Georgia Injury Lawyer Blog

A divorce is traumatic in and of itself but becomes particularly tragic when either during the divorce or after its conclusion the wrongful death of a child occurs. In such circumstances, the wrongful death claim belongs to the parents jointly. Either one, therefore, has the right to bring the wrongful death claim but if one proceeds unilaterally in doing so, they do so in a fiduciary capacity, meaning that if they ever recover anything, they must hold the monies in trust until such time as a Court can apportion any monies awarded between the divorced parents based on their level of support with the child, their interaction with the child and other equitable factors.

Under Georgia law, if a child is killed due to the wrongful acts of a third party, such as a drunk driver, or a trucking company, the cause of action vests in the parents of the child. If the parents are in the middle of a divorce, this does not change the law. If the parents are already divorced, the law remains the same. In some such circumstances, both divorced parents get their lawyers and there is a race to the courthouse to see who files the lawsuit first. If one beats the other to the punch, the other may seek to join the case by formally intervening in the action. Since both spouses have a right to participate in the action, the difficulty this can cause is logistical because two separate law firms could be acting on behalf of the parents conducting redundant investigations and also having different views strategically as to how the case should be prosecuted and pursued. This can create a legal quagmire causing difficulties not only for both parents but also for their lawyers.

Insofar as is possible, the parties should work cooperatively together in pursuing a wrongful death claim of a child. If one proceeds all the way through a settlement or a jury verdict and ultimately obtains money, as indicated, that money must be held in trust and subject to equitable division by the court, unless the parties can agree among themselves how the money should be divided between them. While it might be assumed that a 50/50 split of any such recovery is the norm, there are many circumstances whereby such a split would not be just nor fair, such as situations where a father has abandoned a child and/or has failed to pay child support. As indicated above, these cases are particularly tragic and often difficult for all the parties. If a divorce has occurred, hopefully the parties will be mature enough to work together to pursue a common goal. If not, the attorneys for the respective parties will have to decide how to best work together to pursue that goal with an understanding that if there is ever a recovery, and a dispute over how the monies are to apportioned, that dispute must be submitted to a trial court for equitable apportionment.

Too familiar is this week's tragic story of how a police cruiser struck an innocent motorist and caused the death of Kathy Porter, wife of Atlanta Braves Head Athletic Trainer Jeff Porter.

Late Saturday afternoon, the Porters were among many fans driving to the Chick-fil-A bowl in downtown Atlanta--a short distance from the Braves' home at Turner Field. A Georgia State Patrol cruiser--reportedly speeding on city streets to join a chase of a motorcyclist on I-20-- crashed into the Porters' Ford Expedition on the passenger side.

The Porters' tragedy is one of a seemingly endless string of deaths of innocent persons caused by police pursuits--too often chasing another motorist simply for a minor infraction.

We have written for years of the needless dangers to the public of high speed police chases, and how following proper police procedures can avoid causing unnecessary deaths of innocent persons. Key questions here include why stopping a motorcyclist on I-20 was worth risking the lives of families driving to a football game.

A police chase of a suspect for a non-violent act too often results in what is effectively the death penalty for an innocent person. Even though the lesson should have been learned from many past examples (including cases we have had to litigate), the needless carnage somehow continues.

Like all of our community in Atlanta, our thoughts and prayers are with the Porter family.

We have written before about the unique provisions of Georgia law in the wrongful death context. If, due to the negligence of a third party, an innocent person is killed, the offending party is liable in damages for compensation for the “full value of the decedent.” The full value of the life of the decedent is comprised of both economic and non-economic components. Anytime some one is killed, they can no longer earn and labor and therefore all of the money they may have earned over the remaining portion of their working life has been taken from them. In addition, their one life to live has been taken from them and the non-economic intangible value of life itself, therefore, must be determined. Under Georgia law, both determinations are made from the perspective of the decedent, not from the perspective of the decedent’s family or surviving relatives.

The measure of damages for a wrongful death case in Georgia is, again, the “enlightened conscience” of fair and impartial jurors seeking to do justice in a particular case. By analyzing all the available evidence to determine both the economic and non-economic damages sustained in a particular case, jurors are faced with the task of determining the full value of the life of the decedent based on what the decedent lost at the time of his or her death. This can be a daunting task and therefore counsel must assist the jury in analyzing the various components of the decedent’s life, including their work history, their relationship with family members, the state of health, their age and other demographic factors. The younger the victim, the longer the life expectancy and therefore the greater the loss. While those who are negligently killed in the latter part of their lives also lose the balance of what the future held for them, the loss presumably would be less than a younger person because of the age difference. In either circumstance, however, the calculation to be made by the jury is to provide fair and reasonable compensation for the loss of life.

