Georgia Injury Attorney Blog

Court Addresses Standard of Review for Damages in Georgia Medical Malpractice Lawsuits

Published on: May 28, 2021 | by McAleer Law Firm

Last month the Supreme Court of Georgia issued an opinion addressing the standard of review that courts should use when hearing appeals regarding special and general damages. This Georgia medical malpractice lawsuit arose after a woman claimed she became permanently and totally disabled following the care she received at an emergency room. The woman’s husband took her to the hospital, where she complained of pain associated with a severe headache, dehydration, diarrhea, and nausea. The triage nurse did not note the woman’s initial headache symptoms, but instead chose a charting template for digestive illnesses. The woman was diagnosed with high blood pressure and was told to visit her primary care doctor that week for follow-up. Later that week, the woman suffered an insurgency in her symptoms, and a CT scan showed that she had a blood clot and had suffered several strokes. Despite several surgeries, the woman entered a vegetative state.

The woman’s husband filed a medical malpractice lawsuit against the hospital, alleging that they negligently failed to diagnose her with a ruptured aneurysm. The husband argued that the woman would have had a more promising outcome if they had adequately diagnosed and treated her for her blood clot. The jury apportioned fault amongst the parties and awarded the plaintiffs with their requested damages for past medical expenses but awarded zero damages for pain and suffering, lost wages, and future expenses. The plaintiffs filed a motion for a new trial arguing that the zero-sum award was inadequate and against the preponderance of the evidence. The defendants countered that the award should not face modification, and it was inappropriate to limit a new trial to only the issue of damages. The appeals court reversed the court’s denial of the motion and ordered a retrial, finding that the jury’s award was inadequate under the preponderance of the evidence. The defendants appealed, arguing that the preponderance of evidence standard was erroneous.

Under Georgia law, damages are divided into three distinct categories, special, general, and punitive damages. Special damages are losses that are easily quantifiable and flow from the tortious act. Special damages include things such as hospital bills, property damage, and lost wages. General damages are more difficult to quantify and cover losses related to permanent changes and human suffering. These include damages related to mental anguish, disfigurement, and loss of companionship. Unlike special and general damages, punitive damages are designed solely to punish the defendant and deter them from engaging in similar conduct in the future.

Georgia Court Addresses Employer Liability in Vicarious Liability Action

Published on: May 25, 2021 | by McAleer Law Firm

Recently, a state appellate court issued an opinion in a Georgia truck accident lawsuit, addressing the state’s vicarious liability law. The case arose after the plaintiff appealed a trial court’s ruling in favor of an employer who owned the truck that was involved in an accident that killed one of his daughters and injured the other. The driver of the truck worked for the defendant’s company, and on the day of the accident, he and a co-worker were making a stop before traveling to their next job site. When they were leaving the job site, another vehicle suddenly changed lanes and swerved in front of the truck. The truck driver quickly changed lanes to avoid a collision, but in doing so, his driver’s side tire flew off his vehicle and struck the plaintiff’s daughter’s car.

The plaintiff filed a lawsuit against the truck driver’s employer based on Georgia’s vicarious liability laws. Specifically, the plaintiff argued that the driver did not properly maintain his truck, and the driver’s actions were attributed to his employer.

Under Georgia law, employers may be subject to vicarious liability laws if their employee’s negligence results in a car accident and injuries to another person. Under the doctrine of respondeat superior employers may be liable in these cases if their employee’s negligent acts occurred while the employee was engaged in the “course and scope” of their employment. However, this theory does not apply if the employee is on a personal errand which does not provide any benefit to the employer. Issues often arise when determining whether an employee was within the “course and scope” of employment, especially in instances where the employee is taking a brief detour during work. In most situations, employers are not liable when the accident takes place on the way to or from work or if the employee was on a lunch break. However, exceptions exist when the employee is on a “special mission” for the benefit of the employer, or if they are in an employee-owned vehicle. In these cases, employers possess the burden to overcome the presumption of liability.

The Importance of Accurate and Timely Pleadings in Georgia Personal Injury Cases

Published on: May 22, 2021 | by McAleer Law Firm

Most people know that when they are injured as the result of someone else’s negligence, Georgia law allows them to file a personal injury lawsuit against the responsible party to recover. When people picture this process, they likely picture lawyers in a courtroom, having heated arguments in front of a judge and a jury. While some cases reach this stage, what many people do not know or fully understand is how important the initial stage is — the pleadings stage.

A pleading is a formal written statement of a party’s claims against the other party. The first pleading in a lawsuit is called a complaint — this is the very first document that the plaintiff files in court. While this document is the very beginning of what is often a long process , it may also be the most important. If mistakes are made in the initial pleading, the entire suit could be dismissed altogether.

A recent Georgia appellate case highlights the importance of a pleading. According to the court’s written opinion, the victim in the case was receiving dialysis on a weekly basis. In the summer of 2014, he began to bleed from the area where he received the treatment, and was admitted to the hospital. Unfortunately, he died three days later.

