Trial Attorney Blog

In a serious injury case the victim is usually overwhelmed with medical expenses, lost wages, terrible pain and suffering, and a total disruption in their personal, family and home life. If they are fortunate enough to have good counsel and they are fortunate enough to get a good settlement from the third party responsible for inflicting the injuries upon them, it will not be uncommon for such a victim to have to deal with a host of medical lien issues. The most common medical liens are Hospital liens whereby the hospital that provides the medical services obtains a lien on any settlement. If the victim does not have adequate health insurance or otherwise cannot pay the hospital bill, the bill will have to be paid out of the insurance proceeds. Sometimes if the party inflicting the injury has limited insurance coverage, the lien amount can swallow the entire settlement amount thus leaving the victim with nothing. Accordingly, if there is a hospital lien or other valid medical lien (doctors in Georgia can file medical liens for their bills as well) the victim in such a case should confer with experienced counsel to determine the best course of action.
In many cases where there are limited insurance benefits, counsel can work out a settlement with counsel for the hospital and the insurance carrier to work out some kind of pro-rata agreed split of the funds. If such agreements cannot be worked out and litigation ensues under Georgia law the hospital lien will typically take priority even over the victim’s personal injury pain and suffering claim. While this may be unjust, nonetheless, it typically the hospital lien takes priority over all other claims. Again, for these and other reasons it is vital that the victim of a personal injury serious injury case confer with experienced counsel to make sure that their rights are protected.

More than 20% of patients who received an implantable cardioverter-defibrillator — a high-tech device that produces electrical impulses to regulate heartbeats and prevent life-threatening arrhythmias — in recent years were not good candidates to receive the device, a new study suggests.

Researchers at Duke University looked at more than 111,000 patients who received ICD implants between 2006 and 2009. More than 25,000 of those patients did not meet evidence-based criteria for receiving the device, according to the study.

The risk of dying in the hospital was significantly higher for patients who received the ICD but did not meet the criteria, and 1 out of 121 patients in this category experienced complications following the implant, the study found.

The Food and Drug Administration is also concerned that hospital, med-center and emergency patients may be given the higher dose, as correctly labeled outer packaging is generally discarded.

Health care providers seeing only the mislabeled bottle would be very likely to give the wrong dose, especially since the two solution strengths are distilled in equal sized bottles. The .05 mg/3 ml bottles look just like the 2.5 mg./ 3 ml bottles. Only the strength differs.

Albuterol Sulfate Inhalation is sold in single use dosage bottles, in 25, 30 and 60 count unit dose packages. Recalled Albuterol was sold nationwide in the United States and in Puerto Rico.

In car accidents, tractor-trailer accidents, medical malpractice or other serious injury cases, in the event a settlement is reached, there is always the possibility of a subrogation claim being asserted by a third party against the settlement proceeds. Subrogation claims are usually claims held by insurance carriers that have paid medical benefits. The victim who was injured by the negligent truck driver, for example, may have incurred hundreds of thousands in medical bills for expensive surgery. If a third party health insurance carrier pays these bills, the health insurance company will seek to get its money back out of any settlement fund. The victim wants the money for him or herself because they will need it for their lifetime due to the severity of their injuries. Moreover, the reason that they are entitled to the compensation because they are the ones that have experienced the pain and suffering and have had to go through the horrible ordeal of being so seriously injured. On the other hand, the healthcare provider contends that it is entitled to its portion of the money because it paid the money usually under a contract that may contain a right of reimbursement or an alleged right of subrogation.
In Georgia there is a “made whole” doctrine which basically states that unless the victim of a personal injury claim has been made whole for all of their economic and non-economic damages, there is no valid claim of subrogation by a third party health insurance carrier. This general rule is subject to multiple exceptions including cases where the alleged subrogation claimant is a federal ERISA plan which is self-funded. In cases where companies provide for ERISA self-funded insurance plans for their employees, there may be a valid lien under federal law for such a plan’s subrogation interests. Again, all of these cases are factually specific and it is necessary that any victim in such a case confer with experienced counsel. While every case is different, in virtually any serious injury or personal injury case, subrogation is something that will have to be considered by the victim and their counsel if and when a case is settled.

Each year, according to the most recent Centers for Disease Control and Prevention estimates, 48 million people, that is one in six Americans, are sickened by food-borne illnesses. Of those, 180,000 are hospitalized and 3,000 die.

The first major overhaul of the nation’s food-safety infrastructure since 1938 was signed into law yesterday by President Obama.

The Food Safety Modernization Act moves the Food and Drug Administration (FDA) away from its early-20th-century role of responding to adulterated food to a more modern one of requiring companies to stop contamination before it happens by looking for the places where things can go wrong and fixing them.

Electric adjustable beds have been singled out for causing serious injuries and death. Yesterday, the Food and Drug Administration issued a warning to Invacare Corp. for failing to report and address malfunctions with its electric beds, including electronics that allegedly caught on fire causing injury and death.

The FDA posted a warning letter to the Ohio-based company Tuesday morning. Invacare makes a variety of medical equipment, including wheelchairs, oxygen tanks and electric beds.

In its Dec. 15 warning letter, the FDA said the company has repeatedly failed to document and investigate recurring complaints with its adjustable beds.

