Georgia Injury Lawyer Blog

If a 28 year old male is killed and hypothetically he should have a 48 year life expectancy, when killed at age 28, the decedent has lost 46 years of his life according to the Annuity Mortality Tables of most states. Forty-eight years translates into 46 years times 365 days a year times 16 hours a day of consciousness (46x365x16=268,640 hours). Because we sleep for 8 hours a day, if one argues before a jury that the decedent would have consciously enjoyed life for 46 years times 365 days a year times 16 hours in a day this would result in the loss of 268,640 hours of life.

One way to approach a jury is to ask what would be fair compensation for the loss of human life. The average CEO in this country makes $10 million per year. Forty-six years of life is worth at least what a CEO makes in a single year and that’s an average CEO. Another way to look at it is to say to the jury that they should award what they consider to be fair compensation for the loss of life itself, the enjoyment of life, the relationships of life and things that will be lost forever, such as the relationship with a spouse, a child, professional pursuits, etc. Are such damages worth $20.00 an hour? If so, using the calculations above, the unit measurement approach for wrongful death damages, the full value of the life of the decedent would translate into 46 years x 365 days in a year x 16 hours of consciousness per day x $20.00 per hour for the loss of the life, which equals $5,372,800.00. Is this fair compensation for the loss of a life of a 28 year old male? Should it be double ($40.00/hr) or triple ($60.00/hr) this amount?

Under Georgia law, the measurement of damages is left to the enlightened consciousness of fair and impartial jurors seeking justice. A jury will have to decide what fair compensation is for the loss of human life based upon the educational background of the decedent, what they had to look forward to in their life and what they lost at the time of their wrongful death. This is a difficult calculation for any jury because translating the value of human life into dollars and cents is difficult at best even for the most fair and responsible juror. Nonetheless, it has to be done because there is no way to restore life to the decedent. All that we can do in our civil justice system is to provide a measure of compensation for that which was wrongfully taken.

As seen herein, the unit measurement approach can be used to instruct a jury on the different ways to look at the issue. Another unit measurement approach would be to simply assign a dollar amount per year of life. What is human life worth for an entire year? If an average CEO makes $10 million working, what is the value of the quality of any individual’s life per year? If a basketball player is paid $20 million to pay for two or three years in the NBA, what should a person’s life be worth for the 46 years of his entire life which was wrongfully taken from him? There are many analogies which can be used, but suffice it to say, arguing damages in a wrongful death case is always a challenge because it involves very complex issues based upon the unique circumstances of any given case.

As every individual is unique, so is the challenge faced by a trial attorney in trying to address a jury on the issue of the proper measurement of damages in the wrongful death case of any individual. All individuals are different. They come from different backgrounds and they are different ages, sexes, races, nationalities and religious beliefs. Whoever the unfortunate victim in a wrongful death case may be, the challenge is coming up with the best assessment of addressing damages when trying to obtain compensation for the loss of the full value of the life of the decedent. While all wrongful death cases involve the death of an innocent victim caused by the negligence of a third party, nonetheless, the measure of damages in all such cases is completely different depending upon the unique circumstances involved. As an example, there is a considerable difference in the measurement of damages of a young person verses an older person because the measurement for damages is the full value of the life of the decedent. Someone who has lived to 80 years of age and may only have a life expectancy of 5 years has a different loss than does a decedent who is only 20 years of age and loses 60 to 65 years of their life.

In Georgia there is a unique measurement used to establish the full value of the life of a decedent. The measurement is from the standpoint of the decedent, not the grieving family or heirs-at-law. What did the decedent lose when his life was prematurely cut short? Obviously, they lost the companionship of their loved ones, loss of their life interests, the loss of their relationships, the loss of their professional pursuits, etc. By definition, all such loses are unique to the particulars of the decedent.

