three (3) or more employees are required to carry workers’ compensation insurance. However, some do not in violation of the Georgia Workers’ Compensation Act. Many injured employees who work for small business can never collect if the employer did not carry workers’ compensation insurance.
Under the new Pennsylvania law, a fund was created for an injured worker to collect, even if the employer had no insurance. This fund, called the “Guaranty Fund”, was created so that employees that have worked for irresponsible, uninsured employers, now have a remedy. This is a huge benefit for such injured workers and the Georgia’s Workers’ Compensation Act needs to be amended in a similar manner to provide a safety net for Georgia’s injured workers.

As I ride around the City, I am amazed at the number of billboard advertisements by attorneys. Occasionally, even though I am working all day long, I also get a chance while I am in a waiting room (usually awaiting a doctor’s deposition) to watch daytime TV. When I watch the TV, I am similarly amazed at the number of lawyer advertisements on daytime television. Obviously, this leads me to consider how the average person goes about finding a qualified personal injury attorney in a case involving either serious injury or death.

My personal recommendation is that any potential client be extremely cautious about relying on television advertising as a way to find a serious injury lawyer. One of the best ways to find a qualified attorney is to make sure that they actually practice in the serious injury field. If an attorney is a member of the American Association for Justice (formerly the Association of Trial Lawyers of America) and the Georgia Trial Lawyers Association, and they speak and lecture on legal topics within the field, the odds are that such an attorney is qualified to speak on issues arising in serious injury cases. I would also recommend that any potential client make sure that their attorney has been recognized by Martindale-Hubbell as an AV rated attorney (which is the highest rating an attorney can receive based on an evaluation by his or her peers).

The reason television advertising is so omnipresent is because it works. What this means is that many people rely on advertising as a way to find their attorneys. This process, however, fails to provide any screening mechanism for the client to make sure that their attorney is qualified. Anyone who calls our firm will discover that we are all AV rated attorneys, that we are active in the Georgia Trial Lawyers Association and that we are members of the American Association for Justice, which is a group of plaintiff’s attorneys. They will also find that we have written articles in legal journals and periodicals, that we have published them throughout the state and elsewhere and that we have also spoken as faculty members at numerous seminars sponsored by the Institute of Continuing Legal Education. These are the types of activities and qualifications one would hope to find with a competent attorney in the serious injury field.