Marietta Injury Lawyer Blog

Hospital Avoids Medical Malpractice Lawsuit By Posting Hallway Notice

September 20, 2013 | Benjamin S. Persons, IV

When you go to a hospital for treatment, is the hospital liable if something goes wrong? Not necessarily. Many of the physicians who work at a hospital are not employees, but rather “independent contractors” with medical privileges. Georgia law allows hospitals to escape liability for the medical malpractice of these independent contractor physicians if certain conditions are met.

A recent decision by the Georgia Court of Appeals helps illustrate the problem. The victim in this case had a “previous cardiac history” and was admitted to Emory-Adventist Hospital on New Year’s Eve of 2005. He complained of “chest pain, shortness of breath, and urinary difficulties.” The attending physician in the emergency department treated him. Two days later, however, the victim died of a heart attack.

Two years later, the victim’s widow sued the hospital, the attending physician and several other parties. The hospital argued it was not a proper party to the lawsuit because the attending physician was an independent contractor, not a hospital employee. In fact, the attending physician worked for Cobb Medical Associates, LLC.

Parents of 13-Year-Old Amputee Victim Allowed to Pursue Negligence Claims Against Vehicle Manufacturer

September 13, 2013 | Benjamin S. Persons, IV

Bad Boy Enterprises manufactures and sells golf carts modified to function as off-road vehicles. These “Bad Boy Buggies” are primarily marketed to outdoor enthusiasts and hunters. They are also the subject of an ongoing federal lawsuit in Georgia over their safety.

The plaintiffs in this case are the parents of a minor. The child was 13 years old when her parents allowed her to operate a Bad Boy Buggy owned by a family friend. The child had driven the vehicle on several prior occasions, always with her parents permission. On the day in question, she was driving the buggy around a looping gravel driveway with a friend sitting in the passenger seat.

According to court records, the buggy would suddenly accelerate even when constant pressure was maintained on the accelerator pedal. On this particular day, the child applied the brake as the vehicle entered a turn. The vehicle continued to accelerate, however, and eventually tipped over, severing the child’s left foot and part of her leg.

Georgia Appeals Court Holds Restaurant Not Responsible for Parking Lot Stabbing

September 5, 2013 | Benjamin S. Persons, IV

Is a restaurant liable when a customer is stabbed on its property? The Georgia Court of Appeals recently addressed this question and answered with a resounding “no.” A three-judge panel upheld a trial court’s decision awarding summary judgment to the restaurant.

The incident took place back in 2010. The victim was having dinner with his girlfriend and her family at a Mexican restaurant in Paulding County. At a nearby table, another customer–who had “consumed an unknown quantity of alcoholic beverages,” according to court records–began verbally harassing the group. The restaurant manager agreed to move the victim’s party to another table, but he declined to eject the drunken customer and, in fact, continued to serve him alcohol.

The customer continued to harass the victim’s group, at one point threatening a toddler. At this point, the restaurant manager asked the customer to leave. The manager later testified he was “a little afraid” of the customer but did not consider him an immediate threat to anyone in the restaurant.

Georgia Appeals Court Upholds Accident Victim’s Claim Against Insurance Company

August 30, 2013 | Benjamin S. Persons, IV

In personal injury cases, trial juries are expected to employ their common sense and knowledge in determining liability. Expert testimony may provide a jury with specialized knowledge, but, as the Georgia Supreme Court has said in Cower v Widener, most “simple negligence” cases such testimony is not required “to establish a causal link between the defendant’s conduct and the plaintiff’s injury.” Recently, the Georgia Court of Appeals applied this principle to a dispute between an accident victim and his insurance company.

In February 2002, the victim was waiting in his car at an intersection. An unknown driver rear-ended him. The victim’s head slammed against the window. The victim exited his vehicle in a “dazed” state and proceeded to speak briefly with the other driver. However, before the victim could obtain any further vehicle or insurance information, the other driver fled the scene.

Shortly thereafter, the victim started receiving chiropractic treatment for lower back pain. Nine months later, an MRI revealed a herniated disk. The radiologist supervising the MRI concluded the injury was “possibly several months of age,” putting it within the time frame of the February accident.

Georgia Appeals Court Confirms “Right of Way” at Four-Way Stop Intersections

August 23, 2013 | Benjamin S. Persons, IV

Sometimes even judges get confused about basic traffic laws. In June, the Georgia Court of Appeals reversed a jury verdict after finding the judge improperly instructed jurors about the law governing the right-of-way at a four-way stop sign. The case arose from a traffic accident in Gwinnett County where each driver blamed the other.

The plaintiff in this case testified that he arrived at the intersection–which had a four-way stop sign–first, stopped, and then proceeded to execute a left-hand turn. The defendant’s truck, approaching from the cross-road, failed to yield the stop sign and collided with the plaintiff’s vehicle in the intersection. The defendant, in contrast, said he arrived at the intersection a few seconds before the plaintiff and in fact made a complete stop before entering the intersection.

