January 2008

Brain injury survivors can look great even when their mental functioning is scrambled. To make the reality graphically visible to jurors it is often necessary to use sophisticated medical illustrations and animations. Several samples of animations explaining brain injuries are available online, though of course for trial use we would have to pay them.  For examples, see:

When you view these, you will see links to a number of individuals’ brain injury rehabilitation. In litigated case we might use something similar, categorized as "day in the life" videos.

When I was a young lawyer there was a very busy quadriplegic trial lawyer in Atlanta named Stan Nylen.  He made his was from courthouse to courthouse in an "Ironsides" van and driver/attendant. Stan could raise one hand just enough to extend two fingers to shake hands. "Old war horse" lawyers in Atlanta have quite a store of Stan Nylen stories.

One of my former law partners had a young woman lawyer in his firm who became a quadriplegic due to an injury and returned to work in the law firm. I have litigated against a paraplegic insurance defense lawyer who I thought was very effective. Within the past couple of years I have encouraged a paraplegic client to consider going to law school.

Here is an inspirational article from a San Francisco law firm’s newsletter about a congenitally quadriplegic attorney and a similarly challenged law student.  The quadriplegic attorney, according to the article,  “love her to death” and “regard her just like any other lawyer—just better than most."

The downturn in world financial markets bodes ill for people injured by the negligence of others, as insurance companies are likely to ramp up new calls for additional "tort reform" in order to make up for their investment losses. We have seen it several times before. 

In the 1970’s, 1980’s and 1990’s, insurance companies raised premiums to cover their investment losses.  Of course rather than admitting that their losses were due to poor investment performance, they blamed the injury victims and evil trial lawyers for filing a mountain of "frivolous" lawsuits, and supported politicians who went along with their campaign

As an attorney handling trucking accident cases in Atlanta, Georgia, I frequently deal with issues of truck driver fatigue, and the controversy over the change in hours-of-service rules that wears out drivers while enabling shippers and trucking companies to squeeze more work hours out of them. 

Advocates for Highway and Auto Safety, an appropriately named advocacy group,  told the DC Circuit Court of Appeals last week that the Federal Motor Carrier Safety Administration broke the law again when it reinstated an hours-of-service rule for truck drivers that is making highways more dangerous. The FMCSA claims that the rule, which allows driving 11 hours per day and working up to 84 hours per week,  does not lead to dangerous fatigue. 

According to a report by Commerce Clearing House (CCH), a reply brief filed last Thursday refutes FMCSA’s argument that the rule has improved highway safety. The National Highway Traffic Safety Administration recently reported that deaths in truck accidents increased in 2004 and 2005, while the percentage of fatal crashes that result from driver fatigue rose 20 percent during the same period.  "Because 2004 was the first year in which the new, longer hours of driving and work were put into effect, the negative impact is obvious," the brief states. In addition, FMCSA has acknowledged in the past that the risk of a crash doubles from the 8th hour to the 9th hour of driving, and doubles again from the 10th to the 11th hour.

The hours-of-service rule has twice been thrown out by a court. FMCSA first promulgated the regulation in 2003, increasing the number of hours truckers can drive. The Court of Appeals for the DC Circuit struck down the rule in 2004, but Congress reinstated it as part of the Surface Transportation Extension Act of 2004.

One may marvel at the stubborn resistance to common sense about fatigue hazards at the FMCSA. However, when I see how many former FMCSA officials retire to become shills for the trucking industry that they had been regulating, testifying in court and depositions that hardly anything a trucking company does is unsafe, it fits together.

Justice delayed is justice denied.  Brian Nichols is charged with escape when he overcame a deputy and took her gun, and with the murders of Judge Roland Barnes in his courtroom at Fulton County Superior Court, a court reporter also in the courtroom, a deputy sheriff outside the courthouse, and a federal officer several miles away. The judicial gridlock in getting him to trial is increasingly a blot on the justice system in Georgia and a drag on the operation of courts in Fulton County.

There is plenty of blame to go around.

The Sheriff’s office provided inadequate security at

Occasionally we get calls from potential clients who are interested in a possible malpractice suit based on alleged malpractice in a hospital emergency room. Even if the medical treatment appears to fall short of an appropriate standard of care, we have to explain to them that as a practical matter there is no case. The Georgia General Assembly chose in 2005 to change the law so that ER staff cannot be held liable for damages "unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence."  The most common definition of "gross negligence" is "reckless disregard for the safety of a patient," which is almost impossible to prove in the emergency room.

The practical effect is virtual immunity from civil liability for any ER physician who cannot be clearly proven to be drunk or on drugs at the time of the incident. Virtually no attorneys are taking ER liability cases in Georgia  because even if it is a legitimate case of malpractice, and even after you invest hundred of hours and $50,000 to $100,000 in out of pocket expense, you still almost have to prove that the doctor was drunk or intended to harm the patient.

Now Senate Bill 286 would replace "showed gross negligence" with "failed to meet the applicable standard of care."  That is still a very tough standard to meet, and the defense would probably still win 80% of the time, but in an egregious case it would be at least possible to bring a case.  It is supported by at least 15 state senators, 10 Republicans and five Democrats, including the Senate majority and minority leaders. However, the Medical Association of Georgia and Georgia Hospital Association strongly oppose it.

Due to the power of the lobbying forces arrayed against it, however, I will be utterly astonished if it passes.



                                           Bibb County Courthouse

At the Board of Governors meeting on January 12th, a couple of very kind and generous friends put my name in nomination for Secretary of the State Bar of Georgia.  Perhaps that is in the "be careful what you ask for" category. Let’s just say it’s on my "bucket list" (though I’m in good health).  

Last Friday, I had lunch with the Macon Bar Association at the Armory Ballroom, which was built in 1885 as the home of the Macon Volunteers, a