Atlanta Injury Lawyer Blog

The Law Office of Terrence R. Bethune and Associates has successfully represented thousands of injured victims and obtained millions of dollars in cash settlements for our clients.

Published on:

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.

Continue reading →

Published on:

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.

Continue reading →

Published on:

Interchange sectionThose experienced with the law know that courts are institutions of procedure. Although many associate this exacting adherence to process with the rules to which the parties in litigation must abide, the court itself is also bound to procedural requirements. Indeed, a court’s failure to adhere to necessary process can create as much needless work for litigants as the litigants’ own failures. This dynamic is illustrated in a recent decision from the Georgia Court of Appeals, Gonzalez v. Georgia Department of Transportation, in which the Court of Appeals reversed a trial court for failing to make a decision on a predicate issue before getting to the merits of the case.

This case started with a motor vehicle accident on a section of Interstate 16 in Candler County, Georgia. While navigating in rainy weather, the driver of the vehicle lost control and crashed into a tree. A passenger in the vehicle who was injured as a result of the accident brought suit against the Georgia Department of Transportation, alleging that the driver of the vehicle lost control because the vehicle hydroplaned on a pool of rain water and that the Department of Transportation caused this event by negligently breaching its duty to construct, maintain, and inspect the cross-slope design of Interstate 16 in order to assure that rainwater properly flowed away from the road. In response, the Department of Transportation answered the complaint and then filed two motions.

Continue reading →

Published on:

photo_12054_20090622Successfully asserting negligence claims against the State or a municipality can be a difficult task. However, success is possible. In a recent decision, City of Atlanta v. Kovalcik (PDF-embedded link), the Georgia Court of Appeals affirmed the denial of summary judgment in a negligence suit brought against the City of Atlanta for its failure to maintain adequate lighting at a newly redesigned intersection where the daughter of the plaintiffs was involved in a fatal car accident.

The car accident at issue in this case occurred on a night in March 2008. However, the events leading to this accident began four years earlier. In February 2004, the Georgia Department of Transportation and the City of Atlanta entered into an agreement to undertake certain improvements, including a project to redesign a portion of Peachtree Road in Atlanta. In pertinent part, the agreement provided that the city would accomplish the design activities in accordance with Georgia Department of Transportation (“DOT”) guidelines and that the DOT would “review and has approval authority for all aspects of the Project provided however this review and approval does not relieve the City of its responsibilities under the terms of this agreement.” Pursuant to a separate agreement between the City of Atlanta and the Buckhead Community Improvement District (“BCID”), BCID retained URS Corporation to develop construction plans, including road design, signage, pavement markings, curbs, traffic signals, and landscaping. These plans were ultimately approved by the DOT. Following approval of the plans, the DOT awarded a construction contract to Infrasource Paving and Concrete Services and contracted with Parsons Brinkerhoff Shuh & Jernigan for other construction, engineering, and inspection services. Active construction on this project ended in October 2007, and a final inspection was performed in January 2008.

Continue reading →

Published on:

photo_21759_20120610Although employers are not liable for every injury caused by an employee, the doctrine of respondeat superior does make an employer liable for certain injuries caused by an employee acting within the scope of his or her employment. As to be expected, however, there are certain exceptions to application of respondeat superior doctrine that will shield an employer from liability even when the employee is negligent and acting within the scope of employment. Among these various exceptions is the borrowed-servant rule, which insulates an employer from liability when the employer lends the employee to another, and the employee commits a negligent act while engaged in work for the other party. In a recent decision, Garden City v. Herrera , the Georgia Court of Appeals examined the applicability of the borrowed-servant rule to a motor vehicle accident involving a police officer.

