Georgia Injury Lawyer Blog

It is not uncommon in our practice to be asked to represent clients in automobile cases who have pre-existing conditions. The closer in time to an accident the pre-existing condition is, the more difficult it is to separate the proverbial “wheat from the chaff” and to prove that the client’s problems arising out of the current accident were either caused by that accident and/or were aggravated by it. While it is not necessary, as a matter of law, to prove that the new injury was solely caused by the new accident because compensation is available for aggravation of pre-existing injuries, the difficulty is that the defense can always argue that the new accident did not cause any new, nor aggravating injury, but that the old injury simply remained. The proof problems caused by such cases are very difficult and oftentimes clients do not appreciate the fact that juries are very skeptical of claims where the pre-existing injury is documented in medical records and appears either identical to or very similar to the injury complained of immediately following the new accident.

Lawyers make decisions about the value of any personal injury claim based on the evidence in any particular case. The evidence in pre-existing injury cases is often critical because if a medical record shows that a client already had a particular injury and had/or received medical care for an earlier injury, and then they are involved in another accident, the issue will be whether they had recovered from that injury, whether they were asymptomatic at the time of the new injury, or whether they were still suffering from the lingering effects of the prior injury. As might be imagined, all of these factors enter into case evaluation. Moreover, when it comes to a discussion of “proximate cause,” that being proving that the new accident actually caused a new injury or aggravated an earlier one, the calculus becomes extremely complex. Georgia juries, being inherently conservative, oftentimes return defense verdicts in cases where the pre-existing injury was identical to the newly claimed injury and the treatment for that old injury mirrored the new injury treatment in substantially similar respects.

Obviously, all cases must be judged on the evidence for that particular case as all such cases are factually specific. Nonetheless, there are some unique challenges that arise in the context of pre-existing injuries.

As lawyers we are often consulted by prospective clients inquiring about whether they “have a case.” Sometimes they do and sometimes they do not. Oftentimes those who do not have cases are themselves guilty of contributory negligence. In Georgia, this is a very difficult problem to overcome because typically juries are not as likely to award damages to someone who substantially contributed to their own injuries due to their own negligence.

A classic case of contributory negligence is where a motorist is approaching an intersection and decides to turn and while so doing is struck by a motorist coming from the opposite direction. While the speed of the oncoming motorist may have contributed to the collision, the failure to yield, obviously, is part of the equation. Had the client not failed to yield, notwithstanding the speed of the oncoming vehicle, the collision may have been avoided. If the speed was so great that the client understandably miscalculated whether they had time to make a turn, obviously, is a factually specific issue. However, in the hypothetical posed, one can readily see that juries might conclude that the motorist who failed to yield substantially contributed to their own injuries and therefore the speeding motorist might not be held accountable for the full extent of any damages sustained.

In Georgia, contributory negligence claims are submitted to the jury under instruction that if the plaintiff or the person seeking damages was themselves fifty percent (50%) or more responsible for the cause of any given accident then they recover nothing, no matter what their injuries are. If they are less than fifty percent (50%) negligent, they recover their damages reduced by a comparison of their negligence with the defendant who has been sued. Thus, if a jury were to conclude that the plaintiff was forty percent (40%) negligent then they would be entitled to recover sixty percent (60%) of their damages, whatever they might be.

In any case where liability is contested and the possibility of a contributory negligence defense exists, such a potential client should confer with experience counsel as soon as possible so that the liability aspects of the case can be properly investigated. If the contributory negligence can be eliminated as a potential defense, the chances of the injured client receiving full compensation for their damages is greatly increased.

Unfortunately, in the normal course of our law practice, we have encountered clients who have sustained serious burn injuries. These cases are always extremely painful for clients and oftentimes results in permanent disfigurement. Indeed, a burn injury is one of the most painful injuries anyone can sustain and unfortunately we have seen them arise in a variety of contexts, whether it be gasoline fires after automobile accidents, accidents within the home due to defective products and/or chemical burns sustained on the job.

One of the complications of burn injury cases is trying to make sure that one has an accurate assessment of the future. While plastic surgery at present can eliminate some of the acute signs of injury, many times plastic surgery will be needed in the future. Oftentimes, despite the best care of plastic surgeons, permanent disfigurement may remain.

