Personal Injury & Wrongful Death

This past year our firm handled several motorcycle accidents involving wrongful deaths and serious injuries. What we see in these cases is the importance of a motorcycle rider having uninsured motorist coverage to protect their interests. Even where a motorcycle rider is doing everything right, is wearing a helmet and is operating the motorcycle safely, it is not uncommon for us to see wrongful death and serious injury cases in such contexts. For whatever reason, many people pull right out in front motorcycle riders simply because they do not “see” the approaching motorcycle. People are used to perceiving large vehicles moving towards them and when they glance in a particular direction and do not see what they are accustomed to seeing they pull out sometimes with deadly results. In those cases where the rider survives, obviously, it is crucial that there be sufficient liability coverage and/or uninsured motorist coverage available to address their medical needs and long term disabilities if the injuries are serious.

Most motorcycle accidents that we have seen are very serious matters involving either death or long term permanent injuries. There is so little protection for the motorcycle rider that in the event there is a bad collision, the rider, if he or she survives, may lose a limb, sustain head injuries and/or be permanently impaired in some manner. In many such cases, the at fault driver has the minimum limits available under Georgia law, being $25,000.00. Obviously, a $25,000.00 settlement is insufficient to meet the needs of the innocent rider, thus again emphasizing the importance of having uninsured motorist coverage.

In the hypothetical case where the at fault driver fails to yield right-of-way and hits a motorcycle rider, if the at fault driver only has $25,000.00 in coverage, the motorcycle rider can protect himself/herself, in such a situation by having excess uninsured motorist coverage. In Georgia, thanks to a new law, beginning in January of 2009, the amount of such coverage can be stacked on top of the available liability insurance coverage without any offset credit. Between now and then, the only amount of coverage which is available is the difference between the available liability coverage and the amount of uninsured motorist coverage above that amount. Thus, between now and January of next year, in the hypothetical case presented, if the rider had $100,000.00 in uninsured motorist coverage, he/she could collect $25,000.00 from the at fault driver and $75,000.00 from their own policy. Beginning January of next year, the rider can ask for stacking coverage as part of their own insurance policy which will allow the rider to collect $25,000.00 from the at fault driver and the full $100,000.00 under their own policy.

Since the seminal case of Scott v. Harris as decided by the U. S. Supreme Court there seems to be a prevailing mood that “the gloves are off” and the police can chase a suspect who defies their orders to pull over for as long as possible notwithstanding the dangers to the public. Fortunately, even though this has been the reading by some of the Supreme Court Opinion, the legal landscape is hardly as bleak as some would think. Indeed, state laws like that enacted by the Georgia Legislature (O.C.G.A. § 40-6-6) still provide protections for innocent members of the motoring public when the chasing police officer fails to exercise “due regard” for the safety of the motoring public. An interesting question arises, however, when the police claim that they have a need to chase a fleeing suspect notwithstanding the dangers to the motoring public. While this may be true in some cases with respect to the suspect himself the question arises as to what should be done in the context of a fleeing suspect when he or she has in their vehicle passengers who may be completely unconnected with the reasons for the chase.

A typical example of what we are concerned about is the situation in which a teenage driver with teenage friends in his car is asked to pull over by a police officer. For whatever reason, the teenage driver decides to take off. The teenage driver may be driving without a license, he may be joy riding, he may be on juvenile probation, he may be in violation of his parents orders to return home at a certain time, etc. In short, teenage drivers are known to panic for a variety of reason unconnected with their danger to the public. And yet, if the police decide to chase such a suspect, not only are they endangering the fleeing suspect’s life and other members of the motoring public, they are clearly endangering the rights of the passengers trapped inside the vehicle.

We have been involved in several cases dealing with trapped passengers. Passengers in vehicles do not know what the driver may or may not have done in all cases. In some cases, the passengers may be in on the criminal acts being investigated by the police. In many other cases, however, there may be no evidence whatsoever that the passengers in the vehicle have done anything wrong and yet because they are trapped inside the vehicle, they are exposed to the risk of death by the police as chases continue in some cases for miles. We continue to believe that passengers like other third parties involved in these chases have rights which must be recognized by police. If the police have a reason to chase a suspect, so be it, however, when the danger to the public caused by the chase itself exceeds the danger to the public caused by the suspect’s alleged transgressions, then in that event, the police must exercise due regard for the rights of passengers just as they must exercise due regard for the safety of innocent third party motorists.

