Trial Attorney Blog

Medical malpractice claims in Georgia are constantly coming under fire from insurance companies and doctors who allege they raise the costs of medical care through increased insurance costs to doctors. For many years our Atlanta based attorneys have watched as these large insurance companies and medical groups spend massive sums to influence politicians to enact legislation eroding the rights of innocent victims of medical negligence.

A recent study in New York has exposed these false arguments.Data from the National Practitioner Data Bank show 1,882 medical malpractice payments in New York for $743 million in 2008, down from 2,417 payments for almost $823 million two years earlier. Yet, the premiums doctors pay for insurance have not been reduced. The report Friday urged an independent review of insurers’ premium-setting practices.

As many other studies have shown, less than 2 percent of the entire cost of the medical system is from malpractice. The Center for Medical Consumers has stated that malpractice insurance premiums are not a major contributor to the health care cost of inflation. Yet, large insurance companies and doctors groups continue to spread this false information.

We read yesterday in the paper about a tragic case in Charlotte, N.C. involving a police chase which resulted in the death of an innocent 84-year old woman who happened to be at the wrong place at the wrong time and got caught up in the chase, resulting in her death. According to the news reports of the incident, the police were chasing a suspected shoplifter who had committed a petty offense at a local shopping mall. Although the news reports are sketchy, it appears that the merchant called the police and shortly thereafter the police spotted the vehicle being operated by the suspected thief. A three mile chase ensued at high speeds and during the chase, the suspect lost control of his vehicle and struck the vehicle being operated by the innocent victim. Her death resulted. The petty thief has now been charged with murder.
We have blogged before in the past about the reasons why there should be policies prohibiting these kinds of chases. The death penalty to the innocent is the end result and in our judgment the death of this innocent lady cannot be justified by the need to apprehend a suspected petty thief. The news reports are sketchy as to what was stolen, but it appears that it was merchandise probably worth less than $100.00. In order to apprehend a petty thief, the police made a decision to expose innocent members of the motoring public to the possibility of serious injury or death. When balancing the risk to the public caused by a dangerous high speed chase against the need to apprehend the offender, it is our judgment, and that of many experts in the field, that public policy demands that in such circumstances, when the police are chasing a non-violent offender, they should terminate such a chase because it is foreseeable that an innocent third party might be seriously injured or killed if they do not. Because this chase happened over a three mile span, the police should have known that the suspect was not going to pull over and that the risk to the public caused by the chase itself was a greater danger to the public than was the suspect himself.
The police are defending the chase, as they always do. They are stating that the suspect was found to be on probation and had a criminal record for other theft offenses. These facts, probably discovered after the fact, were probably not known to the pursuing officer. Facts discovered after an incident can hardly justify an officer’s actions at the time of the incident. In this case, according to the news accounts, the officer only knew that the suspect he was pursuing at high speeds was a petty thief. Why would the police condone a chase where a death occurs when the need to apprehend was so slight and the danger to the public presented by a petty thief was far less than the danger to the public presented by the chase itself?
Of course, we do not know all the facts surrounding this case and can only base our views on what little information has been publicly released. Nonetheless, it is our strong belief and that of many experts throughout the country, including many involved in law enforcement, that law enforcement must do a better job of policing itself and must not condone dangerous high speed police chases in the context of a non-violent offense where the suspect/offender poses little or no danger to the public and the chase itself poses considerable dangers, oftentimes resulting in serious injury or death. This tragic case in Charlotte is no different from many others throughout the country. Indeed, our firm is handling a similar case in Augusta where the police were chasing two shoplifters which resulted in the death of three individuals. We pose the question: Was the death penalty to the innocent justified by the need to apprehend the suspect and the danger to the public presented by the petty thief? We think not.

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In a wrongful death case where the deceased individual is survived neither by a spouse, child or parent, under Georgia law such a cause of action would vest in the Executor or Administrator of the Estate. In short, there will always be someone able to proceed on behalf of the “heirs-at-law” and such an individual, once duly appointed, will proceed in a fiduciary capacity to protect the rights of the heirs-at-law relative to the wrongful death action. Thus, if an individual dies and is neither married, has children or is survived by parents, but does have siblings as an example, then the siblings could sue for the wrongful death of their sibling subject to a pro-rated distribution of the proceeds in the event of a recovery. If an only child is involved, a representative of the estate could be appointed to proceed on behalf of other relatives. In short, if the death is wrongful, Georgia law recognizes that someone must be allowed to pursue the claim even if it means seeking representation on behalf of the decedent’s estate.

In Georgia, if an individual loses her or her life due to the negligence of a third party and is not survived either by a spouse or children, the cause of action for the wrongful death of such an individual vests in the surviving parents. If both parents are alive, the cause of action is vested jointly in the parents if they are living together. If one parent is deceased, the right is in the surviving parent. If both parents are living, but are divorced, separated or living apart, the right shall be in both parents but either parent may proceed on behalf of the other. In such a case, the non-participating spouse is bound in the action brought by the other spouse.
If an individual is killed due to the negligence of a third party and that person was born out of wedlock, under Georgia law, such a fact shall be no bar to recovery and a surviving parent can sue for the wrongful death of his or her child. However, failure of a parent to provide support for the child during his/her life can diminish the parent’s right to share in the recovery. In short, if the surviving parents are separated or divorced, under Georgia law, the Court will determine an equitable apportionment of any wrongful death recovery based on the nature and extent of relationship of the parents to the deceased child.

