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At the beginning of this year, the Georgia Court of Appeals issued a ruling in Thomas v. Tenet Healthsystem GB, Inc., Ga. Ct. App. (2017), that clarified in which sorts of cases a subsequent negligence claim in a medical negligence case can relate back to the initial filing.

In May of 2012, the plaintiff was involved in an automobile accident, and transported on a backboard by the paramedics to the emergency room for treatment of her injuries. Upon arrival to the defendant hospital’s emergency room, her treating doctor ordered a CT scan in order to determine whether she had incurred any spinal injuries. The results of the scan were then sent to a second doctor, who read them in his home and purportedly communicated to the treating doctor his opinion that there had been no cervical spinal injury. The treating doctor then reportedly instructed a nurse to remove the cervical spine collar that the plaintiff had on, and to discharge her from the hospital.

When the plaintiff’s relative arrived to pick her up from the hospital, he reportedly found her slumped over and unresponsive in a wheelchair. Following re-examination, it was determined that she did have a fracture in her cervical spine. It was believed that the removal of the cervical collar caused a cervical fracture to displace, thus resulting in spinal cord damage, rendering the plaintiff quadriplegic.

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car accidentIn any personal injury case, medical records and expert opinions with regard to injuries can be important in helping to establish the cause of the injuries. It can be difficult to prove exactly how an accident may have occurred absent external objective measures, such as video recordings. Medical records and the opinions of medical doctors, however, can provide additional, factually based evidence that can help judges and juries reach determinations of fault or liability. In a recent case, Rangel v. Anderson, S.D. Ga. (2016), the court engaged in an extensive review of the factors required in order for physician testimony to be allowed in the capacity of “retained expert” opinion.

The case arose out of a car accident in which the plaintiff claimed the defendant rear-ended her vehicle, causing injuries. Following the accident, the plaintiff sought medical treatment for neck and back pain from several physicians. The plaintiff sought to introduce evidence from one of her treating physicians in an expert witness capacity but failed to identify the doctor as an expert witness by the necessary deadline. The plaintiff also failed to provide a written report of the doctor’s opinion.

The defendant sought to exclude certain opinions offered by the doctor but agreed at a hearing that the doctor could provide factual testimony regarding the treatment of the plaintiff. The defendant sought to prevent the doctor from offering opinion testimony, based on the plaintiff’s failure to properly disclose him as a retained expert and based on the failure to provide the written report as required by the Federal Rules of Civil Procedure. The defendant further argued that the opinion failed to meet the reliability standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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townhousesA recent Georgia premises liability and wrongful death case shows how apportionment law can complicate a solid case.

The victim was murdered in the parking lot of a gated community. His wife sued the condominium complex and its security firm for negligence in failing to keep the premises safe despite numerous prior shootings. Remember that under Georgia law a property owner or manager is only liable for the third party crime if there were prior similar crimes enough to put the owner or manager on notice of the likelihood of more violence.

The case went to trial against the condominium association and security firm, and the jury found for the spouse, awarding her more than $3 million in damages for wrongful death.

Fault was apportioned among the defendants, with 25% of the fault apportioned to the condominium, 25% to the security firm, and the remainder against the assailants who’d murdered the victim. The condominium association argued that it should only be 25% to blame instead of also owing the 25% apportioned to the security company under a vicarious liability for a non-delegable duty theory as argued by the plaintiff.

The condominium appealed the trial court’s decision to deny its motion for a directed verdict and the trial court’s decision to find it liable for the security company’s share of fault. The wife cross-appealed the trial court’s decision before trial not to stop the condominium from arguing it wasn’t legally responsible for its security firm and the security guard, and she also appealed the denial of her motion to prevent the apportionment of fault between the condominium and security firm.

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truckThe violation of a law or regulation can make an injury case against a trucking company much stronger and in the law this is known as negligence per se, or negligence in and of itself. If they broke the law, they must be responsible automatically. This is a powerful concept with a jury.

In the case, Newsome v. LinkAmerica Express, Inc., Ga. Ct. App. (2016), the appellate court reviewed a decision by the trial judge to throw out a case against a tractor trailer driver and the decision touches on some interesting aspects.

