Marietta Injury Lawyer Blog

ER Gross Negligence Statute Upheld by the Supreme Court of Georgia

March 18, 2010 | Benjamin S. Persons, IV

Since 1863, Georgia law has required that those practicing medicine for compensation must bring to the exercise of their profession a reasonable degree of care and skill, and Georgia law has provided that any injury resulting from a want of such care and skill shall be a tort for which recovery may be had. In 2005, all that changed, and ER physicians in our State were no longer required to practice with care and skill. This new law, codified at OCGA § 51-1-29.5 (c), was part of the tort reform package proposed by the insurance industry and passed by the Georgia Legislature in 2005. Those injured or killed by ER malpractice can no longer recover unless they can prove a much higher burden of gross negligence. This week in a 4-3 decision, Gliemmo et al. v. Cousineau et al., the Supreme Court of Georgia upheld the ER gross negligence statute as constitutional.

The case began in 2007, when Carol Gliemmo presented to St. Francis Hospital with serious pain behind her eyes, a sudden snapping in her head, and elevated blood pressure. Mark Cousineau, MD of Emergency Medical Specialists of Columbus, P.C. wrote her a prescription for Valium and sent her home. Two days later her primary care physician ordered a CT scan, which revealed a brain hemorrhage. As a result of the brain hemorrhage going untreated Carol Gliemmo was paralyzed.

So, even though expert physicians can agree that Dr. Cousineau breached the standard of care required of emergency physicians and caused this woman’s paralysis she cannot recover under Georgia law. It’s still difficult to believe this is the state of the law in Georgia. I’m certain Georgia medical malpractice lawyers will continue to fight for injured victims, but times are grim in Georgia. Of course Atticus Finch would say courage is knowing you’re licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.

The Supreme Court of Georgia Upholds the “Offer of Settlement” Statute, OCGA § 9-11-68

March 16, 2010 | Benjamin S. Persons, IV

In 2005, by the narrowest of margins, the Georgia Legislature passed sweeping changes to Georgia’s tort laws, known as SB3. Included in those changes was the new “Offer of Settlement” statute, codified at OCGA § 9-11-68. The Offer of Settlement statute has created a new mechanism for punishing a party to litigation with attorney’s fees. Georgia already has two statutes (OCGA §§ 9-15-14 and 13-6-11) that subject parties to statutory penalties, including attorney’s fees, for bringing frivolous suits or unreasonably litigating matters. The Offer of Settlement statute is different in it applies to all cases even meritorious suits that prevail at trial. This statute sets up situations where injured victims may win a jury verdict but end up with a net loss because the insurance companies’ attorney’s fees exceed the verdict. This week, the Supreme Court of Georgia in a 5-2 decision upheld the Offer of Settlement statute overruling the trial court’s finding that the statute violated the Georgia Consitution’s right to access the courts.

In her dissent, the honorable Justice Hunstein artfully explained why this statute does in fact violate our constitutional access to the courts as follows: “OCGA § 9-11-68(b)(1) penalizes plaintiffs with meritorious causes of action for an impossiblity, namely, their failure to see into the future so as to calculate the precise amount a factfinder may award them for the damages they reasonably believed they sustained at the hands of the defendants…No party intending to file a cause of action in tort can foresee whether she will recover ‘enough’ money to avoid the effect of OCGA § 9-11-68(b)(1).”

The practical effect of this statute is that it will make it extremely difficult for middle class Georgia citizens to pursue meritorious cases. As discussed above, if an injured person fails to recover “enough” money from the jury, the insurance company can take a judgment against the injured person for the attorney’s fees they paid defending the case. Those without significant assets will not be deterred from pursing meritorious cases, because there is no way to collect a judgment against someone that has nothing (also known as “judgment proof”). The wealthy will still seek justice and their day in court knowing they can afford the unlikely result of a lower than expected jury verdict in their favor. The middle class injured victim is the only one truly stung by this new law. Many will still seek justice, but there are those that will forgo pursing recovery for their broken bones and medical expenses because the fear of having to pay for the insurance companies’ lawyer. This new law is just one of many challenges an experienced Georgia personal injury lawyer must negotiate in the mine field that is civil litigation.

Interesting Lawyer Ads; This One is a Rap Video

March 8, 2010 | Benjamin S. Persons, IV

I have never advertised my legal services on television, so I admittedly have no idea what is considered effective TV advertising. However, I do know what I find to be the most entertaining…and a Rap Video Lawyer Ad certainly fits that description.

This Ad is certainly a lot more fun than most of what I see on TV. Although not rapping himself, the guy wearing sunglasses in the sport coat appears to be the actual Georgia lawyer the ad wants you to call to “get that settlement check.” I was a little disappointed there wasn’t a line about getting the client diminished value for the shinny Hummer in the background, that would really have put it over the top. As silly as this ad seems, I would not be surprised if it is effective in attracting new clients. If TV advertising didn’t work, I probably would not be inundated by lawyer ads whenever I have the misfortune of watching daytime television.

