Atlanta Injury Lawyer Blog

Articles Posted in Negligence

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photo_5257_20080312Although medical malpractice suits against the VA are often complicated by the specialized requirements under the Federal Torts Claims Act or the unique rules for medical malpractice actions pursuant to Georgia state law, sometimes the issue holding a case back is simply the theory of liability, the evidence provided, or failing to proactively litigate. These more commonplace issues are at the center of the U.S. District Court for the Northern District of Georgia’s recent opinion in Stidham v. U.S., which involved the alleged failure of the VA to provide a patient with a necessary medical apparatus within a reasonable period of time.

As alluded to above, the plaintiff in the case was a patient at the VA Medical Center in Atlanta. The plaintiff had gone to the VA for medical care, and during the course of that care he was informed by a nurse practitioner employed at the VA that he would need to wear a knee brace. Although he was required to wear a knee brace and his prescription for the brace was made on July 16, 2010, the plaintiff claims that he did not receive the brace for nearly a year. He avers he received the brace on June 6, 2011. The VA refutes these facts and claims instead that the prescription was actually for three different braces, two of which the plaintiff received at the time and the third which was not in stock at the VA at the time the plaintiff received his prescription. However, the VA maintains that the third brace was mailed to the plaintiff on August 10, 2010, slightly less than a month after he received the prescription. The plaintiff then brought a medical malpractice action against the VA, alleging that the delay in delivery of the knee brace was unreasonable. Following some discovery, the VA made a motion for summary judgment, to which the plaintiff did not respond, submit a statement of material facts, or provide opposing expert testimony.

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Hospital BedIn the overwhelming majority of medical malpractice cases, a plaintiff will need to provide expert testimony in order to succeed on his or her claim. Expert testimony is necessary, since a typical juror cannot make a determination regarding whether a physician has breached his duty of care without the aid of an expert who can provide testimony regarding what the applicable standard of care is. Although the need for expert testimony is common knowledge among legal practitioners, a recent decision from the Georgia Court of Appeals, Davis v. Osinuga, examines the peculiar situation when the desired expert is unavailable at the time of a trial and the plaintiff seeks a continuance in order to have time to make the expert available.

This medical malpractice wrongful death case was brought by the children of a man who died while receiving treatment from one of the defendants, a physician at East Point Primary Care Center in Dekalb County, Georgia. When the plaintiffs filed this action in April 2009, they included an affidavit from Dr. Kelly Thrasher, as is required by O.C.G.A. § 9-11-9.1. However, in January 2013, Dr. Thrasher was arrested on felony and misdemeanor charges, resulting in the Georgia Composite Medical Board suspending Dr. Thrasher’s medical license. At this time, counsel for the defendant inquired into whether the plaintiff still intended to call Dr. Thrasher as an expert witness and noted that they would oppose any motion for a continuance based on difficulties posed by Dr. Thrasher’s legal troubles. In fact, this case had been included on the court’s trial calendar on three earlier occasions since 2011, but the case had either not been reached or continued in every instance. On January 1, 2014, the trial court issued a notice indicating that the case had been placed on the jury trial calendar for the week of February 10, 2014. Unfortunately, Dr. Thrasher was arrested on January 14, 2014 for practicing medicine without a license. Dr. Thrasher was released on bail, but one of the conditions of his release was that he was not to give his medical opinion on any matter, which included testifying in legal proceedings. On the day of the trial, February 10, 2014, the plaintiffs made a motion for a continuance, which the trial court denied. At a hearing on this issue, the trial court judge noted that the plaintiffs had been aware of their planned expert’s legal issues for over a year but nonetheless failed to either secure an alternate expert witness or to preserve Dr. Thrasher’s expert testimony through an evidentiary deposition. Since the plaintiff could not succeed without the expert testimony, the case was dismissed for want of prosecution. The plaintiffs then brought this appeal, which argued that the trial court erred in denying their motion for a continuance.

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photo_5495_20080405Almost every type of legal claim is governed by an applicable statute of limitation that limits the amount of time a plaintiff has to bring legal action to redress his or her grievance. Among the shortest statutes of limitation is the one that limits the time a plaintiff has to bring a medical malpractice action. Under Georgia law, a plaintiff has only two years to bring his or her claim. O.C.G.A. § 9-3-71 (a). However, a key question that often arises in such cases is when the statute of limitation begins to run. This determination was the central issue in the Georgia Court of Appeals’ recent decision in Beamon v. Mahadevan.

