Personal Injury & Wrongful Death

As we have written before, it is becoming increasingly necessary that plaintiff’s counsel be prepared to attack the veracity and credibility of so-called “independent” experts in personal injury cases. Insurance companies and defense law firms routinely retain medical “experts” to testify that plaintiffs are not injured at all or have only suffered minor injuries. They do this by examining diagnostic tests and/or by offering testimony that the test results do not substantiate a traumatic injury. Such testimony can be extremely misleading because oftentimes a clinical diagnosis made by a treating physician is much more reliable than a so-called independent review by someone who has never seen the plaintiff much less examined them. Nonetheless, such testimony is dangerous and can often be effective if the witness offering the testimony has a good medical pedigree, as they often do, and presents a good appearance before the jury. This makes the cynical use of so-called experts extremely dangerous because by paying a fee for the so-called “independent” opinion, the jury can be mislead and an innocent victim of a negligent act can be victimized again and denied the right to fair and reasonable compensation for their injuries.
“Independent” experts oftentimes testify in back injury cases as an example of this problem. They testify that an examination of radiological films proves to them that the “back injured” claimant was not injured at all. Many experts will testify that herniated discs in a back cannot be caused by trauma or that trauma did not cause the injury complained of, etc. Such testimony is tantamount to junk science and is completely unreliable but the problem is that many jurors do not recognize this. Jurors receive sworn testimony and based on their lack of medical training actually oftentimes believe that the so-called “independent expert” is, in fact, independent when nothing could further from the truth. Thus, to be effective in representing a personal injury claimant with a bad back or neck case, the best way to go about doing so is to attack the so-called independence of the expert. Many of these witnesses receive hundreds of thousands of dollars in compensation each year from the insurance industry because they know where there bread is buttered and they know what is expected of them, which is to testify that the claimant is not injured and/or that they are malingering. This cynical approach to dispensing justice in a personal injury context is disheartening, frustrating and at times exasperating but, nonetheless, it is part and parcel of the landscape in our society. All one can do is fight against it and hope that fair and impartial jurors will see through such cynicism and will disregard the testimony of junk science experts who, for their own secondary gain, perniciously seek to influence their verdicts.

Increasingly we are seeing a trend that started many years ago but continues today. This involves the use of so-called “independent” experts to provide testimony in personal injury cases to the effect that the claimant has suffered no injury at all or, if any injury, only a minor one. Insurance companies employ so-called “independent” medical examiners to review radiology films, many times, so that a radiologist can testify that based upon an examination of the film, there is no evidence of trauma seen, thus the plaintiff could not have been injured. Of course, a radiologist cannot see damaged nerve endings or herniated discs on an x-ray film but this does not stop these so-called “independent” experts from providing junk science medical testimony for the jury’s consumption.

This trend is extremely troubling and has been decried by our courts in the past. In a well reasoned opinion written by the Georgia Court of Appeals over twelve (12) years ago, Justice Blackburn wrote “I write separately to point out a systematic problem in the general use of “independent” experts in the litigation process. This problem, while not limited thereto, is greatest where insurance companies use “independent” medical expert opinions to deny or limit payment of claims. The inherent weakness of this process is that the insurance company which controls the flow of business to “independent” medical services providers has a financial interest in the negative finding of such provider…”.

Insurance companies have a huge financial interest in making sure that cliams are not paid. One way to do this is to hire a so-called “independent” experts. It is disheartening to see a medical doctor testify for money paid that someone is not injured when the doctor, of course, has no way of knowing whether such is the case. Insurance companies typically get what they pay for which is a medical opinion that the claimant is either not injured at all or shows no objective evidence of injury based upon an examination of diagnostic films or other tests. Such testimony is extremely dangerous because it appeals to the cynicism of jurors who may believe that someone seeking money is simply out for secondary gain and is not legitimately injured. While there are fraud claims and while there are claims of embellishment and exaggeration, in many legitimate claims, nonetheless, these so-called “independent” experts are providing testimony that serves no other purpose but to deny justice to those who have been legitimately injured and are in need of adequate and just compensation for their injuries.

