Trial Attorney Blog

Our Atlanta lawyers constantly receive calls from consumers who have had their health insurance companies refuse to pay for necessary treatment or have had their insurance cancelled after they become sick. A recent report has reveled that WellPoint, the nation’s largest health insurer, has aggressively targeted women with breast cancer with the intent of canceling their health insurance policies.

Reuters news service cited federal investigators and regulators as a source of this information. According to the report, WellPoint has used a computer program to automatically trigger fraud investigations after the diagnosis of breast cancer, despite no evidence of wrongdoing.

The practice, called rescission, has been used for years to control costs and boost profits. In effect, the companies will accept premiums until the insured is projected to have costly medical bills, then search for a way to deny coverage. Congress has cited WellPoint , which has 33.7 million policyholders, as being one of the worst offenders.

Most members of the public do not realize that it is very difficult to sue a government official. As long as government officials are acting within the scope of their discretionary authority, they are typically immunized by law from legal liability for mistakes they make, even including claims involving negligence, gross negligence and/or recklessness. The main exception to this rule typically involves the operation of automobiles for which there has been a statutory waiver of sovereign immunity in Georgia. There are, however, other limited exceptions which can apply in certain particular cases. As an example, if a government official is acting outside the scope of his authority or even if he is performing a discretionary act, if he acts with intent to injure and/or acts maliciously, he or she can lose immunized status and be subject to legal liability for such willful acts. Again, these exceptions to the doctrine of official immunity are limited. Accordingly, if a claim is to successfully be brought against a government official, it is necessary that counsel be retained at the earliest opportunity.
Not only is there a procedure maze of hurdles that one must overcome to file a claim against a government official, as indicated in earlier blogs and other posts on this site, there are multiple ante-litem provisions that must be taken into consideration when considering a claim against a government official. Valid claims against those who abuse their authority can be successfully prosecuted if the facts establish an exception to claims of official immunity.

Medical malpractice became a hot button issue in the recent healthcare debate. Many politicians, healthcare workers, and large insurers argued that medical malpractice cases are a large contributor to the rising cost of healthcare in the United States. Even though this line of argument has been consistently proven to be false, it was constantly brought up buy opponents of healthcare reform.

There is a better way to reduce the number of medical malpractice cases without sacrificing innocent victims who have been maimed due to preventable medical errors.

A California study has revealed a decrease in preventable patient injuries in California hospitals from 2001 to 2005 that coincided with a drop in malpractice suits against doctors.

The safety of the United States food supply is a vital interest of all citizens. The recent deadly outbreaks of salmonella poisoning in peanuts, spinach, and other foods has brought the lack of safeguards in the food supply chain to the forefront.

A new report by the U.S. Food and Drug Administration’s inspector general, released last week, documents an outdated and ineffective federal food safety program with too few inspectors, too skimpy legal authority and too little funding.

Faced with the reality of overseas food-processing plants that have been responsible for several recent food safety scares such as contaminated seafood and powdered milk, the FDA report reveals that the agency doesn’t even have enough inspectors to visit U.S. processing plants.

Finch McCranie has been representing innocent victims caught up in police chases for over a decade. While the police should chase violent felons who are endangering the public, many of these cases involve chases where the police are pursuing non-violent or mere traffic offenders at high speeds with the end result being a third party killed or injured, caught up by happenstance in the dangerous pursuit. We have long advocated that the police should pursue violent offenders where the risk of the chase to the public is justified by the risk to the public caused by the offender. If the suspect being pursued has merely violated a traffic law or has committed some other non-violent offense or felony, even if they are apprehended, they are liable to be sentenced to a very light fine and perhaps no incarceration. And yet, in order to chase such a suspect, the police are all too often willing to endanger the rights of the innocent motoring public. Unfortunately, innocent third parties are killed during these dangerous pursuits.

Recently, the City of Milwaukee changed its high speed pursuit policy. From now on, Milwaukee police officers must have probable cause that a violent felony has occurred before they will be authorized to pursue a fleeing suspect. This is because four (4) people have already been killed in 2010 in separate incidents by drivers fleeing from the Milwaukee police. The Police Chief of Milwaukee issued a statement in which he stated that he had to consider the risk to the public caused by the changes in evaluating his City’s policies. As he stated: “I have an obligation to my officers, despite the risk they are willing to take, to limit their risk of injury or death, to make sure that the danger represented by the suspect justifies the risk of violent death. All too often it clearly does not justify that risk.” While this is a welcome change in policy and a sensible and rational approach to police chases in general, many other jurisdictions have failed to adopt a similar policy. Accordingly, officers in many jurisdictions in Georgia and elsewhere continue to chase non-violent offenders at dangerously high speeds sometimes with the result that an innocent third party gets caught up in the chase by happenstance and loses their life or sustains serious and permanent injuries.

We have long advocated that the police should chase those where the risk posed to the public by the suspect is equal to or greater than the risk associated with these dangerous pursuits. However, if the suspect has merely committed a traffic offense or other non-violent offense, the risk of these dangerous pursuits to the public is simply too great. Simply stated, to impose the death penalty on an innocent third party in order to apprehend someone who is non-violent makes no sense.

