Trial Attorney Blog

Today, the United States approved the biggest overhaul to the nation’s food safety laws since the 1930s. By a bipartisan vote of 73-to-25 the new law would gives new authorities to the Food and Drug Administration, places new responsibilities on farmers and food companies to prevent contamination, and for the first time, sets safety standards for imported foods.

The Senate vote was one of the few pieces of legislation to receive bipartisan approval in years. The House of Representatives approved a more stringent version of the bill more than a year ago.

The legislation comes after a number of national outbreaks of food poisoning involving products such as eggs, peanuts and spinach in which thousands of people were sickened and more than a dozen died.

There is a State Tort Claims Act found at O.C.G.A. § 50-21-20, et. seq. The Act resulted from an amendment to the Georgia Constitution and became law in April of 1992. It was intended to provide a remedy for torts committed by State officers and employees and establishes a procedure to waive sovereign immunity under certain circumstances to allow suits against the State for tortious acts of state agents, employees and/or officers. Individual State officers and/or employees may not be named as a party to a lawsuit. Under the State Tort Claims Act, the exclusive remedy for a tort committed by a State employee is an action against the state agency involved and not against the employee personally.
It must be noted that if someone has a claim against a state agency or employee they must file an ante-litem notice with the State. The law is very specific in this regard. Notice must be given in writing by certified mail, return receipt requested or a personal delivery letter to the Risk Management Division of the Department of Administrative Services. Additionally, a copy shall be delivered personally to or mailed by First Class Mail to the State government entity involved in the tort. The Notice also must include certain information in order to be valid. It must state the extent of the claimant’s knowledge and belief as to the basis for liability, the time and place of the transaction or the occurrence out of which the loss arose, the nature of the loss suffered and the amount of loss claimed. Once an ante-litem notice is properly filed with all this information, a claimant cannot file suit against the State of Georgia until either the Department of Administrative Services has denied the claim or more than ninety (90) days has elapsed after presentation of the claim, whichever occurs first.
There are twelve (12) areas of State activity specifically excluded from the State’s waiver of its sovereign immunity which include as follows: Losses resulting from any exercise or performance of a discretionary function; acts or omissions in the execution of statutes, regulations or rules; assessment of tax or detention by law enforcement officers; legislative judicial or prosecutorial actions; civil disturbance or riots; assault, battery, false imprisonment, false arrest, malicious prosecution, abusive process, liable, slander or interference with contractual rights; inspection powers or functions; licensing powers or functions; highway and other public work designs when prepared in substantial compliance with generally accepted engineering standards.
As is clear from this list of items excluded from the waiver of the State’s sovereign immunity, all cases are factually specific and must be discussed with counsel. It is also clear that the ante-litem notice provisions must be strictly observed otherwise the claim could be forfeited for failure to properly notify the State in advance of filing a claim. In addition, the waiver of sovereign immunity if it is found to exist in a particular case is limited to $1 million per person with the State’s aggregate liability per occurrence not to exceed $3 million regardless of the number of those injured or killed. An example of this is the case against the Georgia DOT involving a bus of baseball players. Even though there were over 30 claims, the total waiver was capped at $1 million for any one player and $3 million for all the claims.

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Our Atlanta based attorneys frequently pursue cases against nursing homes involving horrible neglect and abuse of elderly and disabled persons.

In most of these cases our attorneys must sort through a maze of companies and entities designed to hide the true ownership of these offending entities and thereby avoid responsibility.

It is encouraging to see that several national lawmakers in the health policy world now want want nursing homes to be more open about who’s running them.

The U.S. Public Interest Research Group, a private consumer advocacy group, recently released its 25th annual study of toy safety. It reported that only a small fraction of children’s toys tested for toxic substances and choking risks have been found to violate federal safety regulations.
The group’s public health advocate commented that while the study did not find perfection in toy safety, it did indicate progress.
PIRG credited a 2008 law that set stronger limits and standards for children’s products for helping to make many of the products on store shelves safer for youngsters. The law was passed in the wake of a wave of recalls of lead tainted toys.
PIRG had 260 toys and other children’s products from major retailers and dollar stores tested for toxic substances such as lead and antimony as well as for the risk of choking presented by small parts. Only four of the items tested violated federal safety regulations for children’s toys.
In its annual “Trouble in Toyland” report on hazardous playthings, the organization focused on three hazards: lead or other metal-tainted toys, soft plastic toys that contain chemicals called phthalates, and toys with small parts that can choke young children.
Higher than permissible levels of lead or antimony were found in four toys. These are a stuffed animal, a baby book, plastic toy handcuffs and a toy gun. The toys were sold at stores including Toys “R” Us and Family Dollar.
Lead can cause irreversible brain damage, and antimony has been linked to fertility problems in animals.
While none of the products tested violated federal limits for small parts, PIRG said several toys were still hazardous for children under 3 because the size was not that much bigger than allowed by law.
The toys identified in the group’s report as potential dangers were:
—A stuffed animal monkey made by Play Pets that contained lead just slightly above the limit.
—The red handle of a baby book sold at Toys “R” Us that contained antimony that was about twice the limit.
—The surface coating of toy plastic handcuffs sold at Toys “R” Us that had excess antimony, many times higher than allowed.
—The surface coating of a wild ranger toy gun sold at Family Dollar with slightly higher levels of antimony than allowed.
The executive summary of the report is reproduced below.

