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Articles Posted in Evidentiary Standards

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man holeIn order to successfully assert negligence, a plaintiff must generally prove four elements:  duty, breach of duty, causation, and damages. However, certain evidentiary and negligence doctrines allow a plaintiff, in certain circumscribed situations, to win on a negligence claim without proving all or some of the aforementioned factors. Among these doctrines is res ipsa loquitur, a evidentiary rule that generally provides that a plaintiff can create a rebuttable presumption of negligence when he or she is harmed and proves that the harm suffered does not generally occur in the absence of negligence, that the instrumentality causing the harm was under the control of the defendant, and that no other conceivable reason for the occurrence of the harm exists. This doctrine was raised in a recent opinion from the Georgia Court of Appeals, Battlefield Investments, Inc. v. City of Lafayette (PDF-embedded link), which involved a municipal defendant’s liability for a sewage backup that damaged property owned by the plaintiff.

The sewage backup at issue in this case occurred on September 21, 2009. On that day, the City of Lafayette, Georgia was experiencing torrential rainfall. This unprecedented rainfall caused flooding that the National Weather Service described as “historic” in proportion. Given the extent of the rainfall, the city’s sewer system was overwhelmed, and the manholes near the property where the sewage backup occurred were completely submerged in water, which would prevent the city from taking any corrective action to avoid possible sewage backups. This infiltration of rainwater into the sewer lines can create back flow into toilets in residential and commercial properties, and such a backup happened at a building owned by Battlefield Investments, Inc., the plaintiff in this action. However, and fortunately, there were no other complaints of sewage backups at any other property within the city.

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photo_5251_20080312As we’ve discussed before, the standard for medical malpractice liability in Georgia varies depending on whether the alleged act of medical malpractice occurs during an emergency situation. Given that the standard for liability is more stringent under Georgia’s emergency room statute, O.C.G.A. § 51-1-29.5, determining whether the statute applies is crucial for obtaining recovery against a possibly negligent medical provider. In a recent decision, Hospital Authority of Valdosta/Lowndes County v. Brinson (PDF-embedded link), the Georgia Court of Appeals looked at the application of the statute to an unfortunate but interesting set of facts, which involved the treatment of an infant who was suffering from infection requiring emergency care but whose symptoms were not immediately noticed by medical personnel.

The infant was brought to the emergency room on September 24, 2010. The infant had been born prematurely two months earlier and was treated for pneumonia only a month after birth. The infant’s mother said she brought him to the ER because he was acting fussy and had been running a fever. In addition, the infant’s baby sitter reported that the day before the infant was lethargic and cringing and experienced fever, diarrhea, and poor oral intake. At the ER, the infant was triaged by a nurse, who examined him and determined that his condition was normal but did not include the aforementioned medical history in notes. The infant was then seen by a physician’s assistant, who determined that the infant seemed pretty healthy, diagnosed the condition as either allergic rhinitis or a cold, and discharged the infant with a prescription for an oral steroid. A supervising physician later reviewed the chart, and though he testified that he would not have prescribed a steroid, concurred with the assessment and course of treatment. The mother returned three days later, as the physician’s assistant had directed her. At this time, the infant presented with a fever of 102.1, diarrhea, vomiting, and abdominal pain. After taking blood and urine samples for further testing, the pediatrician who saw the infant diagnosed the condition as a urinary tract infection and prescribed Tylenol and an antibiotic. The next day, a hospital representative called the mother and told her to bring the infant back immediately because blood test results showed the infant was suffering from a systemic infection. The call proved unnecessary, since the mother was already in transit to the hospital. Upon arrival, the baby was admitted to the hospital and, the following day, transferred to a pediatric intensive care unit at another hospital, where he was diagnosed as having streptococcus meningitis and a stroke.

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Blood Pressure CheckSince certain subject matter falls beyond the knowledge or experience of an average juror, cases will occasionally require that a plaintiff or defendant provide expert testimony that will assist the jury in making necessary factual determinations for resolving a case. In particular, expert testimony is often necessary in medical malpractice cases, since many jurors lack sufficient medical knowledge to make determinations regarding a medical provider’s negligence. In a recent decision, Freeman v. LTC Healthcare of Statesboro, Inc. (PDF-embedded link), the Georgia Court of Appeals addressed who can provide this necessary expert testimony.

Freeman arose from an alleged act of medical malpractice at Westwood Nursing Center, a long-term care facility. The plaintiff in this action is the husband of a patient who died shortly after arriving at Westwood. The deceased had undergone brain surgery the month before and experienced severe complications, including quadriplegia. Medical orders accompanying the transfer instructed that the deceased receive albuterol and that her oxygen be monitored and tracheostomy tube suctioned. The day of her transfer, Westwood’s medical records show that a feeding tube was placed but does not indicate that any of the other treatments were followed. Shortly before midnight, a nurse noticed that the deceased was in distress, and by the early morning the deceased passed away as a result of respiratory failure.

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Supreme Court Columns and StatueGenerally, courts will rarely disturb the factual determinations and ultimate verdict provided by a jury. However, there do exist certain limited circumstances when the court can overturn a jury’s verdict. Among the grounds that exists for a trial court to overturn a jury verdict and order a new trial are the following:  when the verdict is contrary to the evidence and principles of equity and justice, O.C.G.A. § 5-5-20; when the verdict is strongly against the weight of evidence, O.C.G.A. § 5-5-21; when there is an illegal admission or exclusion of evidence, O.C.G.A. § 5-5-22; when there is newly discovered evidence bearing on the verdict, O.C.G.A. § 5-5-23; and when there exist certain errors in instruction to the jury, O.C.G.A. § 5-5-24. In a recent decision, Morrison v. Kicklighter (PDF-embedded link), the Georgia Court of Appeals examined whether a trial court’s denial of a motion for a new trial was proper in light of the evidence presented at trial and the verdict reached.

The Kicklighter litigation began with a simple accident, which involved the defendant in this action backing his vehicle into a parked truck owned by the plaintiffs. The plaintiffs sued to recover for resulting property damage, including the cost of repairs, the diminished value of the truck, and the cost of a rental vehicle during the repairs. These losses were covered under a defendant’s motor vehicle liability insurance policy with State Farm Mutual, and the plaintiffs brought an independent action against State Farm for failing to make a good faith effort to adjust and settle their pre-trial demand for payment. In the original action, the defendant admitted to liability, so the jury trial was only necessary to settle the property damage costs, which the defendant did not dispute existed but rather argued were lower than the figures proffered by the plaintiffs. However, despite the defendant’s admission to liability, the jury returned a verdict finding no liability in favor of the defendant. The plaintiff made a motion for a new trial pursuant to O.C.G.A. §§ 5-5-20, 5-5-21, which the trial court denied. In response, the plaintiffs brought this appeal, arguing that the denial of the motion for a new trial was in error.

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