Personal Injury & Wrongful Death

What is the Statute of Limitations on Medical Malpractice Cases?

Published on: June 6, 2023 | By Finch McCranie, LLP

Medical malpractice cases are governed by statutes of limitations, which define the timeframe in which a patient can file a lawsuit against a healthcare professional or institution for negligence. These statutes vary according to the jurisdiction and facts of the case. Individuals seeking legal redress for medical malpractice must first understand the limitations period. This article will delve into the complexities of the medical malpractice statute of limitations, its significance, the factors influencing it, and how to effectively navigate the legal process.

Understanding the Law of Limitations for Medical Malpractice

The statute of limitations for medical malpractice refers to when a patient can initiate legal action against a healthcare provider for alleged negligence. Knowing this timeframe is crucial as it holds great importance in assessing the feasibility of pursuing a medical malpractice case. Although the exact duration varies across different jurisdictions, it generally commences either from the occurrence of the malpractice or from its discovery, often referred to as the “discovery rule.”

What Is Medical Malpractice And Negligence

Published on: June 3, 2023 | By Finch McCranie, LLP

Medical malpractice is when a healthcare expert, such as a doctor, nurse, or other medical personnel, deviates from the obtained standard of care, resulting in harm or injury to a patient. On the other side, negligence is a broader legal concept encompassing various forms of professional medical malpractice and misconduct.

Medical malpractice takes place when a healthcare provider fails to provide the quantity of care that a reasonably skilled and competent professional in the same field would provide under similar circumstances. It involves an act or omission that falls below the standard of care, causing injury, harm, or even death to a patient.

What Constitutes Medical Malpractice?

Punitive Damages in Atlanta, Georgia Wrongful Death Cases

Published on: May 13, 2021 | By Finch McCranie, LLP

As mentioned in Part I, punitive damages are not available as part of the wrongful death claim. They are, however, available in connection with the estate’s claims for the decedent’s predeath injuries and pain and suffering. Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 701 (1985).

Like with the wrongful death claim itself, punitive damages were not allowed under common law.

They are statutory in nature, and consequently, they are strictly construed.

What damages are available in an Atlanta, GA wrongful death case?

Published on: May 5, 2021 | By Finch McCranie, LLP

Punitive Damages Lawyer This is Part I of a discussion concerning what damages are available in Georgia wrongful death cases. Part II will be published next week.

Wrongful death claims in Georgia are typically divided into two separate claims: (1) the wrongful death per se as measured by the “full value of the life of the decedent” without deducting for any of the necessary or personal expenses of the decedent had he or she lived; and (2) the estate claims, or the claims that would have accrued to the decedent had they lived and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages.

The “full value of the life of the decedent” is measured from the decedent’s perspective. This is different from many other states which focus on the impact the decedent’s death has on the surviving family members/party plaintiffs. The “full value of the life” concept has two distinct components, one is economic and the other is non-economic. The economic component consists of the “items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value.” The non-economic portion comprises those “intangible items whose value cannot be precisely quantified, such as a parent’s “society, advice, example and counsel . . . .” Consol. Freightways Corp. of Delaware v. Futrell, 201 Ga. App. 233, 233 (1991).

Trucking Accidents and Commercial Vehicle Accidents in Georgia

Published on: October 14, 2020 | By Finch McCranie, LLP

Georgia trucking accidents and commercial vehicle accidents are significantly different than typical motor vehicle collisions that involve two individuals driving privately in vehicles and are not working on behalf of their employer at the time of the wreck. The primary reason for this is that tractor-trailers and other commercial vehicles are governed by the Federal Motor Carrier Safety Regulations, which have also been adopted by the State of Georgia. A “commercial vehicle” is defined as any vehicle used on the highway or interstate transporting people or property with a gross weight lading of 10,001 pounds or more. This means that if the vehicle, trailer, and load equals more than 10,001 pounds, the vehicle is a “commercial vehicle.” And subject to the Federal Motor Carrier Safety Regulation (“FMCSR”).

The FMCSR is a comprehensive framework of policies and procedures governing the operation and maintenance of tractor-trailers and other commercial vehicles. Every company that operates commercial vehicles is subject to these regulations and the State of Georgia and all over the Country. A company can be held liable for any trucking accident or commercial vehicle accident that resulted from a violation of the FMCSR. Every driver of a commercial vehicle must perform a Pre-Trip inspection which involves inspecting the service brakes, parking brake, steering mechanism, lighting devices and reflectors, tires, horn, windshield wipers, rear vision mirrors, and coupling devices. The driver must document this Pre-Trip inspection and the driver’s employer must maintain these Pre-Trip inspection forms and keep them on file.