Our office has been contacted on numerous occasions by individuals seeking restitution for the loss of a life of a loved one due to a house fire. In some cases the house fire may be caused by a malfunctioning device. In other cases the fire’s consequences may have been escaped had a smoke detector been functioning properly. In other cases, an electrical water heater may explode or there may be problems with a gas line or some other component of the house itself which causes the fire. While all cases are different, whenever a wrongful death results from a house fire, the tragedy can be compounded if there is not a proper investigation following the fire itself.

The causes of some fires can never be determined many times due to the blaze itself. The fire consumes all the evidence and it is impossible to determine the actual cause or origin of the fire. In other cases, however, if there is enough remaining evidence after the fire for forensic examination, a cause, in fact, can be determined. What is vital in all of these cases is that there be a scene investigation conducted by the local Fire Marshall’s Office and that counsel for the survivors of those killed in the fire be retained to review their work and also to conduct an independent examination of the site. The sooner one works on such a case to preserve all available evidence, the better the opportunity for uncovering evidence which will support a viable claim, whether it be a product liability claim, claim against a negligent contractor or otherwise. In any case in which a wrongful death occurs as a result a house or trailer fire, family members may wish to consult counsel on behalf of the survivors if for no other reason than to make sure that an adequate on-site investigation is conducted either by the authorities or by private investigators. Sometimes the failure to act in an expeditious manner can result in crucial evidence being overlooked and/or in crucial evidence being destroyed. A failure to preserve evidence is the biggest reason why claims are unsuccessful when house fires are involved, thus it is imperative that an investigation be conducted as soon as is possible under the circumstances.

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.

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.

As teens begin summer vacations, a disturbing warning has been issued by the U.S. Department of Transportation.

The latest data from U.S. Department of Transportation’s Fatality Analysis Reporting System show that the deadliest days of the year for teens ages 15-19 are in the months of May, June, July and August. During these four months, nearly twice as many teens died on the roads each day as compared to the rest of the year – for an average of nearly 16 deaths per day (15.9) – compared to an average of nearly nine deaths (8.8) per day during the year as a whole.

Individuals in the 16 to 24 age group have the highest traffic crash death rate in the country. Between 2005 and 2009 (the most recent year for which data are available), nearly 4,000 people from this age group were killed in crashes involving large trucks.

In an effort to raise awareness among teen drivers of these dangers, the U.S. DOT is spearheading a program to educate young drivers about the dangers of tractor-trailers and unsafe driving practices.

Kicking off the program, standing beside a 53-foot long tractor trailer in front of District of Columbia High School, officials representing the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA), the National Organizations for Youth Safety (NOYS) and the Commercial Vehicle Safety Alliance (CVSA) spoke to students from Maryland and the District of Columbia about the critical importance of driving safely around big trucks.

A fully loaded tractor trailer requires roughly twice the distance to stop that a passenger vehicle requires. In addition, tractor trailers have sizeable blind spots, otherwise known as “No Zones,” areas that motorist must avoid.

The program is emphasizing several simple rules: buckle up; don’t drink and drive; don’t speed; don’t text or use your phone; and steer clear of a truck’s blind spots.

We applaud this effort and urge all parents to stress the importance of these rules to your teenage drivers. Hopefully, with this type of effort, this dismal statistic can be reduced.

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.

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.

In a wrongful death case, a jury will be instructed that they should return a verdict for the “full value of the life of the decedent.” This means not only any economic damages caused by a premature and wrongful death, but also “non-economic damages.” How is this calculated and how should jury be instructed to reach such an award? Interestingly enough, the jury will be instructed that they should rely upon their “enlightened conscious” in making such determinations.

If a 28-year old is killed and has a life expectancy of 46 years, as an example, one way to argue for the loss of the “intangible value” of life itself is to urge the jury to make an award based on each lost year of life. If, for example, the jury should determine that the value of life in Georgia for a 28-year old looking forward to his or her future is $100,000.00 per year, then the damages would be 46 years X $100,000.00 or $4.6 million. Is $4.6 million an adequate award for the loss of human life for an otherwise healthy 28-year old whose life is abruptly and wrongfully ended due to the negligence of a third party? Obviously, reasonable minds could differ over the sum to be awarded in such a case. Should it be $150,000/yr., $200,000/yr or some lesser sum?