In future blogs we will address how we go about trying to obtain fair compensation for the full value of a life of the decedent whether they be young or old, black or white, male of female. There are challenges when addressing the proper measurement of money damages in these cases because damages are arrived upon by a jury based upon their “enlightened consciousness” as to what fair compensation would be for the full value of the life of the decedent. There are many different approaches to discuss monetary damages which we will review in future entries on this subject.

According to a recently released report authored by the Centers for Disease Control and Prevention, car accident cases and wrongful deaths cost the State of Georgia approximately $1.5 billion in the calendar year 2005. Regrettably, this is the most recent data which as been collated and studied. Nationwide, car accident related deaths cost approximately $41 billion. Georgia ranked number 4 among 10 other states with the highest medical and work lost costs associated with preventable deaths caused by motor vehicle collisions.

Obviously, much can be done to reduce the costs associated with these tragedies. The CDC’s Injury Center has made numerous recommendations primarily based upon restraint systems, seat belt laws and universal motorcycle helmet requirements. The greater the safety emphasis, the less the costs involved according to the CDC which is why the CDC has decided to launch its first ever Decade of Action for Road Safety. This program is designed to heighten awareness and to implement safety regulations and procedures that will reduce the number of preventable deaths across this Country.

We see in our office everyday the tragic outcomes of wrongful death cases. Life is quite frail and can be taken at any moment at any time in a variety of circumstances. Clients that come to us typically have lost a loved one due to the negligence of a third party in a car wreck case where the offending motorist ran a stop sign, was speeding, crossed the center line, was driving drunk or otherwise. Life can be lost in car crash cases in different ways but typically the at fault driver has violated a Uniform Rule of the road and it is the violation of a safety law which resulted in the loss of innocent life.

We applaud the CDC for its study and can only hope that its Decade of Action for Road Safety will be implemented not only by the State of Georgia but all other states across this country.

U.S. Department of Transportation recently released figures revealing that the number and rate of traffic fatalities in 2010 fell to the lowest levels since 1949, despite a significant increase in the number of miles Americans drove during the year.

This decrease is below the record drop reported in 2009.

In a press release U.S. Transportation Secretary Ray LaHood, stated "Last year's drop in traffic fatalities is welcome news and it proves that we can make a difference." He said "Still, too many of our friends and neighbors are killed in preventable roadway tragedies every day. We will continue doing everything possible to make cars safer, increase seat belt use, put a stop to drunk driving and distracted driving and encourage drivers to put safety first."

According to the National Highway Traffic Safety Administration's (NHTSA) early projections, the number of traffic fatalities fell three percent between 2009 and 2010, from 33,808 to 32,788. Since 2005, fatalities have dropped 25 percent, from a total of 43,510 fatalities in 2005.

The same estimates also project that the fatality rate will be the lowest recorded since 1949, with 1.09 fatalities per 100 million vehicle miles traveled, down from the 1.13 fatality rate for 2009. The decrease in fatalities for 2010 occurred despite an estimated increase of nearly 21 billion miles in U.S. vehicle miles traveled.

A regional breakdown showed the greatest drop in fatalities occurred in the Pacific Northwest states of Washington, Oregon, Idaho, Montana and Alaska, where they dropped by 12 percent. Arizona, California and Hawaii had the next steepest decline, nearly 11 percent.

The Department of Transportation (DOT) has taken a comprehensive approach to reducing roadway fatalities by promoting strong traffic safety laws coupled with high-visibility enforcement and through rigorous vehicle safety programs and public awareness campaigns.

In 2009, the U.S. DOT launched a highly visible national anti-distracted driving campaign modeled on other successful NHTSA efforts to reduce fatalities, such as its "Over the Limit. Under Arrest." and "Click It Or Ticket" campaigns to curb drunk driving and increase seat belt use.

The U.S. DOT has launched a dedicated website, Distraction.gov, to provide the public with a comprehensive source of information on distracted driving. DOT has also hosted two national summits devoted to the issue, crafted sample legislation which states can use to adopt distracted driving laws, and initiated pilot law enforcement programs in Hartford, Conn., and Syracuse, N.Y.