For drivers operating commercial vehicles in excess of 26,001 pounds, employers are required to conduct a comprehensive background check of the driver prior to beginning their employment. A driver applying for a job with a trucking company must complete an Application disclosing any moving violations or accidents for the 3-year period prior to the date of application and identifying each employer for whom the driver has worked for the past ten (10) years. In turn, within thirty (30) days of hiring a driver, the trucking company must send written inquiries to the driver’s prior employers for the 3-year period prior to the date of their employment and also must obtain a Moving Violations Report (“MVR”) from any state that has issued a license to the driver for the preceding 3-year period. The driver is also required to undergo an examination by a physician and obtain a Medical Examiner’s Certificate of Fitness. A Pre-Employment Drug and Alcohol Screening is also mandatory.

Georgia Medical Malpractice Cases in the Time of COVID-19

Published on: October 8, 2020 | By Finch McCranie, LLP

Prior the COVID-19 pandemic, in order to successfully bring a medical malpractice claim in Georgia, a plaintiff was required to offer expert medical testimony to the effect that the defendant physician or healthcare provider failed to exercise that degree of care and skill which would ordinarily have been employed by the medical profession generally under the circumstances. See Boling v. Foster, 254 Ga. App. 374 (2002). The legal duty owed by medical professionals was to exercise “a reasonable degree of care and skill.” See O.C.G.A. § 51-1-27. This is the standard that applied in the vast majority of medical malpractice cases. A narrow exception existed for the provision of emergency medical care in a hospital emergency department or obstetrical department, where it is necessary to prove by “clear and convincing evidence” that the physician or healthcare provider’s actions showed “gross negligence.” See O.C.G.A. § 51-1-29.5(c).

This threshold for proving liability in Georgia medical malpractice cases changed with Governor Kemp’s Executive Order entered April 14, 2020 concerning the Covid-19 crisis. Executive Order 04.14.20.01, limits liability for any harm done by the employees, staff, and contractors of healthcare institutions and medical facilities during the “Public Health State of Emergency” as to negligence, but not gross negligence, regardless of whether such service is related to the Public Health State of Emergency. “Gross negligence” is the absence of even slight diligence, and slight diligence is defined as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” Gliemmo v. Cousineau, 287 Ga. 7 (2010). The Executive Order applies to all clinics, hospitals, nursing & assisted living facilities, as well as ambulatory surgical centers.

The Executive Order further provides that “The employees, staff, and contractors of healthcare institutions and medical facilities shall be considered auxiliary emergency management workers pursuant to Code Section 38-3-35.” O.C.G.A. § 38-3-35(b) provides that auxiliary emergency management workers are immune from liability for harm, including death, sustained by persons as a result of “emergency management activity”, unless such emergency activity causing the harm was due to willful misconduct, gross negligence, or bad faith. O.C.G.A. § 38-3-3(2) defines “emergency management” broadly, as “the preparation for the carrying out of all emergency functions … to prevent, minimize, and repair injury and damage resulting from emergencies … These functions include, without limitation … emergency medical services … together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions.” This means that “auxiliary emergency management workers” are immune from liability even if they acted negligently in providing medical care to a patient in Georgia. Instead, in order to recover a plaintiff must prove that the medical care provided constituted gross negligence.

What Damages Are Available In Wrongful Death Actions?

Published on: June 5, 2013 | By Finch McCranie, LLP

In Georgia when an innocent person is killed due to the negligence of a third person, the survivors have a claim for wrongful death damages. The full value of the life of the decedent includes both economic and non-economic components. The economic components are more readily deduced. If you take the earning capacity of the decedent, you multiply it over their projected work life expectancy and come up with a calculation as to what future lost wages would be due to the wrongful death. This is easier with a proven track record of earnings but more difficult for a child with no such record. Even in such cases, wrongful death damages can be estimated by an economist based on the educational background of the decedent’s parents.

In addition to the economic lost wages caused by a wrongful death, the survivors who have the cause of action are entitled to recover the “non-economic” damages due to the death. Such damages are measured from the standpoint of the decedent, however, and not the survivors. This means that a jury is required to look at what the decedent lost when he/she died. What did they lose by the way of companionship and life experiences? In short, what were all the intangible (non-economic) losses due to the wrongful death, which, of course, includes life itself and how many years of the enjoyment and richness of life itself were lost, which is based on the projected life expectancy of the decedent.

All wrongful death cases are quite tragic for surviving family members. When a young person dies or even a middle aged person, its very, very tragic for the survivors. Even those in the latter years of their life have their lives cut short because of the negligence of third parties which entitles their survivors to compensation for s life that was wrongfully taken and wrongfully cut short. While all cases are factually specific, under Georgia law, the age of the decedent, of course, factors into exactly how much was lost from both an economic and non-economic perspective.

