Atlanta Georgia Asbestos and Silica Related Lung Illness Claims

Asbestos is a naturally occurring mineral that was long used in insulation, fireproofing, and a variety of industrial applications. Thousands of years ago, it was used for candlewicks, mummy wrappings, table cloths. By the 19th century, its use exploded because  resistance to chemicals, heat, water and electricity made it an excellent insulator for the steam engines, turbines, boilers, ovens and electrical generators. Asbestos mining was done all over the world, often employing child labor to extract the mineral.

As early as ancient Roman times, people began to notice lung ailments among slaves who wove asbestos fibers into cloth. As the use of asbestos expanded in the Industrial Revolution, doctors noted such a correlation. By 1908, deaths from asbestos-clogged lungs became common. Insurance companies began excluding coverage or increasing premiums for workers who labored with asbestos. However, heavy use of asbestos continued, particularly in war production in World War II. Asbestos was included in a wide variety of products. When I was growing up, it was common in our everyday environment. The administration of my elementary school was very proud to have fireproof asbestos ceiling tiles and stage curtain. U.S. consumption of asbestos peaked in 1973 at 804,000 tons.

By the late 1970s, a the public began to recognize a connection between asbestos exposure and potentially fatal lung diseases. The first successful lawsuit for mesothelioma and asbestosis caused by asbestos exposure was in 1969. Borel v. Fibreboard Paper Products Corporation et al., 493 F.2d 1076 (5th Cir. 1973). Mr. Burrell worked 33 years as  an insulator who developed mesothelioma and from his exposure to asbestos in insulation.

Suits against companies that used asbestos in manufacturing are complex.  Beginning in the 1980s, many companies who were defendants in the asbestos litigation filed for  bankruptcy, set  money aside for present and future asbestos liabilities, and then reorganize and  exit bankruptcy and continue in business.

Asbestos-related lawsuits in Georgia are subject to special rules established by the Asbestos Claims and Silica Claims Act of 2007. O.C.G.A. § § 51-14-5 provides:

Notwithstanding any other provision of law, with respect to any asbestos claim or silica claim not barred as of May 1, 2007, the limitations period shall not begin to run until the exposed person, or any plaintiff making an asbestos claim or silica claim based on the exposed person’s exposure to asbestos or silica, obtains, or through the exercise of reasonable diligence should have obtained, prima-facie evidence of physical impairment, as defined in paragraph (17) or (18) of Code Section 51-14-3.

(17) In the context of an asbestos claim, “prima-facie evidence of physical impairment” means:

(A) For an asbestos claim that accrued before April 12, 2005:

(i) For an asbestos claim alleging mesothelioma: that a claimant alleges mesothelioma caused by exposure to asbestos, and no further prima-facie evidence of physical impairment shall be required;

(ii) For an asbestos claim alleging cancer other than mesothelioma: that a physician licensed to practice medicine (who need not be a “qualified physician” as defined in this Code section) has signed a medical report certifying to a reasonable degree of medical probability that the exposed person’s exposure to asbestos was a contributing factor to the diagnosed cancer other than mesothelioma and attaching whatever evidence the physician relied upon in determining that the exposed person has or had an asbestos related cancer; and

(iii) For an asbestos claim alleging nonmalignant injury: that a physician licensed to practice medicine (who need not be a “qualified physician” as defined in this Code section) has signed a medical report certifying to a reasonable degree of medical probability that the exposed person’s exposure to asbestos was a contributing factor to the diagnosed nonmalignant asbestos injury and attaching whatever evidence the physician relied upon in determining that the exposed person has or had a nonmalignant asbestos injury;

OCGA 51-14-3 (17)(B), et seq., provides:

(17) For an asbestos claim that accrued on or after May 1, 2007:

(i) For an asbestos claim alleging mesothelioma: that a claimant alleges mesothelioma caused by exposure to asbestos, and no further prima-facie evidence of physical impairment shall be required;

(ii) For an asbestos claim alleging cancer other than mesothelioma: that a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist has signed a medical report certifying to a reasonable degree of medical probability that the exposed person has or had a cancer other than mesothelioma; that the cancer is a primary cancer; that exposure to asbestos was a substantial contributing factor to the diagnosed cancer; and that other potential causes (such as smoking) were not the sole or most likely cause of the injury at issue;

