Atlanta Personal Injury Lawyer Blog

July 7, 2017

Infant Injured In Clinical Studies: Is It A Recoverable Injury?

The 11th Circuit Court of Appeals, whose opinions are binding on Federal and State Courts in Alabama, Florida, and Georgia, recently affirmed the holding of the United States District Court for the Northern District of Alabama to the extent that plaintiffs failed to establish that participation in a clinical study caused any injuries due to the negligence of the defendants (the physician who designed and conducted the study, Internal Review Board who approved the study, and Masimo Corporation, who manufactured the equipment used in the study). Thus, the Court of Appeals found the plaintiff’s claims for negligence, negligence per se, breach of duty, and products liability claims were properly dismissed. However, although the Federal District Court also dismissed the plaintiff’s claim alleging lack of informed consent, the Appellate Court certified to the Alabama Supreme Court to determine whether a plaintiff who claims that he did not give informed consent to medical treatment provided as part of a clinical study must first show that he was injured as a result of that treatment.

The guardians of the plaintiff infants were required to execute informed consent documents to enroll the premature infants in a study designed to analyze the effects of differing oxygen saturation levels on premature infants. During the study, the infants were randomly divided into two groups whom would be subjected to varying levels of oxygen saturation. The group subjected to higher levels of oxygen saturation faced an increased risk of developing retinopathy, which can lead to blindness, while the group subjected to lower levels of oxygen saturation faced an increased risk of neuro-developmental impairment or other neurological issues. Both test groups subsequently suffered from the ailments; however, because both retinopathy and neuro-developmental impairment are consistent with injuries associated with extremely low birth-weight infants, the plaintiffs were unable to show that it was their participation in the study, and not their premature births and low birth-weight, that caused their injuries.

Because the above case turns upon a material state law question, the 11th Circuit Court of Appeals certified the following question for determination of Alabama law to the Alabama Supreme Court: “Must a patient whose particular medical treatment is dictated by the parameters of a clinical study, and who has not received adequate warnings of the risks of that particular protocol, prove that an injury actually resulted from the medical treatment in order to succeed on a claim that his consent to the procedure was not informed?” Importantly, by refusing to rule on the issue and certifying the question to the Alabama Supreme Court, whatever conclusion drawn in Alabama will not be binding on Georgia or Florida, leaving the question unresolved for Florida and Georgia.

July 3, 2017

Georgia Court Reaffirms New Injury Exception To Two Year Medical Malpractice Statute of Limitations

by Kevin C. Ford, Trial Lawyer

Generally, a statute of limitations limits the time period in which an injured party may file suit against the party whom allegedly caused their injuries. In medical malpractice actions, OCGA §9-3-71(a) states that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” More specifically, in medical malpractice cases arising from a misdiagnosis that resulted in a failure to properly treat a condition, the “injury” referred in the above statute occurs at the time of the misdiagnosis. However, the proposition that the statute of limitations period runs from the date of the misdiagnosis is only “generally true,” as Georgia courts recognize an exception where misdiagnosis results in the development of a new and different injury than that which existed at the time of the misdiagnosis. In cases where the “new injury exception” applies, the limitation period begins to run from the date the symptoms attributable to the new injury first manifest.

This exception to the misdiagnosis exception to the medical malpractice statute of limitations was recently reaffirmed in a Georgia Appellate Court decision involving a 53 year-old male, Mr. Fender, who was admitted to the hospital after he woke up with disorientation, a headache, dizziness, extremely high blood pressure, and blurred vision. While at the hospital he underwent a carotid ultrasound, which is a diagnostic imaging tool used to evaluate carotid arteries for narrowing, or stenosis caused by plaque. His ultrasound was performed by a sonographer employed by the hospital and the results were then sent to Dr. Spell, an on-call radiologist, who interpreted the results as showing no significant stenosis (narrowing of the ventricle). Mr. and Mrs. Fender were told that the results of the ultrasound were “normal” and he was subsequently discharged from the hospital on May 19, 2009 with instructions to follow up with his primary care physician and an ophthalmologist.

Mr. Fender followed up with the primary care physician and ophthalmologist as recommended, and his primary care physician informed him that Mr. Fender had suffered a transient ischemic attack, which causes temporary systems that can resemble the symptoms of a stroke, but no additional ultrasounds were performed. Then, on April 7, 2010, Mr. Fender suddenly collapsed at his home and was unable to move or to speak, and he was unable to recognize his family. At the hospital, Mr. Fender was diagnosed with having suffered “a massive stroke,” and ultrasound imaging showed a complete obstruction of his carotid artery in the same location as the plaque shown in the May 2009, ultrasound.

