Georgia Injury Lawyer Blog

Dangerous nurses and healthcare providers may be practicing throughout Georgia. In 1987, Congress ordered federal health officials to create a database of state disciplinary actions against nurses and other health professionals. This database includes the names of those who, among other things, have been found to have committed physical, mental and sexual abuse of patients.

While each state is required to maintain a database, no nationally available database has ben created. When a hospital or temporary agency wants to hire a nurse, there's no easy way to check whether the person has abused a patient or engaged in dangerous conduct elsewhere in the country.

This information was supposed to be added to a database of similar information about doctors which was made available to hospitals and other eligible health employers in 1990. But this has not happened.

As it stands now, only federal and state agencies and health plans, such as HMOs, are allowed access to the information about nurses. Incredibly, hospitals and nursing homes cannot access this critical data.

The federal government has announced that this information should be available on a nationwide basis to hospitals and other health facilities within a year. There is one major obstacle. Many hospitals and healthcare facilities rely on temporary agencies for nursing and other employees. Under the law, temporary agencies would be allowed to search a nurse's background only if they were designated as agents of particular hospitals or other facility. It is anticipated that these institutions will be unwilling to designate multiple staffing firms as their agents.

Unfortunately, while these problems are being debated by government officials, many innocent patients may become victims of dangerous perpetrators whose proclivities are known to the government, but unavailable to the very institutions which hire them and place them in positions of trust. This is an outrageous situation which must be corrected immediately. One can only hope that the government officials charged with this duty will take it seriously and proceed with the greatest of speed.

This past week, the Georgia Supreme Court issued a ruling that was favorable to victims of crime who have civil tort claims arising out of the criminal acts perpetrated against them. The Supreme Court held that the statute of limitations is tolled for victims of crime for any claims arising out of the criminal acts perpetrated against them until such time as the criminal prosecution of the perpetrator is terminated. See Beneke v. Parker, ___ Ga. ___ No. S08G2078, (2009).

What is interesting about this new Supreme Court opinion is that our law firm had written an article about the Victim’s Right Statute enacted by the Legislature and codified in O.C.G.A. § 9-3-99 over one year before this opinion was rendered. In this article which was published in the Georgia Trial Lawyers magazine “The Verdict”, our firm had presaged this opinion by stating that it was likely that the statute might protect victims of traffic crimes by tolling the statute of limitations in their cases. It was pointed out to members of Bar that if they had a case where there client had been victimized by a traffic violations they might be able to circumvent the statute of limitations by relying on the new statute. We specifically pointed out in our article that the Victim’s Crime Act could be used in cases where there were violations of criminal laws as pertains to the operation of a motor vehicle.

The lawyer in the Beneke case read our article and used our arguments to win this case for his client. In the Beneke v. Parker case, the Supreme Court held that the plain language of O.C.G.A. § 9-3-99 encompasses a violation of the Uniform Rules of the Road. The Court wrote to impose a more stringent definition of “crime” within the context of the statute would render superfluous its language that “the statute of limitation is tolled from the date of the alleged crime or “the act” giving rise to such action in tort” until the prosecution or other termination of such crime or “act.” In short, even a traffic violation which results in criminal charges being filed against the perpetrator can be used under this new statute to toll the statute of limitations for the victim of the crime until such time as the criminal perpetrator’s case has been disposed of in the criminal system.

To see a copy of our article, please hit the link provided for further detail on the possible impact this new statute may have on you or a member of your family if you are a victim of a crime.

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Many employment lawyers are confronted with hostile environment claims where managers exploit their positions to seek sexual favors from employees working underneath them. Such an employment case obviously involves sexual harassment but is entirely different and generally far less devastating to a victim when a sexual predator is hired by an employer and is allowed to gain access to vulnerable victims through their jobs. As an example, if a mental health facility hires someone unsuitable for a position and that person takes sexual advantage of a mentally ill patient, it can readily be seen that such an occurrence could be extremely devastating to the victim and his or her family. The question is how to best deal with such a situation from a legal standpoint when such a case is brought to the attention of an attorney.

Here at Finch McCranie we have seen many unfortunate cases where patients have been raped and sodomized at health care facilities. We have had cases where patients have been raped by other patients who were not properly supervised and/or situations where patients were raped by employees of the staff of the health care provider. In the latter situation, one of the best legal remedies available to the innocent victim is to file a claim against the employer for negligent hiring and retention of the sexual predator/employee.

An employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known poses a risk of harm to others where it is reasonably foreseeable from the employee’s “tendencies” or “propensities” that the employee could cause the type of harm sustained by the victim. Thus, if an employer knew or in the exercise of ordinary care should have known that an employee hired and retained to perform duties involving personal contact with medicated or vulnerable patients was unsuitable for that position because he or she posed a reasonably foreseeable risk of personal harm to patients then, in that event, the employer can be held legally liable for having negligently hired and retained the unsuitable employee.

Sexual predators are criminals and because they are criminals and predators they can be very devious. By embedding themselves in jobs where they can gain access to helpless and vulnerable victims, the predators are more likely to be able to commit their heinous crimes without being detected and/or apprehended. Many times the victims cannot even identify their assailants. In other situations, the employee merely has to deny that the crime occurred and point out that the victim is mentally ill and/or heavily medicated and/or otherwise unreliable as a witness. Thus, these predators should never be given access to the most vulnerable amongst us and yet if an employer does not conduct a proper background check, such predators can be given unlimited access to an unlimited number of unsuspecting victims.

Any family that becomes aware that a helpless loved one has been sexually assaulted at a mental health facility, nursing home, assisted living facility or hospital should consider exploring whether the employee predator was negligently hired or retained by a negligent employer. If the predator is prosecuted and goes to jail, they are not going to have any assets to provide for compensation to what the victim is forced to endure. Oftentimes, medical expenses are incurred, counseling expenses are needed and other damages are imposed upon the victim and yet there is no available relief from the predator. In such a context, the law has long been that an employer is legally responsible for the acts of the employee if it should have reasonably been foreseen that the offending employee could pose a risk of harm to those entrusted to their care.

Over the years, our lawyers have handled many different cases involving serious injuries to children. These injuries arise in a myriad of contexts and are oftentimes heartbreaking. Over the years, we have had serious burn injury cases, dog bite cases,unsafe premises, sexual abuse cases, car accidents, medical malpractice cases, drowning accidents, playground injuries,unsafe consumer products, school injuries and the like, all involving young children. Some of these cases have resulted in wrongful deaths, comas, paralysis, burns and amputations. Presently, we are handling injuries to children involving negligence by daycare providers and owners of dogs who have allowed them to wander free of restraint and attack innocent children. Depending upon the severity of injuries sustained, these cases can affect the injured child permanently and the emotional, physical and psychic trauma can require very close attention to the needs of the young child. There may be permanent scarring involved; there may be the need for future treatment or medical surgery and there may be a diminution in the individual’s ability to earn and labor in the future and support themselves. While every case is unique, representing an injured child in a serious injury case is an undertaking that requires care and attention and an analysis of whether the injuries sustained will affect the child for the balance of their life. If so, obviously, greater attention to detail is needed than would otherwise be the case.

All cases involving children which result in a settlement or verdict have to be reviewed by the Probate Court system here in Georgia. The money from a settlement belongs to the child, not to the parents. While the parents are entitled to be reimbursed for any medical and out of pocket expenses that they incur, any other portion of the settlement must be placed in an interest bearing account set up for the lifetime benefit of the child. Such a fund must be held in trust until the child turns 18 but can be used for educational, medical or other needs of the child before they turn 18, however, such use is subject to Probate Court approval and supervision. Many Probate Courts take the position that the parents have to provide for the child until they reach the age of majority and therefore many courts will not allow parents to encroach upon any settlement funds as a way of discharging their own responsibilities. However, in certain cases, where the needs of the child are great, funds set aside for medical treatment and educational needs can be used, again subject to Probate Court supervision and approval.

When a child playing in the street darts in front of a car chasing a ball, and is seriously injured, the question arises, of course, whether there is any negligence claim at all against a third party. Many times children are killed or injured because of a lack of proper supervision by their parents and/or because of the child’s own negligence. Oftentimes, however, serious injuries to children occur which are entirely preventable and are caused by the negligence of third parties. We see this in the context of dog bite cases, automobile wrecks, daycare injuries, drowning accidents and the otherother similar cases referenced. Regardless of the circumstances involved which lead to the injury, care must be taken to make sure that the child that is properly represented and that the child’s needs are met. Our experienced serious injury lawyers share the common goal of properly representing injured children and assisting their families in obtaining the justice and compensation they require. If your child has been injured as a result of preventable accident caused by the negligence of a third party, call us today at 1-800-228-9159.