The facts of the case involve a car driving down a residential street and hitting a parked bobtail tractor. The driver was injured and claimed that the truck was improperly parked and that he could not see it due to sunlight streaming in his eyes.

glasses-300x240Dr. Dao should not have been asked to leave the United flight he paid for, but he was a fool to behave like he did once he realized leaving was inevitable. Were I the Judge on this case, I would look long and hard at the contract for carriage and what Dr. Dao said on tape before I allowed certain issues to make it to the jury. In this era of fake news I read articles suspiciously and look only for hard facts, so let’s look at this case together.

If you read the passenger accounts and listen to the audio tapes, it all boils down like this; Dao was seated when United asked for four volunteers to give up their seats so a flight crew could make it to their next flight. He initially volunteered, but changed his mind when told about how long it would be till the next flight.

United supervisors then asked him to leave his seat and he would not. At that point, airport security officers got involved. Dr. Dao made his critical mistake when he refused the lawful request of the officers to leave after being told he would be removed. He had every right to be outraged at being asked to leave. He had every right to be furious with the airline, but when a law enforcement officer makes it clear that they are going to forcibly remove you, do not act like a child and scream and throw your body about. His injures were the result of his foolish decision on how to react to an outrageous situation. “You can drag me out, but I’m not going. I’m staying right here,” is not a wise reaction. “I make a lawsuit against United Airlines” is indicative of a lot of what is wrong with the world.   I will give him a hall pass on lying about having to be at work when you are no longer a doctor, but the rest of his decisions from then on were poor.

Last month the United States District Court for the Middle District of Georgia rendered a highly relevant opinion concerning a personal injury claim. The opinion in S.G. v. TJX Companies, Inc., et al., (M.D. Ga 2017) is instructive because in it the court interpreted how the Federal Rules of Civil Procedure section regarding amended complaints filed after the statute of limitations has run applies, with regard to Georgia’s statute of limitations, as well as rules relating to amending back for personal injury cases.

slipping-98713_640-300x300The complaint arose out of an incident where the plaintiff alleged that she slipped and fell inside of a retail store in Columbus Georgia in June of 2014. The plaintiff brought a personal injury action against the defendant store’s parent corporation in May of 2016. The plaintiff then filed an amended complaint attempting to add an additional defendant corporation in October of 2016. The defendant corporation filed a motion to dismiss, asserting that the plaintiff’s claim was untimely. According to the court, the plaintiff failed to respond to the motion to dismiss.

The issue at hand was that the plaintiff was attempting to add an additional defendant after the relevant statute of limitations had passed. Under Georgia law, personal injury actions must be brought within two years after the time of the incident. O.C.G.A. § 9-3-33 (2010). Here, the plaintiff had until two years after her alleged slip and fall to file her complaint. She did file her original complaint before the relevant time period had passed. However, her original complaint had only named the initial defendant parent corporation, and did not include the subsequent corporation. The issue, then, was whether the plaintiff was entitled to any legal exception allowing her to add in the second defendant.

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lawyersNaming the right Defendant in a timely manner is obviously important in lawsuits but if you make a mistake and the defendants knew you made a mistake, then the Defendant is not getting out of a meritorious case. For instance, in one case, the Georgia Court of Appeals addressed an interesting issue regarding whether a medical malpractice wrongful death claim could be dismissed because the plaintiff erroneously named the wrong physician in the complaint.

The key issue here is the idea in Georgia law that if you screw up and name the wrong defendant but everything else about the case is the same and the defense knew about the mistake and is not prejudiced, then you get to relate the new complaint back to the old one and the Statute of Limitations won’t bar you.

Here a Doctor was sued within the 2 years for medical malpractice. The plaintiff named one doctor when it should have been another at the same practice. The defense lawyer met with the right doctor and discussed the mistake and then sat around and waited until three years later to try to get the case kicked out. The plaintiff corrected the mistake but the trial court threw the case out anyway. Here the Court of Appeals reversed that decision saying the hospital group “has not been surprised by the claim, and they were aware almost immediately, and indeed, they notified Dr. Ellis about the malpractice allegations in the complaint within a month of service of the complaint.” In other words, no harm, no foul.