Our Atlanta product liability lawyers see many cases involving defective products which cause injury. None are more disturbing than those involving children. There have been 24 reported injuries of children involving Graco Harmony highchairs. In an effort to avoid further injuries Graco Children’s Products announced Thursday that it is recalling 1.2 million Harmony highchairs because of stability issues.
The company makes car seats, strollers, swings and other products for kids. It reported that that its Harmony highchairs can be unstable and tip over. The highchair model, was produced from 2003 to 2009 and retailed for $70 to $120. The chairs were sold at Target, Toys R Us and Wal-Mart.
The company blamed the problem on screws holding the front legs of the highchair which can loosen and fall out, and a plastic bracket on the rear legs which can crack, presenting a hazard to children.

In February of 2006, John Lamb was killed when a bicycle he was riding became entangled with hazardous utility wires which draped across a city sidewalk. Mr. Lamb did not see the wires that were still attached to the utility pole until it was too late. Unfortunately, he was thrown from his bicycle, landed on his head, broke his neck and was killed.

This spring, PEDS, a pedestrian safety advocacy group located in Atlanta, will be conducting the Second Annual John Lamb Hazardous Wire Hunt. Citizens are encouraged to photograph hazardous wires on or near City sidewalks and then send the photographs to PEDS, which in turn will send them to the City of Atlanta and/or to the utility companies implicated by the pictures. Obviously, the purpose of this Wire Hunt not only is to honor the memory of John Lamb, who was killed through the negligence of the City and the utility companies who failed to maintain their wires in a safe condition, but also to prevent future accidents of a similar nature. Once PEDS sends the photos to the City and to the utility companies, it is anticipated that they will clean up their act (so to speak) and hopefully, one day, make the City “wireless.”

Finch McCranie, LLP was honored to have represented the Lamb family in connection with his tragic wrongful death. We are also pleased that PEDS is performing this important community service on behalf of each and every Atlanta citizen who enjoy using sidewalks for safe ingress and egress. The City has a legal duty to maintain its sidewalks safely. Leaving hazardous wires on sidewalks for periods of days, weeks, and sometimes months clearly is not a safe practice. It is our hope that the PEDS Hazardous Wire Hunt in memory of John Lamb will serve its intended purposes and help make this City’s sidewalks safe for pedestrian use. One preventable and unnecessary death is one death too many.

Typically government employees are entitled to qualified immunity for acts committed within their official job functions. Such official job functions are called usually discretionary functions and for any such discretionary acts, they are usually afforded complete immunity. The only way around this immunity from suit is to prove that the government actor acted with actual malice or intended to cause harm and/or were acting outside the scope of their authority. As is true of any other claim involving either sovereign immunity or official immunity/qualified immunity claims against government agencies and/or employees, it is necessary that a claimant, who has been injured through the acts of a government agency or employee, immediately confer with counsel.
As we have blogged on in the last week or so, there are many pre-suit notification requirements and there is quite a bit of analysis that has to be done to determine whether an individual government employee can be held personally liable in their personal capacity and/or whether there is any waiver of sovereign immunity such that claims can be brought against them in their official capacity. Because time is of the essence in these claims, any person that has a potential claim against a government agent or employee, should confer with counsel immediately.

The Georgia injury lawyers at Finch McCranie, LLP have represented individuals in many different types of product liability cases. One type of case we are investigating involves individuals who have suffered bone problems as a side effect of Fosamax (Alendronate Sodium). Studies have shown that the popular osteoporosis drug could increase the risk of the painful and potentially disfiguring jaw injury, known as osteonecrosis of the jaw. Other studies have indicated that the medication could also lead to necrosis of the hip, knee and shoulder and a possible increased risk of femur fractures. Fosamax inhibits bone turn over, which could lead to permanent bone decay. Osteonecrosis of the jaw is a rare, but serious problem which may develop following dental procedures, such as tooth extractions. The gums fail to heal, leading to exposed jaw bone and infection. As a result, it is often necessary for dead or decayed portions of the jaw bone to be surgically removed. Symptoms of jaw Necrosis include: jaw pain, gum infection or swelling, loose teeth or toothaches, and exposed bone inside the mouth. Although Merck was aware of this serious risk, they have failed to adequately warn patients or notify the medical community of these Fosamax bone side effects.
Just this week, ABC News reported on two women who have been taking Fosamax for over 5 years. In both cases, both women sustained fractured femurs, notwithstanding that the femur is one of the strongest bones in the body. In one case, a woman was simply jumping rope with neighborhood children when she felt her thigh bone snap into.
If you or a family member have taken Fosamax over a period of years for osteoporosis and developed problems with the jaw, hip, shoulder, knee, or femur (particularly a fracture of your femur), it may be related to your use of this drug. If you have sustained injury as a result of taking Fosamax call the Georgia injury lawyers at Finch McCranie, LLP.

We have blogged before about pre-suit notification requirements against counties. Simply stated, such a notification must be provided within twelve (12) months of the date of the occurrence or event claimed to have caused personal injury to the claimant. Fortunately, there is a body of law that states that filing a lawsuit within one (1) year of the event will serve to provide Notice to the county. This body of law, however, is entirely different from claims involving State government and also is entirely different from claims against municipalities. Why it is that the difference exists is not completely understood, but the fact remains that if a claimant with a personal injury claim against a county agency or employee files a lawsuit within twelve (12) months of the date of the occurrence or omission involved, they usually will be protected. It is still a good idea, however, to give a written Ante-Litem Notice or pre-suit notification even prior to filing the lawsuit so that no assertion can be made that the county did not receive notice of the potential claim for injuries. Once again, we urge anyone with a possibility of a claim to assert it just as soon as possible and to confer with counsel as soon as possible so as to protect their rights under the law.