Trial Attorney Blog

Negligent filing of prescriptions has been on the rise. In fact, because of a shortage of pharmacists and the steady increase in the use of prescription medications, the rate of death and injury from botched prescriptions is skyrocketing, officials say.

There are as many as 7,000 deaths annually in the United States from incorrect prescriptions, according to Carmen Catizone of the National Association of Boards of Pharmacy. He told The Washington Post that as many as 5 percent of the 3 billion prescriptions filled each year are incorrect.

Recently there was a settlement and verdict in Georgia for a man who took a fatal dose of the chemotherapy drug Lomustine. Family members, on behalf of his estate, sued an oncologist and his practice, alleging that the defendants negligently authorized the pharmacy to fill the Lomustine prescription with 20, as opposed to 2, pills which was contrary to the manufacturer’s instructions. The suit also alleged the pharmacy was negligent in filing the prescription.

If you are physically or sexually assaulted by another person, you can bring a personal injury claim (civil action) against them to recover payment for your medical bills, lost wages, pain, suffering, and any other financial loss that you sustained as a result of the assault. A personal injury claim is separate from any criminal proceedings that may also be underway. The criminal court can find the other person guilty or not guilty and sentence them to prison; however, in the civil action, the judge or jury can order the other person to pay you money as compensation for your injuries and losses. You can bring a civil action even if the other person was found “not guilty” in the criminal court.

Many of the assault cases we have handled involve patrons of bars and clubs who are assaulted by “bouncers” or security personnel. In one such memorable case we represented a young man who was assaulted by two security employees who were employed by a bar in north Georgia. Our client was sprayed with Mace and then beaten. He immediately contacted the police who charged both bar employees with assault and battery. Even though a jury acquitted them on the criminal charges, we filed a civil suit against the bar and the two employees. After a trial a jury awarded a large sum to our client.

In another case our client, a long time patron of a large upscale department store in Atlanta, was followed to her car by store security personnel, in plain clothes. These employees accused her of shoplifting and demanded that she return to the store. They grabbed her and forced her back to the basement of the store where a female employee strip searched her. When it was determined that she had stolen nothing, she was told to leave the store. She called the police who arrested all of the security officers involved. Following a trial by jury she was awarded a seven figure verdict.

Unfortunately, as people age, they become more vulnerable to abuse, neglect, and exploitation. This is especially true for people living in long-term care facilities and nursing homes. Abuse and neglect results in persons suffering a variety of physical and psychological injuries, which result in pain, suffering, and loss of quality of life. An injured person is entitled to compensation for these losses, when they are caused by intentional or negligent actions of the nursing home or its employees. The injured person can make a personal injury claim against the nursing home, its employees, or both.
One of the most common cases of nursing home negligence involves people who develop bedsores. Victims of this type of negligence can be elderly, or younger people who are confined to a nursing home as a result of serious on-the-job injuries or automobile accidents. Other forms of abuse might involve actual physical or sexual assaults on the elderly perpetrated by nursing home employees. We recently had an elderly client who suffered from Alzheimers Disease. She was in a long-term care facility and was supposedly being cared for by people who specialized in caring for Alzheimers victims. While a resident of this long-term care facility, she was physically assaulted by an employee. This assault resulted in a fall in which she sustained a fractured hip. Unfortunately, she was not able to survive the surgery to repair her hip and she died. After suing the long-term care facility, and conducting discovery, we determined that the employee who assaulted her had no training whatsoever working with Alzheimers patients and, in fact, had recently worked at the facility as a kitchen employee.
If you have a family member in a nursing home or long-term care facility it is important that you check on them regularly. If you see signs of abuse or neglect, document them and seek legal help.