June 30, 2017

Georgia Supreme Court Makes It Easier For Victims To Provide Notice of Injury Claims To Counties

by Kevin C. Ford, Trial Lawyer

When an individual seeks compensation from a county for injuries or harm suffered arising from some county action or on a premises controlled by a county, the plaintiff must fulfill greater procedural requirements than are required in a civil action against another individual. One of these such requirements is presentment, or that “all claims against counties must be presented within 12 months after they accrue or become payable” or such claims will be barred by the statute. (OCGA § 36-11-1). The statute operates as a statute of limitations, restricting the time period in which a plaintiff will be entitled to seek compensation through a civil action against a county. Thus, in the context a physical injury, an injured plaintiff must provide the county with notice of any alleged claims within the proscribed one-year period.

In January 2012, Joe Leonard, Jr. allegedly sustained injuries while riding as a passenger aboard a Whitfield County Transit Services bus, and subsequently hired a lawyer to assist him in recovering from the county for the harms caused on the county-owned transit system. In June 2012, Mr. Leonard’s lawyer sent a letter to Robert Smalley, a private attorney and County Attorney for Whitfield County, in an attempt to fulfill the presentment requirements set forth in OCGA § 36-11-1, as Mr. Leonard asked in that letter that Mr. Smalley accept the letter as presentment of Mr. Leonard’s claims against the county. Then, in January 2014, Mr. Leonard filed a lawsuit against the County, and the County filed for Summary Judgment (a motion seeking dismissal of the claim) on the grounds that Mr. Leonard never properly presented the claim, and that his recovery was thus barred. The trial court granted the County’s motion, which was affirmed by the Court of Appeals, relying upon the precedent established in Coweta County v. Cooper, which holds that presentment may be made to the county attorney, but only if the county attorney is employed “in-house.” Generally speaking, an in-house attorney would be an employee of the county.

In a win for plaintiffs, the Supreme Court overturned the Court of Appeals decision, based in part upon the purpose and object of the presentment statute. The Supreme Court asserted that the primary purpose of the statute was to provide the county officials with timely notice of all demands against the county. Numerous precedent established that presentment could be made to some officers of the county, as well as to the members of the governing authority itself, so the Court found it inconsistent with the purpose of the statute to prevent the county attorney from also being a party to whom presentment could be made. The Court of Appeals’ attempt to draw a distinction between in-house and outside attorneys was rejected by the Supreme Court, holding that the precedent relied upon by the Court of Appeals was inapplicable to a county attorney.

June 23, 2017

Autonomous (self-driving) Vehicles Create New Risks and Liabilities

by Kevin C. Ford, Trial Lawyer

Automotive and technology companies that are involved in the research and development of autonomous vehicle programs will have to also weigh the legal implications involved in the manufacturing or design of such vehicles. However, analyzing potential liability will largely be based on speculation, as legal doctrine related specifically to autonomous vehicles is non-existent.

A potential foundational case could be filed on behalf of a man killed in a crash last year while using the semi-autonomous driving system on his Tesla, although the attorney for the family indicated that no decisions have been rendered at this time. The driver was killed when the Tesla, allegedly traveling at 74 miles per hour in a 65 mile per hour zone, collided with a truck. According to a report published by the National Transportation Safety Board, the collision occurred while the vehicle was in “Autopilot” and throughout the trip the system repeatedly gave the drive warnings that said “Hands Required Not Detected,” which indicates that the driver’s hands were not on the steering column, despite the system directing the driver to do so. Additionally, the report noted that during a 37-minute period of the trip when the driver was required to have his hands on the wheel, he did so for only 25 seconds.

The use of autonomous or semi-autonomous vehicles will likely increase as new technologies are developed, as will the frequency of accidents involving those vehicles. The litigation of those claims will raise novel questions about the admissibility and reliability of evidence pulled from the computer systems of the autonomous vehicles, as well as how to monitor and detect the actions of the drivers. As was the case involving Volvo, automobile companies have the means of manipulating reports generated by vehicles, and the accuracy of data generated by those programs should be heavily scrutinized.