The World Health Organization issued its first guidelines on Tuesday aimed at reducing complications and deaths from the rising numbers of operations now being performed. Many who read the checklist will react by wondering why hospitals and surgeons have not been doing this for years.

The guidelines are a list of simple safety checks that the health organization said could halve the rate of surgical complications. The list is intended to improve anesthetic safety practices, avoid infections and improve communication among members of surgical teams.

One guideline calls for all members of the masked surgical team to identify themselves and their roles and ask simple questions like, “Does everyone agree that this is Patient X, undergoing a hernia repair?”

Earlier this year our Atlanta attorneys settled a wrongful death case involving a bicycle accident which occurred inside the city limits. In that particular case, the bicycle rider, who lost his life, became entangled with loose utility wires hanging from a utility pole near a busy intersection on Peachtree Street. The evidence established that the utility wires had been in a state of disarray for several months but had not been repaired. Unfortunately, this wrongful death case is not an isolated incident. Just this past week, we were retained to represent an individual who may be paralyzed for life due to a road hazard apparently caused by the negligence of the general contractor, subcontractors and/or the Georgia Department of Transportation .
When roadways and bridges are designed by public authorities, obviously, where it is foreseeable that one riding a bicycle may use the roadway, it is necessary that precautions be taken to protect bicycle riders from serious injuries. As an example, a storm drain that runs parallel to the road is a hazard. If a bicyclist’s tires should fall into the storm drain and the drain runs parallel with the road, not perpendicular to it, obviously the cyclist could be thrown from his or her bike if the wheels of the bicycle fall into the drain. Similarly, if there are expansion joints in the road over bridges where there is a 1-3″ gap in the road, the tire of a bicycle can fall into the gap again causing the bicyclist to fall and sustain serious injury. Thus, it is imperative that when roadways are designed that the safety of all users of the road be protected, particularly those who are the most vulnerable to serious injury which many times includes those riding bicycles and motorcycles.
Those riding bicycles know that when they go out on the road that they need to be extremely careful of other motorists. Drunk drivers abound and there are multiple hazards along the side of roadways. To find a hazard in the roadway or immediately adjacent to it, however, is not normally anticipated by the average rider. When a loose utility wire, an improperly installed storm grade or unguarded expansion joint is allowed to exist, serious injury and even death is foreseeable. Such conditions should not exist but sadly they do. Regrettably, it may very well be that litigation is the best tool available to address these safety failures. If significant money damages are awarded in such cases, those responsible for the safety hazards will be “hit in the pocketbook” and hopefully will be deterred from similar acts of negligence. Even if deterred from future acts this is little comfort for the present day victim of a preventable injury. Nonetheless, if it takes litigation to encourage safety reforms and prevent future injuries, so be it.

Georgia Court Watch is a project of Georgia Watch, a nonprofit and nonpartisan group committed to strengthening the rights of consumers in Georgia. It has recently issued its annual report on Georgia appellate courts. The reports shows that, contrary to the statements of many politicians, the Georgia Appellate judges are not activists and not overly consumer friendly.

The report analyzed the activity on payday loan, insurance coverage, medical misdiagnosis, and other significant consumer issues. The “2007 Annual Report” identifies and profiles the most noteworthy consumer-related decisions released by the appellate courts throughout the year, and identifies emerging trends.

“Many of the decisions reached by the state Supreme Court and Court of Appeals significantly impact the rights that consumers have under law,” said Georgia Watch Executive Director Allison Wall. “Georgia Watch launched this project to provide ongoing, thoughtful, fact-based analysis.”

In our personal injury practice we are oftentimes astounded at the lack of understanding by the public of the important nature of uninsured motorist coverage. Many people do not know what uninsured motorist coverage is. Regrettably, many people learn what it is too late to benefit from such important insurance coverage.

In order to get license tags to lawfully operate a vehicle in Georgia, the motorist must have a minimum of $25,000.00 in liability insurance coverage per person, $50,000.00 per accident. What this means is that if a motorist runs a stop sign and injures an individual, they must have liability insurance coverage that will pay a minimum of $25,000.00 in damages to the injured individual. As anyone knows with today’s rising medical costs, however, if anyone is seriously injured, $25,000.00 will not be adequate to compensate the injured individual much less pay medical expenses. Thus, an uninsured motorist can even include those who are underinsured as the term uninsured motorist under Georgia law includes both motorists who have no insurance coverage whatsoever, that being their insurance policies have lapsed or have been cancelled or never procured to begin with and those who have minimal coverage but have far less coverage than is needed for damages caused by their negligent acts..