In addition to representing victims of trucking accidents and automobile accidents, the Georgia injury lawyers at Finch McCranie, LLP also represent victims of nursing home abuse and nursing home neglect. including patients who have sustained decubitus ulcers (bed sores), falls and brutality in nursing homes. Consequently we have seen, first-hand, how victims of nursing home abuse or neglect suffer when those facilities don’t adequately take care of the people for which they are paid to care. It has been our experience that the owners of nursing homes under-staff these facilities and under pay many of the employees who actually do the hard work of caring for elderly and disabled people.

This week I read about the efforts of a Republican state representative in Tennessee who had the gall to propose to the Tennessee House of Representatives that they pass legislation placing caps on damages in lawsuits against nursing homes. Fortunately for the citizens of Tennessee, the proposal failed in a House subcommittee. What a politician will not do to try to get votes or protect the interest of big business never fails to surprise us. One can hardly imagine what the state of care would be for elderly and disabled people in nursing homes if it we not for the fear of a large damage award to keep them in line. In the last few month, the citizens of this country have all witnessed what happens when unregulated big business runs wild with no regulation or oversight. The old saying, “It’s always all about the money” is a true statement. The only way to hold business accountable for their negligence is for there to be financial consequences for their conduct.

P.S. The proposal was denounced as the “Kill Old People Cheap Act” by a Democrat representative who voted against the bill!

The Georgia injury lawyers at Finch McCranie, LLP have represented, and continue to represent, victims of day care child abuse. The statistics on physical child abuse are alarming. It is estimated that hundreds of thousands of children are physically abused each year by a parent or close relative; however, abusers include daycare workers, healthcare providers, mental healthcare workers and others who care for children on a daily basis. We currently represent a young victim who was abused while a patient in the psychiatric ward of a Georgia hospital and a young victim of a sexual assault that occurred while a patient in an Atlanta brain injury rehabilitation facility. Just last week the Atlanta Journal-Constitution reported on a case where children were abused by a staff member at a Kennesaw day care center. According to the article, an investigation revealed that other employees of the day care center knew the abuse was happening! Although physical abuse is perhaps the most common form of abuse, it is not the only kind of child abuse. Many children are victims of neglect, or sexual abuse, or emotional abuse. In 2005, 899,000 children in the U.S. were victims of child abuse, neglect and maltreatment: 90% suffered neglect, 3.6 suffered medical neglect, 13% were physically abused, 4% were sexually abused and 1% were psychologically mistreated. Children who have been abused may display:

a poor self image
sexual acting out
inability to trust or love others
aggressive, disruptive, and sometimes illegal behavior
anger and rage
self destructive or self abusive behavior, suicidal thoughts
passive or withdrawn behavior
fear of entering into new relationships or activities
anxiety and fears
school problems or failure
feelings of sadness or other symptoms of depression
flashbacks, nightmares
drug and alcohol abuse

If you discover that your loved one or someone that you know has been abused at a day care center, hospital or by any professional who is charged with the responsibility of taking care of such person, call the Georgia injury lawyers at Finch McCranie, LLP. We have been holding abusers responsible and accountable for their conduct for many years.

The lawyers at Finch McCranie, LLP have seen many different types of injuries result from being in various nursing homes. Some injuries are the result of being assaulted by nursing home staff or other patients and others are the result of nursing home neglect. Recently the family of a man who died four years ago at a Georgia nursing home was awarded $1.25 million after the jury found that the nursing home’s neglect was responsible for his wrongful death. Tucker Nursing Center allegedly provided inadequate care to the man when he was admitted in 2002. Nine months later, he had to be hospitalized for a bed sore that infected his left buttock to the bone, according to his attorney, and ultimately put him in a death spiral. He died in June of 2004.

Elderly people are entitled to basic safety, respect and dignity. If you are someone you love is a victim of elder abuse or nursing home abuse, you have the right to hold the abuser responsible in Court. Finch McCranie, LLP has represented injured Georgians in nursing home law suits and other personal injury suits for over 40 years. For a free consultation, call our Atlanta Office today at 1-800-228-9159.