Anytime a serious injury case is settled for a particular amount of money, the insurance company for the at fault third party involved will insist on a Release of all claims, not only against their insured responsible for the damages but also for the insurance company issuing the check on their behalf. This is standard as part of any serious injury or personal injury case whereby monies are paid as consideration for a settlement. In all such cases, counsel should be conferred with because the provisions of a Release can be extremely important when it comes to third party claims, medical liens, subrogation and other similar matters.
In a typical Release, the party receiving the settlement funds has to agree to release the paying party and the insured from all other claims regardless of what happens after the date of the settlement. Again, this is a standard provision of any settlement. Once the case is settled, the claim is over no matter what happens thereafter. In exchange for the money, the party receiving the money must completely release the third party and their insurance carrier and if necessary file a dismissal of any lawsuit that has been filed. Usually Releases provide for indemnification agreements whereby the party receiving the money must indemnify or hold harmless, the parties paying the money from any liens filed by third parties such as hospitals, medical providers or other third parties who may have some interest in the matter. Again, all such provisions are standard in personal injury cases but in some cases, they become more important than in others particularly where there are alleged claims of subrogation which must be considered. We will address subrogation concerns in a separate blog. Suffice it to say, however, that Release agreements must be carefully reviewed with counsel to make sure that the client’s interests are adequately protected.

Dangerous hazards are still finding their way into toys despite recently improved safety standards, according to a report recently issued by the American Association for Justice.
According to the report, for years, corporations have knowingly shipped toys with hidden dangers like small parts, loose magnets, asbestos, and other toxic chemicals until outrage from parents and civil lawsuits forced regulators or manufacturers to act.
“As toys have become more sophisticated, so too have the risks associated with them,” said AAJ President Gibson Vance. “Protecting our children requires vigilance from everyone. Regulators, parents, manufacturers, and the civil justice system all play a part in keeping dangerous toys off store shelves.”
For example, earlier this year unsafe levels of cadmium were found in children’s jewelry, a toxic metal known to cause cancer and ranked as seventh on a federal list of the 275 most hazardous substances.
An investigation found the origin of the metal was likely China, where the use of the toxin had been prompted, ironically, by the recent prohibition of using lead. The U.S. imports more than 30,000 tons of toys every year from foreign markets, accounting now for 95 percent of toys sold in the U.S.
While regulators lack the resources and staff to police the market, parents, consumer groups and the civil justice system have stepped into the void.
In 2007, a popular CSI Fingerprint Examination Kit contained a powder found to contain up to five percent asbestos, potentially sending lethal asbestos into the air and into children’s lungs.
Once the hazard was known, manufacturer CBS Consumer Products refused to remove it from store shelves as Christmas approached. Rather than wait for the Consumer Product Safety Commission to negotiate a recall, the Asbestos Disease Awareness Organization filed a civil action to stop sales of the kit.
The entire report is printed in the extended entry portion of the blog.

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There are limited waivers of sovereign immunity when it comes victims of the negligence of a county employee. Unless a county’s sovereign immunity has been waived by statute, there is no legal claim that can be filed. An example of a waiver of a county’s sovereign immunity is the waiver of sovereign immunity by law where a county employee is operating a county vehicle. There is a specific Georgia statute which provides for the waiver of sovereign immunity with respect to such claims. See O.C.G.A. § 33-24-51. If a county employee acting within the scope of his or her employment runs a stop sign, for example, and injuries an innocent third party, in such a context there is a waiver of sovereign immunity. However, as is true of other claims involving potential sovereign immunity defenses, an ante-litem notice must be filed against the county within twelve (12) months of the date of the tortious act otherwise it is barred by operation of law. Absent a statutory waiver of sovereign immunity, no claim can be asserted against a county because without a statutory waiver, sovereign immunity is a complete bar to any such claim.
It is possible to file claims against county employees in limited circumstances for the negligent breach of ministerial duties. A ministerial duty does not involve the exercise of discretionary judgment but merely involves following a simple task usually dictated by policy, procedure or statute. Nonetheless, Georgia case law makes clear that whether an act involves a breach of ministerial or discretionary duty will turn on the character of the specific act, not the general nature of the official’s position. All such inquiries are factually specific. Once again, counsel should be contacted as soon as possible in order to assist in making this determination. Suffice it to say, discretionary acts of county employees will be shielded by sovereign immunity and no valid claim will be recognized by the Courts against either a county or county agent or official.
As is true of any other claim involving a potential waiver of sovereign immunity, because the waiver of sovereign immunity against governmental agents and employees is always limited, if anyone has a potential tort claim against a county agent or official, one should confer with counsel as soon as possible in order to determine whether one has a viable claim that comes within an exception to the doctrine of sovereign immunity.

The Federal Torts Claim Act is found at 28 U.S.C. § 1346. It provides for a limited waiver of sovereign immunity with respect to tortious acts committed by federal agents and employees. Under its provisions, only the United States of America may be named as a defendant, not the agency or employee who committed the tort. An administrative ante-litem notice must be filed within two (2) years after the claim accrues. There is a waiting period before suit can be filed against the United States which is either when the written denial occurs or six (6) months, whichever is earlier.
In order to present a claim one must typically submit to the agency involved a Standard Form 95 Claim form which sets forth the basis of the claim and the amount of the damages being claimed. As is true of the State Torts Claim Act relative to claims against State of Georgia agents and officers, the Federal Torts Claim Act provides for a limited waiver of the United States’ sovereign immunity. The provisions of the Act set forth when the government can and cannot be sued. Provisions of the Act as indicated also have various ante-litem notice provisions which must be followed otherwise the claim can be barred for failure to properly perfect the claim.

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