Atlanta Injury Law Blog

Those commentators and politicians who complain about frivolous lawsuits have no idea how many frivolous cases experienced lawyers screen out of the system.  Here's the latest I've seen.

Q.  My 11 years old son was injured by a defective mechanical pencil. A spring from the pencil went through his finger. We had to take my son to the doctor to have it removed. I am jus wondering do I have a product liabilty case against them?

A.  Having gone to an ER for removal of a large spring from my own finger once, and having taken my own kids to the ER for a variety of minor injuries and ailments, I understand you are upset. However, as was mentioned in another response, a products liability case is inordinately expensive and complex. Unless there is a catastrophic permanent injury, a products liability case is generally not worthwhile. If you think about this a while, you may conclude that only the defense lawyers would make any money on this case and the story of your lawsuit would become an urban legend circulated by tort reform advocates for years as an example of frivolous litigation. Unless your son lost his finger, I hope you do not clog up the court system with this claim.

Here's another recent question that landed on my desk. Too often we hear from folks after their time limits have expired.

Q. I was injured on the job back in 2003 my ankle was broken in several places. The company doctor performed surgery, he placed industrial screws in my ankle which has not healed properly. As a result of this my ankle began to swell due to lack of physical therapy which I have been denied by the company and the state department of workers compensation. Please help if you can.

A. Georgia has a pretty strict two year statute of limitation in medical malpractice cases. It runs from whenever you had symptoms that could have led you to discover that there was a violation of the standard of care. Denial of PT by the workers comp carrier would not be malpractice on the part of the surgeon. In short, I would not take the case on a contingent fee and advance the $30,000 to $60,000 expenses that would be required to properly prepare it for trial. Someone else might have another opinion. I hope you have a good lawyer on the workers comp case, though the recovery there is inadequate at best.

Q.  I fell down stairs in a nightclub and suffered a gash in my leg which required 18 stitches, x-rays & 2 additional doctor visits. I had not been drinking. I was only there to see a friend and had only been in the club about 15-30 minutes. The stairs were clear acrylic with multi-colored lights around the edges. It was very dimly lit inside the club. It happened so fast, I don't recall if I slipped on something or just missed a step. I don't recall if there was any type of non-slip edging around the stairs. I made my way outside of the club and sat on the curb and noticed I was bleeding profusely. The person at the door did come to my aid and tried to look for something to bandage the gash. Apparently the club did not keep a first aid kit on hand because the only thing he could find to bandage my leg was a napkin and duct tape. My friends drove me to the hospital. I remember specifically asking about reporting the incident to someone and was told not to worry about it. One of the waitresses laughed and said I would have free access to the club anytime I wanted it. I am not really looking to file a suit against the club. All I am asking is that the club pay the deductibles from what my insurance did not cover (approximately $300.00). I have e-mailed the website link asking someone to contact me but with no response. I intend to write a certified letter to the club also. I would not be opposed to taking legal action against the club for other damages if it is felt that I may have a case. Perhaps having an attorney write a letter would push them to respond?

Q.  In order to prevail in a premises liability case like this you need to have evidence of why you fell, and show that the proprietor knew or should have known of a dangerous condition. If you don't recall whether you slipped on something or just missed a step, that's not good enough. If you did slip on something, but it was a drink that another patron had just spilled, you still would lose. Of course, that's not to say that the club's insurance company wouldn't pay your deductible, perhaps under a "medical payments" coverage which does not require proof of fault. You may want to notify the club management and ask them to put you in touch with their insurance company with regard to payment of your deductible. There is a two years statute of limitation for personal injury lawsuits in Georgia, so if you were going to file suit (which I do not suggest) you would have to file by the second anniversary of your injury.

The politicans who complain about frivolous lawsuits don't see the ones we screen out. Here's a recent question and my response.

Q.  On November 25th 2008, my boyfriend had purchased, among other things a order of fries. We live about 5 minutes from the store. When he returned home we proceeded to eat. The fries were cold, burnt and not prepared correctly. I was hungry and continued to eat, only to find a cracking sound. When I looked at what I was chewing on it was just dust, no pieces of teeth, just dust. My left upper back tooth had chipped. I'm not sure if it is a wisdom tooth or a dental sealant that cracked, either way my teeth were fine before.

I proceeded to call the store, explained the situation, she said that the insurance company would call me back. About a week later, after the lovely Thanksgiving holiday, the insurance company called me back.

Long story short he asked me some questions concerning my visit. He then proceeded to tell me that I needed to be examined by a dentist to ensure it wasn't tooth decay and it was indeed the restaurants negligence. There in lies the problem, it a chicken and egg thing.

I recently had my 1st son and I am unemployed w/o insurance. I can't go to the dentist w/o insurance and if the restaurant backs out, I'm footed with the bill. The longer I wait the worse it gets.

I would appreciate any advice or insight to the situation that you can give me:) Also, do you think it would worth trying in court?

A.  In reality, even if you go to the dentist and get a favorable report, the value of that claim, if any, would be minimal. I wouldn't bother with it if I were you.

Someone else may have a different opinion, so feel free to consult a lawyer in your town.

Once again, we often hear from folks after their time has run out. Here's a question I got last week from a lady who waited way too long.

Q.  When I had my first child in 1994, the MD performed an episiotomy which caused severe nerve damage (sliced through tissue from vagina to rectum). I did not file suit at the time because I was hoping the problem would resolve. It is now 14 years later and the quality of life has suffered terribly due to damage incurred. Is it too late to file suit for damages?