NHTSA has also taken action to improve vehicle safety. The agency has urged automakers to swiftly and voluntarily report safety defects to keep the driving public safe. NHTSA has also encouraged the development and use of technologies to prevent crashes, such as electronic stability control, forward collision warning and lane departure warning systems.

NHTSA also crafted an updated 5-star rating system in 2010, which established more rigorous crash-test standards and began providing consumers with improved information about which cars perform best in collisions.

Elderly nursing home patients have been routinely receiving costly antipsychotic drugs which increase their risk of death and are not approved for their treatment.

According to a report from the Health and Human Services Department’s inspector general, 88 percent of the antipsychotic drugs administered in nursing homes were prescribed for uses that the Food and Drug Administration hasn’t approved.

Nearly one in seven elderly nursing home residents, nearly all of them with dementia, are given powerful atypical antipsychotic drugs even though the medicines increase the risks of death and are not approved for such treatments, the government audit found.

More than half of the antipsychotics paid for by the federal Medicare program in the first half of 2007 were “erroneous,” the study found, costing the program $116 million for those six months.

Sens. Chuck Grassley (R-Iowa) and Herb Kohl (D-Wis.) want Medicare to explain why it wrongly paid millions of dollars in claims for drugs that were given to seniors for these unapproved uses.

Medicare provides coverage for some unapproved uses, but the senators suggested that the report’s findings might indicate a flawed decision-making system.

The Medicare agency said in its response to the inspector general’s report that it should have denied more than half the claims it paid for the use of antipsychotics in nursing homes.

The inspector general of the Department of Health and Human Services went so far as to state that “government, taxpayers, nursing home residents as well as their families and caregivers should be outraged and seek solutions.”

According to the audit, some of the drugs such as Risperdal, Zyprexa, Seroquel, Abilify and Geodon are potentially lethal to many of the patients getting them and that some drug manufacturers illegally marketed their medicines for these uses.

In response to the audit, the Centers for Medicare and Medicaid Services said that some of the inappropriate use of antipsychotics in elderly nursing home patients is a result of drug makers’ paying kickbacks to nursing homes to increase prescriptions for the medicines.

Omnicare Inc., a pharmacy chain for nursing homes, paid $98 million in November 2009 to settle accusations that it received kickbacks from Johnson & Johnson and other drug makers for antipsychotic prescriptions.

The government auditors found that of the 2.1 million elderly patients in nursing homes during the first six months of 2007, 304,983 had at least one Medicare claim for an antipsychotic medicine. Nursing home residents received 20 percent of the 8.5 million claims for antipsychotic medicines for all Medicare beneficiaries at a cost of $309 million during those six months.

Federal rules require that any drugs that are paid for by the government be given only for uses that are approved either by the government or one of three independent drug usage encyclopedias. Auditors found that 51 percent, or 726,000 of 1.4 million claims, for antipsychotic medicines did not meet this criterion and were thus paid for by the government improperly.

Georgia Governor Nathan Deal has signed a new law requiring all children under the age of 7 to be placed in booster seats unless they are over 40 pounds in weight and/or stand more than 4 feet 9 inches tall. The new law will go into effect this coming January to give parents time to purchase booster seats if needed. The reason for the new law: Protection of our children. Authorities have tracked injuries to children over the last five years and have determined that the vast majority of children injured in car accidents were injured because they were not properly restrained. In short, children were receiving preventable injuries and hopefully this law will assist in decreasing those numbers.

Until the passage of this law, children under the age of six had to be placed in a booster seat. Again, statistical evidence showed that children between the ages of 6 and 7 needed the same protection and thus the new law is designed to provide that for them. Even if a parent uses a booster seat, it is important that a proper product be utilized because failure to use a good product can still result in injury. Indeed, there are many product liability cases that have been filed over the years against the manufacturers of children’s restrain systems as well as restraint systems in automobiles utilized for adults. The mere fact that a restraint system is used will not guarantee that someone will not sustain injuries. This new law hopefully will dramatically increase the chances of child safety and decrease the chances of preventable injuries.

