Trial Attorney Blog

Over the years our Georgia medical malpractice lawyers have been involved in medical negligence lawsuits involving missing or improperly documented medical records. In an effort to avoid such problems the federal government is pressuring medical professionals and facilities to adopt electronic record keeping. While this has the potential to eliminate life threatening record keeping errors, there are also potential dangers associated with this system.

Electronic medical records allow healthcare professionals to easily document medical findings. With just a few keystrokes, a physician or PA can describe a full medical exam using predesigned templates. However, using boilerplate templates for every patient can have serious shortfalls. Reviewing pages of repetitive documentation can be time consuming and lead to increased chances of missing important findings. Overlooking important findings in records has in our experience been a leading cause of harm to patients.

The use of templates can also result in the wrong template being used for a particular condition or patient. It has been reported that a neurologist who had just converted to electronic medical records discovered that the template documented a finding of orientation to time, place, and person for a one year old. Children this young cannot be tested in this manner.

Rule No. 11 of 12: The successful cross-examiner has the ability to make what appears to be complex become simple.
In order to adhere to this rule, experienced trial counsel knows that they must use language that layman can understand. Using lawyerly language or expansive vocabulary is not the way to go. Counsel must boil down the issues to as few as are possible so that the jury can understand what the issues are and follow the testimony and the relevance of the examination. If counsel becomes too technical and fails to make sure that the testimony being offered can be understood by the average juror then cross-examination will be ineffective. Thus, it is important that trial attorneys use language that everyday people understand and that they use language in such a way as to communicate effectively and directly. If this is done, there is no reason an attorney cannot be a successful cross-examiner.

Rule No. 10 of 12: The successful cross-examiner knows how to force an evasive witness to give a responsive answer.
When a hostile or evasive witness refuses to answer a question, counsel must be firm and persistent in getting the answer desired. The first thing to do is to repeat the question. If the witness continues to evade, ask the witness what it is about the question that he or she does not understand. If necessary, have the court reporter read the question back to the witness. Finally, if all else fails, ask the Court to admonish and instruct the witness to answer the question.
Counsel must control the witness rather than allowing the witness to use counsel to aid his or her cause. Controlling a witness means insisting on an answer and getting the answer. If a witness has testimony in a deposition that is inconsistent with their prior testimony and they do not want to admit to it, they need to be confronted directly and then impeached. If the witness says that the car was blue and they take the stand and say the car is red, they must be shown their prior deposition testimony, they must be asked if they previously testified under oath to a different color, they must be asked to review their deposition, they must be shown their deposition and they must be repeatedly and persistently questioned until they admit the prior inconsistent testimony. Good trial lawyers can get answers to their questions if they are persistent.

Rule No. 9 of 12: The successful cross-examiner has a good beginning and good ending to the cross-examination of the witness.
If counsel is prepared through proper investigation and discovery, counsel can start off strong and end strong. A good beginning gets the cross-examination rolling and prepared ending gets counsel down if he needs to get down without being too badly damaged by the opponent’s witness. Again, this all goes back to another rule, which is to prepare cross-examination in advance of trial.
When one looks over their file materials, prior depositions, statements and other information in the file, one should be able to come up with an outline that starts off with a favorable point to be made for the client’s case and after discussing other pertinent matters within the witness’s purview, ends with another favorable point also helpful to the client’s case. It’s always detrimental if cross-examination ends on a low note where a blow is struck and the cross-examination is unsuccessful and the client’s case hurt. To avoid this, a good beginning and a good ending prepared in advance of trial will assist counsel in adhering to this rule.

Bus accidents were the subject of action taken by The National Transportation Safety Board this week. The NTSB is the federal agency charged with investigating major transportation accidents. On Tuesday, it strongly criticized regulators at the Department of Transportation for lax oversight of the commercial bus industry.

The NTSB voted to cite the National Highway Traffic Safety Administration for failing to implement recommendations that could lead to new safety equipment on buses, including seatbelts and stronger roofs and windows. They have been urging NHTSA to enact their recommendations since 1999.

The vote came after investigators for the NTSB disclosed findings from an investigationof a Jan. 6, 2008, rollover bus crash in Utah that killed nine passengers and injured 43. It was one of a string of deadly commercial bus accidents involving passenger ejections over the past two years. Included was the Bluffton University bus crash here in Atlanta. Our lawyers represented one of the seriously injured students in that crash.

