Will General Motors Be Held Accountable for Selling Defective Vehicles?

April 21, 2014,

General Motors recently issued a sweeping recall for a more than 2.5 million vehicles sold between 2005 and 2011. The recall includes the Chevrolet Cobalt, Pontiac G5, Saturn Ion, Chevrolet HHR, Pontiac Solstice and Saturn Sky models. According to GM, the vehicles have a defective ignition switch that affects the operation of the airbag system.

This is not a minor safety issue. GM itself acknowledged their faulty ignition switches can be linked to at least 31 motor vehicle accidents and 13 deaths. The Detroit-based automaker now faces a number of lawsuits, including a class action complaint filed in Texas seeking upwards of $10 billion for GM customers who purchased the defective vehicles. Another lawsuit, filed in San Francisco, claims GM's efforts to fix the recalled vehicles are "insufficient" and that there is a second ignition-switch defect the company has yet to address. Altogether, GM has been been named a defendant in at least 37 cases spanning 17 separate federal courts. In addition to litigation, multiple government agencies, including the United States Department of Justice and the National Highway Traffic Safety Administration, have opened investigations into GM's mismanagement.

Will GM Escape Responsibility?

There is, however, a major question mark hanging over all of these lawsuits. GM has asked a federal bankruptcy court to bar all ignition-recall lawsuits related to vehicles manufactured before 2009. That was the year General Motors emerged from its highly publicized Chapter 11 bankruptcy case. The bankruptcy resulted in the dissolution of the former General Motors, the sale or elimination of several models, and finally the repurchase of remaining assets by a new GM holding company.

In effect, the "new GM" says it is not responsible for the liabilities of the "old GM." Under a related agreement signed with various state and consumer safety groups, the post-bankruptcy GM is only liable for product liability claims arising after July 2009. But attorneys representing the various ignition-recall plaintiffs say that is not the case. They argue that old GM knew about the ignition switch defect as early as 2001 and failed to disclose any potential safety issues as part of its 2009 filings. As a general rule, a bankruptcy court will not discharge a liability that the debtor fails to disclose in good faith.

Even if the bankruptcy judge sides with GM and grants it immunity from most of the ignition-recall lawsuits, political pressure will continue to mount on the company. After all, GM received a massive government bailout leading up to its bankruptcy (in 2009, more than 70% of the company's stock was held by the United States and Canadian governments). Several congressional committees have already held hearings on the recall, and GM officials may feel compelled to waive or limit its immunity in order to placate angry politicians and their constituents.

Georgia Appeals Court Chides Trial Judge for Siding with Physician in Malpractice Case

April 14, 2014,

Medical malpractice occurs when a physician fails to observe a commonly accepted "standard of care" and that failure is the "proximate cause" of a subsequent injury sustained by the patient. The question of causation is normally decided by a jury. If a plaintiff fails to provide any evidence of either element--breach of standard of care or causation--a judge will not allow a malpractice case to go to the jury. However, judges must also be careful not to cavalierly dismiss cases, as a recent decision from the Georgia Court of Appeals illustrates.

Moore v. Singh

Rosemary Moore was a diabetic who died in 2010 from renal disease. In December 2008, Moore fell in her home and injured her knee. The emergency department at Henry Medical Center diagnosed her with a knee sprain. Moore could not stand or walk, but she was released.

Unfortunately, the next day Moore was found unresponsive in her bed. She returned to Henry Medical Center, where Dr. Sonu Singh, the attending physician for renal patients, assumed control of Moore's care. Singh treated Moore in the hospital for approximately two weeks.

While Singh treated Moore for complications related to her diabetes, no further action was taken regarding Moore's knee or leg, in spite of the fact she was still in pain and could not walk. At no point did Singh order any follow-up examination of Moore's leg such as a CT scan or an MRI.

More than two months after Moore's hospital discharge, another doctor examined and discovered it had been fractured and displaced. In April 2009, an orthopedic surgeon had to operate, re-breaking and resetting the leg in its correct position.

Moore--and following her death, her estate--sued Singh for malpractice. They claimed she failed to discover and treat the leg fracture back in December 2008, and that failure led to complications that made the subsequent surgery necessary. At trial, Moore's estate presented expert testimony that Moore breached the applicable standard of care by failing to order any follow-up tests on the injured leg. The second physician who treated Moore also testified that the fracture "was at least six weeks old" when he saw it in February 2009 and that it was unlikely it occurred before Moore's first visit to the emergency room back in December 2008.

Despite this evidence, the trial judge granted Singh's motion for a directed verdict. A directed verdict means the judge believes that all of the evidence introduced requires a judgment for the defendant. Here, the judge said there was no evidence of either a breach
in the standard of care or causation.

The Court of Appeals disagreed. Presiding Judge Sara L. Doyle, writing for the appeals court, said that a directed verdict can only be justified when the evidence only leads to one conclusion. That was not the case here. Judge Doyle said the "combined expert testimony" presented by the plaintiff "presented evidence creating a jury issue as to whether Dr. Singh would have discovered the fracture if she had properly complied with the standard of care during the examination of Rosemary during her hospitalization."