Challenges Associated With Serious Burn Injury Cases

Published on: June 4, 2013 | By Finch McCranie, LLP

Our firm regrettably has encountered several tragic cases involving serious burn injuries. These cases arise in a variety of contexts. Some of our clients have had chemical burns, others have had burns suffered in fires caused by defective products. We have handled wrongful death cases involving the death of young children due to defective air purifiers and serious disfigurement caused in automobile collisions and/or tractor-trailer accidents. Regardless of the factual context, for the victim who is innocent in the premises and suffers serious burn injuries due to chemicals, fire or otherwise, the effects of such injuries can be not only traumatic and extremely painful but also permanent, as oftentimes such injuries are disfiguring.
After the initial trauma, the question in these cases is the degree of disfigurement and how long it will impact the innocent victim. Burn injury victims oftentimes have difficulty being in the sun at all and must cover themselves. They have trouble with hot water when showering, bathing and otherwise. The disfigurement and scarring associating with burns, obviously, can be a part of the traumatic injury itself with the greater the disfigurement, the greater the future damages. In addition, plastic surgery is oftentimes necessary to revise scars which can result in increased medical expenses over and above those immediately following the traumatic injury.
If someone is involved in an accident, such as a tractor-trailer, collision where a vehicle catches fire, not only do victims oftentimes suffer orthopedic injuries, as an example, but also burn injuries. Such an injury can make the situation even more traumatic because the pain associated with multiple injures, obviously, compounds the trauma sustained by the victim. In all serious burn injury cases, it is extremely important that counsel gather all pertinent information, not only concerning the original injury but also the impact upon the client as they go forward in life. The greater the disfigurement and scar tissue, the longer it is that the victim will suffer and/or incur medical expenses and possibly lost wages all of which has to be taken into consideration in achieving a just result for the innocent victim of such injuries.

Henry County Police Chase Ends In Death Of Teenage Passenger

Published on: May 21, 2013 | By Finch McCranie, LLP

On April 2 of this year, we blogged about an important decision rendered by the Georgia Court of Appeals on March 28, 2013 indicating that innocent passengers unwittingly involved in high speed police pursuits can file a claim for damages sustained if they prove a reckless disregard of proper police procedure by the police officer initiating or continuing the pursuit. The newspaper accounts of the incident in Henry County do not provide much by way of detail but apparently police officers were pursuing the vehicle and there may have been a PIT maneuver of some kind as the vehicle was struck by a police officer (and or the victim’s vehicle struck the police officer’s vehicle itself), which caused the victim’s vehicle to run off the road. It overturned several times and a female passenger was killed. There is no information about what really precipitated the pursuit and/or whether the female passenger had any involvement in any illegal activity. However, the current State of Georgia law is that a passenger unwittingly caught up in a police pursuit has a claim against the pursuing governmental entity involved if the pursuing officer recklessly disregarded proper police procedure.
In Georgia, police officers do not have to worry about being sued if they follow proper procedure during police pursuits. The public wants the police to pursue violent offenders and those who are a danger to the public. However, if the pursuit involves a minor offense and the public is unnecessarily endangered by the pursuit, innocent passengers have a right to expect that the police will not recklessly disregard proper police procedure during the initiation or continuation of what is a dangerous pursuit for a minor offense.
In the case in Henry County, we do not know whether the passenger has a claim nor do we know if the officer recklessly disregarded proper police procedure. All of these cases are factually specific. However, if the police were pursuing for a non-violent offense and they disregarded proper police procedure in general in the initiation or continuation of the pursuit, provided the passenger was committing no illegal acts nor was aiding and abetting the flight from the officer, then in that event, the passenger would have a right to seek damages. Once again, regardless of the actual facts, this case proves yet again just how dangerous and deadly high speed pursuit cases can be.

Filing A Federal Tort Claims Act Case Against the United States

Published on: May 4, 2013 | By Finch McCranie, LLP

As is true of any other claim against the Federal Government, if a tort has been committed for which a government employee was negligent which caused injury or damages to an innocent third party, the procedures of the Federal Tort Claims Act govern the claim. A Standard Form 95 with all supporting documents needs to be filed with the appropriate government agency involved before the expiration of two years. Regardless of the agency involved, the form must to be received by the appropriate agency/department. We use a hypothetical claim against the Postal Service here to address this important point.

With regards to claims against the Postal Service, effective August 23, 2011, the rules and regulations changed concerning where written communications should be directed. Previously, Notice of Claims were sent to the Chief Counsel National Torts Center in St. Louis, Missouri. Effective August 23, 2011, all written communications should instead be directed to the General Law Service Center, USPS National Torts Center, 1720 Market Street, Room 2400, St. Louis, Missouri 63155-9948.

When sending out a Form 95, where practicable, the local Post Master should be served with the Standard Form 95 as well as the Chief Counsel for the Torts Division at the address indicated. Indeed, we usually send out redundant copies of the Form 95 and with respect to Postal Service claims, we send it to the local Post Master, to the Chief Counsel of the Torts Division at the General Law Service Center address specified and also just to the General Law Service Center without the Chief Counsel’s address on it as a back up. In short, practitioners want to make sure that the Form 95 is received by the Postal Service and acted upon by the appropriate personnel. By sending redundant copies to multiple addresses, a claim with the Postal Service is likely to be responded to in a more expeditious manner.