(iii) For an asbestos claim alleging nonmalignant injury: that a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist has signed a medical report stating that the exposed person suffers or suffered from a nonmalignant asbestos injury and:

(I) Verifying that the doctor signing the medical report or a medical professional or professionals employed by and under the direct supervision and control of that doctor has taken histories as defined below or, alternatively, confirming that the signing doctor is relying on such histories taken or obtained by another physician or physicians who actually treated the exposed person or who had a doctor-patient relationship with the exposed person or by a medical professional or professionals employed by and under the direct supervision and control of such other physician or physicians, with such histories to consist of the following:

(a) A detailed occupational and exposure history from the exposed person or, if the exposed person is deceased or incapable of providing such history, from the person or persons most knowledgeable about the exposures that form the basis for the asbestos claim. The history shall include all of the exposed person’s principal employments and his or her exposures to airborne contaminants that can cause pulmonary impairment, including, but not limited to, asbestos, silica, and other disease-causing dusts, and the nature, duration, and level of any such exposure; and

(b) A detailed medical and smoking history from the exposed person or, if the exposed person is deceased or incapable of providing such history, from the person or persons most knowledgeable about the exposed person’s medical and smoking history, or the exposed person’s medical records, or both, that includes a thorough review of the exposed person’s past and present medical problems and their most probable cause;

(II) Setting out the details of the exposed person’s occupational, medical, and smoking histories and verifying that at least 15 years have elapsed between the exposed person’s first exposure to asbestos and the time of diagnosis;

(III) Verifying that the exposed person has:

(a) An ILO quality 1 chest X-ray taken in accordance with all applicable state and federal regulatory standards, and that the X-ray has been read by a certified B-reader according to the ILO system of classification as showing bilateral small irregular opacities (s, t, or u) graded 1/1 or higher or bilateral diffuse pleural thickening graded b2 or higher including blunting of the costophrenic angle; provided, however, that in a death case where no pathology is available, the necessary radiologic findings may be made with a quality 2 film if a quality 1 film is not available; or

(b) Pathological asbestosis graded 1(B) or higher under the criteria published in the Asbestos-Associated Diseases, Special Issue of the Archives of Pathological and Laboratory Medicine, Volume 106, Number 11, Appendix 3, as amended from time to time;

(IV) Verifying that the exposed person has pulmonary impairment related to asbestos as demonstrated by pulmonary function testing, performed using equipment, methods of calibration, and techniques that meet the criteria incorporated in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fifth edition, and reported as set forth in 20 C.F.R. 404, Subpt. P. App 1, Part (A) Section 3.00 (E) and (F), as amended from time to time by the American Medical Association, and the interpretative standards of the American Thoracic Society, Lung Function Testing: Selection of Reference Values and Interpretive Strategies, 144 Am. Rev. Resp. Dis. 1202- 1218 (1991), as amended from time to time by the American Thoracic Society, that shows:

(a) Forced vital capacity below the lower limit of normal and FEV1/FVC ratio, using actual values, at or above the lower limit of normal; or

(b) Total lung capacity, by plethysmography or timed gas dilution, below the lower limit of normal,

except that this subdivision (17)(B)(iii)(IV) shall not apply if the medical report includes the pathological evidence set forth in clause (17)(B)(iii)(III)(b) of this Code section;

(V)(a) Exception to pulmonary function test requirement in subdivision (17)(B)(iii)(IV) of this Code section: If the doctor signing the medical report states in the medical report that the exposed person’s medical condition or process prevents the pulmonary function test described in subdivision (17)(B)(iii)(IV) of this Code section from being performed or makes the results of such test an unreliable indicator of physical impairment, a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist (none of whom need be a “qualified physician” as defined in this Code section), independent from the physician signing the report required in this subdivision, must provide a report which states to a reasonable degree of medical probability that the exposed person has or had a nonmalignant asbestos related condition causing physical impairment equivalent to that required in subdivision (17)(B)(iii)(IV) of this Code section and states the reasons why the pulmonary function test could not be performed or would be an unreliable indicator of physical impairment.