The police officer who took the accident report said the defendant was at fault for the accident, because “by state law when you both stop at the same time, you have to yield to the vehicle to your right.” At trial, however, the judge said this was wrong. Instead, the judge charged the jury as follows:

Georgia Appeals Court Reinstates Mother’s Lawsuit on Behalf of Child With Cerebral Palsy

August 15, 2013 | Benjamin S. Persons, IV

Cerebral palsy is a chronic, incurable condition that impairs a person’s motor functions. Most cases of cerebral palsy arise from a brain injury sustained before, during or shortly after a child’s birth. While cerebral palsy is usually not life-threatening, it is a permanent condition that affects the child for his or her entire lifetime.

The Georgia Court of Appeals recently reinstated a lawsuit, Nixon v. Pierce County School District, brought by a mother whose now-five-year-old child developed cerebral palsy. The woman was about 38 weeks pregnant when a school bus rear-ended her sedan. She was immediately taken to a hospital. The next morning, doctors decided to induce labor. There were no complications during birth, and the woman had, up to the point of the car accident, experienced nothing unusual with respect to her pregnancy.

Six months later, however, the woman started to notice developmental problems with her daughter. The child had difficulty controlling the right side of her body. At approximately one year of age, a pediatric neurologist diagnosed the girl with cerebral palsy.

Georgia Appeals Court Reinstates “Tandem Driving” Lawsuit

August 6, 2013 | Benjamin S. Persons, IV

On September 25, 2008, a driver heading west on Jackson Road (Georgia Highway 155) in Spalding County was struck by a white van traveling–well past the posted 55-mph speed limit–south on Johnny Cut Road. The subsequent collision killed the van operator and seriously injured the innocent driver of the other vehicle. Understandably, the victim filed a lawsuit to recover damages for his injuries.

What makes this case unusual is one of the defendants was the driver of a third vehicle. The victim identified this vehicle as running about 20-30 feet behind the van that collided with him. Subsequent evidence revealed the third vehicle had been following the van to a gas station. The victim testified the two vehicles were traveling at 65-70 miles per hour and likely ran a stop sign just prior to the accident. The driver of the third vehicle claimed he was only traveling around 40-45 miles per hour and that he stopped at the stop sign in question.

Georgia law recognizes joint liability of parties based on “tandem driving.” Put simply, if two cars are speeding together–say, in an illegal drag race–and one car causes an accident, the driver of the other car may also be held liable even if he or she was not a party to the accident. As the Georgia Court of Appeals has explained in Baxter v. Wakefield, liability exists when “there is an understanding” between the drivers “to reach a common destination and in doing so illegal speed is used and the cars are driven so closely together as to be practically in tandem.”

Georgia Appeals Court Reviews Tragic Car-Truck Accident, Finds Neither Driver Responsible

August 4, 2013 | Benjamin S. Persons, IV

Sometimes there’s a deadly automobile accident where neither driver is legally at fault. The Georgia Court of Appeals recently made just such a finding with regards to a June 2010 highway accident just outside of Albany. While a trial judge thought there were issues for a jury to sort out, a three-judge panel of the Court of Appeals unanimously agreed the undisputed facts showed neither party could be held legally responsible.

The accident involved a woman driving her car on a northbound lane. A truck in the southbound lane suddenly veered across the turning lane and struck the car. The woman driving the car suffered a broken leg and other injuries. The man driving the truck sustained a head injury and could not recount the details of the accident to a police. It was later discovered the truck driver had suffered a stroke just before the accident, and he died a few weeks later.

The automobile driver sued the truck driver’s estate for negligence. The truck driver’s executor responded by filing a negligence counterclaim against the automobile driver. The trial judge refused both parties’ motions for summary judgment but allowed them to appeal that decision to the Court of Appeals.

Georgia Appeals Court Reinstates Lawsuit of Unarmed Man Shot by Off-Duty Police Officer

July 26, 2013 | Benjamin S. Persons, IV

An off-duty police officer providing security for an apartment building shoots an unarmed man who was simply delivering some medication to a disabled relative. Is the apartment building owner liable? Maybe, according to a recent decision by a divided Georgia Court of Appeals.

The victim in this case visited his aunt’s apartment building and parked in a handicapped-designated space. This aroused the suspicion of the off-duty officer. It was the officer’s first day working private security for the building. He had been hired by another police officer, who previously monitored the building alone.

After the victim completed his delivery and exited the building, the off-duty officer confronted him. The officer later testified that the victim panicked, entered his car and ingested what the officer (falsely) claimed was cocaine. The officer tried to physically block the victim’s car and repeatedly shouted him to stop. Ultimately, the officer smashed a window in the victim’s car and fired his weapon. The officer later claimed–again, falsely–that the victim was reaching for a gun.

Georgia Supreme Court Addresses Scope of Commercial Liability Policies

July 25, 2013 | Benjamin S. Persons, IV

The law often turns on the definition of a single word. In a recent decision, the Georgia Supreme Court unanimously defined the use of the word “occurrence” with respect to certain commercial insurance policies. The underlying case arose from allegations of faulty home construction.

Curiously, the faulty construction did not take place in Georgia, but California. Sixteen homeowners in that state filed a class action against their home builder over inadequately constructed foundations. The homeowners alleged the improper construction caused “terrible physical damage” to their properties.

Georgia came into the picture because of the home builder’s relationship with an insurance company providing a commercial general liability (CGL) policy subject to that state’s law. Normally, a CGL policy pays any legal liabilities arising from “bodily injury” or “property damage” caused by an “occurrence” in the specified coverage territory. In this case, the home builder’s CGL policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful condition.”