Traffic deaths in the United States have reached their highest levels since 1990, according to government statistics cited by the Insurance Journal. This increase was attributed in part to increased deaths from motorcycle and pedestrian accidents. There are a number of reasons for the increase. One possible explanation is the rise in our urban/suburban populations. As these numbers increase, our roads and highways become more crowded. Another possible explanation for the increase in pedestrian injuries and deaths may be related to the dramatic increase in immigrants to this country. Many immigrants do not own motor vehicles and walk to get where they need to go. In our practice we have noted that a disproportionate number of pedestrian cases involve that segment of our society.
We currently represent a hispanic women was crossing a highway here in Atlanta with her two children in tow and was struck by a car. She sustained various non life-threatening injuries; however, one of her children sustained fatal injuries and the other child, an infant, (who she carrying in her arms) has sustained serious injuries, including a traumatic brain injury.
We, as drivers, must pay attention to what is going on around us as we drive and not be distracted by the use of Ipods, cell phones and other modern devices. In Georgia we have a legal duty to maintain a proper lookout ahead, to see what there is to see. Georgia law states, in pertinent part, “…every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding his horn when necessary, and shall exercise proper precautions upon observing any child or any obviously confused, incapacitated, or intoxicated person”.

The Georgia Supreme Court issued a sharply divided ruling on Monday which is a great decision for employees who travel. The 4-3 decision turned on an interpretation of the “continuous employment” doctrine. The High Court upheld an award of workers’ compensation benefits to the 11 year old son of a man killed as a result of an automobile accident in Georgia. The employer had put the Florida resident up in an apartment in Fayetteville, Georgia while he was working as a construction superintendent here. The employer also provided him with a company truck that he was driving at the time of the accident. The employer and it’s workers insurer had denied the claim for death benefits on the ground that the employee was not acting in the course of his employment when the accident occurred. At the time of the accident, he was on sick leave and had been delivering family furniture to his storage shed in Alamo, Georgia.
Four of seven Justices on the Supreme Court of Georgia said that because King had returned to the general Fayetteville/Jackson area when he was killed in the motor vehicle accident, his minor son had a valid death claim.
The significance of this ruling is that it expands the “continuous employment” doctrine and makes it more likely that workers traveling away from home on business will be covered under their employers workers’ compensation insurance if they are injured.

Today we had the father of a young man in his early twenties come in to the office. His son was involved in an automobile accident and sustained serious injuries to his spine. It appears that he will be paralyzed for life from the waist down. The young man’s medical bills far exceed the liability insurance coverage, the hospital has filed a lien which will consume all of the available liability coverage and, to make matters worse, the young man has no health insurance.

Last month we got a call from a young man, an employee of a tree surgeon company, who fell from a tree. He was also sustained a serious spinal cord injury and was rendered a paraplegic. His employer had no workers’ compensation insurance and he had no health insurance.

Last year a young women who had been an employee of our firm 10 years ago, was involved in an automobile accident and sustained a permanent brain injury from which she will never recover. She had limited medical insurance to take care of her initial medical needs but nothing to take care of her long-term care. She is now being cared for, at home, by her husband and family.

Insurance companies continue to profit at the expense of their policyholders and Georgia’s serious automobile and truck injury victims. The Atlanta Journal-Constitution reported today that property and casualty insurers’ profits are continuing to sky rocket. Allstate Insurance Company reported a record $5 billion profit for 2006. State Farm Insurance’s profit climbed 65% for the year. St. Paul/Travelers earnings rose six fold in the fourth quarter and American International Groups rose eight fold.
There are several reasons for these huge profits. First, insurers are shorting the people who bought their products, their own policyholders. Second, they are shorting injury victims of automobile and truck accidents by refusing to negotiate settlements in good faith. CNN recently aired an investigative report in which it featured several people who had been involved in automobile collisions. A former insurance insider was interviewed who explained that two of the largest insurers routinely utilize “lowball” and delay tactics in handling smaller personal injury and property damage claims. Essentially, they offer injured people less than the actual amount of their medical damages and lost wages and then take a “so sue me” attitude toward the claims. The injured victim is forced to retain a personal injury lawyer and then incur fees and expenses to try to get full compensation.
The insurance industry has become very adept at using crisis of varying types to justify enormous rate increases. Whether they blame so called “frivolous lawsuits”, “runaway jury verdicts”, the “malpractice crisis” or hurricanes, any excuse will do to raise rates. The bottom line is they are increasing profits by pushing more and more risk and costs onto policyholders and refusing to timely negotiate and pay legitimate injury and property damage claims. State insurance commissioners and other regulators need to wake up. We need insurance reform, not ‘tort reform’.