Georgia Appeals Court Absolves Hotel Chain of Liability in Bathtub Accident

April 4, 2014,

Most hotels and motels are affiliated with a national brand such as Hilton or Marriott. This means that individual hotels are owned and operated locally but comply with certain standards imposed by the national brand. Recently, the Georgia Court of Appeals considered the issue of whether a national brand could be held liable for injuries sustained by a customer at a locally owned hotel.

Bright v. Sandstone Hospitality, LLC

Wingate by Wyndham is a brand name used by more than a dozen mid-priced hotels in Georgia (and about 100 throughout the country). In 2008, the plaintiff in this case checked into a Wingate owned and operated by Sandstone Hospitality, LLC. After taking a morning bath in his room, the plaintiff attempted to use the grab bar to lift himself from the tub. The bar separated from the wall, causing the plaintiff to fall and injure his lower back. He subsequently required surgery.

The plaintiff filed a premises liability claim both Sandstone and Wingate International Inns, Inc., the owner of the Wingate by Wyndham brand. The trial judge granted both defendants' motion for summary judgment. The Georgia Court of Appeals reversed the summary judgment with respect to Sandstone, but not Wingate.

Judge William M. Ray, II, writing for a three-judge panel of the Court of Appeals, said Wingate could not be held liable for the conditions of a hotel owned by Sandstone. The judges rejected the plaintiff's argument that Sandstone was acting as an agent of Wingate. The plaintiff said he treated the Wingate brand's reputation as assurance that his room would be safe and free of construction defects.

But Judge Ray explained that "merely displaying signs or a trademark may be insufficient to establish an apparent agency relationship." In other words, using the Wingate name on the front of the hotel did not establish that Sandstone was the brand's agent. Furthermore, Sandstone clearly displayed signage disclosing that it, not Wingate, owned the property.

Judge Ray also said the plaintiff could not rely on any franchise agreement between Wingate and Sandstone to establish the former's liability. While the franchise agreement does impose certain safety requirements on Sandstone, the plaintiff cannot rely upon those requirements as a third party. Indeed, the agreement expressly states Wingate assumes no liability.

That does not mean Sandstone can escape liability, however. The appeals court agreed with the plaintiff that there were triable issues of fact against the local operator. Judge Ray said that testimony from the hotel's general manager established some doubt as to whether the hotel had prior knowledge of the defective bathroom grab bar. The plaintiff also presented testimony from an expert witness who said the "grab bar was defectively installed" and failed to comply with applicable local building codes. For these reasons, Judge Ray said it was appropriate to return the case to the trial court so a jury could hear all of the evidence.

Georgia Appeals Court Reinstates "Phantom Driver" Lawsuit

March 31, 2014,

What happens when you get in an automobile accident where the other driver is never identified? If you have uninsured motorist coverage, your insurer should cover the damages. Georgia law defines a vehicle as uninsured when "the owner or operator of the motor vehicle is unknown." But there must be adequate proof an accident occurred. This was the subject of a recent Georgia Court of Appeals decision, which illustrates the legal burden of proof in these so-called "phantom driver" cases.

Leslie v. Doe

The plaintiff in this case was driving down Highway 138 near a shopping center in Fulton County. He lost control of his vehicle when he swerved to avoid an unidentified vehicle that had just pulled out of the shopping center's parking lot. The sudden swerving caused the driver to lose control of his vehicle, which flipped over several times and crashed. The other vehicle continued without stopping and was never identified.

The plaintiff then sued the unknown driver--i.e., a John Doe--in order to recover against his insurance policy's uninsured motorist coverage. Since, obviously, nobody knew who John Doe was, the lawsuit was actually served on the plaintiff's uninsured motorist carrier. The insurance company contested the lawsuit.

In order to recover against the insurance company, Georgia law requires the plaintiff to prove that there was physical contact between his vehicle and the one driven by John Doe. There was no such evidence here. Alternatively, the plaintiff can produce eyewitness testimony from someone other than himself. There was such an eyewitness, another person who was present in the shopping center parking lot at the time of the accident. In a sworn affidavit, the witness described the unidentified car pulling out of the parking lot, cutting off the plaintiff's car, and the plaintiff subsequently losing control of his vehicle. However, at a deposition two months later, the eyewitness was less certain of his recollection. He wasn't sure whether the unidentified vehicle caused the accident. The witness also acknowledged he knew the plaintiff, who was dating his wife's sister.

The trial court granted summary judgment in favor of John Doe (and thus the insurance company). The judge cited the eyewitness' contradictory testimony, plus the fact his deposition was a photocopy submitted to the court rather than the original. The Court of Appeals, however, reversed the summary judgment decision and returned the case for trial. The appeals court said the trial judge erred in rejecting the photocopied affidavit; such "secondary evidence" is admissible unless the other party objects, which the insurance company (acting for John Doe) did not do here. And while the eyewitness' affidavit and deposition statements may conflict, neither his "credibility nor his contradictions" are the proper subject of a summary judgment order. The important thing is that he gave some testimony verifying the plaintiff's account of the accident. It is for a jury to decide whether or not to believe the witness.

