Personal Injury & Wrongful Death

Traumatic brain injuries typically involve transient periods of some type of neurological dysfunction which can range from brief periods of confusion or dizziness to headaches and/or seizures, sometimes involving nausea. The term concussion is oftentimes used interchangeably with the term “mild traumatic brain injury” or MTBI. The Quality Standards Subcommittee of The American Academy of Neurology has recognized that concussions may occur without the loss of consciousness. There are three grades of concussions according The Academy of Neurology. A Grade 1 concussion involves transient confusion with no loss of consciousness where the symptoms resolve within 15 minutes. A Grade 2 concussion occurs where there is transient confusion and no loss of consciousness with other mental status abnormalities that last more than 15 minutes. A Grade 3 concussion is where there is a loss of consciousness either for a matter of seconds or minutes. As stated above, the term concussion sometimes is used interchangeably with the term “mild” traumatic brain injury (MTBI).
Experts from The Centers For Disease Control define a case of MTBI as “the occurrence of an injury to the head arising from blunt trauma or acceleration or deceleration forces with one or more of the following conditions attributable to the head injury: any period of observed or self-reported transient confusion, disorientation or impaired consciousness; dysfunction of memory around the time of injury; or loss of consciousness lasting less than 30 minutes.” MTBI may also include observed signs of other neurological or neuropsychological dysfunction such as seizures acutely following injury to the head; irritability, lethargy or vomiting following a head injury, headaches, dizziness, irritability, fatigue or poor concentration.
The leading cause of traumatic brain injuries in the United States is motor vehicle crashes. As we have written in prior entries, most cases of traumatic brain injuries resolve within a matter of weeks or months but a certain percentage of people (10-15%) suffer lifetime consequences. For those who suffer chronic and persistent problems, a traumatic brain injury can be a life altering event affecting all aspects of their daily living. The symptoms do not go away and disrupt the ability to work, sleep and concentrate. Debilitating headaches and fatigue can also be an problem. Victims of traumatic brain injury following a car accident – if lucky – will recover. If not, they will need an attorney as the long term consequences can be extremely significant for the victim and their families.

In our trial practice we are often presented with cases where the client had a pre-existing medical condition which was aggravated by an accident. As an example, someone can have asymptomatic degenerative disk disease, be involved in an automobile collision and thereafter begin to experience symptoms of pain because of the injury to their neck or back. Someone can have any asymptomatic pre-existing condition, which is aggravated by the trauma from an accident, which causes the pre-existing condition to become asymptomatic. Obviously, the issue in the all such cases is whether the trauma caused the underlying condition to become symptomatic or whether the condition became symptomatic at or about the time of the accident for reasons unrelated to the trauma.

The debate between defense counsel and plaintiff’s counsel in these cases is all to familiar. Defense counsel always contend that the pre-existing condition was there before the accident, that their client had nothing to do with it and that the client is embellishing or malingering and trying to blame the admittedly at fault client for injuries they did not cause. In reality, many underlying pre-existing medical conditions are entirely asymptomatic and do not cause the victims any pain and suffering or the need for substantial medical treatment until the trauma occurs. This debate can be won and should be won in cases in Georgia because the law of our state is that any injured individual is entitled to compensation for the aggravation of a pre-existing injury.

In Georgia the law is that if you cause injury to another, you take that person as you find them. If they have an underlying condition or prior medical problem and you aggravate that problem due to your negligence, then the victim is entitled to compensation to the extent their pre-existing condition was aggravated by the tort. Thus, in Georgia there is compensation for pre-existing conditions to the extent they were aggravated by the defendant’s conduct.