In assessing damages in a serious burn injury case, counsel must confer with the plastic surgeons responsible for the care and treatment of the client/patient to make sure that the client’s prognosis is well understood. The degree of permanent disfigurement, obviously, must be taken into consideration in assessing the damages for such clients as well as the impact on their overall quality of life and, usually, the high amount of medical expenses involved.

One of the very interesting parts of handling such cases is seeing the strength and character of those unfortunate enough to sustain such injuries. We have witnessed many serious injury clients handle themselves with grace, fortitude and strength of character when faced with a serious injury. Remarkably, many of these people are extremely courageous and show tremendous depth of character when overcoming such difficulties. It is a pleasure to help such clients in such difficult circumstances.

We have written prior entries in our blog about the importance of uninsured/ underinsured motorist coverage. The importance of such coverage was underscored this week when we were contacted by clients who had been hit by driver of a stolen vehicle. This is a classic case where the at fault driver will not have insurance coverage. In this particular case the innocent victim caught up in this collision did not have uninsured/underinsured motorist coverage. Obviously, the stolen vehicle had no insurance coverage which provided coverage for the thieves. Thus, we have a case where there is no insurance available to address our client’s medical bills and expenses. Because the medical bills are in excess of $500,000.00 and growing, obviously, the injuries attendant to such high expenses were extremely serious as well. The client will be permanently impaired for life. The tragedy is that had the client had uninsured/underinsured motorist coverage, they could of at least had some measure of protection in this type of case.

The importance of this type of coverage arises in cases where the at fault driver has no insurance. Drunk drivers typically have no insurance. Teenagers joyriding in stolen cars have no insurance. People fleeing from the police at high speeds have no insurance typically. Drug addicts have no insurance and many people who are faced with today’s economic hardships let their insurance lapse and continue to drive. In short, there are a significant number of drivers on the road who (if they hit an innocent third party and cause an accident entirely because of their fault), will have no resources to provide coverage for the innocent victim. Therefore, the only way the victim can protect him or herself is to purchase uninsured/ underinsured motorist coverage in advance, at the time they purchase their own liability coverage.

We would urge all members of the public to carefully review the Declaration page of their policies. We are all required by law to carry liability insurance on our vehicles. This coverage protects, the person that we injure through our own negligent acts. However, in circumstances where we are injured by the acts of a third party, unless we have uninsured/ underinsured motorist coverage, we cannot protect ourselves from a case where the at fault driver has no coverage. As indicated by the case which was presented to us this week, this tragedy is compounded. When a person is seriously injured, permanently disabled for life and their life is utterly destroyed. They will never work again and if they are lucky enough to continue to live, they are going to be in need of medical care for the rest of their lives. And yet, there is no insurance anywhere to provide compensation for the innocent victim’s staggering losses. As lawyers, this is a very difficult situation because there is nothing we can do to help this person obtain recovery from the at fault driver. All that can be done in such cases typically is to make sure that the criminal authorities to put the offender in jail, but again, this provides little or no justice for the innocent victim and certainly no compensation for their injuries and damages.

It is extremely difficult to quantify damages in a personal injury case. While medical bills can be totalled and lost wages calculated, trying to calculate damages for pain and suffering is a different matter. When one is out of work for months at a time suffering from back pain, as an example, the question is: how does one go about trying to determine what would constitute fair and reasonable compensation for the pain and suffering attendant to the injury? The longer one suffers, the greater the damage. The more excruciating the pain, the greater the damage. Because pain and suffering is subjective, however, it is often difficult to determine what damages would be fair in a particular case.

Many attorneys try to quantify pain and suffering based on a unit or hourly approach. If one is in pain and suffering sixteen hours out the day (assuming sleep for the other eight hours), what would constitute fair compensation for the extent of the pain and suffering: $10.00 an hour, $20.00 an hour, minimum wage or some other calculation?

In Georgia, in a personal injury context, the measure of damages for pain and suffering is the “enlightened conscience” of fair and impartial jurors. In other words, there is no measuring stick, per se, but rather a jury must determine money damages based on the totality of the circumstances involved in a particular case, that is what they believe would constitute fair and reasonable compensation for the pain and suffering element of a personal injury case.

In order to maximize damages in a personal injury case, it is important to show what the plaintiff could do before and after the injury, the extent of the disabling injury involved, the impact on daily life and the extent to which the victim was innocent in the premises and had the pain and suffering subjected upon them due to the negligence of the defendant. Oftentimes, the greater the liability the more willing the jury is to be generous in its pain and suffering calculations.

