Marietta Injury Lawyer Blog

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

April 14, 2014 | Benjamin S. Persons, IV

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.

Georgia Appeals Court Absolves Hotel Chain of Liability in Bathtub Accident

April 4, 2014 | Benjamin S. Persons, IV

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.

Georgia Appeals Court Reinstates “Phantom Driver” Lawsuit

March 31, 2014 | Benjamin S. Persons, IV

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.

Georgia Appeals Court Dismisses Lawsuit Against State University Over Notice Requirement

March 21, 2014 | Benjamin S. Persons, IV

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.

Florida Supreme Court Sides With Malpractice Victims Over Insurance Companies

March 17, 2014 | Benjamin S. Persons, IV

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

Georgia Appeals Court Rules Out Punitive Damages in Disputed Traffic Accident

March 7, 2014 | Benjamin S. Persons, IV

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

Georgia Supreme Court Says ER Malpractice Case Can Go to Trial

March 3, 2014 | Benjamin S. Persons, IV

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.

How Bankruptcy Can Affect a Personal Injury Lawsuit

February 24, 2014 | Benjamin S. Persons, IV

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.

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

February 13, 2014 | Benjamin S. Persons, IV

“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.

Georgia Supreme Court Clarifies Deadline for Hospital Lien Lawsuits

February 6, 2014 | Benjamin S. Persons, IV

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.