June 21, 2017

Georgia Supreme Court Upholds State Sovereign Immunity in Principle; Effect Remains Unclear

by Kevin C. Ford, Trial Lawyer

Following Governor Nathan Deal’s veto of a 2016 bill that, if signed, would have authorized prospective suits challenging the constitutionally of states or local laws, the Georgia Supreme Court affirmed a trial court ruling that in effect bars the sort of suits the 2016 bill would have authorized. Generally, state governments, departments, agencies and officers acting in their official capacity are protected from prospective legal action by the doctrine of sovereign immunity. However, when state officials act under an unconstitutional statute, they can be held individually liable, even for acts done in their official capacity. The rationale underlying this theory of personal liability for state officials is as follows: an act or statute that is unconstitutional confers no lawful authority upon an officer; so an official act performed pursuant to an unconstitutional statute is the equivalent of an official act performed in the absence of a statute altogether. Thus, where a state official performs an official function, even where he may believe he is acting pursuant to a lawfully enacted statute, he may nonetheless be held liable for those acts if the statute turns out to be unconstitutional.

Interestingly, the opinion thoroughly examines the doctrine of sovereign immunity, but concludes with the assertion that a plaintiff need only bring suit against state officials in their individual capacity, rather than their official capacities. But, even where state officials have been found individually liable for monetary damages, “the legislature should, and doubtless will, reimburse the defendant . . .” Through this opinion, the Georgia Supreme Court re-affirms a somewhat bizarre legal fiction; while the state cannot be named as a party to a constitutional challenge, it will likely still be on the hook for the monetary damages imposed on state officials for actions taken in the course of the performance of their official duties.

The opinion denied injunctive relief to several physicians who challenged, under the State Constitution, an abortion statute requiring physicians who perform abortions to file a report of the procedure with the Department of Public Health, and a clause that imposes criminal penalties to violations of other statutory requirements. So, in the case of these physicians, they need only re-file against the state officials within the Department of Public Health in their individual capacity, and allege state constitutional violations. Then, if the court finds that the statute was in fact unconstitutional, the plaintiff-physicians would be awarded either prospective or retrospective relief, depending on the nature of the action. Importantly, the opinion does not wholly eliminate individual citizens’ ability to challenge state action on a constitutional basis; it simply modifies the avenue through which such challenges must travel.

June 19, 2017

Delta Airlines Dog Causes Brutal Attack

by Kevin C. Ford, Trial Lawyer

Yet another incident in the cabin of an aircraft has resulted in severe injuries and potentially permanent disfigurement to an unsuspecting passenger. But, unlike another highly publicized incident where a man was injured while being forcibly removed, Mr. Marlin Jackson suffered punctures to the lip and gum, and was missing large chunks of flesh from his face following a brutal attack by an emotional support dog accompanying a Marine veteran. The dog, a 4-year old, 50-pound Labrador retriever/pointer mix was permitted by Delta to sit on the Marine’s lap in the middle seat, next to Mr. Jackson, who was seated next to the window. The dog allegedly began growling as soon as Mr. Jackson took his seat, and before the plane could take off, the dog lunged at Mr. Jackson, pinning him against the window. According to reports, the dog was temporarily restrained but wrestled free from its owners control again, initiating a second wave of attack. The owner and the animal were then moved to another flight, where the animal was secured in a crate.

This incident raises questions about several sensitive issues. Following the extreme public backlash at United following the forced removal of a passenger, the major airlines are certainly going to be hesitant to take action that could result in similar backlash, and separating a Marine veteran from his service dog could certainly yield such a result. However, airlines have a duty to balance an over-abundance of caution with regard to public appearance with reasonable efforts to ensure passenger safety. Mr. Jackson, as an invitee (one who enters for a purpose relating to the owner’s interests or activities) was owed a duty by Delta to exercise reasonable care to prevent injuries caused by activities conducted on its property. In determining the reasonableness of the actions, courts will measure the actions against the “reasonably prudent person” under the same or similar circumstances. In this case, the “reasonably prudent person” will be other airlines, and applicable policies or procedures in the airline industry. Delta’s own policy on service animals states, “with larger service animals . . . we may need to re-accommodate you if the animal encroaches on other passengers or extends into aisles . . .” What constitutes a larger service animal remains unclear, but it is hard to imagine what animals wouldn’t constitute a large service animal if a 50-pound Labrador mix does not. Moreover, most airline cabins are hardly spacious enough to fit a small carry-on item under the seat, much less a 50-pound animal in someone’s lap. Thus, it is likely that the presence of the animal alone was sufficient to constitute an encroachment on the passengers on either side of the Marine veteran.