Because all personal injury cases are different, obviously, it is necessary for counsel for any client to carefully evaluate all of the factors involved in determining how to best present their client’s case to a jury in the event it cannot be settled. While reasonable minds may always differ as to what is fair and reasonable compensation in a particular case, if the case cannot be settled, the matter will have to be presented to a jury, who will then use their “enlightened consciences” to make such an award.

Most of our clients are innocent victims of negligent acts. A person is sitting still at a stop sign and a driver negligently fails to stop in time rear-ending them and causing serious injuries. Another driver fails to yield right-of-way and crashes into the side of their vehicle. In both cases, a negligent act caused the injury to the innocent victim. In other cases, however, intentional torts are involved. A step-father molests a child. A man rapes a woman. A man kills someone else. In all such tragedies, there may be civil remedies available to redress the tragedy, particularly for the victims and/or their surviving relatives.
If a drunk driver runs a stop sign, he may be negligent in doing so, but also he is engaged in criminal acts, thereby committing vehicular homicide. The lawsuit alleges both civil and criminal liability in such a circumstance. If a step-father rapes a child and the step-father has money, the child’s representatives can sue the step-father for damages. If a rape occurs, the victim can sue the perpetrator for damages. If a hotel employee secures a pass key and rapes a guest tenant, not only can the victim sue the perpetrator, the victim may also be able to sue the negligent landlord and/or hotelier that negligently allowed access to the pass key.

Victims of crime should consider whether they have tort remedies available to redress the injustice done to them. There may be Dramshop liability against the business establishment that served the drunk driver. The criminal perpetrator may be wealthy and may have assets that can satisfy a civil judgment. A business may have negligently hired a person with a criminal record such that they may be liable for negligent hiring and retention of the employee who thereafter commits a criminal act.

Victims of negligence have civil remedies but so do victims of crime. The criminal justice system should try to obtain restitution for innocent victims of crime, but in many cases, it will be necessary that the victim secure the services of a private attorney to seek legal redress if a restitution order is not enforced. Whether the case be one for wrongful death or for the infliction of emotional distress or personal injury, civil lawsuits can help to obtain a measure of restitution for victims of crime just as such lawsuits can help to obtain a measure of justice for innocent victims of negligence.

It is well known that large tractor-trailer trucks are very difficult to stop even when being operated prudently. Because of the weights on large tractor-trailers, if a tractor-trailer needs to suddenly stop for whatever reason, it takes much longer for the truck to stop than it would for the ordinary passenger vehicle. It is for this reason that regulations exist requiring trucks to slow down in inclement weather. Wet roads result in greater stopping distances for large tractor-trailer vehicles and thus, if it is raining, a prudent truck driver should slow his truck down one-third (1/3) of the normal speed. This is required by regulation and is required by common sense and safety considerations for the motoring public. Regrettably, far too often, truck drivers because of the need to deliver their loads and due to the economic pressures upon them, fail to slow down during inclement weather with the predictable result that accidents, which otherwise could have been avoided, occur with greater frequency.

All drivers regardless of whether they are operating passenger vehicles or tractor-trailer rigs need to slow down in inclement weather, whether it be wet weather, snowy weather or a mixture of sleet and rain. The fact is that such conditions are known to be dangerous to all drivers. Commercial drivers having a special license and being professionally employed to driver large trucks, which are harder to stop, have an extra special duty of care under such circumstances. Regrettably, we have seen first hand here at our firm far too many cases where innocent third parties are seriously injured or killed when truck drivers fail to slow down during inclement weather thus, causing significant carnage on the road when they plow into other cars impacted by their negligence. There is a reason we see signs that say “Speed Kills.” Speed during inclement weather kills more often thus, the need to slow down and the rationale for the regulations requiring a reduction in speed by one-third (1/3) of that typically in place.