(b) Exception to X-ray requirement in clause (17)(B)(iii)(III)(a) of this Code section: Alternatively and not to be used in conjunction with clause (17)(B)(iii)(V)(a) of this Code section, if the doctor signing the medical report states in the medical report that the exposed person’s medical condition or process prevents a physician from being able to diagnose or evaluate that exposed person sufficiently to make a determination as to whether that exposed person meets the requirements of clause (17)(B)(iii)(III)(a) of this Code section, the claimant may serve on each defendant a report by a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist (none of whom need be a “qualified physician” as defined in this Code section) that:

(1) Verifies that the physician has or had a doctor patient relationship with the exposed person;

(2) Verifies that the exposed person has or had asbestos related pulmonary impairment as demonstrated by pulmonary function testing showing:

(A) Forced vital capacity below the lower limit of normal and total lung capacity, by plethysmography, below the lower limit of normal; or

(B) Forced vital capacity below the lower limit of normal and FEV1/FVC ratio (using actual values) at or above the lower limit of normal; and

(3) Verifies that the exposed person has a chest X-ray and computed tomography scan or high resolution computed tomography scan read by the physician or a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, board certified oncologist, or board certified radiologist (none of whom need be a “qualified physician” as defined in this Code section) showing either bilateral pleural disease or bilateral parenchymal disease diagnosed and reported as being a consequence of asbestos exposure; and

(VI) Verifies that the doctor signing the medical report has concluded to a reasonable degree of medical probability that exposure to asbestos was a substantial contributing factor to the exposed person’s physical impairment.

Copies of the B-reading, the pulmonary function tests, including printouts of the flow volume loops and all other elements required to demonstrate compliance with the equipment, quality, interpretation, and reporting standards set forth in this paragraph (17), the medical report (in the form of an affidavit as required by subparagraph (A) of paragraph (2) of Code Section 51-14-6), and all other required reports shall be submitted as required by this chapter. All such reports, as well as all other evidence used to establish prima-facie evidence of physical impairment, must comply, to the extent applicable, with the technical recommendations for examinations, testing procedures, quality assurance, quality controls, and equipment in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fifth edition, as amended from time to time by the American Medical Association, and the most current version of the Official Statements of the American Thoracic Society regarding lung function testing. Testing performed in a hospital or other medical facility that is fully licensed and accredited by all appropriate regulatory bodies in the state in which the facility is located is presumed to meet the requirements of this chapter. This presumption may be rebutted by evidence demonstrating that the accreditation or licensing of the hospital or other medical facility has lapsed or by providing specific facts demonstrating that the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment have not been followed. All such reports, as well as all other evidence used to establish prima-facie evidence of physical impairment, must not be obtained through testing or examinations that violate any applicable law, regulation, licensing requirement, or medical code of practice and must not be obtained under the condition that the exposed person retain legal services in exchange for the examination, testing, or screening. Failure to attach the required reports or demonstration by any party that the reports do not satisfy the standards set forth in this paragraph (17) shall result in the dismissal of the asbestos claim, without prejudice, upon motion of any party.

(18) In the context of a silica claim, “prima-facie evidence of physical impairment” means:

(A) For a silica claim that accrued before April 12, 2005, that a physician licensed to practice medicine (who need not be a “qualified physician” as defined in this Code section) has signed a medical report certifying to a reasonable degree of medical probability that the exposed person’s exposure to silica was a contributing factor to the claimed injury and attached whatever evidence the physician relied upon in determining that the exposed person has or had a silica related injury; and

(B) For a silica claim that accrued on or after May 1, 2007:

(i) A medical report asserting that the exposed person has or had a silica related lung cancer and:

(I) Certifying to a reasonable degree of medical probability that the cancer is a primary lung cancer; and

(II) Signed by a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist stating to a reasonable degree of medical probability that exposure to silica was a substantial contributing factor to the lung cancer with underlying silicosis demonstrated by an X-ray that has been read by a certified B-reader according to the ILO system of classification as showing bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher, and that the lung cancer was not more probably the sole result of causes other than the silica exposure revealed by the exposed person’s occupational, silica exposure, medical, and smoking histories;

(ii) A medical report asserting that the exposed person has or had silica related progressive massive fibrosis or acute silicoproteinosis, or silicosis complicated by documented tuberculosis, signed by a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist; or

(iii) A medical report signed by a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist stating that the exposed person suffers from other stages of nonmalignant disease related to silicosis other than those set forth in divisions (i) and (ii) of this subparagraph, and:

