Articles Tagged with Personal Injury

Many times we represent clients’ who have been seriously injured in automobile, trucking or on-the-job accidents who have sought and received psychological or psychiatric counseling and treatment. During the course of litigation, insurance company lawyers often try to subpoena mental health records from mental health professionals. It is wise to be vigilant in monitoring these requests from insurance defense lawyers and to object to these requests.
Under Georgia law, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . .” (Emphasis supplied) O.C.G.A. § 9-11-26(b)(1). Psychiatric records are not absolutely privileged. See Donalson v. State, 192 Ga. App. 37, 38 (2), 383 S.E. 2d 588 (1989). However, communications between a psychiatrist and patient are absolutely privileged and that privilege must be waived as a pre-condition of discovery. O.C.G.A. § 24-9-21(5); Freeman v. State, 196 Ga. App. 343, 396 S.E. 2d 69 (1990). The purpose of the psychiatrist-patient privilege is to encourage the patient to talk freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient’s emotional or mental disorders. O.C.G.A. § 24-9-21 (5).
Pursuant to O.C.G.A. § 24-9-40, the psychiatrist-patient privilege may not be deemed waived simply because the patient’s “care and treatment or nature and extent of his injuries [have been put] at issue in any civil or criminal proceeding.” See Wilson v. Bonner, 166 Ga. App. 9, 16 (5), 303 S.E. 2d 134 (1983). In other words, the psychiatrist/patient privilege is not waived when an injured person, who claims it, is seeking to recover damages for injuries of a mental or emotional basis. Accordingly, if you are physically injured in an accident and you seek damages for your mental pain and suffering, you do not waive the psychiatrist-patient privilege and the insurance company is not entitled to anything that is privileged.

.We continue in this artice our Previous blog and presentation on the delivery of effective Closing Arguments in jury trials.(See entry of 3/13/07). We continue as follows:

GIVE YOUR REMARKS A STRUCTURE

As discussed above, one should not rely upon the inspiration of the moment to deliver a closing argument. A winning summation is usually the result of meticulous, painstaking preparation done well in advance of the actual delivery of the remarks. In order to insure that such preparation is not wasted, obviously, it is necessary that counsel utilize a structure in preparing his/her outline of the legal and factual issues counsel wishes to discuss with the jury.

We cannot tell people how many times unrepresented, injured workers sabotage their cases by failing to comply with their own obligations under the Georgia Workers’ Compensation Act. At a minimum an employee who sustains an on-the-job injury must do the following:

1. Report any on-the-job injury within 30 days of the date of the injury. Although the law provides that an employee should notify the employer within 30 days, any injury should be reported immediately. If you do not report your injury immediately, you may afford the employer and insurance company a defense that they would not otherwise have.

2. Determine on your own whether the employer has the required panel list of authorized physicians posted.

Many people are unaware of what benefits are available to an injured worker in Georgia. Accordingly we thought it might be helpful to clients or potential clients to have an overview of the basic benefits.

(A) TEMPORARY TOTAL DISABILITY WEEKLY INCOME BENEFITS:

If you are injured and begin losing time from work, you are entitled to receive 2/3 of your average weekly wage up to a maximum of $450.00 per week. The first seven days of compensation are not payable until or unless you have missed 21 days from work. In other words, you are not entitled to weekly benefits if you miss 7 or less days from work. If you miss at least 21 days from work, you will be paid for the first 7. The first payment of weekly benefits, including the first 7 days, is due on the 21st day of disability.

For over twenty years, we have handled personal injury claims and workers compensation claims of all types. Anyone who has done the same has witnessed the perversion of our system of justice by medical doctors who are performing so called “independent medical exams” for insurance companies and their lawyers. It has always amazed us that medical doctors who spent years of hard work to be able to exercise their own independent judgment in diagnosing and treating injured or sick people are so ready, willing and able to misrepresent, if not lie about either an injured persons condition or the cause thereof, in order to keep the insurance company dollars coming. People who are involved in litigation know who these doctors are because they show up over and over again. There is big money in these evaluations for orthopedic surgeons, neurologist, neurosurgeons and others who are in the business of performing them.

Unfortunately, jurors are often unaware of the extent to which these physicians are used by the insurance industry and unaware of their bias. Insurance defense lawyers portray these doctors as “objective” and “independent”. Recently, a well known IME doctor admitted that he had done over 1500 independent medical examinations since 1991. He gives approximately 40 depositions a year, testifies for the defense 95% of the time and has made over $1.2 million doing this in the last eight years. In the trial of personal injury cases, including workers compensation cases, a significant issue a judge or jury must evaluate is whether the testimony of theses defense experts is objective and/or whether the doctors have a hidden bias, to wit: a propensity and motive to testify favorably to the parties hiring their alleged professional services. In Lancaster v. USAA Casualty Insurance Company, 232 Ga. App. 805, 502 S.E.2nd 752 (1998), Justice Blackburn wrote:

I write separately to point out a systemic problem in the general use of “independent” experts in the litigation process. This problem, while not limited thereto, is greatest where insurance companies use “independent” medical experts’ opinions to deny or limit payment of claims. The inherent weakness of this process is that the insurance company which controls the flow of business to “independent” medical services providers has a financial interest in the negative finding of such provider … Where companies are established for the sole purpose of providing or selecting medical experts for insurance companies, either individually or as an industry, they can by no means be deemed to be independent.