This incident begs the question of if the discretion granted to the airline crew is too broad, and if the crew has received proper training for making such determinations. The Delta policies are ambiguous as to what constitutes an encroachment or whether a passenger must complain about an encroachment before the animal is removed, leaving the airline crew with the discretion to make the determinations for each case individually. The theories of Delta’s liability for Mr. Jackson’s injuries are numerous, ranging from premises liability to negligence.

June 12, 2017

Atlanta City Council Amendment Imposes Increased Duty on Dog Owners

by Kevin C. Ford, Trial Lawyer

In response to several highly-publicized dog attacks this year, including one that killed a 6-year old kindergartener as he walked to the bus stop, the Atlanta City Council voted to unanimously amend the city’s animal control measures related to dangerous or vicious dogs within the city. The amendment establishes the public safety and administrative procedures for the identification of dangerous and vicious dogs, the policy for subsequently registering dogs that are reported and determined to be dangerous or vicious, and imposes several statutory duties on the owners of such dogs. The Code of Ordinances for Atlanta can be found here.

The first major change relates to the definition of a “dangerous dog.” §18-115 previously defined a “dangerous dog” as “any dog that according to the records of any appropriate authority: (1) inflicts a severe injury on a human without provocation on public or private property; or (2) aggressively bites, attacks, or endangers the safety of humans without provocation after the dog has been classified as a potentially dangerous dog and after the owner has been notified of such classification.” Under the old ordinance, a dog was only defined as dangerous under the statute if the “appropriate authority” had record of the dog causing severe injury to a human or the dog had been previously designated as potentially dangerous, and the owner was aware of the designation. But, under the amended ordinance a dog is a “dangerous dog” if (1) its teeth cause a “substantial puncture” of a person’s skin without serious injury, (2) it aggressively attacks in a manner that causes a person to reasonably believe the dog posed an imminent threat of serious injury, even where no such injury occurs, or (3) while off the owner’s property, kills or seriously injures a pet animal.

By broadening the definition of a “dangerous” or “vicious” dog, the amendment reduces the burden on victims of dog attacks to establish the owner’s duty to the victim. In a negligence claim, the victim (plaintiff) must prove that the owner (defendant) owed a duty to the plaintiff, breached the duty owed, and the breach caused the plaintiff’s injuries. Under the negligence per se legal doctrine, a statute can establish a standard of conduct for breach of a duty where the victim is a member of the class the ordinance is designed to protect, and the injury caused by the owner’s conduct is the type of act the ordinance was meant to protect. Importantly, this doctrine creates a presumption that the owner owed a duty to the victim and breached that duty, which drastically increases a victim’s chances of recovering for her injuries. Moreover, because the amended ordinance designates a dog as dangerous if a person “reasonably believes” the dog poses an imminent threat of serious injury, a victim could establish a per se duty and breach of duty without the occurrence of any previous attack.

June 7, 2017

Georgia Supreme Court Upholds Six Flags Liability for Bus Stop Attack

by Kevin C. Ford, Trial Lawyer

In the opinion filed on June 5, 2017, the Georgia Supreme Court found that Six Flags could properly be held liable for Joshua Martin’s life-changing injuries sustained in a brutal attack at a bus stop outside Six Flags Over Georgia in 2007. The Supreme Court agreed with the Court of Appeals in that the jury was authorized to find Six Flags liable for the breach of duty, but disagreed as to the appropriate rationale for the finding. Mr. Martin’s argument for recovery was based on a theory of premises liability, which is codified under Georgia statutory law, O.C.G.A. § 51-3-1, and states “where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

In premises liability cases the extent of the duty owed to the plaintiff depends upon the plaintiff’s “status,” or whether the plaintiff was an invitee, licensee, or trespasser. This inquiry is crucial in determining the degree of care owed to persons entering the premises. Invitees enter onto the premises based upon an express or implied invitation and for a purpose relating to the owner’s interests or activities, and the owner has a duty to exercise reasonable care to prevent injuries caused by activities on his land. In this case, the jury found that Mr. Martin was an invitee, so Six Flags had a duty to exercise reasonable care to prevent injuries resulting from his presence on their premises.