(I) Verifying that the doctor signing the medical report or a medical professional or professionals employed by and under the direct supervision and control of that doctor has taken histories as defined below or, alternatively, confirming that the signing doctor is relying on such histories taken or obtained by another physician or physicians who actually treated the exposed person or who had a doctor-patient relationship with the exposed person or by a medical professional or professionals employed by and under the direct supervision and control of such other physician or physicians, with such histories to consist of the following:

(a) A detailed occupational and exposure history from the exposed person or, if the exposed person is deceased or incapable of providing such history, from the person or persons most knowledgeable about the exposures that form the basis for the silica claim. The history shall include all of the exposed person’s principal employments and his or her exposures to airborne contaminants that can cause pulmonary impairment, including, but not limited to, asbestos, silica, and other disease-causing dusts, and the nature, duration, and level of any such exposure; and

(b) A detailed medical and smoking history from the exposed person or, if the exposed person is deceased or incapable of providing such history, from the person or persons most knowledgeable about the exposed person’s medical and smoking history, or the exposed person’s medical records, or both, that includes a thorough review of the exposed person’s past and present medical problems and their most probable cause;

(II) Setting out the details of the exposed person’s occupational, medical, and smoking histories and verifying a sufficient latency period for the applicable stage of silicosis;

(III) Verifying that the exposed person has at least Class 2 or higher impairment due to silicosis, as set forth in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fifth edition, as amended from time to time by the American Medical Association and:

(a) Has an ILO quality 1 chest X-ray taken in accordance with all applicable state and federal regulatory standards, and that the X-ray has been read by a certified B-reader according to the ILO system of classification as showing bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher; provided, however, that in a death case where no pathology is available, the necessary radiologic findings may be made with a quality 2 film if a quality 1 film is not available; or

(b) Has pathological demonstration of classic silicotic nodules exceeding 1 centimeter in diameter as set forth in 112 Archives of Pathological & Laboratory Medicine 7 (July 1988), as amended from time to time; and

(IV) Verifying that the doctor signing the medical report has concluded to a reasonable degree of medical probability that the exposure to silica was a substantial contributing factor to the exposed person’s physical impairment.

 

Copies of the B-reading, the pulmonary function tests, including printouts of the flow volume loops and all other elements required to demonstrate compliance with the equipment, quality, interpretation, and reporting standards set forth in this paragraph (18), and the medical report (in the form of an affidavit as required by subparagraph (A) of paragraph (2) of Code Section 51-14-6), and all other required reports shall be submitted as required by this chapter. All such reports, as well as all other evidence used to establish prima-facie evidence of physical impairment, must comply, to the extent applicable, with the technical recommendations for examinations, testing procedures, quality assurance, quality controls, and equipment in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fifth edition, as amended from time to time by the American Medical Association, and the most current version of the Official Statements of the American Thoracic Society regarding lung function testing. Testing performed in a hospital or other medical facility that is fully licensed and accredited by all appropriate regulatory bodies in the state in which the facility is located is presumed to meet the requirements of this chapter. This presumption may be rebutted by evidence demonstrating that the accreditation or licensing of the hospital or other medical facility has lapsed or by providing specific facts demonstrating that the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment have not been followed. All such reports, as well as all other evidence used to establish prima-facie evidence of physical impairment, must not be obtained through testing or examinations that violate any applicable law, regulation, licensing requirement, or medical code of practice, and must not be obtained under the condition that the exposed person retain legal services in exchange for the examination, testing, or screening. Failure to attach the required reports or demonstration by any party that the reports do not satisfy the standards set forth in this paragraph (18) shall result in the dismissal of the silica claim, without prejudice, upon motion of any party.

(19) “Qualified physician” means a medical doctor, who:

(A) Spends no more than 35 percent of his or her professional practice time in providing consulting or expert services in connection with actual or potential civil actions, and whose medical group, professional corporation, clinic, or other affiliated group earns not more than 50 percent of its revenues from providing such services; provided, however, that the trial court, in its discretion, may allow a physician who meets the other requirements of this chapter but does not meet the time and revenue requirements of this subparagraph to submit a report required by this chapter if the trial court first makes an evidentiary finding (after all parties have had a reasonable opportunity to present evidence) that it would be manifestly unjust not to allow the physician at issue to submit the report and makes specific and detailed findings, setting forth the bases therefor, that the physician’s opinions appear to be reliable medical opinions in that they are supported by documented, reliable medical evidence that was obtained through testing or examinations that comply with and do not violate any applicable law, regulation, licensing requirement, or medical code of practice and that the opinions are not the product of bias or the result of financial influence due to his or her role as a paid expert. The cost of retaining another physician who is qualified pursuant to this subparagraph for the purpose of submitting a report required by this chapter may not be considered in determining manifest injustice, but the availability or unavailability of other physicians who meet the time and revenue requirements of this subparagraph shall be considered as a relevant factor; and