Time and again here at our firm we see situations where clients may have been injured by defective products but due to the failure preserve crucial evidence, the claim oftentimes is irretrievably lost. An example might be an exploding tire where there is a tire blowout which causes a vehicle to overturn. Unless the tire itself is preserved as evidence and can be examined to determine the cause of its failure, for obvious reasons, it would be impossible to prove a defective product due to a design or manufacturing problem with the product as opposed to poor maintenance, under inflation, over inflation or other sundry causes other than a defect in the product. The same is true for house fires which result is serious injuries or death where a suspected heater, air conditioning unit or air purifier is believed to have caused the fire. Unless the product is preserved and examined by an expert, the evidence necessary to prove a products liability claim will be missing and therefore the claim virtually impossible to pursue.

In any case where serious injuries or a wrongful death results from a situation where a defective product is believed to have contributed to the incident, it is absolutely imperative that all available evidence be preserved for examination by experts. Obviously, the initial focus in such cases is on the injury or death and not the possibility of a lawsuit. However, if the cause of the incident is believed to be a defective product, nonetheless, family members, investigators, law enforcement personnel and other people connected to the incident should do what they can to preserve the evidence for later examination. The family can hardly be blamed for remembering to do so during a time of personal tragedy and grief but family friends, outsiders, investigators and other personnel connected to the incident can and should do so in order to have the claim properly investigated. Absent preservation of critical evidence, it may be impossible to obtain justice for the victim of a dangerous and defective product.

In serious injury cases, usually arising from tractor-trailer collisions or automobile accidents, it is not uncommon to see clients with serious back injuries which create a host of physical and mental problems for the innocent victim. If someone is rear-ended by a tractor-trailer, as an example, and suffers a significant back injury requiring a fusion or other surgical procedure, it is not uncommon at all for such a client to develop leg problems, hip problems and other associated maladies. The mental stress and emotional damage caused by permanent and intractable pain is part of the injury as well. In the unfortunate cases where clients lose their legs or suffer traumatic amputations, the injury to the leg can result in an injury to the back and the hips. In short, a vicious cycle is involved in these cases which is why it is necessary that the injured claimant have the best possible medical assistance possible.

Many times it is difficult for the medical community to establish the exact cause of pain for a particular client. Sometimes it is a herniated disc in the back, sometimes it is nerve root impingement, sometimes it is generalized nerve damage and sometimes it is simply a chronic pain syndrom due to the trauma to the spinal column. As stated, typically, the injured individual with the bad back will have problems with their leg and hips which, of course, affects all of their daily activities, not to mention their work, if they are still able to work. For these reasons, it is vital that the injured individual receive medical treatment from a Board certified orthopaedist, orthopaedic surgeon, neurologist or neurosurgeon. Depending upon the facts of the case, the mechanism of injury, the location of the injury or otherwise, one or more of these specialists may be involved as well as physical therapists. Treatment may begin with physical therapy and epidural steroid injections, but in many cases ends in surgery, particularly for the more serious back injuries.

Unless one suffers from a significant back injury, it is hard for others to truly appreciate just how disabling such injuries can be. In personal injury cases involving serious back injuries it is sometimes wise to obtain a Function Capacity Evaluation to demonstrate objectively just how the injury affects the injured individuals ability to function at performing daily tasks, whether it be stooping, lifting, bending or otherwise. Such cases are very sad, typically, because they do involve a significant impact on the individual’s lifestyle and can affect not only their work, their marriage, their family, but their overall quality of life. Sadly, such injuries oftentimes are permanent and the impact of an accident can affect someone for the rest of their natural lives, which is why it is necessary to work these cases up very carefully with the long term interest of the client being closely monitored throughout the recovery process.

As we have written before, it is becoming increasingly necessary that plaintiff’s counsel be prepared to attack the veracity and credibility of so-called “independent” experts in personal injury cases. Insurance companies and defense law firms routinely retain medical “experts” to testify that plaintiffs are not injured at all or have only suffered minor injuries. They do this by examining diagnostic tests and/or by offering testimony that the test results do not substantiate a traumatic injury. Such testimony can be extremely misleading because oftentimes a clinical diagnosis made by a treating physician is much more reliable than a so-called independent review by someone who has never seen the plaintiff much less examined them. Nonetheless, such testimony is dangerous and can often be effective if the witness offering the testimony has a good medical pedigree, as they often do, and presents a good appearance before the jury. This makes the cynical use of so-called experts extremely dangerous because by paying a fee for the so-called “independent” opinion, the jury can be mislead and an innocent victim of a negligent act can be victimized again and denied the right to fair and reasonable compensation for their injuries.