Powerful Video; True Story of a Georgia Medical Malpractice Victim (The Nestlehutt Case)

March 8, 2010 | Benjamin S. Persons, IV

The above video illustrates why we need government watchdogs, consumer advocates and Georgia trial lawyers fighting for the constitutional right to a jury trial. If you watch the video you will understand why the American System of Civil Justice should be protected from the insurance companies. We continue to pray for a favorable ruling from the Georgia Supreme Court to return Georgia to a place where judges and juries decide what is appropriate compensation for medical malpractice victims.

American Red Cross Does Amazing Work Right Here in Cobb County

March 7, 2010 | Benjamin S. Persons, IV

Most of us are familiar with the heroic efforts of the American Red Cross in responding to catastrophic disasters across the world. When earthquakes hit, we know the Red Cross will be there shortly to protect life and alleviate human suffering. However, the Red Cross doesn’t get nearly enough publicity for their amazing humanitarian efforts in our community.

In September of last year, the Atlanta metro area experienced the worst flood in over 100 years. More than 60 roads were washed out and even major interstates were shut down. Families in 23 counties were displaced by the rising waters. Many died, thousands were in need. The Atlanta chapter of the ARC was on the ground helping displaced families, with food, water, clothing, and shelter, before the Governor had even declared a state of emergency. Cobb County was one of the hardest hit and the American Red Cross transformed the Cobb Civic Center into refuge of hope for hundreds of flood victims. The Red Cross literally saved the day right here in our community.

If you would like to donate to American Red Cross Disaster Relief, please click on the American Red Cross banner on the bottom right hand side of the page.

Recent Recalls: Acura, Chrysler, Dodge, Honda, Saab, and Toyota

March 1, 2010 | Benjamin S. Persons, IV

When it comes to vehicles, there are some dangerous and defective products on the market right now. A good source of vehicle safety and recall information is the Consumer Reports car blog. Today Consumer Reports posted an informative piece on the latest recalls concerning the following vehicle: Acura, Chrysler, Dodge, Honda, Saab, and Toyota. If have one of these vehicles, or are considering buying a new or used car, it is worth a read.

Sen. Durbin Succinctly Explains Why Caps On Medical Malpractice Damages Are Not The Answer

February 26, 2010 | Benjamin S. Persons, IV

Toyota Video Guide; How to Stop a Runaway Vehicle.

February 22, 2010 | Benjamin S. Persons, IV

Toyota Crash in South Georgia Kills 5, Including 3 Children

February 22, 2010 | Benjamin S. Persons, IV

Last week tragedy struck south Georgia when five people were killed and one person seriously injured when a 2002 Toyota collided head-on with a van near Rochelle, Georgia. The Georgia State Patrol is still investigating what caused this crash that took the life of a mother and her three children, ages, 4, 7, and 9, as well as the life of the 68-year-old passenger of the van. The Red Cross is notifying the childrens’ father currently serving overseas with the U.S. Navy. The driver of the van was seriously injured and taken to Macon hospital.

There have been no reports as to the cause of the collision at this time. However, Georgia product liability lawyers and other consumer advocates will be watching closely to see if the investigation reveals whether there were any defects with the Toyota that caused this tragic collision. At least 34 deaths have been linked to Toyota unintended acceleration problems. With more information becoming available about Toyota defects every day, more law enforcement and family investigations are looking to the vehicles for answers in these unusual tragic collisions.

Paralyzed DUI Victim Awarded $18.5 Million Verdict

February 18, 2010 | Benjamin S. Persons, IV

Yesterday, a Clear Creek District Court awarded an $18.5 million dollar verdict to an Idaho Springs man for the catastrophic personal injuries he suffered in a automobile collision with a drunken driver. On the date of the accident, Paul Savage was at his home in his driveway changing the oil in his car when he was crushed by a jeep owned by Justin Guy and driven by Kevin Ruszkowski. Mr. Ruszkowski and Mr. Guy had been driving on mountain roads after a day of drinking and smoking marijuana. Mr. Savage is confined to a wheelchair due to his paralysis and incurred $4.3 million dollars in medical bills and is expected to have another $4.9 million dollars in future medical bills.

Included in the verdict was an assessment for punitive damages against Ruszkowski, which were assessed for “driving the Jeep while drinking and smoking marijuana and for fleeing the scene of a collision amid the screams of his victims.” As is common in cases like this, Mr. Ruszkowski escaped with very little criminal punishment. After pleading guilty he was sentenced to 4 years of probation following completion of boot camp.

As a DUI Victims lawyer, I was pleased to see the victim obtain such positive civil justice. Hopefully, this verdict will help mend the physical, emotional, and financial harms Mr. Savage and his family have suffered and will likely continue to suffer into the future.