The Atlanta consumer and product liability lawyers of Finch McCranie LLP have successfully litigated cases against auto manufacturers for serious injury and death caused by defects in their products. Now, as a result of the bankruptcy of GM and Chrysler, many deserving victims of these defective products may be left without recourse.

The bankruptcy proceedings currently underway will leave consumers currently bringing personal-injury and product-liability lawsuits against Chrysler LLC and General Motors unable to continue their actions and receive compensation for their injuries. In effect, the auto manufactures are getting a free pass for years of incompetent management practices and their victims are being left powerless.

Typically, lawsuits are stayed while a company is in bankruptcy. Plaintiffs and other unsecured creditors are among the last to be paid by a bankrupt company, if they are paid at all. Plaintiff’s lawyers in the Chrysler case objected to the sale of the company’s assets because they suspect that there won’t be any money left, even if they were to win their cases.

In Part I of this series, we set forth the provisions of Georgia law for wrongful death actions where surviving spouses were involved. In this article, we shall address actions by surviving children under Georgia’s wrongful death statute where a spouse does not survive to bring such a case.

If a parent is killed due to the negligence of a third party and is not survived by a spouse but is survived by children, the cause of action for the wrongful death vests with the surviving children. The fact that a child is born out of wedlock is not an issue and all surviving children are treated equally. A minor child has to bring such an action through a responsible adult or a Court Appointed Guardian. Step-children, however, have no right to pursue a wrongful death action for the death of their step-parent.

If a single parent is killed, such as a single working mother, obviously, a surviving ex-spouse has no right to bring the claim for wrongful death because such a claim belongs to the children and not to an ex-spouse. If the ex-spouse, however, is appointed as a Guardian of the children born between the two, such an ex-spouse could be appointed by the Court to protect the interests of the children. However, any recovery for the wrongful death of the deceased single parent would belong solely to the children and the ex-spouse could collect nothing in his or her own individual capacity, but would rather proceed solely in a fiduciary capacity.

A lawsuit has been filed by Georgia surgery centers against Blue Cross Blue Shield Healthcare Plan of Georgia Inc. and Blue Cross and Blue Shield of Georgia, seeking class action. The lawsuit, like many others around the country attacks the insurer’s practice of discouraging visits to out-of-network providers by reimbursing procedures at a tiny fraction of “usual and customary” charges.

The suit is similar to one filed earlier this year by a dialysis provider against Blue Cross. That suit was dismissed. The new suit alleges Blue Cross members paid higher premiums in exchange for the flexibility to receive coverage for care from providers who are not part of the plan’s preferred network.

Blue Cross Georgia is alleged to have engaged in the practice of targeted out-of-network providers, including ambulatory surgery centers, for a drastic reductions in reimbursement to a mere fraction of usual and customary charges. The suit alleges these practices violate federal and state laws protecting patients and providers, as well as Blue Cross Blue Shields contracts.

One of area of confusion to the public is determining who has the right to bring a wrongful death action in Georgia. Because our firm handles many such cases in Atlanta and throughout the State, we have decided to blog on this area of the law so that the public will better understand the provisions of Georgia law which control wrongful death actions.

In this article we shall focus on the rights of a spouse who is married to an individual killed by the negligence of a third party. In all such cases, where the decedent is married at the time of death, only the surviving spouse may bring a wrongful death action. Interestingly, however, any spouse that brings a wrongful death action on behalf of a deceased partner does so in a fiduciary capacity if children are involved.

O.C.G.A. § 51-4-2(a) provides that:

We receive many inquiries from Atlanta consumers regarding the safety of products apporved by the federal regulatory agencies. During the Bush administration many consumers here in Georgia and elsewhere have expressed concern and bewilderment that certain drugs and products banned in other countries were “approved” by federal agencies for distribution in the United States.

Now, the Food and Drug Administration, FDA, has announced it is reviewing a controversial decision it made last year — the conclusion that BPA, a chemical used in baby bottles and food containers, is safe for infants.

The announcement came just hours after two members of Congress sent a letter to new FDA Commissioner Margaret Hamburg questioning that decision Commissioner Hamburg has pledged to restore confidence in the agency by putting science first in its decision-making process. This is encouraging news as during the past administration many such decisions seemed to be based upon political grounds.

When I was in high school, I was hired as a forklift driver at a textile plant. I was given no training whatsoever, had never operated a forklift and within hours was lifting huge pallets of heavy materials high into the air for placement on warehouse shelving. Fortunately, I did not injury anyone or kill myself, but I easily could have. Indeed, that same summer a high school friend of mine lost his life when he accidently drove a forklift backwards off of a loading ramp, killing himself in the process.

Just a month or two ago, here in Atlanta, I read about a news story where one employee at a car dealership was training another employee on how to drive a forklift when the co-worker overran the employee killing him. Here at Finch McCranie, we have represented individuals who were involved in industrial accidents where they were struck by forklifts inside of manufacturing facilities. These cases typically result in very serious personal injuries involving amputations, paralysis or death. Incredibility, my experience in high school is repeated over and over again as oftentimes the operator of these forklifts has been provided little or no training. Today, this is a violation of OSHA regulations. It was not in the 70’s and 80’s.

Forklifts are very heavy and very dangerous industrial vehicles involved every year in a large number of deaths and serious injuries in the workplace. Many of the injuries and fatalities committed while these vehicles are being operated could have been prevented if the operators had been properly trained and/or had properly protected themselves. Oftentimes, the operators of these vehicles are not wearing seatbelts and/or seatbelts are not even provided for their use. If such a vehicle overturns, because of its weight, the operator can be crushed.