Georgia Injury Lawyer Blog

If someone breaks a leg in a car accident and incurs $20,000.00 in medical bills and is out of work for three or four months due to doctors’ appointments, surgery, etc., how does one determine the value of such a claim? Indeed, how does anyone determine the value of any personal injury claim? The answer is by looking at available jury research service data to determine what juries typically award for the value of certain types of injuries. If someone breaks a leg in an accident and is not left with a permanent disability or limp, that might bring X dollars in front of the average duty whereas if someone sustains an amputation, the case is altogether different and the reward would understandably also be different. While every case is, in fact, different there are available research services available to most attorneys that will tell attorneys what typical juries do in the location of the accident. For example, if a client is injured in metropolitan Atlanta there is jury verdict research service available for Fulton, DeKalb, Gwinnett, Clayton and other counties which tell all attorneys typically what juries award in such cases.

When a jury makes an award, the jury has heard from the client, heard from the lawyer, heard from the Court and has usually heard from the doctors. They factor in all the evidence and they reach a verdict. If enough of these cases are analyzed the settlement value of a claim can typically be derived from the data although it is always difficult when comparing apples to oranges as no two cases are alike. Nonetheless, general data can be extrapolated from such data which will at least provide some guidance regarding the reasonable settlement value of a case. Thus, going back to the question at hand, the way one determines what a fair settlement is, is by analyzing the data to determine whether the offer being made in settlement is fair and reasonable based on such data. If a client is offered an amount of money that seems to be what fair and impartial jurors would award for such injuries, then that would be a fair settlement. If an offer is made far below such awards then that would not be a fair settlement and the advice rendered to the client should be to reject the offer.

Evaluating a personal injury claim due to a car accident, tractor-trailer wreck, medical malpractice or wrongful death claim is always difficult because no two cases are alike. Every case is unique, however, there is a large amount of data available that can help educate the innocent victim through competent advice from experienced counsel as to the general value of their claim. Our advice to clients is to accept reasonable offers and to reject offers that are not reasonable based on such data. While the client always make the final decision as to whether they wish to present their case to a jury, typically if a client is offered a fair and reasonable sum, they should at least consider it because the offer being made is consistent with what juries typically do for that type of case. If the offer being made by the insurance company, however, is below what is typically awarded by juries, our recommendation always is to reject such an offer, although many times clients decide to accept it for their own reasons, sometimes which are financial, emotional or both.

As we have blogged about previously, unless a car accident victim suffers minor injuries, it is typically not in their interests to try to get a quick cash settlement. Yes, these can be some temporary financial hardships caused by the delay in securing a settlement, however, patience is the watch word in many of these cases unless the client is in such desperate need for money that they have no choice but to significantly discount the value of their claim in order to get a quick cash settlement. Before this course of action is decided upon, however, clients need to be educated by their attorneys as to the costs involved in trying to get a quick cash settlement.

As we have indicated previously, there is not a car accident case (where liability exists) that cannot be settled quickly provided the client and the attorney are willing to accept far less than the claim is worth. Insurance companies are always willing to settle cases for less than they are worth so that they can save money. Quick cash settlements, therefore, are always typically available in car accident cases with insurance companies all to eager to save money on their policy and pay far less than the claim is worth. The innocent victim who is incurring medical expenses and sustaining lost wages not to mention suffering from their pain on a daily basis, has a hard time understanding the need for patience. The difficulty attendant to being patient is completely understandable but, again, unless a claim is a minor claim the client should usually be advised by counsel that they should be patient in trying to secure a settlement.

In any significant case, a case of established liability can be settled for 20, 30 or 40 cents on the dollar at most any given point in time. However, if an injury is indeed significant and will likely cause the client pain and suffering and difficulties well into the future, why should the case be discounted in its value and a quick cash settlement secured?

Continue reading "Car Accident Cases And Quick Cash Settlements: A Bad Idea" »

Here in Atlanta we have had an extended break from work due to icy road conditions. Most of our lawyers have not been able to get into work so we have been watching some television during the day. What is fascinating is the number of lawyer ads on television particularly pitching for personal injury cases. What is troubling, however, is the pitch that many of the law firms promised to get “quick cash settlements” for car accident victims.

Our experience has indicated that only in small cases are quick cash settlements typically in the best interest of a client. If the injuries are small and the medical expenses are finite and medical treatment is terminated shortly after an accident, there is no problem with a quick settlement. However, in any case involving serious or more permanent injuries, it is rarely in the client’s interest to seek a quick cash settlement. The reason is because the value of the claim cannot be assessed until the client has reached maximum medical improvement and all medical bills, lost wages and other expenses attendant to the car accident have been evaluated.

