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There is nothing more agonizing to a family than making the decision to place a loved one in a nursing home, assisted living, or memory care.   The fear of having your loved one suffer an injury or dying in a nursing home has been heightened in recent times with the COVID-19 pandemic, where we have seen numerous outbreaks of the virus in nursing homes with people being forced to say good-bye to their loved ones through glass windows over cell phones. In Georgia, our elderly family members, parents, and grandparents are some of the most vulnerable members of society who deserve to be protected when we entrust nursing homes with their lives.  Unfortunately, it is too often that nursing homes are understaffed, staffed with unqualified employees, or lack the adequate policies and procedures and cause their elderly patients to suffer from falls, bed sores, COVID-19, abuse, or other injuries.

Like any personal injury claim, nursing home claims are based on the carelessness or negligence of the nursing home and/or its employees causing an injury or death to the patient.  Proving up a claim involves showing that the nursing home and/or its employees breached the standard of care (what would a reasonable nursing home in the same shoes would have done in the situation?) and that breach caused the patient to suffer from injuries.  These standards must be established by an “expert” who is willing to sign an affidavit as to how the nursing home breached the standard of care.  In the context of a nursing home, there are protocols that should be followed to protect patients from becoming injured, and every case is different.

For example, where a patient is considered a fall risk due to weakness, disease, inability to walk, or for any other reason, the facility should take precautions, such as identifying the fall risk, using bed rails, instructing the patient to not get out of bed without help, and turning on bed alarms to reduce the risk of falling.

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Georgia law prohibits drivers from touching their cell phones while driving, meaning that they are not allowed to write, read, or send text messages, e-mails or social media content while driving.  Nor are drivers allowed to record videos with their phones or touch their phones to stream music or other programs.  Cell phone usage can be impactful to a case involving an accident.  A driver who causes an accident because he or she was using a cell phone can not only be held responsible for the wreck, but could also be found to be so reckless that punitive damages  meant to punish or deter such behavior are appropriate.

Georgia law allows a plaintiff to seek and for a jury to award punitive damages where the defendant shows willful misconduct, malice, wantonness, oppression, reckless and an entire want of care which would raise the presumption of conscious indifference to consequences.  Punitive damages are separate from medical bills, lost wages, pain & suffering, and other losses for which an injured victim of a car accident can receive compensation.

There is a strong argument that using a cell phone inappropriately while driving is an intentional act that is reckless and shows lack of care for the consequences.  According to the National Highway Traffic Safety Administration texting is a most alarming distraction, and texting while driving has been proven to be 6 times more likely to cause a motor vehicle collision than drunk driving.  Sending or reading a text takes a driver’s eyes off the road for 5 seconds. At 55 mph, that’s like driving the length of an entire football field with your eyes closed.

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Hit & Run Automobile Accidents in Georgia

In Georgia, there are laws that require a person who is involved in a motor vehicle collision to stop when s/he is involved in a wreck.  O.C.G.A. Section 40-6-270 states:

  • (a) The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident and shall:
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When you have a personal injury case, whether it be from a motor vehicle collision, a slip & fall, or truck accident, it is important to do everything that is in your control to preserve your claims and to make it difficult for the insurance company or the defense attorney to defend your case.  The following article will outline the “do’s and don’ts” of a personal injury case.

The Do’s of a Successful Personal Injury Case

  • Do call the police to the scene.
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If you or a loved one has been taking the drug, Valsartan, you may have a claim against pharmaceutical companies for the distribution and sale of Valsartan medication that has been contaminated with toxic, cancer-causing substances.

On July 13, 2018, the FDA recalled the drug, Valsartan.  Valsartan is the generic form of Diovan, which is used to treat high blood pressure and heart conditions.  Because it costs less, the active pharmaceutical ingredient (API) for Valsartan is manufactured in countries outside of the United States.  Several of the foreign API manufacturers changed the manufacturing process in 2012, and this change is believed to have caused unintended byproducts, which contaminated the drug with impurities, including N-nitrosodimethylamine (NDMA), N-Nitrosodiethylamine (NDEA) and/or N-Methylnitrosobutyric acid (NMBA). These toxic substances are classified as probable human carcinogens, meaning that they are more likely than not to cause cancer in humans.  Zhejiang Huahai Pharmaceutical (ZHP) in China and Hetero Labs Limited (Hetero) in India are two of the API manufacturers that used the altered manufacturing process. ZHP has an estimated 45% of the US market share of the Valsartan API production. 

