Articles Posted in Personal Injury

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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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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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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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Generally, the victim of a security guard’s bad acts or negligence (false imprisonment, excessive use of force, wrongful detention) may bring a civil lawsuit in Georgia to recover damages for the victim’s resulting injuries.  However, because recovering damages in a civil suit requires money, whether it be via a corporate entity with deep pockets or via insurance coverage, a more important question is, “can any corporate defendants also be held responsible for the individual security officer’s acts?”  When looking at corporate entities to sue in a case involving a bad acting security guard, Georgia attorneys should investigate the case to see if the property owner who hired the security guard and/or the security company who employed the guard can be held responsible for the guard’s behavior.

Under Georgia law, property owners have the ultimate duty of care, or the responsibility to its customers, tenants, visitors, or other people who are lawfully on the property, to keep the property safe.  This responsibility includes making sure that the security guard or security guard company is one that will properly ensure the safety of the people who are lawfully present on the property.  Under some circumstances, a property owner can be held liable for the security guards intentionally bad acts, crimes, or unintentional acts/negligent acts.  Examples of intentional bad acts include using excessive force, such as assaulting or shooting someone unnecessarily or wrongfully detaining or arresting someone.  Examples of negligence include not being on the property when required or failing to follow certain safety protocols and procedures.

Many property owners hire private security companies to keep their properties safe.  Thus, it is possible for a victim of a security guard’s bad or negligent acts to sue the security company that employed the guard.  Under the Georgia law of respondeat superior or vicarious liability, an employer can be held responsible for an employee’s wrongful acts, if the employee was working within the course and scope of his or her employment. Secondly, an employer, such as a security company that employs a bad security guard, may be held responsible for the negligent hiring, retention, supervision, and training of a security guard who acts negligently or wrongfully. Thus, an attorney handling the case against the security company should investigate whether the employer checked the guard’s criminal history or work history before hiring him.

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What Is Xarelto?

Xarelto is a prescription blood thinner that is prescribed to reduce blood clotting.  Unfortunately, Xarelto is also a potentially dangerous drug that has caused significant injuries to patients taking it.

How Does Xarelto Cause Injuries?

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What Is An IVC Filter?

IVC filters, which are manufactured by big medical device manufacturers such as Cook and Bard, have been known to cause significant injuries to patients because of safety issues with the IVC devices.  An IVC filter is a medical device in the shape of a cone with spider-like wire, that is implanted into the “inferior vena cava” (IVC). The IVC is the vein that transports deoxygenated blood from the lower/middle part of the body to the right atrium of the heart.  The IVC filter is implanted in order to prevent pulmonary embolisms from occurring; a pulmonary embolism is where the artery to your lungs is blocked (typically by a blood clot) and can cause shortness of breath, fainting, and even death.  The IVC filter is designed to catch blood clots trying to move to the heart and lungs.

How Do IVC Filters Cause Injuries?

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Many people who are involved in car accidents seek medical care from chiropractors for their personal injuries. Each person’s injuries are different, so the decision as to where to seek medical care after a car accident depends on various factors such as:

  • The extent of the injuries. For example, if there are fractures or broken bones, you’ll probably go the emergency room via ambulance from the scene of the collision and follow up with an orthopedic doctor. If there’s a head injury that causes headaches or a traumatic brain injury, then it would be advisable to seek emergency car and follow up with a neurologist. On the other hand, if the injuries are “soft tissue,” meaning they are largely muscular and involve the pain caused by whiplash, then seeking care from a chiropractor or a primary care physician is probably okay.
  • Whether there is health insurance. If there is health insurance available to cover treatment for injuries related to the accident, absent a catastrophic or emergent injury, then starting with a primary care physician is probably ideal way to obtain treatment. Chiropractors normally work on a “lien” basis, where they get paid on the back end of the settlement. Any time you have available health insurance to cover the cost of medical care, no matter what kind of provider you use, it is better than treating on a lien care basis because using your health insurance will more than likely allow you to maximize your recovery.
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