In a novel, yet sensible approach designed to reduce medical errors, increase the quality of care, and reduce costs, the Obama administration issued a final regulation to reward hospitals that provide high-quality care. This step is the first in a series of planned steps that are designed to fundamentally transform the way that the federal government pays for healthcare.

Under the initiative, one of several authorized in the new healthcare law the president signed last year, Medicare will pay more to institutions that score well on a series of measures that gauge patient care and pay less to those that don't meet quality benchmarks.

Though commonplaces in many industries, setting quality benchmarks and tying them to compensation will be new for many of the nation's hospitals. It is a strategy that Medicare has never used before on a systematic basis.

But many experts and consumer advocates said Friday that they saw these kinds of quality initiatives as crucial not only to improving medical care but also to controlling costs.

Hospitals that fall short of the new benchmarks could lose as much as 1% of what Medicare would pay them in 2013.

That's a relatively smallt penalty for an industry that receives more than $150 billion a year from Medicare, but the stakes could become significant as more quality initiatives are implemented.

Medicare provides insurance to nearly 50 million elderly and disabled Americans, paying for 12.4 million hospitalizations in 2009, according to the Centers for Medicare and Medicaid Services.

One recent study published in the journal Health Affairs estimated that 1 in 3 hospital patients experienced an "adverse event" such as being given the wrong medication, acquiring an infection or receiving the wrong surgical procedure.

The Obama administration sees improving quality as the best strategy for saving cash-strapped public healthcare programs like Medicare and Medicaid rather than requiring beneficiaries to pay more for their care.

In the first year, hospitals will be graded on 12 process measures, which track things like how quickly heart attack victims are given anti-clotting medicines and how quickly surgical patients receive antibiotics after surgery to cut down on infections

In 2014, the Obama administration plans to expand the report card to include outcome measures, including mortality rates for patients after they leave the hospital and the prevalence of hospital-acquired conditions such as infections and bedsores.

Institutions with high rates of hospital-acquired conditions, as well as those with high readmission rates, stand to be penalized a second time because of another quality initiative still under development.

Some hospital officials have criticized the imposition of two penalties for hospital-acquired conditions. The American Hospital Association raised concerns about relying too heavily on surveys of patient opinion, which they said could penalize hospitals that care for sicker patients.

Children can and do unbuckle seatbelts in car seats exposing themselves to extreme dangers.

A new study finds that children often unbuckle the seatbelts on their own, putting themselves at risk in a car accident.

A team of researchers at the department of pediatrics at Yale School of Medicine, surveyed 378 parents and found that just over half reported that at least one of their children had managed to unbuckle a seatbelt in a car seat at some point.

Of the children who unbuckled their seatbelts, 75 percent were aged 3 or younger; some were as old as 78 months, or over six years. Some unbuckled their seatbelts as young as 12 months. Boys were more likely to do so than girls (59 percent vs. 42 percent).

More than 40 percent of the children who unbuckled their seatbelts did so while the car was moving, increasing the risk of serious injury by 3.5-fold. The most common response that parents reported was pulling the car over, reprimanding the child and rebuckling the car seat.

Car accidents are the leading cause of death in kids aged 4-8. All parents should be aware of this potentially deadly situation.

Women under 50 who follow the advice of a U.S. panel to forgo annual mammograms may be at risk for more severe forms of breast cancer

Three recent studies led by radiologists suggest that failing to get regular breast screenings left women more likely to discover cancer at an advanced stage. The delay resulted in larger tumors and a worse prognosis once the cancer was uncovered, the data found.

The U.S. Preventative Services Task Force said in 2009 that most women ages 40 to 49 do not need mammograms, recommending the screening for those with a disease history or who had a greater risk due to another factor.

The American Cancer Society disputed the advice, and insurers still cover annual screenings.