The events leading to Beamon began in October 2007 when the plaintiff, complaining of what he thought was severe indigestion, went to a physician who after reviewing the results of an electrocardiogram immediately sent the plaintiff to the hospital. Doctors at the hospital determined the plaintiff needed cardiac bypass surgery and a mitral valve replacement. Six days later, the defendant in this case performed a four-vessel coronary artery bypass on the plaintiff. The plaintiff alleges that during this surgery, the defendant replaced the plaintiff’s poorly performing mitral valve with a bio-prosthetic one that was inappropriately sized. The plaintiff further alleged that the valve was negligently sutured to leaflet tissue as opposed to the proper tissue for suture, the annulus of the heart. Only a few months after the surgery, the plaintiff began to experience breathing trouble, fatigue, and exhaustion. The plaintiff’s condition continued to worsen, and by June 2008 the plaintiff was diagnosed with atrial fibrillation and a heart murmur. In March 2009, the plaintiff underwent a transesophageal echocardiogram that showed a significant heart valve leak. The following week, the plaintiff underwent a second surgery to replace the existing mitral valve replacement with a larger one. The surgeon who performed the second surgery observed the alleged errors in the suture job of the first surgery. The plaintiff originally brought suit against the first surgeon in December 2010 but voluntarily dismissed the suit. However, the plaintiff then filed a renewal action in October 2011, seeking damages for medical negligence. Following some discovery, the defendant moved for summary judgment on statute of limitations grounds, and the trial court granted the motion.

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photo_7843_20081107Evidence is of undeniable importance in every legal action. Indeed, one would find it difficult to succeed in a breach of contract case if he or she were unable to produce the contract at issue. Although parties can typically be trusted to not tamper with the sharing of possible evidence during the discovery process, arguments regarding misconduct during discovery  are not uncommon. In fact, a federal magistrate judge for the South District of Georgia recently had to resolve a dispute involving alleged spoliation in an ongoing premises liability case, Pinkney v. Winn-Dixie Stores, Inc.

Pinkney arose from a slip-and-fall incident at a Winn-Dixie Supermarket in Southern Georgia. Having sustained injuries from this fall, the plaintiff brought a premises liability suit against Winn-Dixie. During the course of discovery, the plaintiff made a motion to compel production, which included a demand for photographs taken at the scene of the incident, which were allegedly in the defendant’s possession. The magistrate judge dismissed this motion as moot, finding the defendant’s explanation that no such photos were in its possession as dispositive. However, following denial of this motion, the plaintiff acquired additional evidence, which included deposition testimony of one of the defendant’s employees who averred that it is store policy to photograph the scene of a slip-and-fall immediately following the incident, upload those photographs to the store computer, email them to a claim management company, and then deliver hardcopies to Winn Dixie’s main office. The plaintiff also deposed a former employee who stated that he prepared the incident report for the plaintiff’s fall and followed the protocol for disseminating the photographs outlined above. After acquiring this evidence, the plaintiff made a motion alleging that the defendant’s failure to preserve the photographs constitutes spoliation that warrants judicial sanctions, including instruction to the jury on spoliation, and a finding against defendant on the issues of negligence and causation that the defendant would be precluded from contesting.

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photo_356_20051102Although it’s an obvious concern, a plaintiff should always make sure that he’s both suing the proper party and filing his action in a court that has the authority to bring the selected party into court. When a plaintiff fails to assure either factor, he or she risks creating an avoidable hassle that ultimately delays recovery for his or her losses. In its recent ruling, Walden v. CSX Corporation, Inc., a Georgia federal court addressed whether to grant a defendant’s motion to dismiss in light of the fact the plaintiff appeared to make not one, but both, of the aforementioned errors.

Walden involved a train accident in Richmond County, Georgia in June 2012. On the 24th of that month, the plaintiff alleges that a train owned by the defendant, CSX Corporation, dragged him over 50 feet, resulting in injuries that required hospitalization. On the two-year anniversary of this accident, the plaintiff brought a personal injury suit against CSX, alleging negligence on the part of CSX. The case was originally filed in state court, but CSX had the case removed to federal court based on the diversity of citizenship of the parties. Following removal, CSX made a motion to dismiss, asserting various grounds for dismissal, including the court’s lack of personal jurisdiction. The plaintiff failed to respond to this motion, which strongly intimated that the plaintiff might have sued the wrong corporate entity.

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photo_318_20051101Although it’s common knowledge that workers’ compensation law prevents, in most circumstances, an employee from suing his or her immediate employer for injuries sustained in the course of employment, few know that the provisions barring suit can also extend immunity to contractors of the employer. The scope of tort immunity under Georgia’s workers’ compensation statute was recently reviewed by the Georgia’s Court of Appeals in its decision in Smith v. Graham Const. Co., Inc.

Even though Georgia’s Workers’ Compensation Act is at issue in this case, the workplace injuries under consideration actually occurred in North Carolina, where the plaintiff was working on a construction project for his direct employer, Edens Enterprises, LLC. The defendant in this case, Graham Construction Company, was the general contractor of that project. While engaged in this out-of-state construction project, the plaintiff sustained injuries, for which he received workers’ compensation benefits. Although he had received benefits, the plaintiff still chose to bring claims against the general contractor, contending that the contractor’s negligence caused his injuries. After initiation of the suit, the general contractor moved for summary judgment, arguing that the suit was barred by the exclusive remedy provision of the Georgia Workers’ Compensation Act set forth in O.C.G.A. § 34-9-11(a). The trial court granted the motion for summary judgment, and the plaintiff brought the current appeal.