The motor vehicle collision at issue in this case occurred in July 2010, when a car being driven by a police officer employed by the Garden City Police Department collided with a car being driven by another. The officer had been employed with the city since 2007 and since the nascent period of his employment was part of a multi-jurisdictional narcotics task force. The task force was created in 1994, when Chatham County entered into agreements with various municipal law enforcement agencies. Per these agreements, local law enforcement agencies assigned officers to a 27-month tour with the countywide Counter Narcotics Team, which was run by a commanding officer employed by the county. At the time of the accident, the officer was driving from the location of one task force operation to another, under the orders of a supervising task force officer. Following the accident, a lawsuit was brought on behalf of the seriously injured driver against Garden City, Chatham County, and several other defendants. Following the close of discovery, Garden City moved for summary judgment, arguing that it could not be held liable because the accident occurred when the employee was a borrowed-servant of the county. The trial court denied the motion for summary judgment, finding that there was an issue of material fact concerning whether the county retained exclusive authority to fire the officer. If the county did not retain such authority, the borrowed-servant doctrine would not apply.

Continue reading →

Published on:

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.

Continue reading →

Published on:

LawPrior to the day of a possible trial, there can be months –if not years – of legal proceedings designed to remove non-meritorious claims from the court’s consideration or narrow the issues that may ultimately be brought before a jury. Among the most important steps prior to trial is the summary judgment phase. Following sufficient discovery, a party will move for summary judgment and argue, in essence, that even looking at the adduced evidence in a manner favorable to the other party there are no material issues of fact for a jury to decide and that it is entitled to judgment as a matter of law. Considering an examination of the evidence is critical for making this determination, since there will often be arguments concerning what evidence is properly before the court for consideration and what evidence can permissibly be disregarded. This battle is on display in Blake v. Kes, Inc., a recent decision from the Georgia Court of Appeals.

Blake arose from the death of a developmentally disabled adult at a residential habilitation facility in Lithonia, Georgia. The decedent had been diagnosed with several developmental disabilities from birth, including organic personality disorder, moderate intellectual disability, and partial complex seizures. The decedent spent his days at the habilitation facility in accordance with a contract between the facility and his parents. Beyond his aforementioned disabilities, the decedent had a history of absconding from designated areas at the facility and required constant line-of-sight supervision in addition to medication. On the day of his death, the decedent arrived at the facility around 9 AM and upon arrival complained of dizziness and a poor overall feeling. At around noon, while eating lunch, the decedent asked if he could leave and return to his assigned task of cleaning the computer desk, but a caregiver told him he had to finish his meal and then rest thereafter. However, when this caregiver stepped out of the room for a moment, the decedent left the room and walked out of the building. Staff began to track the decedent’s movements, and security camera footage shot at 12:19 PM later showed that the decedent walked alongside a parked van, faltered, leaned into the van, and then fell forward. Shortly afterwards, a facility worker arrived at the decedent, who was unresponsive, breathing faintly, and had a weak pulse. The workers called 911 and performed various resuscitation techniques. Emergency personnel arrived later and continued performing emergency care. However, the decedent remained unresponsive and was pronounced dead at the hospital. The decedent’s cause of death was listed as “cardiac arrest status post likely seizure.”

Continue reading →

Published on:

photo_2775_20070813Under the common law, a purveyor of alcohol could not be found negligent for furnishing liquor to an intoxicated person who caused injury to another. With respect to injuries caused by the intoxicated person, the intoxicated person would be held liable, but the person who furnished the liquor to the would-be or already intoxicated person was not subject to negligence liability because there was insufficient “proximate cause” between furnishing the alcohol and the injuries the intoxicated person caused. Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 511-512 (1) (614 SE2d 745) (2005). Although this was a well-established rule, the legislatures of many states realized that freely providing booze to another could foreseeably lead to the injuries, especially if one considers the relative ubiquity of intoxicated driving. Consequently, states including Georgia passed Dram Shop legislation that abrogated the common law and imposed liability on those who sell liquor under certain circumstances. The scope of Georgia’s Dram Shop Law was recently addressed in a case from the Supreme Court of Georgia, Dion v. Ysg Enterprises, Inc..