Common Limitations to Worker’s Compensation Benefits for Georgia Workplace Accident Victims

Published on: May 19, 2021 | by McAleer Law Firm

Workplace accidents and injuries are common. From tripping over a cord left on the floor to injuring your back while doing heavy lifting, most Georgia employees are vulnerable to at least some type of injury at their place of work. When accidents occur and Georgia residents are injured while on the job, they may be able to receive workers’ compensation benefits to help them out financially while they recover. Administered through the State Board of Workers’ Compensation, the benefits can cover medical expenses, lost wages, and even temporary or permanent injuries or disabilities.

However, like any insurance policy, actually recovering under the scheme can sometimes be difficult, as there are many complicated rules and regulations governing worker’s compensation. Although disputes are initially handled in administrative agencies, sometimes injured accident victims may have to bring their case all the way to court to settle disputes over the appropriate amount of compensation.

For example, the Court of Appeals of Georgia recently considered the case of a Georgia woman who was injured while at work when she tripped over an open drawer and fell onto the floor. She suffered severe pain and injuries in her shoulders and arms, limiting her ability to work. After many visits to several doctors and continuing pain in her shoulders and arms, she eventually filed for workers’ compensation. She was awarded benefits, but only for a limited period of time. Because one of the doctors she visited had said that he thought she was able to return to work, even though the plaintiff herself did not feel as though she could, she was only awarded benefits to cover up to that point. The Court of Appeals upheld this decision, finding that it was based upon evidence in the record and that the doctor’s opinion could be relied upon to limit her benefits in this way.

Appellate Court Addresses Plaintiff’s Evidentiary Burden in Georgia Medical Malpractice Lawsuits

Published on: May 16, 2021 | by McAleer Law Firm

Recently a state appellate court issued an opinion in a case in which a woman appealed a directed verdict in favor of a defendant in a Georgia medical malpractice lawsuit involving the alleged negligence of an oral surgeon. The woman alleged that she suffered serious facial burns while undergoing oral surgery. The record indicates that the defendant provided the woman with treatment for severe jaw pain. After conservative treatment methods failed, the defendant performed intraoral surgery to address the issues causing her pain. Right after surgery, the defendant noticed that the woman’s face was swelling, but attributed it to normal swelling following this type of surgery. When the swelling and pain did not resolve, the surgeon referred her to a plastic surgeon, and she was subsequently diagnosed with second and third-degree burns. The woman filed a lawsuit against the oral surgeon seeking damages for her injuries under Georgia medical malpractice laws.

During the trial, the defendant testified that he was aware that a piece of the saw could overheat and potentially burn the patient, but that during the plaintiff’s surgery, he never felt the tool heat up. During testimony, he claimed that he did not know how the burns happened, but the only logical conclusion is that the handpiece malfunctioned and transmitted heat to the part that was lying on her face. He said he understood that these tools could overheat, and he took the necessary steps to prevent overheating and injury to the patient.

The plaintiff presented an expert who opined that the woman suffered burns because the handpiece overheated. The expert explained that because the tools are known to overheat, the applicable standard of care requires surgeons to take steps to prevent the tool from burning the patient. The expert concluded that the surgeon breached his standard duty of care because there are ways to take measures to prevent the tool from contacting the skin. However, he conceded that his opinion was based on the fact that the plaintiff suffered a burn during surgery. The defendant moved for a directed verdict, claiming that the plaintiff was basing her case on a res ipsa loquitor theory, which is not applicable in Georgia medical malpractice cases.

Court Addresses Notice Requirement in Lawsuits Against Georgia Government Entities

Published on: May 13, 2021 | by McAleer Law Firm

Recently, the Court of Appeals of Georgia issued an opinion in an appeal stemming from a personal injury lawsuit a plaintiff filed against the Georgia Department of Public Safety (GDPS). According to the court’s opinion, the plaintiff suffered injuries when he was involved in a car accident with a fleeing criminal in October 2014.

Pursuant to Georgia law OCGA section 50-21-26, the plaintiff provided the relevant administrative agency with ante litem notice of his intent to file a personal injury lawsuit against the GDPS. However, he failed to provide all of the information that the statute requires and subsequently withdrew his initial filing. After that, in 2017, the plaintiff sent a proper ante litem notice to the agency and renewed his action. In response, the GDPS filed a motion to dismiss, based on the untimely notice. The plaintiff argued that OCGA section 9-3-99 tolls his time for filing ante litem notice, because he was a victim of a fleeing criminal’s crime.

The Georgia Tort Claims Act (GTCA) provides that individuals having a tort claim against the State cannot bring an action against the State without giving the appropriate agency written notice of the lawsuit within 12 months of the date of the loss. However, the OCGA section 9-3-99 provides an exception to the period of limitation with respect to causes of action that arise out of a crime. The statute of limitations is tolled from the date of the incident until the act has been prosecuted or otherwise becomes final, so long as it is not more than six years after the original event.