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photo_5592_20080409A common issue that arises in slip-and-fall litigation is whether the business owner had knowledge of the foreign substance on which a plaintiff slipped and fell. Given that employees are generally not inclined to acknowledge their actual knowledge of the dangerous condition, plaintiffs must typically use direct or circumstantial evidence to show “constructive knowledge” of the foreign substance. Thus, many cases turn on what evidence the plaintiff and the defendant present to show or rebut constructive knowledge of the foreign substance. This battle is pointedly illustrated in Alatrista v. Publix Super Markets, Inc., a recent decision from the Atlanta Division of the U.S. District Court for the Northern District of Georgia.

This case arose from a slip-and-fall at a local Publix Supermarket. The plaintiff in this case and her boyfriend were shopping at the supermarket when the plaintiff slipped and fell on a puddle of clear liquid on the floor of the main aisle just beyond the cash registers at the store. The plaintiff testified that she had not seen the puddle prior to falling, and that, even after the fall, the puddle was not visible from a standing position. The plaintiff’s boyfriend also testified that he inspected the area after the fall and stated that the puddle was difficult to see. Publix has a stated “Don’t Pass It Up — Pick It Up” policy, and four employees testified that they, in accordance with this policy, inspected the area shortly before the incident. Each employee testified that he or she did not see any foreign substance when he or she passed the area and that he or she would have cleared the substance had he or she noticed it. The plaintiff brought suit against Publix for injuries associated with the fall, and, following discovery, the Publix moved for summary judgment, arguing that there was no issue of material fact for a jury to determine with respect to Publix’s constructive knowledge of the alleged puddle such that it was entitled to judgment as a matter of law.

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OLYMPUS DIGITAL CAMERAThe attorneys at the Law Office of Terrence R. Bethune recently scored a major victory on behalf of a female client injured in a car accident. The client was injured while driving on a local roadway when another driver failed to yield before entering the highway and struck the client’s motor vehicle with his own. As a result of the accident, the client sustained severe back injuries, resulting in medical bills and other compensable losses. Without needing to endure the time, cost, or stress of protracted litigation, our attorneys were able to secure $311,000 for the client through a settlement with the other driver’s insurance company. Indeed, our client has now obtained a substantial recovery without the risks associated with a jury trial.

However, even if litigation had been necessary, our client stood in a solid position to be victorious on her claim. Unsurprisingly, failing to yield is prohibited under Georgia law. Specifically, such negligent driving is proscribed by O.C.G.A. § 40-6-73, which provides “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” When conduct leading to an injury is specially prohibited by an law or ordinance, an injured party need not prove all the standard elements of a negligence claim. Instead, a plaintiff may successfully assert his or her claim by, alternatively, proving negligence per se, which does not require a plaintiff to prove that the defendant breached his or her duty of reasonable care, since failure to adhere to a law designed to protect the public from injury is per se negligent.

Negligence per se under Georgia law is generally set forth in O.C.G.A. § 51-1-6, which states, “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” To have a negligence per se instruction issued to a jury, the plaintiff must further show the following:  1) “[he or she] falls within the class of persons [the law] was intended to protect”; and 2) “the harm complained of was the harm the statute was intended to guard against.” Norman v. Jones Lang Lasalle Americas, Inc., 277 Ga. App. 621, 627-628 (2) (b) (627 SE2d 382) (2006).

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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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pen and inkSince passage of the Federal Arbitration Act of 1925, arbitration clauses have become a commonplace, if not boilerplate, provision utilized in contracts executed in the United States. However, given the ubiquity of adhesion contracts, many people are often unaware they are waiving the right to have their grievances decided in court and, more importantly, many of the procedural safeguards that exist in the judicial setting. However, even when parties have agreed to arbitrate, one can occasionally avoid compelled arbitration. Avoidance of mandatory arbitration is at the core of today’s case, Sunbridge Retirement Care Associates, LLC v. Smith (PDF-embedded link).

Sunbridge concerns an arbitration agreement between Cartersville Heights Care and Rehabilitation Center (“Cartersville”), a skilled nursing and rehabilitation center and the plaintiff in this action, and the daughter of a now-deceased resident of the facility. The agreement was executed on November 24, 2009, when the resident was in the admission process. The daughter had the power of attorney to enter into agreements on behalf of the resident, and she signed the arbitration agreement, which provided that “any and all claim or controversies arising out of or in any way relating to this agreement, the admission agreement or any of the resident’s stays at the Facility … shall be submitted to binding arbitration.” The agreement further provided that “the arbitrator shall apply the [National Arbitration Forum (“NAF”)] Code of Procedure,” which in turn provides that the Code governs the arbitration proceedings, unless the parties agreed otherwise. The Code further provided that in the event the parties are denied an opportunity to arbitrate, they retain the right to seek legal or other remedies.

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