Baseball players are sometimes paid 10, 20, 30 million dollars a year. Good basketball players can make hundreds of millions of dollars. Is one year of labor in the NFL worth 46 years of the value of a average man’s life? These are the kinds of debates juries have to engage in when determining “the full value of the life of the decedent.” Again, the intangible value of life itself is probably the most difficult aspect of the calculus in these cases, but nonetheless, the intangible value of life is worth far more than is the economic loss caused by a wrongful death. Yes, the wrongful death results in a loss of income and yes, the loss of income is part of the measure of damages, but the intangible value is the greater value and thus the greater difficulty for any jury.

As stated in earlier blogs, in Georgia, the measure of damages for a wrongful death is “the full value of the life of the decedent.” One component of the full value of the life of the decedent is the loss of earnings and loss of income. If a 28-year old dies while earning $40,000.00 per year and he/she will work until age 70 (which is another 42 years) one simple way to calculate the loss of wages would be 42 years times $40,000.00 per year. However, such a simple equation might not account for future raises, future benefits and a better revenue stream as the decedent proceeds in their career path.

A jury sometimes can be aided by the testimony of an economist, who can show the jury based on statistical data what an earnings history would look like for someone with a similar background and education, what kind of benefits they could expect to earn, etc. Of course, in today’s economic times, a jury also has to determine whether an income stream would remain unabated, whether the decedent would likely receive raises, etc. While there are no clear cut answers to these difficult questions, nonetheless, juries do have to determine what the “economic loss” is in a wrongful death context. In the hypothetical wrongful death case a 28-year old, has been killed while earning $40,00.00 per year. What would constitute fair compensation for the loss of such a promising life if the person was already earning $40,000.00 per year and had even brighter future prospects? Whether an economist is employed or whether the Annuity Mortality Table is utilized simply to argue for compensation over the remaining 42 years of the life of the decedent, either way, the calculus is not definitively defined, but is instead left to “the enlightened conscience” of fair and impartial jurors seeking justice in a wrongful death case. That is the measure - counsel must help the jury use this measure if fair compensation is to be achieved.

When someone is killed due to the negligence of a third party, a wrongful death action can be filed in order to recover the “full value of the life of the decedent” as determined by the “enlightened conscience” of fair and impartial jurors. The measure of damages is defined exactly this way under Georgia law. That being, what amount of compensation would provide adequate reimbursement for “the full value” of the life of the decedent. This seems almost impossible to calculate because one can put no price tag on the value of human life. We all have only one life to live and if our life is wrongfully terminated due to the negligence of a third party, no amount of money can ever compensate for such a loss. Nonetheless, in our legal system, juries are instructed that they should award the full value of the life of the decedent as demonstrated by the evidence if they find that a person died due to the negligence or misconduct of a third party.

In determining the full value of the life of any decedent, the jury has to look at the background of the decedent, what they had accomplished in their life, what their prospects were for the future, etc. They have to look at the age and health of the decedent, their economic potential, their earnings history, etc. Obviously, all such considerations are complicated if the decedent is a child, is elderly or someone who is disabled. Thus, the law advises the jury that they should look not only to the tangible losses caused by the wrongful death (that being a loss of income) but also the intangible value of life itself, that being what the decedent lost at the time of their death.

Georgia law is unique in that it measures damages not from the standpoint of the surviving members of the decedent’s family, but rather from the standpoint of the decedent himself/herself. The jury is supposed to look at what the decedent lost, that being relationships with family members, marriage, relationships with children, loss of income, loss of earning potential and loss of the joy of life itself. Again, this is a very difficult calculus for any jury but nonetheless this is exactly what juries in Georgia are told to do.

In future blogs we will discuss further how juries go about determining damages in a wrongful death case. As indicated, the benchmark is “the full value of the life of the decedent” governed by “the enlightened conscience” of fair and impartial jurors.

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

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

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

Continue reading "Car Accidents And Quick Cash Settlements" »

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

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

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

Today, the United States approved the biggest overhaul to the nation's food safety laws since the 1930s. By a bipartisan vote of 73-to-25 the new law would gives new authorities to the Food and Drug Administration, places new responsibilities on farmers and food companies to prevent contamination, and for the first time, sets safety standards for imported foods.

The Senate vote was one of the few pieces of legislation to receive bipartisan approval in years. The House of Representatives approved a more stringent version of the bill more than a year ago.

The legislation comes after a number of national outbreaks of food poisoning involving products such as eggs, peanuts and spinach in which thousands of people were sickened and more than a dozen died.