The Importance of Serving Notice in Georgia Car Accident Cases

Published on: May 10, 2021 | by McAleer Law Firm

When someone is injured in a car accident by a reckless, careless, or negligent driver, Georgia state law allows them to file a personal injury suit to recover for their injuries. These suits can be crucial for injured victims in helping them get their lives back on track. Often, car accident injuries result in significant medical expenses, lost wages, and even sometimes funeral and burial expenses. Filing a personal injury suit against the at-fault driver is often the only way that a family can avoid severe financial hardship in the aftermath of accidents.

However, to file a personal injury suit, the plaintiff must notify the defendant of the suit. It would be unfair to allow plaintiffs to move forward with a lawsuit without the other party knowing and able to defend themselves, and so our court system requires notice to be served on the defendant. However, in some cases, defendants may avoid getting served because they do not want to be sued. They may conceal their location, or leave the state and go somewhere unknown, to avoid being served notice. Many times, they may think that if they cannot be served, they cannot be sued, and the suit will eventually go away. However, Georgia law accounts for this tendency, and allows those who exercised due diligence in determining that the defendant was either out of state or avoiding service to serve notice in another way—through publication in a newspaper.

This was the option attempted by the plaintiff in a recent Georgia appellate case. According to the court’s written opinion, the plaintiff was injured by the defendant in a car accident and attempted to file suit. However, she was unable to find or track down the defendant to serve him with notice, and so after trying for a while, she requested permission to serve notice through publication.

Court Rules on Gas Company’s Liability in Georgia Gas Explosion Accident

Published on: May 7, 2021 | by McAleer Law Firm

In a recent Georgia appellate case, a plaintiff appealed a trial court’s summary judgment motion in favor of Atlanta Gas Light Company (AGL). Following a natural gas explosion, the plaintiff filed a personal injury and wrongful death lawsuit against AGL. The record shows that a woman owed a rental home and in preparation for new tenants, she called the company to set up gas service at the residence. Before turning on gas service, the company sent a field specialist to conduct a safety check on the residence’s fuel line and appliances. During the inspection, he noticed that the supply line improperly led to the furnace, the gas line lacked a sediment trap, and the thermostat was inoperable. Based on his inspections, he turned off the supply valve and posted a warning that explained that the owner should not connect or use the appliance until it underwent repairs.

Shortly afterward, the owner’s step-son went to the property to prepare for new tenants when he noticed the warning and that the property did not have hot water. The owner contacted a repair service to fix the furnace. The technician noticed the warning, inspected the appliances, and returned to perform the work. However, the technician improperly completed the job, and the house experienced a gas explosion about nine months after AGL turned the gas on. The plaintiff suffered severe injuries, and two of her family members died in the blast.

The woman filed a lawsuit against the repair company and AGL. The repair company settled its case with the woman, and AGL moved for summary judgment, arguing that they did not breach their duty to the woman.

Court Discusses Scrivener’s Error in Georgia Insurance Policy Dispute

Published on: May 4, 2021 | by McAleer Law Firm

Recently, a state appellate court issued an opinion in a Georgia car accident case after the trial court granted summary judgment in favor of a car insurance company in a contract dispute. On appeal, the court was tasked with addressing whether a date on an insurance policy was a scrivener’s error. The evidence shows that a man applied for a car insurance policy on February 23, 2017. On his application, he indicated that he requested bodily injury and property damage coverage, but he rejected uninsured motorist coverage, and excluded his wife as a covered party. There were various dates and times noted on the application; however, the most pertinent date was next to his applicant’s statement that was dated May, 23, 2017.

According to the court’s opinion, the policyholder’s wife suffered injuries in a car accident on March 31, 2017, and thereafter requested coverage. The claimant filed a lawsuit after the company denied coverage. The insurance company filed a motion for summary judgment, arguing that the policyholder specifically excluded his wife from coverage. The claimant argued that the discrepancy of the dates in the insurance application creates an ambiguity regarding the effective date of coverage, and should preclude summary judgment.

Under Georgia law, courts should construe ambiguous insurance contracts in favor of the insured and against the insurer. This generally means that when a contract provision can be interpreted in two different ways, it should be construed in favor of the insured. However, this principle is limited to reasonable interpretations.

Court Allows Non-Expert Witness to Estimate Speed in Georgia Motorcycle Accident Lawsuit

Published on: May 1, 2021 | by McAleer Law Firm

Recently, a state appellate court issued an opinion in a lawsuit stemming from a Georiga motorcycle accident. Tragically, the motorcyclist died from injuries he suffered after colliding with a car. The motorcyclist’s representatives filed a negligence and wrongful death lawsuit against two of the car’s occupants, however, a trial jury found in favor of the defendants. The plaintiffs filed a motion for a new trial and a subsequent appeal based on the fact that the trial court inappropriately allowed a non-expert witness to testify to the motorcyclist’s speed. Further, they argued that the trial court should have declared a mistrial after testimony that the motorcyclist would have been cited for driving under the influence of methamphetamines, if he survived the accident.

At trial, the defendants presented several witnesses that testified that based on the sound of the biker’s engine, they believed that he was traveling around 80 to 100 miles per hour. The plaintiffs argued that the testimony was inadmissible because the witnesses did not see the biker. Under, OCGA section 24-7-701, non-expert witness testimony must be:

Rationally based on the witness’s perception,