Our lawyers are often times confronted with cases where the clients complain of intentional torts committed against them. For example, we have had clients that have come in swearing that the driver that hit them did so on purpose because of some longstanding feud or vendetta. Unfortunately, if someone acts intentionally to cause harm, their insurance policy will typically provide no coverage for them. Insurance coverage is purchased to protect against negligent acts and omissions which give rise to liability to third parties. If someone intends to cause harm, there is no insurance for such actions. Thus, when a client comes in complaining of an intentional tort, whether it be an aggravated assault and battery, a rape or other intentional act committed by a third party directly against them, often times we have to discuss with the client whether there are any other assets sufficient to justify bring a lawsuit against the perpetrator because we know in advance that in such situations, typically insurance coverage will not apply.

Of course, many times there is third party liability insurance coverage available to satisfy the claims of victims of intentional torts. For example, if a rapist breaks in an apartment and rapes a young lady and it turns out that the management of the apartment complex was aware that the rapist had attacked other patrons, failed to implement security measures and failed to provide adequate security for the apartment itself, the landlord can be sued for its own negligence, even though the landlord did not intentionally cause the tort. The rapist, however, would have no insurance coverage for his actions, but if he was independently wealthy or otherwise had property, he could still be successfully sued and a judgment against his personal assets collected. The distinction, of course, is the difference between the acts which give rise to liability. One is predicated on a negligence theory whereas the other is predicated on an intentional tort being committed by the perpetrator.

In cases involving aggravated assault such as a fight where someone is hospitalized, if the perpetrator of the assault has assets, we can help the innocent victim of such an assault and obtain compensation for their injuries. The same is true of victims of sexual assault committed by a family member where, for example, a rich uncle sexually abuses a niece. We have seen cases where oftentimes it is necessary to go after the personal assets of criminals who commit intentional torts against third parties. The point we address in this article, however, is the dilemma caused by intentional behavior insofar as it impacts available insurance coverage which would otherwise provide coverage for the incident.

Even though insurance coverage is not available to cover intentional acts, specifically committed by the perpetrator with intent to cause harm, nonetheless, there are some legal advantages in an intentional tort case. For example, unlike a negligence claim, in an intentional tort case, the victim can be awarded not only their damages which includes all economic and non-economic damages, but also attorneys fees and punitive damages to punish the wrong doer. This is different from a negligence claim where attorney fees cannot be collected, nor punitive damages, unless there is also evidence of other willful and wanton misconduct.

Of course, each case is unique, but in analyzing what will best protect the innocent client’s interest, we always have to look at whether there are assets sufficient to compensate our client for the injuries they sustained. Many times, we can pursue an intentional tort theory and recover attorneys fees and punitive damages, but in other cases, if pursuing such a theory would result in no recovery for our client, we have to consider whether there is a negligence claim present that may allow us to protect our client’s interest by obtaining available insurance coverage. These cases can be tricky which is why it is always important for the client to retain competent counsel to evaluate alternative theories of liability that hopefully will result in compensation for the loss.

If you are physically or sexually assaulted by another person, you can bring a personal injury claim (civil action) against them to recover payment for your medical bills, lost wages, pain, suffering, and any other financial loss that you sustained as a result of the assault. A personal injury claim is separate from any criminal proceedings that may also be underway. The criminal court can find the other person guilty or not guilty and sentence them to prison; however, in the civil action, the judge or jury can order the other person to pay you money as compensation for your injuries and losses. You can bring a civil action even if the other person was found "not guilty" in the criminal court.

Many of the assault cases we have handled involve patrons of bars and clubs who are assaulted by "bouncers" or security personnel. In one such memorable case we represented a young man who was assaulted by two security employees who were employed by a bar in north Georgia. Our client was sprayed with Mace and then beaten. He immediately contacted the police who charged both bar employees with assault and battery. Even though a jury acquitted them on the criminal charges, we filed a civil suit against the bar and the two employees. After a trial a jury awarded a large sum to our client.

In another case our client, a long time patron of a large upscale department store in Atlanta, was followed to her car by store security personnel, in plain clothes. These employees accused her of shoplifting and demanded that she return to the store. They grabbed her and forced her back to the basement of the store where a female employee strip searched her. When it was determined that she had stolen nothing, she was told to leave the store. She called the police who arrested all of the security officers involved. Following a trial by jury she was awarded a seven figure verdict.

These assault cases take many forms. If you have been physically or sexually assaulted by someone, you should immediately seek legal advice.