Uninsured motorist coverage applies to a situation where someone is injured by an at fault motorist who either has no insurance at all or has minimal insurance coverage which is insufficient to address the damages caused by the negligent acts. If a drunk driver is illegally driving with no insurance and seriously injures someone, there is no insurance through the drunk driver and there will be no insurance for the injured individual unless they were prudent enough to purchase uninsured motorist coverage to protect themselves. Uninsured motorist coverage protects the injured individual through their own policy as uninsured motorist coverage is a part of everyone’s policy should they choose to purchase it. While it is not required to be covered as part of one’s policy, under Georgia law it is very important that if the family’s budget can afford it, that optional uninsured motorist coverage should be purchased.

Our personal injury lawyers have seen closed head injuries in every locale surrounding metropolitan Atlanta whether it be Austell, Snellville, Roswell, Alpharetta, Jonesboro, Sandy Springs or the other numerous locales near the city. Victims of closed head injuries oftentimes have the most serious injuries we confront due to swelling of the brain caused by the trauma. What we have learned from taking numerous medical depositions and researching these claims is that a serious head injury can have profound consequences for the victim in situation where there is no skull fracture, per se, but rather merely “a closed head injury.” A closed head injury occurs when the brain is shaken within the skull itself. The brain is subjected to trauma when the bicyclist falls off the bike onto the pavement and strikes his head or when the pedestrian is hit by the car and lands on the road, again striking their head. However an accident occurs, when a victim’s head is injured, if the skull is not fractured, all of the trauma is contained within the skull. This is why it is called a closed head injury, because there is no open wound or opening of the skull via a fracture. If the trauma to the head and skull are severe enough, the brain can swell inside the skull (with no place to go) which can cause permanent brain damage sometimes leading to a coma, a stroke or paralysis.
We have seen innumerable closed head injury cases which have had life altering consequences for the victims of such injuries. Sometimes these injuries are difficult to initially diagnose because there is no skull fracture or other obvious injury. However, if the victim begins manifesting problems with memory, speech and/or cognitive abilities, the medical profession then begins to investigate the cause of these problems which typically leads to an MRI of the brain. Sometimes the MRI will show the swelling and sometimes it will not. Sometimes a neuropsychological evaluation is necessary to make a proper diagnosis. The fact remains that head injuries can lead to serious brain injuries, which in turn, can lead to life altering consequences for the victims of “closed head injuries.”
If you or any loved one has been subjected to trauma due to the negligence of a third party and you have sustained a closed head injury, it is obviously imperative that you be seen by a doctor who has considerable experience in dealing with such cases. The same is true for any attorney employed to investigate and represent the victim of a negligent act which caused such an injury. If there is to be an adequate financial recovery in such cases, there must be an adequate understanding of the significance of the injury and the difficulty in treating it. In short, closed head injuries are usually very serious and must be investigated promptly and handled with the utmost care and diligence. Not only does one need competent medical assistance in these cases, if there is a claim to be brought against a negligent third party, competent legal counsel is also imperative for the victims of such injuries.

In metropolitan Atlanta, our lawyers are seeing more and more pedestrian personal injury cases. Due to congested conditions caused by increasing population and more motorists on the road, as might be expected, there are more incidents involving pedestrians. Many cases involve situations where pedestrians are not in walking in crosswalks and are struck while crossing a road, sometimes in broad daylight. Other cases involve pedestrians crossing the road at night when they are difficult to see. Other cases involve joggers and people on sidewalks who are injured due to third party negligence. As might be imagined, these cases are typically very serious because when a pedestrian who has no protection is struck by a car, the injury is likely to be a very bad one.

In Georgia, every driver of a vehicle has duty to exercise due care to avoid colliding with any pedestrian upon a roadway and shall exercise proper precautions upon observing any child or obviously confused, incapacitated or intoxicated person. This law is found at O.C.G.A. § 40-6-93. The courts have held that this statute establishes that motorists on the highways must exercise ordinary care to both discover and avoid persons in the roadway.

Georgia is a comparative negligence jurisdiction which means that if the pedestrian fails to exercise proper care for their own safety then the jury can consider that in apportioning damages between the pedestrian and the at fault motorist. If a pedestrian is more negligent than the at fault motorist, the claim will be barred by the doctrine of contributory negligence. If the pedestrian is negligent but not as negligent as the motorist who causes the injury, then the negligent motorist can still be held liable but their liability is reduced by the percentage of the negligent pedestrian.