There is not a file in our office that we could not settle quickly, but in order to do so we would have to essentially give the case away. Insurance companies are always willing to settle quickly, particularly if they can pay far less than the value of a claim. The way a client gets the full value for their claim in settlement is for their lawyer to aggressively prove its value through deposition testimony, expert testimony, videotaped medical testimony, life care plans, etc. By proving to defense counsel hired by the insurance company that the client’s claim is worth a significant amount of money, a greater settlement can be achieved for the client. The problem, however, is that it takes time to demonstrate such value and therefore a client with a real case with real injures must be patient.

Continue reading "Car Accidents And Quick Cash Settlements" »

We are often called by clients who have traveled through the Atlanta area only to be the unfortunate victim of a third party’s negligence. Calls usually come from those in car accidents or tractor-trailer collisions. Sometimes a slip and fall is involved or a defective product. These innocent persons sometimes are hospitalized following the incident in Georgia and then sent back to their home states for follow up treatment. When they reach out to an attorney the usually are being overwhelmed with medical bills, lost wages and similar issues. They often do not fully understand which law controls their case. The answer is fairly simple for most all states in this country. The law where the injury and accident occurred typically will control the claim.

Even if a traveler is coming from California to Georgia, as an example, and is injured in Georgia, once they return to California, the claim is still governed under Georgia law. Almost all states agree that the law of the place where the tort occurred should control the claim. Thus, the California resident typically will have no choice but to hire a Georgia lawyer since their claim will be covered under Georgia law. While there are a few exceptions to this rule (typically in cases where public policy issues are involved) innocent victims from other states who are injured while traveling should understand that their claims will almost always be governed by the law of the place where their injuries occurred and where the accident happened.

In any case where an out-of-state victim is involved, obviously, it will be imperative that such a client locate the right attorney for their case. A good place to start is the American Bar Association or American Bar Association approved referral services such as Attorney Search Network. These ABA approved agencies can assist clients traveling out-of-state in locating lawyers in the state where their injuries occurred so that they can receive competent representation.

Our firm has represented individuals from all over the country. We have represented foreign travelers, Canadian travelers, California, New York, Ohio, Michigan residents and many other out of state residents who have been injured in our state. We have also assisted Georgia clients who have been injured elsewhere typically by helping them find appropriate counsel for their case in the foreign state. In such an unfortunate situation where a victim of a tort has to rely on the laws of another state, they would also be wise in finding representation in the state where their claim arose.

It is not unusual for our firm to be contacted by family members who are bereaved over the death of a close family relative. Oftentimes the individual is killed through the negligence of a third party and the family member simply wants to understand the law that pertains to the claim. Sometimes, however, family members can get in an argument among themselves as to who has the right to pursue the claim for the wrongful death. While Georgia, like many states, has a statutory scheme which sets forth who has the right to bring such a claim, many lay people do not seem to understand that a wrongful death claim belongs to the heirs-at-law, at least here in Georgia.

If a brother should contact counsel seeking representation in a wrongful death case concerning the death of another brother, typically the lawyer will advise the bereaved brother that they have no such claim. In a case where the individual is unmarried and if their parents are alive, the parents have the claim. If the individual who is killed is married, the spouse has the claim. If the individual who is killed has no spouse but has children, the children would have the claim. If there is no relative, then under those limited circumstances, the victim’s estate would have the claim. It is only when there are no other heirs-at-law that someone like a brother, sister, cousin or other more distant relative might potentially be able to represent the estate in such a case. Here again, however, if the relative is appointed as representative of the estate, it will be their duty, if there is a recovery in such a case, to distribute the proceeds received from any settlement or judgment according to the law’s requirements for estates generally. Typically this follows the line of succession and depending upon the particulars involved, may or may not result in ond relative receiving the lion’s share of the proceeds as opposed to other living relatives.

In any case involving a wrongful death, experienced counsel should be consulted so that the identification of the proper claimant can be discussed early on in the case. Those relatives who would seek to retain counsel where they have no legal rights to do so typically will be unsuccessful as most lawyers are well aware of the law in this area. However, sometimes inexperienced lawyers will take claims where family members really have no claim to begin with. Because a wrongful death case is usually a very serious matter, it is all the more important that experienced counsel be retained to represent the interest of the appropriate heirs-at-law.

Unsafe dehumidifiers are the subject of a recall by the Consumer Product Safety Commission.

Approximately 198,000, GE and Professional Series brand dehumidifiers have been recalled due to a fire hazard.