Georgia Appeals Court Dismisses Lawsuit Against State University Over Notice Requirement

March 21, 2014,

Process matters when bringing a personal injury lawsuit. This goes double when the defendant is a state government agency. The Georgia Tort Claims Act (GTCA) governs personal injury lawsuits against the state for torts committed by its employees. Normally any government enjoys "sovereign immunity" from lawsuits in its own courts. The GTCA creates a limited waiver of that immunity provided its requirements are followed to the letter. A recent Georgia Court of Appeals decision illustrates what happens when those requirements are not followed.

Driscoll v. Board of Regents of the University System of Georgia

The GTCA applies to all state agencies, including the University System of Georgia and its member colleges and universities. Four years ago, a van owned by Georgia State University was traveling down an eastbound lane on Interstate 285. A tire flew off the van, crossed the median wall and struck a Hyundai Sonata and another car. The driver of the Sonata was killed.

In February 2011, an attorney for the driver's estate sent a notice by certified mail to the Georgia Department of Administrative Services' (DOAS) risk management office. Under the GTCA, such notice is required before anyone files a personal injury lawsuit against a state agency. The estate's notice specified the name of the victim, the date and the location of the accident, and the nature of her injuries (in this case, "loss of life"). Aside from a brief summary of the accident, there were no additional details and no specific claim for monetary losses.

Over the next several months, the estate and DOAS attempted to negotiate a settlement, to no avail. Finally, in February 2012, the estate sued the Board of Regents of the University System of Georgia under the GTCA. The Board immediately filed a motion to dismiss, citing insufficient notice.

Both the trial judge and the Georgia Court of Appeals agreed with the Board that the estate failed to comply with the strict notification requirements of the GTCA. There are six required elements of a GTCA notice. The estate failed to comply with fifth element, which is a statement of the "amount of the loss claimed." Indeed, as the Court of Appeals noted, the estate "failed to state any amount of loss whatsoever." This was not an inadvertent omission, the Court explained, but a failure to comply with the clear letter of the law. "Even though the prejudice to the State was arguably minimal in the present case," Presiding Judge Sara L. Doyle wrote for the Court of Appeals, "the [Georgia] Legislature plainly listed the required elements of [a GTCA] notice, and this Court is not authorized to ignore an element that is wholly absent" from said notice.

Judge Doyle noted that while it may be difficult in some cases to ascertain the value of a personal injury claim beforehand, the notice requirement is still necessary to give the state some idea as to the "magnitude of the claim, as practicable and to the extent of the claimant's knowledge and belief." Failure to provide such notice renders any and all claims, no matter how valid, moot in the eyes of the courts.

Florida Supreme Court Sides With Malpractice Victims Over Insurance Companies

March 17, 2014,

Insurance companies have pressured a number of states to impose limits on "non-economic" damages a plaintiff may recover in a medical malpractice or wrongful death lawsuit. Non-economic damages include losses to individuals, such as pain and suffering, mental anguish and loss of one's ability to enjoy life. The insurance industry claims such damage awards lead to higher malpractice insurance premiums for doctors and can ultimately drive practitioners out of the marketplace.

But, limits on non-economic damages are ultimately unfair to victims of medical malpractice. A number of state courts have recognized this and struck down legislative efforts to cap damages. For example, in 2010 the Georgia Supreme Court held limits on non-economic damages violated a victim's right to trial by jury, as the caps indiscriminately overruled a jury's findings of fact. And on March 13 of this year, the Florida Supreme Court declared that a state's limits on non-economic damages violated the equal protection provision of the Florida Constitution.

McCall v. United States

The Florida case began in 2005 when a woman under the care of a United States Air Force doctor died due to complications from childbirth. The woman's estate, her parents and the father of her child sued the United States Government under the Federal Tort Claims Act. This law provides that the federal government may be sued in state court due to the official negligence of one of its employees.

A federal judge in Florida found that the woman died due to medical malpractice. The court awarded economic damages of just over $980,000 and non-economic damages of $2 million--$500,000 for the woman's son and $750,000 for each of her parents.

Unfortunately, the court then had to reduce the award in order to comply with Florida's statutory cap on non-economic damages. Adopted by the Florida legislature in 2003, this cap limits total non-economic damages for all plaintiffs to just $1 million. The victim's family appealed the decision to limit damages to the U.S. 11th Circuit Court of Appeals. In a 2011 decision, that court said Florida's cap did not violate the United States Constitution. However, the court also asked the Florida Supreme Court to determine whether the cap might violate the state's constitution.