We thought it would be interesting for our readers to understand how experienced attorneys prepare and deliver effective Closing Arguments to juries in serious injury cases. What we have decided to do is to blog about this very interesting subject in a series of brief articles over the next several days. What follows, in fact, is a portion of a presentation delivered by one of our attorneys at a continuuing legal education seminar for the Georgia Bar.
We begin as follows:
The most gifted Trial lawyers among us are highly successful orators. We use the term gifted because such innate ability is not common among all Trial lawyers. Those who can make a jury cry and stir their emotions with natural ease and innate ability are the few among us with this gift of oratory. These are the “show horses” of our profession. For the rest of us, we have to learn to be work horses in order to be successful at giving a winning summation. If we follow sound fundamentals, just like a football team, we can still deliver a winning summation even if we are not particularly gifted. The key is good, old fashioned, hard work. If one prepares properly and uses sound fundamentals, there is no reason one cannot be successful. What follows therefore are practical suggestions on how to go about giving a sound closing argument that is likely to yield a successful result.
A. PREPARE, PREPARE, PREPARE
It is said that when Winston Churchill had to give a fifteen minute speech, he would engage in six to eight hours of preparation beforehand. When he delivered his fifteen minute address, he did so eloquently and, it appeared to those observing, effortlessly. The truth is that it was not effortless at all, but instead the result of painstaking effort in organizing thoughts and succinctly summarizing them, well in advance of the planned delivery. Churchill prepared very hard for his so called “effortless and brilliant speech,” and thus, even though he appeared to be speaking extemporaneously, what the audience was hearing was the result of extremely hard work and intense preparation.
It is no different for the successful trial attorney. If you want to give a good closing argument, you must be extremely prepared. While this is axiomatic for those of us who have done a good deal of trial work, the point cannot be overemphasized. One should not rely upon the inspiration of the moment. There may not be any.
We have all heard that summation begins the moment you take a client’s case. This is quite true. In my personal practice, when I set up my file in any given case, I set up a “Closing Argument” section at the very beginning of the case. As I work on the case through the discovery phase, I am constantly putting written ideas into my “Closing Argument” file. If I think of something in the middle of the night or during the week, during a deposition or otherwise, I memorialize my thoughts on paper and put my thoughts into the “Closing Argument” file. I do this throughout the pendency of the case, all the way up to formal preparation of a Closing Argument Outline. If the case is not settled, by the time I get into intense trial preparation, I usually have a fairly thick file of closing argument thoughts. Thus, when I sit down to prepare an outline for my closing argument, I usually have 30 to 50 “points” of pithy statements and observations that I have been making over the many months that I have been working on the case. This gives me a headstart in determining which points of argument are the most persuasive, which I should use at the beginning of my argument, and which I might wish to save for rebuttal.
In short, I am always preparing for my summation and never wait until the last minute to do so. You should do the same.

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Recently, we successfully represented a Georgia firefighter in a workers compensation claim against the county for which he worked. The injury he sustained was a heart attack. Needless to say, the employer denied his claim and took the position that his job had nothing whatsoever to do with the injury to his heart. In researching this injury, we learned that forty percent of on-duty firefighter deaths in the last decade were due to heart attack, according to a recent U.S. Fire Administration report. This is an astounding statistic. The fact of the matter is that firefighters are at great risk of suffering a heart attack because of the extreme stress and exertion under which they work when responding to a call.

In our case, our client got a call about a home on fire. With his adrenalin pumping, he jumped into his truck and headed out to the fire. When he arrived, he donned heavy gear and climbed a hill to access the home. He inhaled smoke which filled the air outside of the home and struggled to pull-start a large fan used in the doorway of the home. Ultimately the fire was extinguished and the EMS unit which had been dispatched as a matter of routine, left the scene to head back to the firehouse. As my client began to put equipment on his truck, he felt shortness of breath and a tightening and burning in his chest. EMS returned to the scene. He was later airlifted to a major hospital where he underwent testing and stent placement. In this case, our client’s heart attack occurred a day later, while undergoing a stress test on a treadmill.