However, a study in Colorado suggests 62 percent of doctors changed their advice to match the U.S. guideline and 16 percent fewer women got the test.

The three studies were presented at separate medical meetings held recently by the American Society of Breast Surgeons in Washington D.C., and the American Roentgen Ray Society in Chicago.

Breast cancer killed an estimated 40,000 women last year and is the second leading cause of death among women, exceeded only by lung cancer. The American Cancer Society estimated that about 207,090 new cases of invasive breast cancer were diagnosed in 2010.

In issuing its recommendations, the federal task force said women in their 40s are more likely to get false-positive tests that lead to unnecessary biopsies and anxiety than to discover cancer through a mammogram.

The guideline was challenged by the cancer society, which urged doctors to advise women of that age to continue routine annual screenings.

The independent task force under the U.S. Agency for Healthcare Research and Quality, was first formed in the 1980s to give advice on screening, counseling and preventive medicines based on an assessment of scientific

Academic and practicing doctors and nurses make up the group. They have published guidelines on more than 100 topics and are reviewing 30 more, involving cervical cancer tests, dementia and glaucoma screening and the use of electrocardiographs for detection of coronary heart disease.

One of the studies analyzed breast cancer cases in women younger than 50 from 1998 to 2008. The study showed that 94 percent of the women ages 40 to 49 diagnosed through a mammogram were considered disease free after five years compared with 78 percent of those who didn’t receive the screening exams.

Another study studied biopsy results from Jan. 1, 2008, to Dec. 31, 2009. Seventy-one of 108 diagnosed breast cancer cases were detected by a mammogram and 37 resulted from discovery of a lump or other symptom. Twenty-two cases were non-invasive cancer in the tested group compared with one among those who were not.

None of the cancers in the mammogram group had progressed to latest stage form of the disease compared with 17 among those who weren’t screened.
More than half of the women who had a mammogram showed no evidence of cancer in their lymph nodes compared with 39 percent in the group that hadn’t been screened, The study also showed the size of the tumors to be on average smaller among the women whose cancer was discovered in a mammogram.

Infections are now the number one cause of deaths in nursing homes, causing nearly 400,000 deaths annually.

A study published in the May issue of The America Journal of Infection Control reports that 15% of American nursing homes each year receive deficiency citations for infection control.

The study, conducted by researchers at the University of Pittsburgh's Graduate School of Public Health, looked at deficiency data collected from about 16,000 nursing homes per year between 2000 to 2007 as part of Medicare/Medicaid certification.

The researchers reported that there appeared to be a strong correlation between low staffing levels at nursing homes and infection control deficiency citations.

A major cause of these infection rates is Clostridium difficile infection (CDI, also known as C. diff), particularly if the residents are elderly and taking antibiotics for another infection. CDI is an infection that causes diarrhea and more serious intestinal conditions It can even be fatal. CDI is most commonly seen in nursing home residents and hospital patients.

Clostridium difficile bacteria are found in the feces of an infected person. Other people can become infected if they touch items or surfaces that are contaminated with the bacteria and then touch their mouth.

CDI can be treated by a healthcare provider with a 10-day course of antibiotics that specifically treats CDI. More serious cases of CDI may require hospitalization or surgery.

CDI can be prevented by washing hands with soap and warm water. Patients in hospitals and residents in nursing homes should wash their hands very often and try to avoid touching surfaces, especially in bathrooms.

This simple preventative measure can prevent pain, suffering and even death among nursing home residents.

Preventable medical errors kill thousands of Americans every year.

A recent study found that nearly one out of three hospital patients is harmed by the care they receive. The Institute of Medicine, an independent nonprofit organization within the National Academy of Sciences which works to provide unbiased advice to decision makers within the medical community, estimates that as many as 100,000 Americans die each year from preventable medical errors in hospitals. This is approximately the same number of annual deaths caused by auto accidents, AIDS, and breast cancer combined.

