Personal Injury & Wrongful Death

In terms of a jury presentation, attorneys often disagree about the best approach to demonstrate the economic losses caused by a wrongful death. If the decedent was a substantial wage earner who lost, not only substantial earnings, but also valuable fringe benefits such as 401(k), profit sharing and other similar benefits, one school of thought is to hire an economist who can project for a jury the lost income stream over the working life of the decedent (typically up to age 65 or 70) and then through economic calculation reduce the loss back to present cash value, adjusted for inflation, raises and bonuses over the course of the decedent’s lifetime. This can be difficult because it is always a challenge to prove what the bonuses and raises would have been to the decedent based on his or her earnings history. A second school of thought is to dispense with the necessity and expense of the expert witness economist and simply introduce the Annuity Mortality Table showing what the typical age at death is of a male or female worker in this state and then to extrapolate from the earnings history of the decedent what wages could have been earned prior to death. For example: If a decedent died at age 40 earning $50,000.00 a year presumably they would work up to age 65 making a minimum of $50,000.00 per year for 25 years which would translate to a loss of $1,250,000.00. If this figure were adjusted for inflation but then reduced to its present cash value, usually the reduction to present cash value offsets the adjustment for inflation. Therefore, one can comfortably argue to a jury that the minimum loses, in terms of economic losses for such a wage earner, would be $1,250,000.00. Where there are fringe benefits lost such as profit sharing or 401(k) benefits, the analysis would be the same. Thus, you would merely present the tax returns, the W-2’s and the testimony of supervisors and co-workers to establish what the earnings history was, and then simply argue to the jury how they should go about calculating the future lost wages based on the earnings history.
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Georgia’s law on the wrongful death of an individual has several unique provisions. If a deceased is survived by a spouse or if there is no surviving spouse, a child or children, either may recover the full value of the life of the decedent as shown by the evidence. A surviving spouse, if there is one, is the sole person who may bring a wrongful death claim. Interestingly, a surviving spouse does not have to be married to the deceased spouse at the time the injuries are inflicted, but only at the time of death, since that is the date the cause of action accrues. The separation by the surviving spouse and the deceased spouse before death is no defense. If there is both a spouse and a child, the spouse has the right to bring the claim but does so in a fiduciary capacity and must divide the proceeds with the surviving children. The spouse is entitled to a minimum of one-third (1/3) of the recovery with the remaining balance to be divided equally between the surviving children. For purposes of the Wrongful Death Act, the fact that a child is born out of wedlock is no defense and there is no requirement of dependency. Minor children and adult children are treated equally. If a surviving child dies, the cause of action survives to the remaining surviving children.
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Until a few years ago, a plaintiff in a personal injury or serious injury lawsuit had to take the deposition testimony of all treating physicians in order to be able to introduce the deposition for a jury’s consideration. This is because testimony by a doctor without being subject to cross-examination would be considered hearsay and therefore not admissible. To resolve the problem and expense associated with every single plaintiff’s lawyer representing a personal injury claimant having to take medical testimony by way of depositions, and to dispense with the necessity of scheduling doctors’ time to provide such a testimony, the law was changed to provide that medical narrative reports written by a doctor could be introduced into evidence even if the doctor were not subject to cross-examination.

The operative statute is found at O.C.G.A. § 24-3-18. This statute basically states that any report which sets forth in story form the doctor’s assessment of the patient’s history, diagnosis and treatment shall be admissible into evidence. If a written notice is provided to the opposing party attaching the narrative and giving them ample opportunity that a plaintiff’s lawyer, for example, wishes to utilize the report in support of his client’s claims then, in that event, the defense has the right to take the deposition of the doctor at their expense, otherwise the report can come into evidence and be read to the jury without having to have the doctor’s testimony sworn and deposed before a court reporter.
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In a Wrongful Death case, Georgia law allows recovery for “the full value of the life of the deceased with deduction for ordinary and necessary expenses had he/she lived.” See O.C.G.A. § 51-4-1 et. seq. The term “full value of life” is somewhat elusive on its face but nonetheless, Georgia law is quite clear that the measure of damages in a wrongful death case includes both economic and non-economic damages.

Lawyers in Georgia who handle serious injury and wrongful death cases are often confronted with situations where their clients are hospitalized and later acquire a Staph infection which greatly complicates their recovery. We also see cases where clients call complaining about the development of an infection while hospitalized for one condition where the infection becomes much more serious than the condition for which they were originally treated. Regrettably, many people die from these infections.

In the summer of 2006 MSNBC.com reported that each year as many as 1.5 million Americans suffer a serious injury or death because of errors made in the dispensing, prescribing or taking of prescription drugs. In an earlier report published by the Institute of Medicine of the National Academies, it was estimated that each year more than 7,000 people in the United States die from pharmacy related medication errors. Last year, in the nationally syndicated program 20/20, ABC News reported extensively on this problem. Regrettably, from all statistics, it appears that pharmacy negligence is on the rise.
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Just this past week, clients retained our firm’s services with respect to a serious motorcycle injury. As is often the case, because motorcycle riders are unprotected except for the helmet they wear, whenever an accident occurs involving a motorcycle, typically, serious injuries are involved.

The worst case we handled was about 3 years ago when one of our partners represented a motorcycle rider who was hit by a drunk driver and almost killed. This drunk driver not only ran over the motorcycle driver, the motorcycle driver got caught underneath the drunk driver’s truck and was dragged down the road for about 1000 yards before he became disentangled. Virtually every bone in the client’s body was broken and it was truly miraculous that he survived his serious injuries. While we obtained a verdict in excess of $13 million for this client after a trial on the merits, unfortunately, the insurance recovered was insufficient to compensate our seriously injured client.
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A few days ago, we wrote an article about the importance of uninsured/underinsured motorist coverage in those situations where the at fault party has minimum limits of liability insurance coverage. Today we write about another reason why all Georgia motorists should consider carrying uninsured/underinsured motorist coverage in amounts at least as much as their liability insurance coverage and perhaps much more. (more…)

Mesothelioma results from inhalation and exposure to asbestos. Mesothelioma is a specific form of lung cancer affecting the thin membrane linings of the abdomen and internal organs (cancer of the mesothelium). Because of exposure to asbestos, the cells of the mesothelium become abnormal and cancerous.
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