Dion arose from a motor vehicle accident in the early hours of September 16, 2011. On that evening, the husband of the plaintiff in this action died in a single-car wreck. The decedent had been drinking at Depot Sports Bar and Grill for approximately eight hours, and his blood alcohol level was measured at .282. While he was at the bar, the decedent was visibly intoxicated. In fact, an employee had asked for the decedent’s keys, which the decedent refused to relinquish. Following the death, the decedent’s widow brought a wrongful death action against Depot Sports Bar and Grill, arguing that the actions of the bar’s employees were negligent and that their conduct was the proximate cause of the decedent’s accident and death. The defendant moved to dismiss, arguing that Georgia Dram Shop Law barred the widow’s claim. The trial court concurred and granted the motion, but the widow appealed.

Continue reading →

Published on:

Park in winterIt is quite common for modern businesses to contract out maintenance or cleaning responsibilities to third-party entities that specialize in providing those services. Although this outsourcing of responsibility may help make business function more efficiently, the wide array of possible contractual relationships can create confusion when a person is injured as a result of the negligence one or more of the contracting parties. This possible muddling of responsibility is addressed in a recent opinion from the Georgia Court of Appeals, Davidson v. Meticulously Clean Sweepers, LLC.

The Davidson case arose from a slip and fall accident at a Dollar Tree store in Macon, Georgia. As a winter storm approached in January 2011, “Rivergate,” which is composed of three corporate entitles that own the shopping center in which the Dollar Tree is located, asked Meticulously Clean Sweepers to perform de-icing services at the shopping center pursuant to a contract to perform sweeping services at the site. The storm arrived on January 10, and Meticulously Clean performed de-icing services on January 9th, 11th, 12th, and 13th. On the morning of January 12, a customer who would become one of the plaintiffs in this case arrived at the shopping center and, while navigating her way to the entrance of the Dollar Store, fell on a patch of black ice. The customer photographed the black ice patch and later testified that she had both taken care to avoid other puddles and that the black ice patch on which she slipped was not obvious and would not have been reasonably seen by someone who was attentive to where he or she was going. In October 2012, more than a year following the accident, the customer and her husband brought a premises liability suit against Rivergate, Rivergate’s property management company, Dollar Tree, the manager of Dollar Tree, and Meticulously Clean Sweepers. In May of the following year, the plaintiffs settled with all the defendants except Meticulously Clean. Following further discovery, Meticulously Clean moved for summary judgment, contending that it could not be held liable as a matter of law because the injured plaintiff was not an intended third-party beneficiary of the contract between Meticulously Clean and Rivergate, no evidence showed that it breached a duty of ordinary care, and no evidence showed it had superior knowledge of the hazardous black ice to the plaintiff. The trial court granted the motion for summary judgment, and the plaintiffs appealed.

Continue reading →

Published on:

Empty BoardroomUnder the “American Rule” for attorneys’ fees, each party is responsible for paying for his or her own legal fees, irrespective of which party is ultimately victorious. However, certain federal and state laws do permit the shifting of attorneys’ fees in certain circumstances. Many of these statutes are designed to incentivize those with clearly meritorious claims to vindicate their rights without worrying about the cost of legal services. However, some fee-shifting statutes incentivize a plaintiff to settle with a willing defendant or risk being held liable for the defendant’s attorneys’ fees should he or she lose at trial. One such “offer-of-settlement” statute, O.C.G.A. § 9-11-68 (b)(1), is the principal topic of discussion in a recent decision from the Georgia Court of Appeals, Crane Composites, Inc. v. Wayne Farms, LLC, in which the court needed to determine whether the statute applied to a negligence claim that had accrued prior to the effective date of the legislation.

The statute generally provides that if a defendant makes an offer of settlement and the plaintiff rejects that offer, the plaintiff will be accountable for paying the defendants’ reasonable attorneys’ fees from the date the offer is rejected until the entry of judgment if the judgment is a finding of no liability for the defendant, or the amount recovered by the plaintiff is less than 75% of the offer of settlement amount.

Continue reading →