This wrongful death case that is the subject of this appeal, which was originally filed on December 11, 2011, was brought by the late husband of a woman who died shortly after undergoing a total knee replacement surgery.  Specifically, after surgery, the decedent’s lungs experienced aspiration that caused her to develop acute respiratory distress syndrome, which ultimately led to a cardiac arrest, organ failure, and death. In the complaint, the decedent’s husband alleged that this string of events was caused by the purportedly negligent care of a physician employed by a local physician group. An attached expert affidavit further detailed how the physician’s conduct resulted in the death. About a month after the complaint was filed, counsel for the late husband met with the physician named in the original complaint and learned that it was in fact a different physician who performed the acts alleged to be negligent in the complaint. Counsel for the physician did not immediately move to amend the complaint.

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golf courseThe spoliation doctrine provides that when litigation is pending or foreseeable, parties (or potential parties) are under a duty to preserve evidence that may be relevant to the adjudication of the action. See Fed. R. Civ. P. 37. When a party destroys relevant evidence with intent or through gross negligence, it may be subject to sanctions, including the application of adverse evidentiary inferences for a jury to apply at trial. Indeed, given the significant impact a loss of discoverable evidence can have on a plaintiff’s ability to successfully adjudicate his or her case, plaintiffs should always be mindful of important evidence that may exist—for example, videotapes—and be prepared to make arguments in the event such evidence is lost. However, as a recent decision from a Georgia federal district court reveals, establishing spoliation can be a difficult undertaking.

The incident at the heart of this case occurred at a golf course in the Appalachian region of Northern Georgia on October 11, 2014. On that day, the plaintiffs were driving in a golf cart between the second and third holes of the course when the golf cart slid and flipped. The plaintiffs sustained injuries as a result of the accident, and they alleged these were caused by the poor condition and maintenance of the path, about which they claimed they were not warned. The plaintiffs brought suit against the company that owns and manages the golf course, alleging negligence and loss of consortium. After the accident, both the golf cart and the signage that indicated drivers should avoid the area where the crash occurred had been removed or destroyed. Accordingly, the plaintiff made a motion seeking spoliation sanctions.

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fireTerrible tragedies can happen and it is not always someone else’s fault. We make a business out of holding the correct parties responsible under the law; the CORRECT parties, not suing everyone that can be sued. This Court of Appeals opinion is a good example of a lawyer overreaching. If the gas company turns off the gas, puts a tag on the valve that says danger and tells you not to turn it on, you cannot sue them when the handyman you hire turns it on. Period.

In this case, the Georgia Court of Appeals had to determine whether the trial court erred in granting summary judgment in favor of the Atlanta Gas Light Company (“AGL”) in a case involving an explosion at a residence where there had recently been a resumption of natural gas services.

The explosion at issue occurred in November 2010 at a detached apartment located on a residential tract of land that included a main house where the owner of the property lived with his family. Sometime prior to the explosion, the owner had arranged for gas service at both the main house and the apartment to be switched off, since the apartment was unoccupied at the time, and the family did not use gas in the main residence. At some point after having the gas services stopped, the owner agreed to rent the detached apartment to his coworker. In anticipation of his coworker’s residence in the apartment, the property owner contacted AGL about the resumption of gas services.

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horseAs a state that serves as home to many large expanses of farmland, Georgia has many unique laws reflecting this heavily rural character. Among these interesting laws is the Georgia Injuries from Equine or Llama Activities Act (“Equine Act”), which is codified at O.C.G.A. § 4-12-1 et seq. Although this is clearly not the most commonly invoked statute, it remains in the books, and as the Georgia Court of Appeals recently learned, it is among those laws still ripe for litigation.

The case, Gadd v. Warwick, arose from an accident at a summer camp. The plaintiff in this action was 19 at the time of the accident and was one of the camp’s counselors. Among his duties as a counselor was leading children on “trail rides.” On May 30, 2011, a supervisor decided that some of the staff, including the plaintiff, should take a trail ride with the horses to get the horses acclimated to the route to be taken with the camp attendees. During this tester ride, the horse on which the plaintiff was riding jumped—rather than stepped—over a 12-inch-wide stream and then reared up on his hind legs. As a result, both the plaintiff and the horse lost their balance. The plaintiff fell from the saddle onto the ground, and the horse then landed on him. The plaintiff sustained an injury as a result.

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