These units were imported by GEA Products L.P., of Louisville, Ky., and CEM Global LLC (Professional Series) of China. They wee manufactured by GD Midea Air Conditioning Equipment Ltd., of China.

According to the CPSC, a component in the dehumidifier's compressor can short circuit, posing a fire hazard to consumers.

There have been 14 reports of incidents involving smoke and fumes emitting from the unit and eight reports of fires. In six of the reported fire incidents, property damage extended beyond the unit. No injuries have been reported.

Our Atlanta based attorneys recently concluded a case against another manufacturer of dehumidifiers in which a unit caught fire resulting in the death of a young child.

This recall involves 30-pint and 40-pint portable dehumidifiers manufactured between November 2006 and August 2007, and during April 2008. The dehumidifiers are white with a front-loading water bucket. "GE" or "Professional Series" and digital controls are located on top of the dehumidifier. Model and serial numbers are located on the back of the dehumidifiers. Model and serial numbers included in the recall are:

GE AHK30LK, AHW30LK, AHM30LK,
AHK40LK, AHH40LK, and AHM40LK VL1, ZL1, AM1, DM1, FM1,
GM1, HM1, LM1, MM1, RM1

CEM "Professional Series" PS78303 from C10102336010841 4100001
to C10102336010841 5103037

The units were sold at Walmart, Sam's Club, Home Depot, Menards and other retail stores nationwide from February 2007 through June 2009 for between $140 and $180.
Consumers should immediately stop using the recalled dehumidifiers and contact Midea to determine if their product is included in the recall. Consumers with recalled dehumidifiers will return their product to an authorized service center for a free repair.

The company can be contacted toll-free at (877) 593-8721 between 8 a.m. and 5 p.m. ET Monday through Friday.

In any serious injury case involving permanent or lifetime injuries, careful consideration should be given to whether a structured settlement should be part of any settlement of such a case. A structured settlement agreement is a device whereby if the overall lump sum amount can be agreed upon, a certain percentage of it can be set aside and invested in an annuity that will pay benefits over the victim’s lifetime, usually on a monthly basis. Such benefits are extremely important for people who are disabled because it provides them a safety net and allows them to pay rent and other necessary living expenses as they grow older. Particularly in those cases where a victim is incapacitated and unable to work, a structured settlement agreement can provide a lifetime of revenue for necessary living expenses.

One of the main advantages of a structured settlement agreement is that the benefits are not taxable. As an example, if someone were to settle a personal injury case for $500,000.00 and allocate $200,000.00 for a structured settlement annuity, any benefits generated from the structured settlement annuity would be non-taxable. However, if the settling individual were to receive the entire amount in cash and then invested a portion of the money and made the same monthly interest, taxes would have to be paid on the interest earned, assuming that there was enough income otherwise generated to be subject to taxation.

Continue reading "Structured Settlements In Serious Injury Cases " »

In a serious injury case the victim is usually overwhelmed with medical expenses, lost wages, terrible pain and suffering, and a total disruption in their personal, family and home life. If they are fortunate enough to have good counsel and they are fortunate enough to get a good settlement from the third party responsible for inflicting the injuries upon them, it will not be uncommon for such a victim to have to deal with a host of medical lien issues. The most common medical liens are Hospital liens whereby the hospital that provides the medical services obtains a lien on any settlement. If the victim does not have adequate health insurance or otherwise cannot pay the hospital bill, the bill will have to be paid out of the insurance proceeds. Sometimes if the party inflicting the injury has limited insurance coverage, the lien amount can swallow the entire settlement amount thus leaving the victim with nothing. Accordingly, if there is a hospital lien or other valid medical lien (doctors in Georgia can file medical liens for their bills as well) the victim in such a case should confer with experienced counsel to determine the best course of action.

In many cases where there are limited insurance benefits, counsel can work out a settlement with counsel for the hospital and the insurance carrier to work out some kind of pro-rata agreed split of the funds. If such agreements cannot be worked out and litigation ensues under Georgia law the hospital lien will typically take priority even over the victim’s personal injury pain and suffering claim. While this may be unjust, nonetheless, it typically the hospital lien takes priority over all other claims. Again, for these and other reasons it is vital that the victim of a personal injury serious injury case confer with experienced counsel to make sure that their rights are protected.

More than 20% of patients who received an implantable cardioverter-defibrillator -- a high-tech device that produces electrical impulses to regulate heartbeats and prevent life-threatening arrhythmias -- in recent years were not good candidates to receive the device, a new study suggests.

Researchers at Duke University looked at more than 111,000 patients who received ICD implants between 2006 and 2009. More than 25,000 of those patients did not meet evidence-based criteria for receiving the device, according to the study.