There may be some relief in sight for some injured Georgia automobile and truck accident victims who are involved in a motor vehicle collision with an uninsured or underinsured vehicle. Last week Senate Bill 276, the Uninsured Motorist Stacking bill, passed the Senate Insurance and Labor committee unanimously. Advocates working for it’s passage are pushing hard for it to come to a floor vote. If passed it will provide uninsured motorist insurance coverage previously unavailable under Georgia’s current law.

Example: Current Law

You have purchased uninsured motorist insurance coverage of your own in the amount of $25,000.00 and you are injured in a motor vehicle collision with a motorist having $25,000.00 in liability coverage. A jury determines you should recover damages against the at fault motorist and returns a verdict for $35,000.00. Under current Georgia law you cannot collect any of the $25,000.00 of your uninsured motorist insurance coverage, that you paid for, even though your damages exceed the liability coverage of the at fault motorist.

Anyone who has driven the two-lane highway between Georgia and Panama City, Florida has seen the many crosses along the roadside, each representing a victim of a fatal automobile accident. Many of these fatal collisions involved college students and drunk drivers. These unofficial memorials or marker have usually been placed by family and friends.
A young victim killed in a drunk driving accident, seventeen year-old Donny Ray Harris Jr., will be the first drunken driving victim in the state of Georgia to be remembered with an official highway marker, erected under a state law the governor Sonny Purdue signed just 13 days before the fatal car crash. Georgia is among a growing number of states that give official status to landmarks of fatal drunk driving accidents. The markers will be put up for five years and will read “In Memory Of,” followed by the accident victim’s name and “DUI Victim.”

In Georgia employees who become disabled, due to injury, and remain out of work for any significant period of time are likely to be sent for a functional capacity evaluation. An FCE is a systematic evaluation process to determine an individual’s tolerance for physical work activities. These evaluations take on many forms. The most common evaluations involve a series of standardized tasks with measured weights and distances, and a trained and presumably an experienced observer to administer the tests. Other methods involve the use of machines to measure peak performance and range of motion. The results of these evaluations are frequently used to direct treatment and rehabilitation efforts, and in legal proceedings, to determine work capacity and eligibility for indemnity benefits.
Physicians, employers, insurers, and claims adjusters often rely upon functional capacity evaluations to determine musculoskeletal capacity to perform physical work, often with legal or occupational consequences. Despite their widespread use in Georgia, a number of scientific, legal and practical concerns persist. FCE’s are based upon a theoretical model of comparing job demands to worker capabilities. The validity of FCE results is best with accurate job simulation and detailed, intensive, assessments of specific work activities. Many times the person performing this evaluation does not know or understand an injured worker’s job. When test criteria are unrelated to an injured employee’s actual job performance, or subjective evaluation criteria are employed, the validity of results is questionable. Many times, the person administering the evaluation makes comments in the final written report about whether or not the worker has put forth maximum effort, even inferring malingering on occasion. The evaluation of sincerity of effort, ability to perform complex or variable jobs, and prediction of injury based on FCE data is problematic and in our opinion subjective and unreliable.
An injured worker who is asked to undergo an FCE should retain counsel to represent them in a workers compensation case. Lawyers should scrutinize both the methodology of the evaluation and the qualifications of the person administering the evaluation. In some cases, the FCE results may be inadmissible under Daubert v. Merrell, 509 U.S. 579 (1993)