“Independent” experts oftentimes testify in back injury cases as an example of this problem. They testify that an examination of radiological films proves to them that the “back injured” claimant was not injured at all. Many experts will testify that herniated discs in a back cannot be caused by trauma or that trauma did not cause the injury complained of, etc. Such testimony is tantamount to junk science and is completely unreliable but the problem is that many jurors do not recognize this. Jurors receive sworn testimony and based on their lack of medical training actually oftentimes believe that the so-called “independent expert” is, in fact, independent when nothing could further from the truth. Thus, to be effective in representing a personal injury claimant with a bad back or neck case, the best way to go about doing so is to attack the so-called independence of the expert. Many of these witnesses receive hundreds of thousands of dollars in compensation each year from the insurance industry because they know where there bread is buttered and they know what is expected of them, which is to testify that the claimant is not injured and/or that they are malingering. This cynical approach to dispensing justice in a personal injury context is disheartening, frustrating and at times exasperating but, nonetheless, it is part and parcel of the landscape in our society. All one can do is fight against it and hope that fair and impartial jurors will see through such cynicism and will disregard the testimony of junk science experts who, for their own secondary gain, perniciously seek to influence their verdicts.

Increasingly we are seeing a trend that started many years ago but continues today. This involves the use of so-called “independent” experts to provide testimony in personal injury cases to the effect that the claimant has suffered no injury at all or, if any injury, only a minor one. Insurance companies employ so-called “independent” medical examiners to review radiology films, many times, so that a radiologist can testify that based upon an examination of the film, there is no evidence of trauma seen, thus the plaintiff could not have been injured. Of course, a radiologist cannot see damaged nerve endings or herniated discs on an x-ray film but this does not stop these so-called “independent” experts from providing junk science medical testimony for the jury’s consumption.

This trend is extremely troubling and has been decried by our courts in the past. In a well reasoned opinion written by the Georgia Court of Appeals over twelve (12) years ago, Justice Blackburn wrote “I write separately to point out a systematic problem in the general use of “independent” experts in the litigation process. This problem, while not limited thereto, is greatest where insurance companies use “independent” medical expert opinions to deny or limit payment of claims. The inherent weakness of this process is that the insurance company which controls the flow of business to “independent” medical services providers has a financial interest in the negative finding of such provider...”.

Insurance companies have a huge financial interest in making sure that cliams are not paid. One way to do this is to hire a so-called “independent” experts. It is disheartening to see a medical doctor testify for money paid that someone is not injured when the doctor, of course, has no way of knowing whether such is the case. Insurance companies typically get what they pay for which is a medical opinion that the claimant is either not injured at all or shows no objective evidence of injury based upon an examination of diagnostic films or other tests. Such testimony is extremely dangerous because it appeals to the cynicism of jurors who may believe that someone seeking money is simply out for secondary gain and is not legitimately injured. While there are fraud claims and while there are claims of embellishment and exaggeration, in many legitimate claims, nonetheless, these so-called “independent” experts are providing testimony that serves no other purpose but to deny justice to those who have been legitimately injured and are in need of adequate and just compensation for their injuries.

As we shall blog about it in future entries, the best way to attack this problem is to attack the hired gun witness by showing their financial interest in the proceedings and their inherent bias. By proving that the so-called “independent” expert is not independent at all, hopefully, a jury will understand that paid for testimony is not the most reliable evidence one could hope to rely upon in a personal injury case.

For any innocent victim of a car accident where an at fault driver runs a stop sign, crosses the centerline or otherwise seriously injuries an innocent motorist, one of the essential ingredients of professional legal services for the victim is personal interaction between the victim and their attorney. In a serious case the innocent victim/client will need an attorney. Due to mass marketing, however, in many cases, clients may go to law firms where most of their interaction is not with attorneys but with lower level staff people.

In any serious case, it is important that a client interact with their attorney as their case develops. Personal interaction with an attorney on a one-on-one basis is imperative because the attorney needs to stay abreast of what is happening to the client, particularly with respect to their injuries and their medical situation. As a client is recovering from injuries the attorney needs to be kept abreast of what is happening in the client’s life, how the medical injuries are affecting their lost wage situation and how their injuries are overall affecting their life overall. Without out one-on-one interaction between the client and the attorney, the professional component of the attorney/client privilege is lost and is delegated to lower staff members who are not always able to appreciate the importance of some matters that could have far reaching legal consequences.