In a 5-2 decision, the Florida Supreme Court said that it did. Specifically, the majority held the cap violated the constitutional guarantee that all persons "are equal before the law." The Court said, "The statutory cap on wrongful death [non-economic] damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants." In other words, the cap treats cases with multiple plaintiffs differently than single plaintiffs. For example, had the victim's child in this case been the only plaintiff, he would have received the full $500,000 award for non-economic damages. But, since he was part of a group of plaintiffs that received a total award over the cap, his award was reduced in proportion to that cap. Even if the cap was not discriminatory, the Florida Supreme Court explained, it would still be unconstitutional as the limits still have "no rational relationship to a legitimate state objective."

The Court rejected the Florida Legislature's argument that caps on non-economic damages are necessary to address a "medical malpractice insurance crisis of unprecedented magnitude." In fact, the Court observed, this assertion was "dubious and questionable at the very best." And even if such a crisis did exist, there was little reason to believe capping non-economic damages would lead to lower malpractice insurance premiums for doctors. Insurance companies, the Court said, were far more likely to pad their own profits than pass along savings in the form of lower prices.

Georgia Appeals Court Rules Out Punitive Damages in Disputed Traffic Accident

March 7, 2014,

In personal injury or other tort cases, punitive damages are designed not to compensate the victim, but to "penalize, punish or deter" the wrongdoer. Georgia's punitive damages law requires a plaintiff prove the defendant's "willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to consequences." As the Georgia courts have explained, punitive damages require more than showing a defendant's negligence--there must also be "circumstances of aggravation or outrage."

The Georgia Court of Appeals recently dismissed a punitive damages claim arising from an automobile accident. The appeals court disagreed with a trial judge's decision to deny the defendant's motion for summary judgment on a punitive damages claim. The decision turned on an assessment of an employer's responsibility in hiring one of the drivers involved in the accident.

MasTEC North America, Inc. v. Wilson

The accident occurred in 2009 in Carrollton. A commercial pickup truck and a car collided at an intersection. Both drivers claimed the other ran a red light, and local police cited both parties. The automobile driver suffered serious injuries and sued the truck driver and his employer.

In addition to regular tort claims for compensatory damages, the plaintiff made several additional claims for punitive damages. She argued the employer was negligent in hiring and supervising the truck driver. As evidence, she cited three prior moving violations--i.e., running through a stop sign--committed by the truck driver between 2002 and 2005, three years before the employer hired him. The plaintiff said the employer knew about these violations through a pre-employment background check and was therefore negligent. (Such background checks are routinely required by federal law for all commercial truck operators.)

The Court of Appeals disagreed. Presiding Judge John J. Ellington, writing for a three-judge panel, said the truck driver's undisputed record actually disproved the plaintiff's claims. Prior to his collision with the plaintiff's vehicle, the defendant had never been in a traffic accident. The moving violations cited by the plaintiff actually took place in the defendant's personal vehicle; his commercial driving record contained no complaints or violations. And the employer had properly supervised and trained the driver with respect to safety.

In sum, Judge Ellington said there was nothing to suggest this particular accident resulted from a "pattern or policy of dangerous driving" that would justify punitive damages. Accordingly, both the driver and his employer were entitled to summary judgment as a matter of law on this issue. Furthermore, the employer was entitled to summary judgment on the plaintiff's negligent hiring and related claims, because they essentially duplicated her negligence claims.

It is important to note the Court of Appeals did not consider the negligence issue. The appeals court agreed to review the summary judgment on punitive damages while the negligence cause remains pending before the trial court. The courts have yet to rule on whether the truck driver or his employer are at fault for the accident and what damages, if any, may be owed to the plaintiff.

Georgia Supreme Court Says ER Malpractice Case Can Go to Trial

March 3, 2014,

Under Georgia law, a hospital emergency room is not liable for medical malpractice unless there is "clear and convincing evidence that the physician or health care provider's actions showed gross negligence." The Georgia Supreme Court recently opined on the scope of what may constitute "gross negligence." The justices, concurring with an earlier decision by the Georgia Court of Appeals, found a trial judge was too quick to grant summary judgment to a physician who claimed immunity under the law.

Abdel-Samed v. Dailey

The plaintiff in this case sought treatment at the emergency room of a hospital in Griffin. He had severely injured his hand in a paint sprayer accident. Upon arrival in the ER, a physicians' assistant examined the plaintiff and said he would require emergency surgery. It was after midnight, however, and the hospital did not have a hand surgeon on-call. The assistant told the plaintiff he would have to wait until morning for the surgery.

At this point, a physician examined the plaintiff and confirmed the physician assistant's diagnosis. The physician had actually just spoken with a qualified hand surgeon at a nearby hospital about another patient. Although this surgeon was available and willing to treat the plaintiff immediately, the emergency room physician nevertheless told the plaintiff to wait until the morning for the hospital's surgeon.

The plaintiff was ultimately transferred to the other hospital--nearly eight hours after his initial admission to the emergency room. Although he received the necessary surgery, he claimed the delay resulted in partial amputation of a finger and "reduced range of motion and increased pain and sensitivity in his finger and hand." He then sued the emergency room physician for malpractice on the grounds she should have referred him to the other hospital sooner.