The risk of dying in the hospital was significantly higher for patients who received the ICD but did not meet the criteria, and 1 out of 121 patients in this category experienced complications following the implant, the study found.

According to the study published Tuesday in the Journal of the American Medical Assocaition,, ICDs often are recommended as a primary prevention tactic for patients who are at high risk for a cardiac arrest or life-threatening arrhythmia, but who have not yet suffered from these symptoms.

However, the Centers for Medicare and Medicaid Services, CMS, in the U.S. Department of Health and Human Services, has issued a "decision memo" stating that only people having certain serious heart conditions or cardiac histories are suitable candidates for ICDs.

The memo further states that patients must meet numerous other qualifications relating to clinical trials and not have certain serious diseases or conditions that would lower the implant's efficacy or the patient's likelihood of long-term survival.

Dr. Ralph Brindis, president of the American College of Cardiology, said in a statement that the Duke University findings will have "major implications."

Dr. Robert Michler, chairman of Cardiovascular and Thoracic Surgery at Montefiore-Einstein Heart Center, said the data should act as a "wake-up call" for physicians, surgeons and patients.

He says that in this case electophysiologists should be making the final determination if the patient needs the device.

These specialists have additional training in the diagnosis and treatment of abnormal heart rhythms and were less likely to implant an ICD in a patient who did not meet evidence-based criteria, the study found

The study’s authors reported that even with the current guidelines some patients may fall into a gray zone and that each physician needs to use clinical judgment to make recommendations.

According to the authors , deviating from the guideline are acceptable in various circumstances, but 20% is a significant amount of deviation.

The Food and Drug Administration is also concerned that hospital, med-center and emergency patients may be given the higher dose, as correctly labeled outer packaging is generally discarded.

Health care providers seeing only the mislabeled bottle would be very likely to give the wrong dose, especially since the two solution strengths are distilled in equal sized bottles. The .05 mg/3 ml bottles look just like the 2.5 mg./ 3 ml bottles. Only the strength differs.

Albuterol Sulfate Inhalation is sold in single use dosage bottles, in 25, 30 and 60 count unit dose packages. Recalled Albuterol was sold nationwide in the United States and in Puerto Rico.

Symptoms of over-dosing with Albuterol, known as albuterol toxicity, include headaches, nervousness, dizziness, seizures, high blood pressure, low potassium, angina and increased heart rates to 200 beats per minute.

Albuterol users and parents of children using an Albuterol nebulizer should return all Albuterol Sulfate Inhalation solution with product code numbers listed below to Ritedose.

The following lot numbers manufactured by The Ritedose Corporation under NDC: 0591-3797-83, 0591-3797-30, and 0591-3797-60 are included in the recall: 0N81, 0N82, 0N83, 0N84, 0NE7, 0NE8, 0NE9, 0NF0, 0P12, 0P13, 0P46, 0P47, 0PF0, and 0S15.

In car accidents, tractor-trailer accidents, medical malpractice or other serious injury cases, in the event a settlement is reached, there is always the possibility of a subrogation claim being asserted by a third party against the settlement proceeds. Subrogation claims are usually claims held by insurance carriers that have paid medical benefits. The victim who was injured by the negligent truck driver, for example, may have incurred hundreds of thousands in medical bills for expensive surgery. If a third party health insurance carrier pays these bills, the health insurance company will seek to get its money back out of any settlement fund. The victim wants the money for him or herself because they will need it for their lifetime due to the severity of their injuries. Moreover, the reason that they are entitled to the compensation because they are the ones that have experienced the pain and suffering and have had to go through the horrible ordeal of being so seriously injured. On the other hand, the healthcare provider contends that it is entitled to its portion of the money because it paid the money usually under a contract that may contain a right of reimbursement or an alleged right of subrogation.

In Georgia there is a “made whole” doctrine which basically states that unless the victim of a personal injury claim has been made whole for all of their economic and non-economic damages, there is no valid claim of subrogation by a third party health insurance carrier. This general rule is subject to multiple exceptions including cases where the alleged subrogation claimant is a federal ERISA plan which is self-funded. In cases where companies provide for ERISA self-funded insurance plans for their employees, there may be a valid lien under federal law for such a plan’s subrogation interests. Again, all of these cases are factually specific and it is necessary that any victim in such a case confer with experienced counsel. While every case is different, in virtually any serious injury or personal injury case, subrogation is something that will have to be considered by the victim and their counsel if and when a case is settled.

Each year, according to the most recent Centers for Disease Control and Prevention estimates, 48 million people, that is one in six Americans, are sickened by food-borne illnesses. Of those, 180,000 are hospitalized and 3,000 die.