Every case is different. Some are more complex than others and some involve unique legal questions that can only be resolved by attorneys who are very experienced in the personal injury field. Clients should insist that they have the right to speak to their attorney concerning the status of their case. This is an essential ingredient of any professional relationship between an attorney and a client in a personal injury case.

For those clients who are innocent victims involved in serious automobile collisions, they should always make sure that they have a one-on-one relationship with an attorney they trust and respect. Absent such a relationship, the client may be deprived of the essential ingredient of the attorney/client relationship.

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.

It is amazing to watch television commercials advertising lawyer services for personal injury cases. One often sees a client holding a fist full of cash praising their lawyer for securing a large cash settlement. The client is typically shown smiling and happily talking about how much money they received from their personal injury claim. These ads have often surprised me because it is typically only in the very serious case that clients receive large settlement amounts and in those cases, they usually deserve the amounts of the settlement because their injuries are typically horrendous. It is hard to imagine our clients smiling about these matters because typically large cash settlements mean that the victims have suffered life altering and permanent injuries from which they will never recover.

The insurance lobby has been successful in portraying personal injury claimants not as innocent victims, but rather as those seeking “jackpot justice.” The propaganda is that many people are not injured at all, they simply want money. Of course, given the human condition, there are always those who will embellish their injuries and who may be motivated by secondary gain. The propaganda is an insult to those victims who are unfortunate enough to be seriously injured by the negligence of a third party.

Our experience has proven over and over again that those who receive significant cash settlements are those who deserve such an award. A child has been killed, a leg has been lost, a back broken. These are hardly the kinds of injuries that result in people smiling about money. Usually money is inadequate to compensate the victim for the loss of their independence and a loss of the lifestyle that they experienced prior to injury. Thus, the myth of “jackpot justice” is just that, a myth. The truly deserving clients are not seeking money simply to inherit a windfall from a tragedy. Rather they are seeking justice, which can only be monetary compensation to provide some level of compensation for that which they have lost, which is usually the most precious gift of all, good health. Obviously, if someone’s health is impaired significantly enough their livelihood can be endangered and their earning capacity greatly diminished. Indeed, in many of our more serious cases, our clients can never work again and lose their career, their livelihood, their home, their credit and virtually everything they once had because of the severity of their injuries.

We reject the premise that personal injury victims are always seeking “jackpot justice.” Insurance companies will aways promote such propaganda because it serves their bottom line interests. Those attorneys who advertise with smiling clients full of cash in their hands unfortunately promote such stereotypical views that are then exploited by the insurance industry. In reality, those clients who receive cash awards in any significant amount are truly the most deserving as they have been seriously injured through no fault of their own and are usually well deserving of any compensation they receive.

Any lawyer who has a client with a claim against any branch of government knows full well that there needs to be investigation of that claim in order to be successful in prosecuting it. One of the first steps in the process is to serve a timely ante-litem notice claim within six months of the claims against a municipality or within twelve months if it involves a claim against the State or a county government agency. We have previously blogged about these requirements in other entries. Nonetheless, once counsel has filed a timely ante-litem pre-suit notice of a claim, counsel further needs to use Open Records Act requests available under Georgia law to request any and all documents that will be necessary to prosecute the claim. Some records are exempt from the Open Records Act such as criminal investigative documents in a pending criminal investigation, however, most public government documents can be obtained via an Open Records Act request as they are required to be maintained in the normal course of business.

An example of the type of documentation one might wish to secure via an Open Records Act request would be a request for insurance data for the city or county and other required government policies applicable to the incident. Obviously, the key is to demonstrate that there has either been a waiver of sovereign immunity through the purchase of available insurance coverage and/or the enactment of policies and procedures whereby counsel will be able to argue that there was a breach of a ministerial duty in failing to execute a simple ministerial duty required under local policies, procedures or state law.

Any time there is a potential claim against any governmental entity, sovereign immunity defenses loom large. The courts have been very protective of most governmental agencies and absent an exception to sovereign immunity, counsel will be unsuccessful in helping a client obtain redress for any damages caused by governmental negligence. However, there are numerous exceptions to sovereign immunity and through proper pre-suit investigation and utilization of the Open Records Act request and other investigative techniques, it is still possible in certain circumstances to successfully prosecute a personal injury claim against a government agency or employee. While every case is factually specific, investigation is the key in all of these cases.