We read this past week an article in the paper about the increasing number of cyclists hit by automobiles under a variety of different circumstances typically involving gross negligence by the driver. In one reported case, the driver was on her cell phone and hit the cyclist from the rear while speeding. In another case, a drunk driver ran over a cyclist. In another reported case, a speeding motorist hit the cyclist on the shoulder of the road, killing him.

During the summer, of course, more and more cyclists are using the good weather as an excuse to get out and get some exercise. There is now a new law in Georgia requiring motorists to give 3 feet of right-of-way when passing cyclists. While this is a move in the right direction it will not prevent by itself the more tragic accidents like the ones recently reported in the newspaper.

Anyone who rides a bicycle has to understand they are at risk from being hit from behind by negligent drivers. People drink and drive and unfortunately people are using their cell phones, texting and otherwise engaging in a variety of negligent acts while driving. It is best to ride where it is safe to do so on designated bicycle paths. Obviously, if someone wants to operate a bicycle in an urban area, safety is the watch word. Helmets should be worn at all times.

We have written before about the importance of uninsured/underinsured motorist coverage. This past week we resolved a case for a client that is a classic demonstration of why it is so very important that uninsured/underinsured motorist coverage be purchased at the time one acquires liability insurance coverage for their own vehicle.

In the case we mentioned, a young lady was hit by a driver who was clearly negligent. Unfortunately, the driver of the vehicle that injured our client had only the minimum limits of liability insurance, that being $25,000.00 in bodily injury coverage. The driver also was unemployed and lived in a trailer and had no assets to satisfy a judgment over and above the available liability insurance coverage. Our client’s injuries were far in excess of available coverage and, indeed, her medical bills were three times the amount of available liability insurance.

Fortunately for our client, she was driving her parents’ vehicle which had $100,000.00 underinsured motorist coverage. She also had $50,000.00 in underinsured motorist coverage for her own vehicle. Because both policies were stackable, there was total available coverage of $175,000.00. Even with this available coverage, the client was still underinsured because her overall damages (medical bills, lost wages, permanent disability and pain and suffering, past and future) were greater than the available coverage. However, the point to be made is that if she had not had the benefit of underinsured or uninsured motorist coverage, she would have been limited in her recovery to $25,000.00, which would have compounded her personal tragedy.

For any innocent victim of a car accident where an at fault driver runs a stop sign, crosses the centerline or otherwise seriously injuries an innocent motorist, one of the essential ingredients of professional legal services for the victim is personal interaction between the victim and their attorney. In a serious case the innocent victim/client will need an attorney. Due to mass marketing, however, in many cases, clients may go to law firms where most of their interaction is not with attorneys but with lower level staff people.

In any serious case, it is important that a client interact with their attorney as their case develops. Personal interaction with an attorney on a one-on-one basis is imperative because the attorney needs to stay abreast of what is happening to the client, particularly with respect to their injuries and their medical situation. As a client is recovering from injuries the attorney needs to be kept abreast of what is happening in the client’s life, how the medical injuries are affecting their lost wage situation and how their injuries are overall affecting their life overall. Without out one-on-one interaction between the client and the attorney, the professional component of the attorney/client privilege is lost and is delegated to lower staff members who are not always able to appreciate the importance of some matters that could have far reaching legal consequences.

Every case is different. Some are more complex than others and some involve unique legal questions that can only be resolved by attorneys who are very experienced in the personal injury field. Clients should insist that they have the right to speak to their attorney concerning the status of their case. This is an essential ingredient of any professional relationship between an attorney and a client in a personal injury case.

When one purchases an automobile insurance policy from their insurance agent, the real reason that the policy is being purchased is to comply with Georgia law, which requires that all automobile drivers have minimum limits of liability insurance in the amount of $25,000.00 per person, $50,000.00 per accident. What this means is that if a driver is to drive lawfully under our laws, one must be financially responsible. If one runs a stop sign and injures another individual and breaks their leg, as an example, all drivers must have at least $25,000.00 in coverage which will provide some minimum coverage for the innocent victim of an automobile accident.

Uninsured/underinsured motorist coverage is optional coverage which can be purchased as a part of any liability insurance policy. It must be offered but it is not required to be purchased. However, all Georgia motorists should carefully examine such coverage because it can be extremely important in certain cases. The less insurance an at fault driver has and the greater the damage done by an accident, the greater the need for uninsured/underinsured motorist coverage.