There is one duty that a lawyer owes to his client and that is to be truthful with them. In many cases clients need counseling and need it badly. Sometimes clients do not want to hear the truth and take pains to avoid it. Oftentimes clients will turn on their attorneys when the attorney tries to tell them the truth of their situation. In such circumstances the client will accuse the lawyer of not being zealous in his or her representation or not believing in the client’s case completely or otherwise failing to fulfill the expectations of the client. In such circumstances, nonetheless, counsel must be firm with their client because that is why they are being paid for: to provide the best professional advice under the circumstances presented.
Experience teaches that clients must be told the truth regarding their case whether the client wishes to hear it or not. This is the fundamental obligation of all attorneys: to provide the best possible professional advice as objectively as can be stated. The client is paying for legal advice and if they do not want to hear it then perhaps they need to get another attorney. Even though sometimes the truth is difficult for clients to hear they, nonetheless, need to be told the truth at all times. If there are weaknesses in their case, they need to be told. If there are strengths in their case, they need to be told. If the law favors their claim so be it, but if the law does not favor their claim, it must be explained to them so that they understand that their case has legal deficiencies. Either way, the fundamental duty of all attorneys and a professional requirement is to be honest with the client, to explain to the client what their options are and to be faithful to the requirements of the profession which is to render the best possible legal advice under the circumstances with an adherence to ethics and professionalism at all times.
Zealous representation of a client does not mean abandoning objectivity nor does it mean “sugar coating” certain facts in order not to offend or discourage the client. Clients are adults and they need to be treated as adults. Unless the lawyer is prepared to speak the truth, the lawyer needs to withdraw from the case. Unless the client is prepared to hear the truth, the client needs to seek counsel elsewhere. When dealing with clients, being truthful at all times is a requirement of the profession and clients deserve no less.

When the police encounter a stolen vehicle and attempt to stop it with their blue lights and the driver takes off, the question is whether the public is well served when the police engage in a high speed pursuit thereafter. Clearly the suspect wishes to escape apprehension and is willing to travel at high speeds endangering the lives of the public. The only way they will be apprehended is if the police are successful during their pursuit in running them off the road, using stop sticks or otherwise blockading them. During the pursuit, however, the entire public is endangered and it is quite likely that as the speeds get higher and higher and the offender becomes more and more desperate at escaping apprehension the dangers will increase and tragedy to innocent third parties may result.
We see in these cases often where third parties are killed or injured during these pursuits. Is it worth a human life to capture a suspected car thief? Most car thieves are not caught through high speed pursuits but rather as a result of traditional law enforcement investigations. The few who are engaged in high speed pursuits, if they are allowed to escape, will hardly add to the number of those who are not immediately apprehended for their crimes. However, in order to immediately apprehend the suspected car thief during a high speed pursuit, the public has to be exposed to the possibility of death or serious injury. We raise the question again, is it worth it? Is the death of one or more worth it to apprehend a suspected car thief?
A case which happened on September 4, 2012, in California is illustrative of the dangers in these areas. The police were chasing a teenager for suspected car theft. The police asked for backup. While one of the patrol cars was attempting to join the pursuit, that second patrol car ran over and killed an innocent pedestrian. Thus, in order to immediately apprehend a 17-year old car thief, a pedestrian was killed during the pursuit. Was it worth it? Ask the family of the innocent pedestrian their opinion on this subject and the answer will be obvious.

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In many car accident and personal injury cases, clients often wish to “settle out of course” so as to avoid the stress, anxiety and uncertainty of a jury trial. In many cases this is entirely possible and the client can still achieve a settlement that approximates the fair value of their case. However, in a certain number of cases, settlement offers pre-trial may not constitute adequate compensation for the damage inflicted and thus a jury trial may be a necessity. Sometimes, despite the fact that the injured individual is counseled by their lawyer that the settlement being offered is less than what a jury might return in a verdict, nonetheless the client will decide to accept the settlement offer rather than go to court. However, to maximize the value of a claim sometimes it is necessary to present a case to a jury, particularly in those cases where the insurance carrier is making an offer that is much lower than the demonstrated value of the claim.
Every client has to make their own decision as to whether they should settle out of court or proceed to trial by jury. The vast majority of all cases do settle out of court, however, those cases that result in settlements which objectively are close to the value of the claim are likely those who have been prepared by counsel to be presented to the jury in the event pre-trial negotiations are unsuccessful. The best way to achieve the maximum value in settlement negotiations is to be ready to proceed to trial in the event the offers made are not consistent with the evidence in a case.