A. Georgia has a rather strict two year statute of limitation in medical malpractice case. Nothing in your question suggests applicability of any of the narrow exceptions. Sorry.

Sometimes I have represented injured motorcyclists in litigation.  Here's a question that hit my desk this week about a motorcycle accident in Geogia.

Q.  I live in Ga. An 83 yo woman turned left in front of me, I was on a motorcycle. Had to hit her in the passenger side rear wheel. Broke leg at knee and broke foot, lots of road pizza. Spent 3 days in hospital for surgeries and then an additional week about 2 months later for blood clots and blood infection. Ins adjuster says he can only offer me 50,000 as that is all she is covered for. My question is:
If I retain a lawyer and sue will the fact that I had an out of date motorcycle learners permit have an effect on the case or should I just settle for the 50 grand?

A.  If she only had $50,000 coverage, that may be as much you are going to get. If you file suit and the case goes to trial, some jurors will sympathize with the elderly lady, some will either like or dislike motorcyclists, and some will just be skeptical of any personal injury claim. You didn't mention how much your medical bills are, but it would not be surprising for a jury to award no more than what appears to be a $50,000 policy limit. You should request an affidavit from the insurance company as to the policy limits before you settle for that.

As a personal injury trial lawyer in Atlanta, I wind up answering a lot of questions. Here's one that came to me recently:

Q.  Is the diagnosis from a chiropractor allowed in personal injury cases in Georgia?

A.  A chiropractor can testify to document complaints and symptoms and regarding treatment within the scope of chiropractic care. However, in my practice, I use chiropractic testimony to corroborate the facts about the client's pain and efforts to recover function, but ALWAYS accompany that with testimony of medical doctors and other health care professionals.

Q.  Can I sue an animal doctor for giving my dog a vaccination shot that made him so sick that he had to be put down?

A.  Theoretically yes. Practically, it's probably not worth it. The measure of damage for death of an animal in Georgia -- even the most beloved family pet --- is the cash value of the animal. What could you have sold the animal for on the market the day before the vaccination? Probably not much more than the cost of the court filing fee.

Once again, the politicians who complain about frivolous lawsuits should see the ones lawyers screen out. Here's a recent question and my response.

Q.  My friends and I recently ate at a restaurant and found numerous bugs in ALL of our to go cups. We had already drank from our cups and because a manager was not on duty, we simply notified the waitress and cook as well as took many pictures of the dead bugs floating in our cups. They did not charge us for our meal but should more be done to compensate us?

A.  So what were your damages? Lawsuits about this sort of thing just mess things up for people who have serious injury cases.

Here's a sample of the sort of questions I get from folks in my practice as an personal injury trial attorney in Atlanta:

Q:  What does general damages mean in context to auto accident personal injury claim in Georgia?

A: This is more than you asked for, but here is a portion of the Georgia Pattern Jury Instructions on damages in personal injury cases:

Damages are given as compensation for an injury done, and generally the injury is the measure when the damages are of a character to be estimated in money. If the injury is small or mitigating circumstances are strong, only nominal damages are given. What would be a proper amount of nominal damages is a question for you to decide under all the facts and circumstances of the case.

In all cases, necessary expenses resulting from the injury are a legitimate item of damages. As to medical expenses, such as hospital, doctor, and medicine bills, the amount of the damage would be the reasonable value of such expense as was reasonably necessary.

Loss of earnings from the time of the alleged injury to the time of trial is a legal item of damages, and (the amount that may be recovered) (its measure) is the value of the earnings that the evidence shows with reasonable certainty the plaintiff has lost as a result of the injury. You may consider what the plaintiff was making at the time of the injury, what was made since the injury, the amount customarily paid in the locality for the kind of work the plaintiff does, and similar matters. There must be some evidence before you as to the plaintiff's loss.

Pain and suffering is a legal item of damages. The measure is the enlightened conscience of fair and impartial jurors. Questions of whether, how much, and how long the plaintiff has suffered or will suffer are for you to decide.

Pain and suffering includes mental suffering, but mental suffering is not a legal item of damage unless there is physical suffering also. If you find that the plaintiff's pain and suffering will continue into the future, you should award damages for such future pain and suffering as you believe the plaintiff will endure. In making such award, your standard should be your enlightened conscience as impartial jurors. You would be entitled to take into consideration the fact that the plaintiff is receiving a present cash award for damages not yet suffered.

No plaintiff may recover for injuries or disabilities that are not connected with the act or omissions of the defendant in this case. There can be no recovery for a particular plaintiff for any injury or disability that was not proximately caused by the incident in question.
If you should find that, at the time of the incident, the plaintiff had any physical condition, ailment, or disease that was becoming apparent or was dormant, and if you should find that the plaintiff received an injury as a result of the negligence of the defendant and that the injury resulted in any aggravation of a condition already pending, then the plaintiff could recover damages for aggravation of the preexisting condition.

In a tort action in which the entire injury pertains to the peace, happiness, or feelings of the plaintiff, no measure of damages may be prescribed, except the enlightened conscience of impartial jurors. The worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed.

In determining the amount of such damage, you would consider all the facts and circumstances of the case, as disclosed by the evidence, and fix a sum as you think would be reasonable, fair, and just.