The trial judge granted summary judgment to the physician, finding the plaintiff could not possibly meet the burden of proving "gross negligence" as required by law. The Georgia Court of Appeals reversed the trial judge. The Supreme Court agreed with the Court of Appeals that summary judgment was inappropriate.

The Supreme Court explained that at this stage of the case, the plaintiff merely had to present sufficient expert testimony to show a jury could find there was "gross negligence." The plaintiff did so in the form of an expert witness who said the emergency room physician's delay in transferring the plaintiff to another hospital--especially when she knew there was a hand surgeon able to act immediately--constituted "gross negligence and a gross deviation from the applicable standard of medical care."

The justices rejected the defense's argument that they exercised "slight diligence" in caring for the plaintiff, thus negating any possible finding of gross negligence. The Court noted there was evidence that the hospital failed to follow its normal practice in contacting other hospitals to see if there was an available surgeon. It was also undisputed that the physician knew there was an available surgeon nearby, yet she failed to authorize a transfer for several hours. In any case, there are enough facts in dispute to warrant sending this case to a jury.

How Bankruptcy Can Affect a Personal Injury Lawsuit

February 24, 2014,

A federal judge in Atlanta recently granted summary judgment to the defendant in a personal injury lawsuit. The case is notable because the judge never reached the merits of the plaintiff's arguments, but rather dismissed the case because she lacked standing to bring the suit in the first place. The standing question is what made this case unusual.

Job v. AirTran Airways, Inc.

The alleged injury took place in 2009. The plaintiff was traveling from West Palm Beach to Atlanta on a plane operated by AirTran Airways. A malfunction in the plane's air conditioning system caused some fluid to leak, allegedly splashing the plaintiff in the eyes. As a result, she claims she suffered chronic inflammation of her eyelid.

Just under two years later, in July 2011, the plaintiff sued AirTran. The company moved for summary judgment. The judge granted the motion in an opinion dated February 3 of this year.

How did the plaintiff lack standing? It turns out that in between the time of the alleged incident and the filing of her lawsuit, the plaintiff filed for bankruptcy. In 2010 she filed a petition in California for liquidation of debts under Chapter 7 of the Bankruptcy Code. As part of that proceeding, she had to list any "contingent and unliquidated claims," such as pending personal injury lawsuits. Obviously, she did not include the AirTran lawsuit, as it had not yet been filed. The Bankruptcy Court granted her discharge six months prior to the filing of the lawsuit.

In a Chapter 7 case, the bankruptcy court appoints a trustee to take possession of the debtor's assets, pay off any creditors to the extent possible, and "abandon" any remaining property back to the debtor. AirTran, in its motion for summary judgment, pointed out that it was the bankruptcy trustee, not the plaintiff, who had standing to bring this case, as the alleged injury occurred before the filing of the bankruptcy case.

According to the trial judge, the plaintiff "never suggests that the cause of action was then abandoned back to her," and that the trustee remains the "real party in interest" with standing to sue AirTran. (The plaintiff subsequently moved to reopen her bankruptcy case in California to add the lawsuit as a pending claim.) Accordingly, the judge granted AirTran summary judgment on this point.

Does Estoppel Apply?

AirTran also suggested that the plaintiff's failure to list this personal injury lawsuit in her initial bankruptcy petition created a "judicial estoppel" situation. "Estoppel" is the legal doctrine that says a person cannot take contrary positions in different legal proceedings. In other words, since the plaintiff failed to list her potential lawsuit against AirTran in her bankruptcy petition--presumably to conceal a potentially valuable asset from the trustee--she could not now bring such a claim.

The judge disagreed with AirTran on this point (although it didn't matter, since the judge agreed the plaintiff lacked standing.) Under Georgia law, which applies in this case, a plaintiff can proceed with a previously unlisted personal injury claim if she subsequently amends her bankruptcy petition--which the plaintiff did here. Federal law does not permit such amendments, but state law does.

Wal-Mart Faces Trial in Pair of Georgia "Slip and Fall" Cases

February 13, 2014,

"Slip and fall" cases are among the most common types of personal injury lawsuits brought against retailers. It's no surprise then that Wal-Mart, the nation's largest retailer, is currently facing at least two such lawsuits in Georgia alone. Recently, separate federal courts denied Wal-Mart's motions for summary judgment, finding in each case that there was substantial evidence the retailer had direct knowledge of hazards that led to the plaintiff's accident.

Ali v. Wal-Mart Stores East, LP

The first case involves a 2010 incident at a Wal-Mart in Snellville. The plaintiff was buying groceries in the afternoon and stopped at the dairy aisle to pick up butter. At the same time, according to court records, "a Wal-Mart employee pulled a pallet jack right behind plaintiff's feet." When the plaintiff turned to place the butter in his cart, he said he tripped over the pallet jack and suffered serious injuries.

The plaintiff sued Wal-Mart and, because the company is based outside of Georgia, the case is before a federal court. On February 2 of this year, Chief U.S. District Judge Julie E. Carnes of Atlanta denied Wal-Mart's motion for a summary judgment in its favor. Wal-Mart argued the plaintiff's evidence could not support a finding of "premises liability" under Georgia law. Judge Carnes disagreed.

In any premises liability case, the key issue is whether the retailer knew--or should have known--about a potentially hazardous condition on its property. Here, the plaintiff alleged a Wal-Mart employee moved a piece of equipment that directly led to the accident. If true, that means Wal-Mart, by its own employee's action, knew about the hazard. As Judge Carnes explained, "a jury considering those facts would be authorized, although not required, to find that the placement of the pallet jack created a hazardous condition that ultimately caused plaintiff to fall and injure himself."

Massey v. Wal-Mart Stores East, LP

But what about a case in which an employee acknowledges a hazard, but did not necessarily create it? This arose from another 2010 incident, this time at a Wal-Mart in Warner Robins. Like the plaintiff in the first case, this plaintiff was grocery shopping in the afternoon. As she moved into a new aisle, she slipped in a pool of water and fell.
According to the plaintiff, an employee helped her up and went to call a manager. The manager then told the woman "that they were aware of the spill but they just have not gotten around to it." Based on this admission, the woman sued.

Here, Wal-Mart claimed the manager's statement was "hearsay" that could not be admitted as evidence at trial. And without the manager's testimony, Wal-Mart said the plaintiff could not show the store had knowledge of the hazard. Furthermore, Wal-Mart presented additional testimony that denied the manager's admission.

Like Judge Carnes in the Atlanta case, U.S. District Judge Marc T. Treadwell of Macon rejected Wal-Mart's motion for summary judgment. Judge Treadwell said the manager's alleged admission could be presented to a jury. It is not hearsay to use the statements of a company employee--acting within the scope of employment--against an employer. And while there is evidence to rebut the alleged admission, it is ultimately for a jury to weigh the credibility of the evidence.

Georgia Supreme Court Clarifies Deadline for Hospital Lien Lawsuits

February 6, 2014,

Hospital liens are a legal device used to ensure medical providers receive payment for services rendered to accident victims. The lien is applied against the proceeds of any personal injury claim made by the victim. Georgia law regulates the enforcement of such medical liens.

Recently, the Georgia Supreme Court issued a decision interpreting a disputed part of the state's law governing hospital liens. The Court was asked to review a lower court's opinion on the applicable statute of limitations--that is, the period of time in which a court action to enforce a medical lien can be filed--and ultimately decided in favor of the hospital. While the Supreme Court's decision was unanimous, several justices wrote separately to note the underlying confusion in the written statute.

Hospital Authority of Clarke County v. Geico General Insurance Co.

This case began with a March 2010 car accident. One victim received medical treatment at Athens Regional Medical Center. The hospital subsequently filed three liens totaling nearly $67,000 to cover the victim's care. The victim then sued three other persons she deemed responsible for the accident.

The defendants had an insurance policy with Geico. They finally settled in September 2010 with the victim for $100,000. The settlement required the victim to satisfy the medical liens out of that amount, but by June 2011, the liens had not yet been paid. The hospital then tried to obtain payment directly from Geico, which refused, citing the settlement with the victim. In October 2011, the hospital sued Geico.

Geico claimed the hospital waited too long to file its lawsuit. Under Georgia law, there is a one-year statute of limitations in hospital lien cases. Specifically, the statute provides:

"The action shall be commenced against the person liable for the damages or such person's insurer within one year after the date the liability is finally determined by a settlement, by a release, by a covenant not to bring an action, or by the judgment of a court of competent jurisdiction."

In this case, Geico said the one-year clock began in September 2010, when the victim settled. The hospital did not file its lawsuit until October 2011, more than one year later. Ergo, Geico said it was entitled to summary judgment.

The lower courts disagreed on this point. The trial judge ruled against Geico, but a three-judge panel of the Georgia Court of Appeals reversed. The appeals court found the statute "unambiguously states" that the lawsuit had to be filed within one year of the settlement.

But the Supreme Court disagreed. All seven justices agreed that the "plain wording" of the law actually meant that the one-year clock began when there was a settlement or release that constituted a final determination of the insurer's liability. And although the victim reached a settlement with Geico in September 2010, she did not actually sign a release settling all outstanding claims until October 2010--one year before the hospital filed its lawsuit. Therefore, the Supreme Court said the lawsuit could proceed. Three justices wrote separately to note the statute itself is "difficult to understand and apply," because settlements and releases are actually devices that usually absolve a party of liability (rather than determine it), and there is nothing in the law to clearly notify the party asserting the lien of the proper deadline.

