Articles Tagged with Personal Injury

As Georgia personal injury lawyers know, the typical statute of limitations for a bodily injury case in Georgia is two years from the date of the occurence at issue. However, in cases involving victims of criminal acts who have potential civil causes of actions against those who brought about injury to them, there are some nuances of Georgia law that all attorneys in this field should know.
The purpose of this entry is to acquaint the Plaintiff’s bar with a very important but little known statute. The statute at issue, O.C.G.A. § 9-3-99, was passed as part of the “Crime Victims Restitution Act of 2005.” It became effective July 1, 2005 and reads as follows:
The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six (6) years.
Given that virtually every automobile accident involves misdemeanor criminal charges against a negligent driver (who presumably violated the Georgia Uniform Rules of the Road and was charged via a citation), it is submitted that in virtually every automobile accident tort case, this statute could potentially extend the statute of limitations from 2 years to 6 years. The same is true for any tort case (particularly intentional torts) resulting in criminal charges against a defendant. While the new statute has yet to be interpreted by any Georgia court, there are many interesting legal issues that may emerge in the future with respect to it.
Our firm first became aware of this statute in the context of two wrongful death actions we were prosecuting on behalf of separate families in Canada. These two deaths had occurred in a very bad tractor-trailer accident. While preparing those cases for trial, we contacted another person who had been injured in the same accident. This particular person lived in the state of Florida. When we first contacted the individual about providing a deposition for our cases, two years had already passed since the accident occurred. The witness, nonetheless, asked if our firm could assist him in bringing claims against the trucking company responsible for the collision. Because of the passage of time and also because we had a conflict of interest representing a witness we needed to depose for our other clients, we declined. However, when we later settled the two wrongful death cases and advised the witness his deposition was no longer needed, he again asked if we could be of service to him. Even though the otherwise applicable two-year statute of limitations had arguably run, because the tractor-trailer driver had been charged with vehicular homicide in connection with the deaths in our other two cases and because our conflict no longer existed, we agreed to file claims on the new client’s behalf and to assert in his case that the statute of limitations had been tolled since he was a “victim” of a crime which had been committed in this state.

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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 8:

9. If I have no health insurance and the at fault driver has little or no liability insurance coverage, what happens if my medical bills exceed available coverages?

Answer: This is a sad case that we see far too often in our practice. The hypothetical at fault driver has run the stop sign or red light and has caused serious injuries. The at fault driver has minimum limits of $25,000.00 which are insufficient to pay the medical expenses incurred. The injured individual has no health insurance. Thus, medical expenses exceed all forms of available coverage. What happens? Typically, lots of problems. If the medical expenses exceed available coverage then counsel will attempt to negotiate some type of settlement with the hospital and healthcare providers because there is simply not enough money to go around and what is available needs to be divided on an equitable basis. Sometimes this works and sometimes it does not. If there is a Hospital Lien, for example, the Hospital Lien takes priority by operation of law and all of the settlement funds might have to be paid to the hospital leaving the injured individual with nothing. Again, these are sad and complicated cases requiring careful review by experienced counsel. This, of course, is why it is so important that the public protect itself through Medical Payments coverage, health insurance coverage, disability coverage and/or any other forms of coverage such as uninsured motorist coverage if such coverage can be purchased and is affordable. If such coverage is not affordable and the injured individual has nothing then literally they are at the mercy of the resources of the at fault defendant which in many cases are themselves grossly insufficient to pay for medical expenses, much less pain and suffering and lost wages.

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 6:
6. Can my spouse recover damages if I am seriously injured and he/she misses time from work caring for me?
Answer: A spouse does not have a legal claim for their own lost wages while they miss work caring for their injured spouse. However, under Georgia law, a spouse does have a claim for loss of consortium. Loss of consortium means the loss incurred by the innocent spouse when they are deprived of their injured spouse’s “society, affection and companionship.” This is not limited to the loss of conjugal services but includes the loss of all services provided to the spouse and the intangible value of the injured spouse’s contribution to their “affection, society, comfort and companionship.” Thus, while one cannot literally file a claim for the uninjured spouse based on that spouse’s lost wages, compensation can be obtained in a serious injury case for lost of consortium which can provide a measure of compensation for other losses.

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 5:

5. Who will pay my lost wages while I am recovering from my injuries?

Answer: In Georgia, there is no “Pay as You Go” rule so unfortunately the answer to this question is that you may receive no lost wages at all unless your employer continues to pay you and/or you have disability benefits. When you have reached maximum medical improvement and your case is ready for settlement, your total lost wages past, present and future, is an element of your damage claim. Assuming the at fault defendant has good insurance coverage that can pay all such damages, you will then receive restitution and/or compensation for your total lost wage claim assuming, of course, that the liability of the at fault defendant has been established for the damages and has sufficient coverage to provide restitution for this part of your loss.

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.