In the United States which has the world's most skilled doctors and nurses and the finest hospitals, this statistic is unacceptable. These mistakes don't just cause pain and anguish, but also add to skyrocketing health insurance bills for families, businesses, and government.

The Obama administration has begun partnering with health care systems and hospitals in an effort to reduce these costly often caused by fragmented delivery of care, missing data, and poor communication between providers.

In one example, the Seton Family of Hospitals in Texas has reduced serious complications during birth by 93 percent over the last decade by following best practices. And by making sure one group of asthma patients consistently gets the right follow-up care and appropriate preventive treatment, Seton reduced those patients' emergency room visits by 37 percent and hospital stays by 63 percent.

This collaborative program between government and the health care industry is the Partnership for Patients. The Obama administration has joined with more than 1,200 other hospitals nationwide, along with hundreds of employers, health insurers, provider organizations, and patient advocates, to launch the unprecedented alliance that will promote innovations to improve hospital care and reduce wasteful spending.

The goals are ambitious -- to reduce preventable injuries in hospitals by 40 percent and cut readmissions by 20 percent. Achieving these goals would save 60,000 lives and protect more than 1.6 million patients from complications that would put them back in the hospital.

Reducing preventable errors and unnecessary hospital readmissions would also save at least $50 billion over 10 years in Medicare costs alone. At a time when Medicare costs are expected to rise 91 percent over the next decade, this is a significant step in cost reduction.

When an employee is injured on a job site, particularly on a construction job site, unfortunately the injuries sustained can be serious. Heavy equipment is typically involved on large commercial construction projects and it is not unusual for construction workers on large construction projects to be exposed to a variety of different dangers during the work day. If an employee is injured on the job, under our Workers’ Compensation laws, the claim will primarily have to be brought against the employer’s workers’ compensation insurance carrier which, of course, will restrict the employee’s rights to payment of medical expenses and limited lost wages, however, when the negligence of a non-employer/third party is involved, it is sometimes possible to obtain a liability judgment against the responsible third party.

A case that comes to mind which we handled involved a forklift owned by a third party which injured an employee who was on the job working for his employer. The driver of the forklift worked for a different company and when he ran over our client unfortunately the client’s leg had to be amputated. This case involved not only workers’ compensation benefits but also a third party liability claim against the at fault forklift driver and his employer. Although Motions to Dismiss were filed based on alleged employer immunity, the Court denied those motions and held that where there was evidence of the negligence of a third party, the injured employee of another company (our client) could proceed with his liability claim. Shortly after that ruling was obtained, we obtained an excellent settlement for our client.

In those cases where an employee is injured on the job and sustains a serious or permanent personal injury, the case must be carefully reviewed to see if there is the availability of a potential third party claim. Victims of negligence deserve to be compensated and if third party negligence injures an innocent employee at a construction site or otherwise, then that third party should bear the liability for the damages inflicted on the innocent victim.

Two years ago at our law firm, I received a phone call I could not believe--another episode of sexual abuse of a a young child, entrusted to the care of a prominent day care center.

The child's mother said her lawyer did not know what to do to help her. She was told to call our law firm because we had successfully helped other families whose children had been molested in child care or after school programs.

What shocked me was that her child was molested (by an older child) in the very same "after school care" room of the same day care center that had allowed another client's first grade child to be molested. Different staff, different manager, but same result. It was another in a series of case our lawyers have handled involving sexual assault and sexual abuse.

These are disturbing cases, but fortunately we had identified knowledgeable and experienced experts to advise our clients on what treatment their little ones need to begin to heal. A courageous young teacher told the truth about how the center regularly left him "over ratio," with too many children to supervise. The center also had failed to warn its young staff that children in its facilities had been known to sexually abuse other children.

We built a strong case, and the center's insurance carrier paid our clients too much to go to trial. I hate that it happened to yet another child, but am very happy for the family that their child will have the treatment needed.

Continue reading "Sex Abuse in Child Care and Day Care Centers: Obtaining Justice for Victims of Sexual Molestation" »