The sort of injuries that owners must take reasonable care to prevent are classified as those which are reasonably foreseeable. To show that the type of injury suffered was reasonably foreseeable, injured plaintiffs will often show that other victims suffered the same or similar injuries in the past; that there was a high probability that such injuries would result; or that the injury suffered was one that would not have occurred but for negligent acts of the owner. In Mr. Martin’s case, all three of the above indications of foreseeability were present. About one year prior to the attack on Mr. Martin, Six Flags was the site of a gang-related drive-by shooting, in which no employees of Six Flags who were injured would give a statement, presumably because of their gang affiliations. Thus it was not only foreseeable that an invitee could be injured because of gang activity on their premises, but it was highly probable.

May 5, 2017

Johnson & Johnson Loses Third Talc Case, Verdicts Now Total $197 Million

by Kevin C. Ford, Trial Lawyer

The multinational medical goods and pharmaceutical manufacturer Johnson & Johnson was recently hit with a third damages verdict over $50 million this year relating to talcum powder. The plaintiff, Deborah Giannecchini was diagnosed with ovarian cancer three years ago following her use of Johnson & Johnson’s baby powder for feminine hygiene for over 40 years. The jury awarded Ms. Giannecchini the $72 million verdict after only three hours of deliberation, indicating that the jury felt compelled to send Johnson & Johnson a strong message.

The plaintiff’s main argument was based on products liability, failure to warn, negligence and conspiracy theories. In short, the plaintiff argued that Johnson & Johnson was aware of decades of studies that indicated the use of talc increased the users chances of developing ovarian cancer and declined to add warning labels. Moreover, it was alleged Johnson & Johnson actively sought to conceal the known dangers by disseminating outdated or misleading information to the public, and internal documents showed that Johnson & Johnson was advised by a consultant that the company had made “outright false,” “inaccurate” and “questionable” statements about the risk of long-term exposure to talc. These allegations show a wanton or reckless disregard for the value of human life, and are likely the facts that gave rise to the award of punitive damages in this case. Punitive damages are meant to “punish” the offender, and are only proper in cases in which the defendant acts with a reckless disregard for human life, or otherwise acts egregiously.

Despite being slammed with two other verdicts, each worth over $50 million, there are no indications that Johnson & Johnson sought a settlement to prevent another staggering verdict. Clearly, Johnson & Johnson put too much faith in its defense, that ovarian cancer had no single cause, relying upon both the FDA and CDC’s determination that talc-based products were safe. In cases where the decisions of multinational corporations are subject to scrutiny by twelve members of the local community, an argument that “the government said it was okay” will not be very persuasive. Members of the local community are extremely unlikely to feel empathy towards a corporation that earned $74 billion in revenue in 2014, but refused to include a few additional words on their products. In the plaintiff’s attorney’s opening statement, he presented the case to the jury as an opportunity to effect the behavior of a worldwide corporation for the benefit of the millions of invisible citizens whose voices would never be heard. These and similar cases present unique opportunities for the citizens of local communities to effectuate meaningful social change, if allowed by the facts.

April 29, 2017

Former Bachelor Contestant Arrested for Fatal Hit and Run

by Kevin C. Ford, Trial Lawyer

I was recently alerted to a DUI incident involving a celebrity and thought it would be an interesting addition to my blog. From my cursory investigation, most of the information regarding this incident is listed on Radar Online; a site mostly dedicated to celebrity gossip and related issues. After reviewing this incident, the facts revealed that the celebrity had a long criminal history that demonstrated a pattern of drinking alcohol while operating a vehicle, fleeing accidents and failing to render aid to the victim. As such, the facts of the recent crash and criminal history are ripe for a legal analysis.

On April 24, 2017, Chris Soules, a former contestant on The Bachelor, was involved in a hit and run while operating his 2008 Chevrolet Silverado in the small rural town of Aurora, Iowa. The area of impact was on a roadway which was straight without any possible visual obstruction. Specifically, Chris Soules was operating a large truck that rear-ended a tractor being operated by Kenneth Mosher. Chris Soules got of his vehicle to check on Mosher (and attempted CPR) and called 911 around 8:20 p.m. The 911 recording reflects a frantic Chris Soules noticed blood

(booking photo credited to Special To The Register)