Leaders in the House of representatives have indicated that they would accept the Senate version of the bill. This would avoid the time consuming conference process and send the legislation to the President quickly.

Despite the strong bipartisan support among lawmakers and a coalition of major business and consumer groups, the legislation still drew sharp opposition.

Some tea party activists attacked the legislation as governmental overreaching. On his television program this month, talk show host Glenn Beck suggested that the measure was a government ruse to raise the price of meat and convert more consumers to vegetarianism.

The bill has also revealed a divide between local-food movements and major agriculture businesses. Small farmers concerned about the cost of new federal regulation initially opposed the bill and argued that since most cases of national illness are caused by large companies, small producers should be exempted from the standards.

In an effort to assuage these concerns, Sen Jon Tester, a Montana farmer, added an amendment that would exempt small farmers and those who sell directly to consumers at farmers markets and farm stands.

It is estimated that food borne illnesses affect one in four Americans and kill 5,000 each year. In addition, tainted food products have cost the food industry billions of dollars in recalls, lost sales and legal expenses.

The bill places greater responsibility on manufacturers and farmers to prevent contamination, which is a departure from the current system, which relies on government inspectors to catch contamination after the fact.

The measure also gives the FDA authority to recall food. As the law now stands, the FDA must rely on food companies to voluntarily pull products off the shelves.

A disturbing Inspector General report from the shows that medical errors are harming and killing our senior citizens at alarming rates.

An estimated 15,000 Medicare patients die each month, and many more are injured, because of usually preventable medical mistakes in hospitals and other facilities.

The report focused on “adverse events,” defined as "harm to a patient as a result of medical care, such as infection associated with use of a catheter," and “never events,” which are specific "serious events, such as surgery on the wrong patient, that the National Quality Forum (NQF) deemed 'should never occur in a health care setting.'”

The Inspector General of the Department of Health and Human Services found:

--An estimated 13.5 percent of hospitalized Medicare beneficiaries experienced adverse events during their hospital stays.

--An additional 13.5 percent of Medicare beneficiaries experienced events during their hospital stays that resulted in temporary harm.

--Physician reviewers determined that 44 percent of adverse and temporary harm events were clearly or likely preventable.

--Hospital care associated with adverse and temporary harm events cost Medicare an estimated $324 million in October 2008.

Significantly, the 2009 loss to taxpayers was "$4.4 billion spent on care associated with events"--which did not even include the cost of followup care.

The cost in lives, health, and taxpayer dollars of preventable medical errors is far too high. Respect for life of our senior citizens requires accountability when harm occurs, and preventive steps to ensure patient safety.

A portion of the Inpsector General's report is reprinted below:

Continue reading "Medical Errors Kill 15,000 Medicare Patients Each Month, According to Inspector General" »

Yesterday afternoon our Canadian clients whose mother was killed in a plane crash near the Virginia-West Virginia border received good news. Their wrongful death case arising from this airplane crash was allowed to proceed by the West Virginia Supreme Court of Appeals.

As the Supreme Court summarized the background:

The appellant’s claims arise from a crash of the Mooney M20C Ranger on
March 16, 2008, in the State of Virginia, 20 miles from the border of West Virginia. Piloting the airplane was Roy Sanwalka, who possessed a Canadian private pilot’s license. This license did not include an instrument rating. The sole passenger in the airplane at the time of the crash was Margaret O’Brien, Roy Sanwalka’s girlfriend. Both Roy Sanwalka and O’Brien were killed when the airplane crashed in or near the Jefferson National Forest in Atkins, Virginia.

The pair took off from Yeager Airport. Eighteen minutes into the trip, while still over West Virginia, Roy Sanwalka contacted air traffic controllers requesting permission to drop to a lower altitude because of airframe icing on his airplane. Eleven minutes after that radio conversation, Roy Sanwalka contacted the air traffic controllers stating his airplane was going down. Shortly after that conversation the airplane in which Roy Sanwalka and O’Brien were traveling crashed in Atkins, Virginia, killing both occupants instantly.

With co-counsel Scott Segal and Mark Staun of The Segal Law Firm in Charleston, West Virginia, our firm filed a lawsuit for personal injuries and wrongful death against the pilot and his employer, the owner of the plane. Frank Tierney of the Terney Stauffer firm in Ottawa is also counsel representing our clients.

The Supreme Court agreed today that the case could proceed in Charleston, West Virginia, where the pilot's negligent acts took place that ultimately caused the plane to crash just over the Virginia border.

We are very pleased for our clients that they will have their day in court.