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A disturbing Inspector General report from the shows that medical errors are harming and killing our senior citizens at alarming rates.
An estimated 15,000 Medicare patients die each month, and many more are injured, because of usually preventable medical mistakes in hospitals and other facilities.
The report focused on “adverse events,” defined as “harm to a patient as a result of medical care, such as infection associated with use of a catheter,” and “never events,” which are specific “serious events, such as surgery on the wrong patient, that the National Quality Forum (NQF) deemed ‘should never occur in a health care setting.’”
The Inspector General of the Department of Health and Human Services found:
—An estimated 13.5 percent of hospitalized Medicare beneficiaries experienced adverse events during their hospital stays.
—An additional 13.5 percent of Medicare beneficiaries experienced events during their hospital stays that resulted in temporary harm.
—Physician reviewers determined that 44 percent of adverse and temporary harm events were clearly or likely preventable.
—Hospital care associated with adverse and temporary harm events cost Medicare an estimated $324 million in October 2008.
Significantly, the 2009 loss to taxpayers was “$4.4 billion spent on care associated with events”–which did not even include the cost of followup care.
The cost in lives, health, and taxpayer dollars of preventable medical errors is far too high. Respect for life of our senior citizens requires accountability when harm occurs, and preventive steps to ensure patient safety.
A portion of the Inpsector General’s report is reprinted below:

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Today we received a telephone call from a client who had been injured on some school property. The client was vaguely aware of the doctrine of sovereign immunity and unfortunately for this particular person their claim was completely barred by operation of law. Why: because of the doctrine of Sovereign Immunity?

The law has long been that lawsuits against government official performing their discretionary and official job functions are discouraged. If it were not otherwise there would be litigation every time someone disagreed with what a government official did or how they performed their job, particularly if they claim to have been damaged by unskillful performance. Over the years more and more barriers have arisen with respect to tort claims against governmental entities. The obvious policy reason behind this doctrine is to protect government officials from being sued when performing their official functions on behalf of the public at large. It’s application can sometimes be harsh, but public policy cannot allow government officials to be sued for allegedly unwise decisions. That would surely open the proverbial floodgates as almost everyone at times questions the wisdom of public officials.

In future blogs we are going to talk briefly about how one can sue their government when they are injured by the negligent acts of a government agent or employee. As an example, if the United States Government is involved, one must be familiar with the Federal Tort Claims Act. If the State of Georgia is involved, one must be familiar with the State Tort Claims Act. If a county or municipality is involved, one must be familiar with the legions of cases that spell out the distinction between protected discretionary acts for which there is official immunity and the difference between cases involving a breach of ministerial duties for which there may be the possibility of a viable claim.

Products should meet the ordinary expectations of consumers. If a product is defective and dangerous, then the designer, manufacturer and/or seller can be held accountable for any injuries or deaths that result. There are a number of different types of product liability cases.

Defective in Design: In a design-defect case, the dangerous product is in the condition intended by the manufacturer, but the design itself is unsafe.

Defects in Manufacturing: In a manufacturing defect case, the product’s design was safe, but the way the product was actually manufactured did not comply with those designs. The result is an unsafe product.

Our Atlanta based attorneys have and are litigating cases against nursing homes involving almost unspeakable abuses of elderly and vulnerable patients. These civil suits help uncover abuses by nursing home and insurance companies, according to a new report by the American Association for Justice.
“Where regulatory and legislative bodies have been unable to cope with this distressing rise of neglect and abuse of our elderly, the civil justice system has stepped into the breach,” said the AAJ President, in a statement accompanying the release of the report, “Standing Up For Seniors: How the Civil Justice System Protects Elderly Americans.”
According to the report, the vast majority of the nursing facilities that house more than 1.5 million elderly Americans are owned by private corporate chains, making it difficult for consumers to hold them accountable for abuse.
The report also asserts that insurance companies are more likely to take advantage of older patients with practices like miscalculating mortality rates, denying claims and cutting off benefits for needed treatments.
The report outlines how, through litigation, trial attorneys across the country have uncovered evidence of corporate programs aimed at terminating seniors’ benefits as well as evidence of nursing home abuse and neglect.
The report warns that efforts to combat nursing home abuses through civil suits are hampered by the use of mandatory arbitration clauses in nursing home and insurance contracts.

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The Associated Press reported this week that 37 year old Jimmy Roubles of Augusta died in a construction accident when a trench caved in on him while he and a co-worker were installing pipes six feet underground. The article did not indicate whether this man was married or whether he had children. If he left dependants, they will be entitled to Georgia “death benefits” under the Georgia Workers’ Compensation Act; although the benefits are pitiful and limited.
If Mr. Roubles was married and she is the sole dependant, she is entitled to 2/3rds of the average weekly wage that her husband made, up to a maximum of $500.00 per week. She is only entitled to received those checks on a weekly basis for no more than 400 weeks, not to exceed a total of $150,000.00. If she re-marries or cohabitates with someone, the weekly benefits will be suspended. In addition, the employer/insurer will have to pay his funeral bill but only up to $7,500.00. If he left dependent minor children, they will be entitled to share in the weekly benefits; however, there are lots of rules that apply to that situation.

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Georgia injury lawyers know that motorcycle accidents often result in serious injuries and even death for the biker. Today WSBTV reported that a motorcyclist was severely injured as a result of a hit-and-run crash in Henry County. Justin Haynes, age 34, was struck at Fairview and East Atlanta Rd in Ellenwood by a female driving a black Toyota Highlander. According to police, the women stopped but then drove off.
Hit-and-run accidents are becoming more common in Atlanta. There is a 24 year old woman on trial this week who is accused of causing a collision which took the lives of several innocent people. In that case, the woman left the scene and was then assisted by her mother in attempting to cover it up.
Georgia law provides that if someone negligently injures or kills someone and there are aggravating circumstances involved, such as being intoxicated of leaving the scene and failing to render aid, the offending party may be liable for punitive damages.

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