In our opinion, the case turned on the testimony of his cardiologist who we deposed early on in the case. It was the cardiologist’s explanation of the mechanism of injury which made the difference in this case. He testified that most people have atherosclerosis and that there are events that cause the atherosclerotic plaque to rupture. When the plaque ruptures, the endothelium denudes itself and exposes collagen to the bloodstream. Platelets attach to the collagen and recruit a blood clot to form, which causes the obstruction/blockage. He further testified the stress of fighting a fire raises your blood pressure, anxiety associated with it, smoke in the lungs; all of these are precipitating events. He went on to explain how smoke inhalation precipitates a heart attack. “The smoke contains carbon monoxide. It helps increase inflammation. Inflammation causes the plaque to become soft and split. This process can occur over an acute time period of an hour or it can be kind of a smoldering process, as it occurred in this case.”

There is an ever increasing problem for many Georgia workers who become injured and disabled as a result of work injuries. The problem is uninsured employers. We recently got a call about a new workers compensation claim from a worker who was seriously injured as a result of a fall. In fact, this worker had been in the trauma unit of a hospital for several months at the time of this call. He had multiple orthopedic injuries, including leg and arm fractures requiring many surgeries. The worst of his injuries is a serious spinal cord injury. This worker is now paralyzed from the waist down and is permanently and totally disabled. Unfortunately, his employer had no workers’ compensation insurance even though the State of Georgia requires an employer to have such coverage if they have three or more employees. Even though he sustained catastrophic injuries, he could not find a lawyer who would represent him because there was no insurance.

This is a growing problem in Georgia which needs to be remedied. There needs to be a change in Georgia law which gives an injured worker real recourse against an uninsured employer. As the law stands now, an employee can request a hearing before the State Board of Workers Compensation and seek an award of medical bills, weekly disability payments, attorneys’ fees and assessment of various civil penalties for the employer’s failure to have coverage. Even if an injured worker prevails and is awarded these benefits, the chances of collecting from an uninsured business or employer are slim to none.

Ironically the law provides if an employer has three or more employees they are subject to the Workers Compensation Act and must have insurance coverage. Unfortunately for the injured workers, the law also provides if they are subject to the Act, they cannot be sued and enjoy protection from civil liability under the exclusive remedy provisions of the Act.

We heard today on a radio broadcast that struck very close to home that four young men from a college in Bluffton, Ohio had been killed, in addition to a bus driver and his wife. Nine others were seriously injured when a charter bus crashed off of an exit ramp off interstate highway I-75 (inside the city limits of Atlanta) back onto the highway. The facts and circumstances surrounding this tragedy are still being investigated, however, this is an all too familiar tragedy that we see here at our law practice. Our thoughts and prayers go to the families in Bluffton, Ohio and to the University. Obviously, this tragedy will have far-reaching implications for many families and loved ones. Unfortunately, we’ve seen the kind of fallout that can result from cases where apparent driver negligence is involved and results in serious injury and wrongful death.
According to the information released thus far, it appears that the bus driver was merging from a HOV lane off of an exit and then crashed through the railing on the overpass such that the bus then fell back onto the interstate highway below. The bus apparently had thirty-five baseball players on it from Bluffton University in Ohio. It is not yet known why the charter bus driver that was carrying this baseball team drove off the interstate ramp and through the overpass railing but the initial reports indicate that it was due to driver error. Thus, if these initial reports are true, we have yet another tragic case where preventable deaths and injuries were caused by the negligent operation of a common carrier operating in interstate commerce.
Of course, no one knows yet much about the qualifications and training of the driver, the maintenance of the bus, and other pertinent information regarding the charter bus company itself. These facts will obviously emerge during the course of the investigation of this incident. Nonetheless, those passengers who were on this bus and their loved ones regrettably will suffer for the rest of their lives from this tragic incident which occurred here, less than two miles from our office. On behalf of our firm and the City of Atlanta we offer our condolences to the families of all those affected by this tragedy.

Products liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. This includes the manufacturer of component parts, the assembling manufacturer, the wholesaler, and the retail store owner. Products containing inherent defects that cause harm to a consumer of a product or someone to whom the product was loaned, given, etc. can be subjects of product liability suits.

Depending on the jurisdiction, product liability claims can be based on negligence, strict liability, or breach of warranty of fitness. In any jurisdiction, one must prove that the product is defective. There are three types of product defects: (1) design defects, (2) manufacturing defects, and (3) defects in marketing. Design defects are inherent defects. They exist before the product is manufactured. While the product may serve its intended purpose well, it can be unreasonably dangerous to use due to a design defect. Manufacturing defects occur during the construction or production of the item. Generally only a few out of many products of the same type are flawed in this type of case. Defects in marketing deal with improper instructions and/or failures to warn consumers of latent dangers in the product.

Products liability is generally considered to be a “strict liability” wrong. Strict liability wrongs do not depend on the degree of carefulness by the defendant. In other words, a defendant is liable when it is shown that the product is defective. It is of no difference that product manufacturers exercise due care. If there is a defect in the product that causes harm, liability will be assessed.