Rule No. 8 of 12: The successful cross-examiner listens carefully to what the witness says in response to his questions on cross-examination.
As set forth above, counsel should know what a witness will say in response to each question posed. No question should be asked that the answer is not known in advance. Nonetheless, sometimes, an answer more favorable than anticipated may be given by the witness or impeaching or contradicting of yet another witness. By listening closely to what the witness says on cross-examination, counsel can make sure that they take advantage of any “openings” provided by the testimony. It may be that one answer was anticipated but yet a better answer provided which creates an opening for an entire new line of examination. In short, as set forth in our entry above, if counsel is to be a good cross-examiner, counsel must learn to listen, not only to the witness’s direct testimony, but also to responses to the cross-examination underway. Many times, opportunities can be lost if counsel is too focused on their pre-prepared outline and is not listening closely to what the witness is actually saying from the witness stand.

In addition to representing victims of trucking accidents and automobile accidents, the Georgia injury lawyers at Finch McCranie, LLP also represent victims of nursing home abuse and nursing home neglect. including patients who have sustained decubitus ulcers (bed sores), falls and brutality in nursing homes. Consequently we have seen, first-hand, how victims of nursing home abuse or neglect suffer when those facilities don’t adequately take care of the people for which they are paid to care. It has been our experience that the owners of nursing homes under-staff these facilities and under pay many of the employees who actually do the hard work of caring for elderly and disabled people.
This week I read about the efforts of a Republican state representative in Tennessee who had the gall to propose to the Tennessee House of Representatives that they pass legislation placing caps on damages in lawsuits against nursing homes. Fortunately for the citizens of Tennessee, the proposal failed in a House subcommittee. What a politician will not do to try to get votes or protect the interest of big business never fails to surprise us. One can hardly imagine what the state of care would be for elderly and disabled people in nursing homes if it we not for the fear of a large damage award to keep them in line. In the last few month, the citizens of this country have all witnessed what happens when unregulated big business runs wild with no regulation or oversight. The old saying, “It’s always all about the money” is a true statement. The only way to hold business accountable for their negligence is for there to be financial consequences for their conduct.
P.S. The proposal was denounced as the “Kill Old People Cheap Act” by a Democrat representative who voted against the bill!

Rule No. 7 of 12: The successful cross-examiner listens to the witness’s direct testimony.
When a witness is called by the other side to testify against one’s client, one must be very careful to listen to that witness. Even if counsel has had the benefit of taking the deposition of the witness and has a beautiful outline to be used for anticipated cross of the witness, counsel must nonetheless listen very closely to the actual testimony given before the jury. It may be that the witness changes their testimony or offers less damaging testimony than was anticipated. It would make little or no sense to adhere to a pre-prepared outline script in such a situation. Counsel must be willing to adapt a proposed cross-examination outlined for any witness. The best way to do this is to listen carefully to what the witness is saying.
During cross-examination, counsel must keep his notes to a minimum because taking notes can be distracting and can interfere with listening to what the witness is saying. If proper investigation and discovery has been done, counsel should know what the witness will say in any event, but there have been many cases where witnesses do slightly alter their testimony, thus causing for a change in the cross-examination of that witness. Listening is the key to this rule.

Rule No. 6 of 12: The successful cross-examiner stays calm and collected whatever happens.
During the testimony of a witness, particularly where the witness is providing very damaging testimony, counsel cannot flinch or otherwise demonstrate through body language that his client’s case has been hurt. Counsel must always stay calm and collected because body language many times can betray counsel’s representation of their client.
When a witness is being evasive or refuses to answer questions or asks counsel questions from the witness stand, counsel must not argue with the witness or answer any of their questions, but rather must stay calm and collected and stay in control of the witness. As long as counsel consistently reflects a professional demeanor, this communicates to the jury confidence in one’s cause.

The Georgia injury lawyers have written before that with the growing popularity of ATV’s or All-Terrain Vehicles, serious injury and death cases are on the increase in Georgia, especially among children. Yesterday, we read about a 12-year-old Alto, Georgia girl who was killed last Friday night about 8:30 p.m. in an accident involving an all-terrain vehicle in Banks County. According to the Georgia State Patrol the girl was driving the vehicle when it overturned on private property. A 15-year-old passenger, who was not identified, was injured and taken to Northeast Georgia Medical Center. Unfortunately Georgia is one of only five states with no ATV safety legislation. Between 1982 and 2003 there were 177 fatalities involving ATV’s. Of the 177 deaths, one third were children under 16. In 2004, there were 12 fatalities involving ATV, 50% of which were children under 17.

Almost all ATV accidents involving fatalities or serious injuries occur while violating one or more of the Consumer Product Safety Commission’s “Rules of ATV Operation”. These rules are as follows:

A. Children under sixteen should not ride adult-sized ATV (90 + cc’s).