Georgia Appeals Court Distinguished Between Contract and Counteroffer

January 30, 2014,

Dealing with insurance companies is one of the many unpleasant consequences of a motor vehicle accident. Insurers often look to dispose of claims quickly. And while that may also be in the victim's interest, it's important not to get railroaded by an overzealous insurer. A recent decision by the Georgia Court of Appeals highlights one such insurer who insisted there was a settlement when, in fact, there was not.

Kemper v. Brown

The victim in this case was driving her motorcycle in March 2012. She was hit by another vehicle. The other driver was clearly at fault--he had been drinking and driving recklessly.
The victim sent the other driver's insurance company a demand letter. She offered to sign a limited release in exchange for the maximum value of the driver's policy, which was $25,000. The demand was unconditional.

A few weeks later, the insurance company's claims administrator, Statewide, sent the victim a response. Enclosed was a $25,000 check and a limited release form. The accompanying letter stated that "we are entrusting that you place money in an escrow account in regards to any and all liens pending."

The victim considered the request to place the check in an escrow account to be a counteroffer. After all, her initial demand was for unconditional payment of the $25,000 in exchange for the release. Statewide didn't see it that way. Both parties went to court.
Statewide asked the trial court to "enforce the purported settlement agreement" between it and the victim. The court granted the motion. The victim appealed.

The Court of Appeals sided with the victim and reversed the trial judge's decision. Judge M. Yvette Miller, writing for a three-judge panel of the appeals court, said it was clear there was no mutual agreement between the parties that gave rise to a binding contract. "Statewide's response did not merely inquire about the existence of liens against [the victim's] causes of action," Judge Miller wrote. "Rather, by using the term 'demand,' Statewide clearly expressed a condition that [the victim] was required to satisfy for Statewide's acceptance to be effective."

The questions of liens arose because of the victim's medical treatment. Although she had health insurance to cover her hospital stay following the accident, Judge Miller noted that the hospital could still, in theory, file a lien to recover "any unpaid expenses." As long as the possibility of a lien existed, Statewide had a basis for requesting the settlement check be placed in escrow--and, once again, that made its response a counteroffer rather than an acceptance of the victim's original demand.

Fight Instigated at Golf Course Not an "Accident" for Insurance Purposes

January 24, 2014,

Golf is not supposed to be a contact sport. But when a fight broke out between two golfing groups at a Georgia club, litigation followed, and a federal appeals court had to settle at least one issue.. The court found the man who instigated the brawl could not turn to his homeowner's insurance carrier to pay for his victim's injuries.

Meritplan Insurance Company v. Leverette

The defendant in this case was playing golf with friends. At some point, he "exchanged verbal insults" with a golfer in another group. The argument escalated, and the defendant grabbed the victim's golf club, prompting a physical fight. A member of the defendant's golf group kicked the victim in the head to the point where he lost consciousness.

The victim was subsequently treated for "severe and permanent injuries." The victim sued the defendant in Georgia state court, accusing him of negligence, assault and battery, and related charges. The victim said the defendant was responsible for "creating a dangerous situation" that led to his injuries.

The defendant asked his homeowner's insurance carrier, Meritplan, to defend him against the victim's lawsuit. He claimed the altercation was an "accident" covered by his policy. Meritplan disagreed and filed its own lawsuit against the defendant in federal court, asking a judge to declare the insurer owed no duty to the policyholder under these circumstances.
The judge agreed with Meritplan and granted the insurer summary judgment. The defendant appealed. The U.S. Court of Appeals for the 11th Circuit, which oversees all federal trial courts in Georgia, found no error in the trial judge's decision and affirmed.
The defendant's policy covered any lawsuit brought against the defendant for "damages...caused by an 'occurrence'," such as an "accident." Since the policy did not expressly define "accident," the appeals court applied Georgia insurance law, where it means "an unexpected happening rather than one occurring through intention or design." Whether or not an incident is "unexpected" depends on the viewpoint of the insured person.

In this case, the appeals court noted that the events leading up to the victim's injuries--and hence his lawsuit--"did not take place without [the defendant's] foresight, expectation, or design." After all, the defendant grabbed the victim's golf club with the intent of striking the victim. Even if the defendant did not intend to harm the victim as severely as he did, the fact remains he "acted intentionally and voluntarily," and therefore cannot claim the injuries were the result of an "accident" or "accidental means," as specified in the insurance policy.

The defendant argued in the Court of Appeals that he was acting in self-defense. This would render his conduct insurable under a "reasonable force" clause in the policy. The appeals court dismissed this argument out-of-hand, however, because the defendant never raised the issue before the trial court. As a matter of judicial procedure, a party generally cannot raise an issue for the first time on appeal. It's unclear how the trial judge might have ruled on the self-defense claim had it been properly raised.

Georgia Appeals Court Reinstates "Ordinary" Negliegence Lawsuit Against Hospital

January 17, 2014,

Ordinary negligence and medical malpractice are not the same thing under Georgia law. A key difference between the two is the requirements for filing a lawsuit. In a malpractice case, the plaintiff must attach an affidavit "of an expert competent to testify" as to at least one specific negligent act by a licensed health care professional. Failure to include such an expert affidavit may lead a judge to dismiss the complaint.