With today’s low interest rates, sometimes it makes little or no sense to structure a portion of a personal injury settlement. If a case settles for a particular amount, it is always advisable to consider whether structuring a portion of the settlement money into an annuity by way of a tax free investment might be in the best interest of the client. When minor children are involved, sometimes investing in a long term annuity can not only protect the corpus of the funds but also provide a stream of income either during the child’s college years (or beyond) where such funds can be made available for a down payment on a home, for future medical expenses and/or for other financial needs. Sometimes, when the clients are unsophisticated in financial matters it might be best to invest in tax-free annuities so that the client does not have to worry about squandering the corpus or otherwise investing it with those who might prove to be untrustworthy. The amount of a structured annuity is fixed and the payments will be made particularly if an A++ rated company is selected as the annuity provider.
Interest rates today are historically low and therefore the amount of annuity investments verses traditional investments is not as attractive as it once was. Nonetheless, we continue to advise certain clients to consider annuities because depending upon the age of the individuals involved and/or their financial sophistication, a long term annuity can still have benefits. The annuity benefits are not taxable in the future when they are paid whereas interest on any investment can be taxed which is obviously a reason to consider structuring a portion of a personal injury settlement in a serious injury context. Again, as is always the case for any serious injury matter, experienced counsel should be conferred with in order to make the best decision in any particular case.

One of the most tragic kinds of case that we encounter is that involving the death of a child. Oftentimes it is in the context of a serious automobile collision but obviously death due to negligent behavior comes in a variety of forms. It is particularly difficult to deal with the death of a innocent child. It is also difficult to evaluate such a claim because of the emotions involved. Nonetheless, there are criteria that can be used in evaluating such claims even though financial “compensation” for such a loss is essentially an oxymoron when it comes to the death of a child.
The best measurement for the value of the death of a child is historical jury research. Juries have to wrestle with the difficult questions posed by these cases and have to put a dollar value on the death of the child. Because children do not have an earnings record nor typically any lost wages, as a general rule, juries have to look at the parents’ background and the child’s anticipated life expectancy and then project out over the course of the life expectancy a dollar amount to compensate for the loss of life. As we have written before in prior entries, in Georgia the measure of damages is the “full value of the life of the decedent” which includes both economic and non-economic components. The measure of damages is measured from the viewpoint of the decedent. What experiences did he or she lose when they lost their life at a young age? Obviously, they will never marry, have children, have a career and experience the joy of life for the duration of their anticipated life expectancy were it not for their premature wrongful death. While such decisions defy mathematical calculations by any jury, nonetheless, juries must come up with a figure to represent the full value of the life of the deceased child. The only guiding principle provided to a jury is that they must do so according to “their enlightened conscience.” Different juries in different parts of the state might look at the same evidence and come up with different verdicts. Of course, this is true in any case but demographics do play a role in these cases. If the child is very young and the parents are still in childbearing age, sometimes even though they should not do so, jurors take such factors into consideration. However, if the parents are not likely to bear additional children and an only child is lost, of course, again, while that factor does not measure damages from the standpoint of the decedent, nonetheless, juries may take it into consideration.

