Marietta Injury Lawyer Blog

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.

Georgia Appeals Court Distinguished Between Contract and Counteroffer

January 30, 2014 | Benjamin S. Persons, IV

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.

Fight Instigated at Golf Course Not an “Accident” for Insurance Purposes

January 24, 2014 | Benjamin S. Persons, IV

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.

Georgia Appeals Court Reinstates “Ordinary” Negliegence Lawsuit Against Hospital

January 17, 2014 | Benjamin S. Persons, IV

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.

Federal Judge Allows Injured Veteran to Pursue Malpractice Case Against Government

January 13, 2014 | Benjamin S. Persons, IV

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