The first major overhaul of the nation's food-safety infrastructure since 1938 was signed into law yesterday by President Obama.

The Food Safety Modernization Act moves the Food and Drug Administration (FDA) away from its early-20th-century role of responding to adulterated food to a more modern one of requiring companies to stop contamination before it happens by looking for the places where things can go wrong and fixing them.

It also allows the FDA to issue mandatory recalls and hire more food-safety inspectors.

The FDA oversees most of the nation's food supply, except for meat, poultry and processed eggs, which are the purview of the Department of Agriculture.

Much of the food industry had supported the new rules, saying they would raise the bar for the entire food industry in the words of a statement signed by 20 organizations, including the Grocery Manufacturers Association and the National Restaurant Association.

But, Georgia Congressman Jack Kingston, the incoming Republican chairman of the agriculture subcommittee of the Appropriations Committee has said he may not allow funding of the new system, thereby scuttling the entire program.

Republicans will control the House of Representatives when Congress reconvenes today.

Rep. Rosa DeLAuro, who most recently chaired the committee, called the new law "a significant step forward in modernizing our country's antiquated food-safety systems."

DeLauro, who first proposed food-safety legislation in 1999, noted the food system still makes people sick. At the same time as Kingston is questioning the money for the FDA's enhanced food-safety oversight, the FDA announced "that a salmonella outbreak involving alfalfa sprouts had sickened nearly 100 people in at least 15 states," she said.

Food safety isn't a partisan issue, said Carol Tucker-Foreman, with the Consumer Federation of America.

Electric adjustable beds have been singled out for causing serious injuries and death. Yesterday, the Food and Drug Administration issued a warning to Invacare Corp. for failing to report and address malfunctions with its electric beds, including electronics that allegedly caught on fire causing injury and death.

The FDA posted a warning letter to the Ohio-based company Tuesday morning. Invacare makes a variety of medical equipment, including wheelchairs, oxygen tanks and electric beds.

In its Dec. 15 warning letter, the FDA said the company has repeatedly failed to document and investigate recurring complaints with its adjustable beds.

According to the FDA letter, between April and July last year, Invacare Corp. received four complaints involving sparks or fires that were reportedly triggered by its beds.

One complaint alleged that an Invacare bariatric bed caught fire and two patients were taken to the hospital and treated for smoke inhalation and chest pain.

Another report describes a fire that started at the foot of a bed, causing a patient's death.

Other complaints involve patients getting stuck between the mattress and bed rail.

In one report the problem allegedly caused the death of an 11-year-old child.

This is not the first time the FDA has taken Invacare to task. According to the agency, Invacare Corp. failed to submit similar complaints reported in 2009.

The FDA also alleged that Invacare's customer service representatives have not been properly trained to document problems reported by customers.

FDA inspectors uncovered the problems during a routine inspection in August. Soon afterward, Invacare told the agency it would conduct a new analysis on the risks for patients becoming trapped in its beds.

But according to the FDA letter, Invacare representatives did not provided any evidence of implementation of this corrective action.

The agency calls on Invacare to report back on its plans for correcting the problems within 15 working days of receiving the letter.

The FDA regularly issues warning letters to companies that don't follow regulations for manufacturing and marketing drugs, medical devices and other products. The letters are not legally binding, but the FDA can take companies to court if they are ignored.

Anytime a serious injury case is settled for a particular amount of money, the insurance company for the at fault third party involved will insist on a Release of all claims, not only against their insured responsible for the damages but also for the insurance company issuing the check on their behalf. This is standard as part of any serious injury or personal injury case whereby monies are paid as consideration for a settlement. In all such cases, counsel should be conferred with because the provisions of a Release can be extremely important when it comes to third party claims, medical liens, subrogation and other similar matters.

In a typical Release, the party receiving the settlement funds has to agree to release the paying party and the insured from all other claims regardless of what happens after the date of the settlement. Again, this is a standard provision of any settlement. Once the case is settled, the claim is over no matter what happens thereafter. In exchange for the money, the party receiving the money must completely release the third party and their insurance carrier and if necessary file a dismissal of any lawsuit that has been filed. Usually Releases provide for indemnification agreements whereby the party receiving the money must indemnify or hold harmless, the parties paying the money from any liens filed by third parties such as hospitals, medical providers or other third parties who may have some interest in the matter. Again, all such provisions are standard in personal injury cases but in some cases, they become more important than in others particularly where there are alleged claims of subrogation which must be considered. We will address subrogation concerns in a separate blog. Suffice it to say, however, that Release agreements must be carefully reviewed with counsel to make sure that the client’s interests are adequately protected.