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In those serious injury cases where the damage is a burn injury and significant scarring or disfigurement is present, it sometimes is difficult to estimate the settlement value of such a claim. Even if the plastic surgeon is able to give a reliable figure of future medical expenses, assuming more surgery is needed to address the problem, nonetheless, these cases are difficult to evaluate because most of the damages are intangible. The disfigurement of the scar, where the scar is located, whether it can or cannot be revised, all of these are factors that go in determining fair compensation for the unfortunate victim of a burn injury.
If a professional model has her face disfigured by a burn injury, obviously, the claim involves not only the emotional and mental anguish associated with the injury but also lost wages. If someone has to work outside in the sun and they have a serious burn injury, their career options can be quite limited. Again, some serious burn injuries have vocational consequences whereas many others are aesthetic in nature and have mental and emotional anguish associated with them. These cases truly are unique because every case must be judged by its own facts, particularly the amount of future pain and suffering that might be associated with a disfigurement. Even if there is no acute pain from exposure to sunlight or otherwise, the disfigurement alone is a permanent injury which must be assessed based on the victim’s life expectancy.
Because burn injury cases are so unique, it is necessary to consult closely with the client’s treating physician so that future damages can be calculated and the client’s medical prognosis for improvement can best be understood. Once all of the data is available, depending upon the client’s vocational status, their sex, their age and the nature of their burns, it is possible to arrive at an estimate of future damages that would constitute fair compensation for the injured individual. While all cases are unique, obviously, experienced counsel should be involved in the process to make sure that the client receives the best advice possible given the facts of their case.

We read in the paper this week about a tragedy which occurred on Lake Lanier outside of Atlanta. A ski boat being operated by an individual under the influence of alcohol crashed head-on into a pontoon boat occupied by 13 people. Many of the people on the pontoon boat were seriously injured and apparently two young boys killed. As of the date of this blog, the authorities were still searching for a missing 9-year old boy. The driver of the ski boat was under the influence of alcohol at the time of the incident and after the horrific collision actually fled the scene. He was later arrested and charged with homicide and failure to render aid.

This tragic incident proves once again that driving under the influence whether on land in a vehicle or on water in a boat can be extremely deadly for people in the vicinity of such irresponsible driver/operators. We have blogged before about the dangers on lakes particularly during holiday seasons and the summer months when many people are recreating on local lakes. Boating under the influence, particularly at night as happened to be the case in this most recent tragedy, can be extremely dangerous because of visibility problems. Suffice it to say that during the summer months when many more people are on lakes in boats there needs to be a designated driver for the boat and if the principal operator has been drinking, such drinking must be curtailed to a minimum so as not to expose other members of the public to the dangers of boating under the influence.

As a result of this horrific incident, obviously, there will likely be a long jail sentence for the boat operator under the influence because of the death of the two young boys and the serious injuries sustained by others. Leaving the scene only made the situation worse. Whether the boating operator is financially responsible and had sufficient liability insurance coverage to provide a modicum of relief for the affected families is unknown.

Because damages in a wrongful death context are measured from the standpoint of the decedent and are considered under Georgia case authority to be somewhat punitive since the damages include compensation for the full value of the life of the decedent, in a wrongful death case, per se, punitive damages cannot be sought. However, in a case where there has been pre-impact fright and terror, pain and suffering associated with injuries prior to death and/or property damages sustained by the estate, the estate can sue for punitive damages assuming the facts of the case are sufficiently aggravated as to justify an award of punitive damages against the at fault party.
By way of example only, in a case where a drunk driver causes a wrongful death and the decedent survives for a period and is hospitalized and incurs medical expenses prior to death, the estate can sue the driver for pain and suffering prior to death, funeral and burial expenses, medical expenses and punitive damages. The heirs-at-law may only sue for the full value of the life of the decedent and may not seek punitive damages as part of such wrongful death damages since the wrongful death statute is considered to be somewhat punitive by nature. The Administrator can sue for punitive damages where aggravated circumstances are involved even though the decedent’s heirs-at-law may not. Again, the bifurcated nature of these claims in Georgia is unique and while punitive damages may not be obtained in the wrongful death case itself, they can be obtained as part of the estate’s damages. If the estate obtains such damages, the Administrator will divide the damage award among the heirs-at-law.