Having handled police chase cases for over a decade, I have yet to see a case in which the police admitted wrongdoing when a high speed pursuit turned out badly. Obviously, when a high speed pursuit ends in tragedy and someone is killed or seriously injured, the police know that immediately. In cases where the pursuit should not have been initiated and/or continued, the wagons are then circled and numerous explanations and rationalizations are provided as to why the police were merely “doing their duty” and were doing absolutely nothing wrong. Many times this is exactly the case. The police were doing their duty and they were doing nothing wrong and had every right to be chasing a dangerous offender who may have committed a forcible felony as an example. However, in many other cases, the police have done something wrong. That is, they were exposing the public to great risk of serious injury or death with virtually no need to chase the offender (such as situations involving missing tail lights or minor petty or misdemeanor offenses) and the pursuit then “turned out badly.” In situations where the police are chasing minor offenders at high rates of speed on congested roadways the danger to the public always will always outweigh the need to apprehend the suspect. And yet, in such circumstances, when the pursuit ends in tragedy, the police will “have done nothing wrong” and were merely “doing their duty.” The wrong was committed by the fleeing suspect, not the police so they will say. But the suspect (a minor transgressor) was no serious danger to anyone until they were chased.

The rationalizations we often see in these cases are that “the pursuit had not begun, we were merely trying to catch up to the suspect.” By offering this rationalization the police hope to convince the public that they did not violate their pursuit policies because they were not actually in a pursuit. Another common defense is that “we were not in pursuit, we are acting in emergency mode attempting to warn the public up ahead of the dangers presented by the motorist.” Another rationalization is “we had no intent to immediately apprehend the suspect,” meaning that if we did not have an intent to apprehend, we could not have been in pursuit but were merely following the vehicle. Indeed, “following the vehicle” or “tailing” the vehicle is another rationalization offered rather than “pursuing the vehicle.” Another defense: “it was the officer’s discretion” under the policy to chase or not to chase. (Therefore, he can never be wrong). Another defense: we had terminated the pursuit and had resumed normal speed. (Videotapes are often missing when this one is used). The rationalizations and explanations are endless but having practiced in this area for many years, the point to be made is that according to themselves the police very rarely do anything wrong, even in those situations where they do.

Regrettably, the natural human instinct to deny wrongdoing when a mistake has been made is what is preventing change in this area. Nothing will change unless the parties who have made the mistakes acknowledge their mistakes and learn from them. As long as rationalizations and explanations are offered necessary change will not occur and the innocent will continue to die. Regrettably, in this particular field, police chases continue unabated with hundreds of innocent people dying annually and thousands of others being seriously injured. Until and unless the law enforcement community is willing to admit that they sometimes have made mistakes, they will never learn from them and the innocent public will continue to pay the price for them.

Our personal injury lawyers unfortunately have seen far too many cases involving traumatic amputations. In many of these cases, the tragedy is compounded by infection that sets in shortly after the original trauma. If one loses a leg below the knee, for example, and there is an immediate amputation after the traumatic event, it is not uncommon to see subsequent amputations due to the development of infection. In some cases we have handled, there have been problems with gangrene, which required multiple amputations. The patient may start off with a below the knee amputation and end up with one above the knee.
All amputation cases arising from trauma are serious cases and must be handled with the utmost care and attention to detail. Obviously, the medical professionals have to deal with the complications caused by infections subsequent to the traumatic event but counsel must also be alert to the complicating features of such developments in each case. For example, when one develops an infection shortly after a traumatic event, they are not typically eligible to be fitted with a prosthetic device. The longer the infection lingers and the treatment necessary to treat it, the longer it is before the patient is eligible to receive the prosthesis. Studies have indicated that the length of time from the passage of the original traumatic event to the time when the patient is fitted with a prosthesis is very important because the longer the wait, the greater the difficulty for the patient. Indeed, this is one of the problems with infection because it delays the fitting of the prosthesis and thus delays the patient’s rehabilitation, sometimes with long term effects.
Whether the amputation be to a finger or a limb, the complexities of these cases are always unique to the individual patient and the case. It is imperative that counsel understand the long term sequelae of infection because such infections can have a bearing on a client’s long term prognosis and therefore their long term medical needs and vocational, physical and emotional challenges.