The expert affidavit requirement is designed to prevent frivolous malpractice lawsuits. The affidavit provides a basis for calling into question a physician's exercise of "professional judgment and skill." The law presumes a jury composed of non-expert laypersons cannot render a fair judgment without expert guidance. But such expertise is not necessary when the alleged injury is caused by something more routine, like a clerical or administrative error.

For that reason, no affidavit is required when filing a complaint for ordinary negligence. Distinguishing between ordinary negligence and medical malpractice can be tricky. Even trial judges sometimes get it wrong, as a recent decision by the Georgia Court of Appeals explained.

Ambrose v. St. Joseph's Hospital of Atlanta, Inc.

The plaintiff in this case underwent spinal surgery in 2010. The surgeon used a computer-operated surgical microscope that included an ultraviolet light to "illuminate the operative field." Unfortunately, the ultraviolet light was so strong that it burned the patient's skin and back, rendering him unable to return to work after the surgery.
The patient sued the hospital for negligence. The hospital argued that this was a medical malpractice case, and as the plaintiff failed to include an expert affidavit, his complaint should be dismissed. The trial judge agreed with the hospital.

The Court of Appeals reversed. Judge M. Yvette Miller, writing for a three-judge panel, said that taking the plaintiff's complaint at face value, "we cannot say that the claim is necessary one of medical malpractice." At this stage of the case, his allegation appears to be one of ordinary negligence, so the district court erred in granting the hospital's motion to dismiss.
The critical distinction here is that the plaintiff did not allege physician error as the cause of his injuries. Rather, he argues the hospital was at fault for providing the surgeon with inadequate equipment. The complaint alleges the hospital failed to update the software on the microscope and failed to adequately warn its surgeons of the risks in using the device. This would make the plaintiff's complaint more akin to product liability than medical malpractice.

Similarly, Judge Miller agreed with the plaintiff that the trial judge erred because, under Georgia law, the expert affidavit requirement only applies when a hospital's liability is based on "the action or inaction of a health care professional," not the use of defective equipment.
The Court of Appeals decision does not mean the plaintiff will ultimately prevail in his lawsuit against the hospital. It simply means the plaintiff survives the initial motion to dismiss. The case may now proceed to discovery and trial, assuming there is no settlement between the parties.

Federal Judge Allows Injured Veteran to Pursue Malpractice Case Against Government

January 13, 2014,

The Federal Tort Claims Act (FTCA) allows individuals to sue the United States Government for certain torts committed by its employees. In this sense, the FTCA waives the traditional "sovereign immunity" that the government enjoys from civil lawsuits. Although federal courts have jurisdiction over complaints brought under the FTCA, cases are judged under the tort law of the state where the alleged injury occurred.

Recently, a federal judge in Atlanta addressed a potential conflict in the standards for bringing tort cases in Georgia state courts versus federal courts under the FTCA. The judge rejected the federal government's efforts to dismiss the case. The underlying lawsuit remains pending before the court.

Stidham v. United States

The plaintiff is a military veteran. In 2010, he was injured in an automobile accident. A local hospital advised him that he would require knee surgery. The veteran sought a second opinion from a nearby Veterans Affairs hospital. The VA doctors said immediate surgery was inadvisable, and directed him to wear a knee brace instead.

A few days later, the veteran returned to the VA and was told he did not require surgery at all. Instead, he was prescribed a second, custom knee brace. It was nearly a year, however, before the VA procured the special brace. Consequently, the veteran said he suffered permanent knee damage during this time.

The veteran filed a medical malpractice suit against the government under the FTCA. The government moved to dismiss the complaint on the grounds that the veteran failed to include an affidavit, signed by a medical expert, identifying "at least one negligent act or omission claimed to exist and the factual basis for each such claim." Such affidavits are required under Georgia law when bringing a malpractice claim in state court.
The plaintiff argued, however, that the Georgia rule does not apply to FTCA complaints. Federal courts are governed by their own Federal Rules of Civil Procedure, which only requires a complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief." There is no requirement a malpractice complaint include an "expert affidavit."

U.S. District Judge Thomas W. Thrash, Jr., agreed with the plaintiff and denied the motion to dismiss. He noted that while the 11th Circuit--the federal appeals court that oversees all district courts in Georgia--has not definitively ruled on this question, the practice in the Northern District of Georgia (dating back to at least 1999) has been not to apply the state's expert affidavit requirement in FTCA cases. Judge Thrash found no reason to depart from that practice here.

That's not to say the plaintiff will not have to eventually produce expert testimony in support of his medical negligence case. As Judge Thrash noted, the federal courts' relatively loose pleading rules simply "represents a policy judgment that plausible claims which lack merit for evidentiary reasons should be disposed of on summary judgment." But at this preliminary stage, it was sufficient for the plaintiff to simply present his malpractice allegations.