The APIs from ZHP and Hetero are used in finished pills, which are sold in the United States.  Many American pharmaceutical companies have made, distributed, marketed and/or sold Valsartan products containing the API containing toxic substances. It is believed that the contaminated pills have been sold in the United States since 2014 and that there have been millions of contaminated pills taken in the United States.  Based on tests, the API manufacturers were aware that Valsartan contained high levels of the toxic substances. The manufacturers minimized the information, citing testing inaccuracies. Eventually, after additional testing, the European Medicines Agency (EMA) issued recalls for Valsartan and the FDA followed.  The FDA initially issued a report that 1 in 8,000 people taking Valsartan may develop cancer, but scientific evidence show that the number of cancer cases is likely significantly higher.    

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In Georgia, a property or business owner can be held responsible for a crime that is committed by a third party criminal, if the crime was reasonably foreseeable.  Many cases involving violent crimes, such as assaults, rapes, or murders, occur on properties that are owned and operated by businesses that earn profits and have a duty to keep their patrons, tenants, and other visitors safe.  This duty of care is outlined under Georgia’s premises liability law, which states that a landowner or operator has the duty to exercise ordinary care to keep its premises safe for its invitees.

This legal language generally means that a property owner has to act in a way that a reasonable person in the same position would act to keep the property safe for people who are invited onto the property or otherwise allowed to be on the property.  The protection is not one that is all-encompassing, nor does it apply to people who are not supposed to be there.  Ordinarily, a criminal act by someone that has nothing to do with the property is considered an “intervening act” for which the property owner cannot be held liable.

However, many Georgia cases have allowed victims of crimes occurring on properties where the owners should have reasonably foreseen the occurrence of the crimes.  One way of showing foreseeability is using substantially similar previous criminal activities that occurred on or near the premises that would alert a reasonable person in the same position to take ordinary care to protect visitors and other people from the criminal activity.  That is not the only way to show foreseeability, but is one way to prove it.

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5 Things You Should Do After Having a Slip & Fall

If you are severely injured on someone else’s property because of a dangerous condition that should not be there, you’re probably not thinking about what you need to be doing to preserve a legal claim.  Nonetheless, there are certain steps that you can take that will help strengthen or preserve your potential legal claim based upon Georgia’s premises liability laws.  

  • Report the incident to the property owner.
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Demanding Payment:  Timeline of Settlement

One of my clients recently asked me about how long it would take to settle her case from the date we sent off a demand to the insurance company in her car wreck case.  Before even sending a demand, a claimant in a personal injury case needs to complete his or her medical treatment, so that amount of time will vary according to the injuries and treatment.  After the treatment is completed and the medical bills and records are gathered (that normally takes at least 60 days), the timeline of settlement from the date of the demand also depends on the circumstances of each case.  Under Georgia law (O.C.G.A. Section 9-11-67.1), the minimal amount of time a claimant must give an insurance company or at-fault driver to settle a bodily injury claim based on personal injuries sustained in a motor vehicle collision prior to filing a lawsuit is 30 days from the receipt of the offer.

Preserving Bad Faith Claims:  Giving Insurance Company Reasonable Amount of Time to Settle

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A personal injury case is a civil claim that the victim of another person or company’s negligence can make under the law.  What that means is that if one suffers from an injury that arises out of an event, such as an automobile collision, a slip & fall, a mistake that a medical provider made in treatment, a workplace injury, the use of a defective product or drug, and many other types of situations, then that person may make a claim for compensation for his/her injuries, pain and suffering, medical expenses, lost wages, and other costs that s/he incurs from that injury.  Most personal injury cases begin as insurance claims and transition into civil lawsuits (as opposed to criminal) against the at-fault party.

The Basic Elements of a Personal Injury Case

The basic information that must be proven to successfully bring a personal injury case include:  (1) showing that the other party acted carelessly or negligently; (2) showing that the carelessness or negligence caused an (an event that caused an injury) injury to the claimant or plaintiff; and, (3) showing the amount of loss that resulted from the injury (or injuries).

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In Atlanta, crimes such as shootings, rapes, robberies, or assaults occur on many commercial properties, including hotels and motels.  Under Georgia law, a victim of a crime that occurs on the property of an unsafe hotel or motel may be able to recover against the hotel or motel for negligent security.

Negligent security is a type of premises liability claim. Premises liability cases in Georgia rest on the principle that a property owner has the legal duty to make sure that lawful visitors or “invitees” to its property are safe from dangerous conditions.  An invitee of a hotel or motel includes guests, and dangerous conditions can include crimes that are committed by unrelated persons who come on to the property or even other motel or hotel guests.

Hotel and motel owners have the duty to protect its guests from “foreseeable” criminal acts, even if the crimes are committed by third parties.  Thus, one of the factors that a victim of a crime on an unsafe property has to prove is that the crime was foreseeable.  You may ask how anyone could predict the future to foresee the criminal act of a third party.  Some factors that show that a property owner should have foreseen a criminal act are past crimes that occurred on the property or complaints about criminal behavior from customers, employees, or other guests.

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