In the hypothetical case where an at fault driver runs a stop sign and seriously injures an innocent third party who did nothing wrong, if the at fault driver has the minimum limits of Georgia law, that being $25,000.00, imagine how little compensation will be available if the innocent victim breaks their neck, loses a leg, loses an eye or otherwise has a very serious injury. In such a situation there will be no compensation for the innocent victim if the at fault driver not only has limited coverage but is judgment proof due to a lack of personal assets. In the hypothetical case posed, the only possibility of obtaining adequate compensation for the damages suffered by the innocent victim is the availability of uninsured/underinsured motorist coverage.

Our Atlanta attorneys frequently litigate motorcycle accident cases. Our experience over many years shows that in almost all cases the motorcyclist was not at fault.

Recently, the Atlanta media reported a case in which a young man was fatally injured in the Little Five Points district when the scooter he was driving was hit from behind by a vehicle.

Allstate insurance company has conducted a study of the most dangerous intersections in Atlanta for motorcycle riders.

As teens begin summer vacations, a disturbing warning has been issued by the U.S. Department of Transportation.

The latest data from U.S. Department of Transportation’s Fatality Analysis Reporting System show that the deadliest days of the year for teens ages 15-19 are in the months of May, June, July and August. During these four months, nearly twice as many teens died on the roads each day as compared to the rest of the year – for an average of nearly 16 deaths per day (15.9) – compared to an average of nearly nine deaths (8.8) per day during the year as a whole.

Individuals in the 16 to 24 age group have the highest traffic crash death rate in the country. Between 2005 and 2009 (the most recent year for which data are available), nearly 4,000 people from this age group were killed in crashes involving large trucks.

We read in the paper this week news articles about various traffic incidents involving pedestrians. In one case a drunk driver hit a pedestrian who was walking in a crosswalk at an intersection. The drunk driver apparently ran the stop sign running over and killing the pedestrian. In another case, again, a pedestrian was in a crosswalk and a driver simply failed to pay attention to the situation and ran over the pedestrian, seriously injuring the victim.

Big cities are dangerous because there are many cars and many pedestrians occupying the same spaces. Unfortunately, pedestrian accidents will occur and typically because it is a car verses the human body, the individual is seriously injured and/or killed. Pedestrians have the right of way in crosswalks and cars should always yield to them but reality teaches us that this is not always the case. When a drunk driver is involved, of course, all bets are off.

As is true of any other automobile collision or car wreck cases, the at fault driver will be responsible for the damages inflicted upon the innocent pedestrian. Unfortunately, in many cases, the at fault driver has either no insurance or limited insurance and the pedestrian’s chances of recovery therefore are dependent upon the financial responsibility of the driver involved in the incident. If the pedestrian has uninsured or underinsured motorist coverage, this can also be a potential revenue for recovery in any pedestrian injury case.

We read in the paper this week about a tragedy involving a motorcyclist who was struck and killed by a drunk driver. According to news accounts, the drunk driver was completely at fault in the incident and struck the innocent motorcycle rider from the rear. Regrettably, this case is indicative of the dangers to which all motorcycle riders are exposed. Such dangers are exponentially increased, obviously, when a drunk driver is involved.

We read in the paper this week about a tragedy involving a motorcyclist who was struck and killed by a drunk driver. According to news accounts, the drunk driver was completely at fault in the incident and struck the innocent motorcycle rider from the rear. Regrettably, this case is indicative of the dangers to which all motorcycle riders are exposed. Such dangers are exponentially increased, obviously, when a drunk driver is involved and as it appears in this case, the victim was simply at the wrong place at the wrong time occupying the same space and traveling down the same road as the drunk driver. The tragic results obviously were caused by the drunk driver’s negligence. Hopefully, the driver will be fully prosecuted and sent to jail. While jail time will be little solace to the victim’s family, nonetheless, it is necessary that there be a vigorous prosecution in all such cases in order to deter such actions by others.

The tragic results here obviously were caused by the drunk driver’s negligence. Hopefully, the driver will be fully prosecuted and sent to jail. While jail time will be little solace to the victim’s family, nonetheless, it is necessary that there be a vigorous prosecution in all such cases in order to deter such actions by others.