(B) Does not require as a condition of diagnosing, examining, testing, screening, or treating the exposed person that legal services be retained by the exposed person or any other person pursuing an asbestos or silica claim based on the exposed person’s exposure to asbestos or silica.

The board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist who submits a report under this chapter may be an expert witness retained by counsel for the exposed person or claimant, so long as the physician otherwise meets the requirements of this chapter and any other applicable Code sections governing the qualifications of expert witnesses.

(20) “Silica” means a group of naturally occurring crystalline forms of silicon dioxide, including, but not limited to, quartz and silica sand, whether in the form of respirable free silica or any quartz- containing or crystalline silica-containing dust, in the form of a quartz- containing by-product or crystalline silica-containing by-product, or dust released from individual or commercial use, release, or disturbance of silica sand, silicon dioxide, or crystalline-silica containing media, consumables, or materials.

(21)(A) “Silica claim” means any claim, wherever or whenever made, for damages, losses, indemnification, contribution, loss of consortium, or other relief arising out of, based on, or in any way related to the health effects of exposure to silica, including, but not limited to:

(i) Any claim, to the extent recognized by applicable state law now or in the future, for:

(I) Personal injury or death;

(II) Mental or emotional injury;

(III) Risk or fear of disease or other injury; or

(IV) The costs of medical monitoring or surveillance; and

(ii) Any claim made by or on behalf of an exposed person or based on that exposed person’s exposure to silica, including a representative, spouse, parent, child, or other relative of the exposed person.

(B) “Silica claim” shall not mean a claim brought under:

(i) A workers’ compensation law administered by this state to provide benefits, funded by a responsible employer or its insurance carrier, for occupational diseases or injuries or for disability or death caused by occupational diseases or injuries;

(ii) The Act of April 22, 1908, known as the Federal Employers’ Liability Act, 45 U.S.C. Section 51, et seq.;

(iii) The Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. Sections 901-944, 948-950; or

(iv) The Federal Employees Compensation Act, 5 U.S.C. Chapter 81.

(22) “Silicosis” means nodular interstitial fibrosis of the lung produced by inhalation of silica.

(23) “Substantial contributing factor” means that exposure to asbestos or silica took place on a regular basis over an extended period of time and in close proximity to the exposed person and was a factor without which the physical impairment in question would not have occurred.

(24) “Total lung capacity” means the volume of gas contained in the lungs at the end of a maximal inspiration.


If you or a loved one has suffered from mesothelioma, asbestosis, or other asbestos- related illness, contact us online or call us at 404-253-7862.

 


Johnson & Ward has been a leading personal injury specialty law firm in Atlanta since 1949.

Ken Shigley is a former president of the State Bar of Georgia (2011-12), triple board certified by the National Board of Trial Advocacy, recipient of the Traditions of Excellence Award for lifetime achievement, and was lead author of Georgia Law of Torts: Trial Preparation and Practice (2010-21). He graduated from Furman University and Emory University Law School.

 

 

 

Femur fracture injuries

Femur fracture injuries are serious, painful, and often cause some degree of permanent impairment. Your femur (thigh bone)  is the longest, thickest, and biggest bone in your body. It takes a lot of force to break the femur. A femur fracture may involve a break, crack, or crush injury of the bone. Auto and truck collisions are the most common cause of femur fractures.

The long, straight part of the femur is called the femoral shaft.  Femur fracture injuries anywhere along this length of bone is called a femoral shaft fracture. Fractures that break completely through the bone, or cause the bone to be displaced or crushed, require immediate surgery.  These are classified in several ways:

 

Femur fracture injuries are classified in several was:

Stable fracture: fragments of the broken bone line up correctly.

  • Displaced fracture: broken bone fragments are out of alignment and must be put back in line.
  • Closed fracture: the skin around the fracture remains be intact
  • