Trial Attorney Blog

We have written previously about the dangers of police chase cases. This week we read in the paper about a chase that occurred on January 24 involving a man fleeing the police in a stolen vehicle. As he was fleeing, allegedly with a police officer in pursuit, the suspect in the stolen vehicle engaged in increasingly dangerous behavior. Ultimately, he collided head-on with another innocent motorist, killing that motorist and decapitating a female passenger in his car. According to the news accounts, the deceased were ages 21 and 26 respectively. Yet another victim was hospitalized along with the stolen car’s driver.

This case is a classic example of why police chase cases should be limited to those involving forcible felonies. Why was it necessary to chase a suspect in a stolen car and endanger the lives of the public? In this case, two people were killed and two others seriously injured all because of the police’s intent to apprehend a suspect for a stolen vehicle. While little information is provided in the news account concerning the type of vehicle involved, our firm is currently investigating another case where three people died while the police were trying to capture a suspect driving a vehicle with a value of less than $5,000.00. Thus, we have a situation where the police are trying to arrest a suspect for stealing a $5,000.00 automobile and in the process kill three people. In the case reported in the newspaper, two people were killed because the police again were trying to apprehend a suspect in a stolen vehicle.

The continued carnage and unnecessary loss of life caused by these police chases needs to stop. Police departments should change their policies to allow chases only for violent felonies. There is no reason to endanger the public when trying to apprehend a suspect for a non-violent felony. If the suspect does not pull over and takes off, the police should let him go rather than killing the innocent members of the motoring public as happened here not to mention the passenger. The passenger may have been screaming at the top of her lungs for the suspect driver to pull over but she was killed too even though she may have done nothing wrong whatsoever. Was her life worth it?

We read in the newspaper this week about the death of a maintenance man at a local school system when he was electrocuted while trying to change a fixture at the elementary school. While the newspaper article did not provide many details, it was curious to us that a maintenance man would be killed while simply trying to change out a light fixture. This raises the obvious issue of whether there is third party negligence because the electrical system obviously had some problems within it, presumably hidden from the worker. In any event, this sad and tragic case is reminiscent of other cases we have handled in the past involving electrocutions.
Over the years, we have handled wrongful death and other serious injury cases arising from electrocutions. In the cases we have handled, the person being electrocuted is almost always a worker who is performing some task. Typically, the worker is unaware of the danger to himself while performing the work. If the worker survives, electrocution injuries can be very serious and have long term consequences. Typically, anyone electrocuted while on the job unfortunately dies because electrocution almost by definition is usually a fatal event.
While the facts have not yet been reported as to the reasons behind this death, in order to prevent similar incidents from occurring, it is necessary that both OSHA and state officials conduct a thorough investigation of the underlying facts. There is no doubt but there was a root cause of this tragedy which must be determined so that lessons can be learned and future similar cases avoided.

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 3:

3. If a client settles his or her personal injury claim against an at fault defendant, will they have to repay their own insurance carrier under current subrogation provisions of the law?

Answer: This question often comes up in the context of serious injury cases where the injured individual has incurred substantial medical expenses. If the injured individual is covered by a self-funded ERISA plan, federal law requires that reimbursement be tendered to the self-funded health insurance plan from that portion of the settlement which constitutes reimbursement for the same expenses. This is what the doctrine of subrogation means, that being that the insurance company is subrogated against the rights of the injured individual to recover monies it had to pay as a result of the negligence of the third party. If the third party pays the medical expense money to the injured individual, the health insurance company is subrogated and therefore has a right to recover those expenses back from the at fault party since the at fault party caused those expenses to be incurred. In the context of a case where the injured individual only has insurance through a ERISA self funded plan, the bad news for injured individuals is that they may very well have to repay the healthcare plan with monies recovered from their settlements.

The Ortho Evra contraceptive patch has been used by many young women who unfortunately have developed clot related injuries. Some users have had strokes, heart attacks, pulmonary embolisms or deep vein thrombosis as a result of using this product. This past week, the Food and Drug Administration announced a significant update to the manufacturer’s warning on the contraceptive patch. The label now warns users of the patch that they are at a significantly higher risk of developing clot related injuries than other women who use traditional birth control pills. This label change came as a result of a study conducted on behalf of Johnson & Johnson.
Users of this product who have been injured by it should consult with counsel concerning their rights. Litigation has spawned over the country concerning unsuspecting users who have developed clot related injuries. Given the new warnings, which were based on studies documenting these injuries, those who have experienced problems while using this patch should consult with counsel immediately about their legal rights and remedies.

This continues in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 2:

2. Who will bear responsibility for my future medical expenses if I settle my serious injury case today?

Answer: Anytime a serious injury case is settled, there has to be an evaluation of future medical expenses. Has the injured individual recovered completely from their injuries? Are future medical expenses likely? If future medical expenses are likely they need to be considered when the issue of settlement is addressed. In short, a settlement is a once and for all payment meaning that no more monies will be paid in the future. Thus, if future medical expenses are anticipated, they have to be provided for today and then the funds set aside for those future anticipated expenses.

We have previously written about the dangers of medication errors in hospitals. Recently another incident made the news because a celebrity was involved. Actor Dennis Quaid’s newborn twins and another child were put in serious danger when they were administered overdoses of a blood thinner. The California Department of Public Health said the Cedars-Sinai Medical Center gave the newborns 1,000 times the intended dosage of heparin. Fortunately, all three children recovered, but two needed a drug that reverses the effects of heparin.

The authorities said the “violations caused, or were likely to cause, serious injury or death to the patients who received the wrong medication,” and they faulted the hospital for its “deficient practices” around administrating the drug.

The regulators’ found that the hospital did not adequately educate staff about safe use of heparin, which it described as a “high alert, high risk” blood thinner, and that nurses sometimes failed to adequately read labels on vials of the drug.

Our attorneys are increasingly reviewing cases where major surgical procedures are being performed at small physician-owned hospitals and surgical centers.

On January 10, 2008, the Washington Post revealed that the Department of Health and Human Services, Office of Inspector General, had issued a report concerning physician-owned specialty hospitals. The report concluded that most physician-owned speciality hospitals are poorly equipped to handle medical emergencies.

The report revealed that only 55% of the 109 physician-owned hospitals studied had emergency departments, and of those, the majority had only one bed. Fewer than a third of the hospitals had physicians on site at all times and 34% relied on dialing 911 to summon emergency medical assistance for patients who developed problems. Moreover, 7% of the hospitals failed to meet Medicare requirements that a registered nurse be on duty at all times and that at least one physician be on call or in the hospital.

Our medical malpractice attorneys are frequently forced to decline cases which have merit from a liability standpoint, but due to caps on the amount of recovery cannot be justified in economic terms.

Last week, the Los Angeles Times ran a story concerning a 72 year old woman who entered Stanford University Medical Center for double knee replacement surgery in April. Four days later, she was dead. Her son, an anesthesiologist, felt that the case was a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain which she described as a 10 on a scale of 1 to 10. The hospital failed to diagnose the cause of her pain and continued to treat her with pain relievers. Her vital signs became unstable and she was moved to an intensive care unit, but she died of complications from an undiagnosed and untreated bowel obstruction.

According to the story, state regulators found the hospital at fault and cited it. The anesthesiologist and his family decided to sue and approached 24 lawyers. All the lawyers declined to take the case for the same reason – the medical malpractice caps on the amount of recovery didn’t justify the expenses.

Serious injury lawyers like ourselves often hear clients involved in serious accidents tell us that they had “full coverage” at the time of the accident and that they therefore have “excellent” insurance protection. The vast majority of the time, this is not the case at all. This is because the term “full coverage” means that one has the coverage one is minimally required by law to possess. Full coverage does not mean adequate coverage nor does it mean excellent coverage. It means minimally required coverage required by law.

Here in Georgia, in order to operate an automobile, the driver must have a minimum of $25,000.00 in liability coverage protection for any one person, $50,000.00 per accident. What this means is that if someone runs a stop sign and seriously injuries another, he has “full coverage” if he has $25,000.00 in liability insurance coverage for an innocent third-party victim, $50,000.00 for all victims in a single accident. Anyone familiar with hospital and medical costs today knows that any serious injury can hardly be compensated for $25,000.00. Indeed, any serious injury usually involves medical bills far in excess of $25,000.00.

It is heartbreaking for our lawyers to see cases where the at fault driver has “full coverage” and our clients are indeed seriously injured, sometimes with amputations, permanent disabilities and death. In those cases involving death of a family member, $25,000.00 could never adequately compensate the survivors, much less address issues such as medical expenses, funeral bills, lost wages and the like. And yet, we hear over and over again from people inexperienced in this area that they have “full coverage” thereby deluding themselves into believing that they have adequate insurance coverage.

Our medical malpractice attorneys are many times forced to turn away cases against emergency rooms where the patient is injured by clear negligence. This is caused by the gross negligence standard for emergency departments adopted by the Legislature in 2005.

With the Georgia Legislature meeting this week, Senators from both sides of the aisle, Democrats and Republicans, have joined to co-sponsor Senate Bill No. 286. This bill is designed to amend the provision of the so-called Tort Reform Bill initially passed in 2005, which essentially gave emergency rooms immunity from law suits. As part of the February 2005 bill, patients alleging malpractice in emergency rooms must prove gross negligence. Gross negligence is most often characterized under Georgia law as a reckless disregard for the safety of a patient, and in many cases has been interpreted to mean intentional harm.

Georgia’s gross negligence standard is the harshest in the country. Supporting this amendment are not only Republican and Democratic Senators, but Mothers Against Drunk Driving (MADD). MADD Director, Denise Themes, has commented that victims of drunk driving accidents usually go directly to an emergency room for treatment. She points out that given the unique conditions in the statute, it’s nearly impossible for one of those victims to prove gross negligence after the fact.