Anybody with a claim again a governmental agency should always consult with experienced counsel to make sure that all ante-litem notices are sent out in a timely manner and that a proper investigation is conducted. Absent either, a claim may be lost even if it is potentially viable.

Negligent security cases typically arise in the context of a victim of a criminal assault either at an apartment complex or motel. If the apartment complex provides security but negligently does so, and a tenant is attacked at a time an attack is foreseeable, an apartment complex can be held liable even if the damages were perpetrated by a criminal third party. Similarly, in a motel setting, if the motel is aware that their tenants are at heightened risk of attacks from criminals and fail to take appropriate security measures to protect their guests, under certain limited circumstances, the motel owner can be liable for an attack upon the customer.

Under Georgia law, generally, there is no duty to protect invitees from the criminal acts of third parties. For such a duty to exist, a plaintiff must demonstrate foreseeability. Foreseeability is heightened and superior knowledge by the owner or occupier of the dangerous condition created by a third person. When a victim seeks to demonstrate knowledge on the part of a defendant by presenting evidence of prior crimes allegedly known to the owner/occupier, substantial similarity between the crimes is required. In other words, if someone is the victim of a rape then forced entries into motel rooms, other rapes or other similar crimes will typically be required to be proven in order to demonstrate that it was foreseeable that a guest of the motel may have been attacked by a criminal third party absent adequate security for their protection. As stated, generally, there is no liability for third party criminal acts because such acts are deemed to be intervening acts sufficient of themselves to have caused the damages and injuries without the contributing influence of the landowner/occupier.

In today’s crime ridden society, it is obviously foreseeable that anybody can be victimized by crime at any time or place. What is legally necessary in these cases is superior knowledge. If a motel owner knows that their guests have been subject to numerous crimes on their property and fails to take steps to either warn their guests and/or protect them, there can be liability because of the superior knowledge of the landowner/occupier. Similarly, if an apartment complex is aware that tenants are at risk of being raped or attacked by criminals because of superior knowledge of criminal activity on property they own, they too can be held civilly liable for damages caused by the rapist. Of course, before they can be held liable, they must also be negligent, that is failing to provide adequate security in the face of such superior knowledge.

In any case where a victim of a crime believes that they may be a victim of negligent security, they should consult with counsel as soon as possible. Investigation of the facts while they are fresh is always imperative in such cases. The more evidence of foreseeability and superior knowledge the more likely it is that the landowner/occupier can be held liable civilly for damages.

Our firm is often contacted by those who have been victimized by a criminal act seeking advice as to whether they have a claim against the perpetrator of the crime. These cases come to us in a variety of different contexts. Sometimes a rape victim is interested in determining whether they have a claim against a hotel that negligently allowed the attack by a former employee or failed to provide adequate security with respect to the security of their room. We have had similar calls from rape victims seeking to file claims against apartment complexes where there were prior rapes (and a failure to notify the tenant/victim of the danger) and/or failure to provide adequate security at the complex. In other contexts, we may be contacted by those who have been victimized by drunk drivers or those who have been victimized by an assault and battery.

All “victim/tort” cases are factually unique, of course, and require an analysis of the facts and circumstances. Sometimes the criminal defendant may be judgment proof and a civil case against the perpetrator may be a complete waste of time from an economic standpoint. However, there sometimes can be third party liability in many of these cases. For example, even if the rapist primarily caused the damage, obviously, the negligent apartment owner and/or hotelier could be liable as well. What complicates these cases is that Georgia law now provides for apportionment of damages between those who may be jointly responsible for inflicting the damages. In a rape case, while it may be argued that the rapist caused virtually all the damages, obviously, the rapist may not have ever had the opportunity or access to the victim without the negligence of the owner/occupier of the property. The apportionment of dangers is now up to the jury depending on the facts of the case.

All victims of crimes obviously endure the trauma of being victimized by the crime. The criminal justice system provides very limited relief for damages in such cases. While there is mandatory restitution for property crimes, many criminal defendants do not have sufficient assets to make full restitution. Accordingly, in any case where a crime victim has the potential for a recovery in a particular case, they should consult with counsel experienced in such matters.

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.

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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.

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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.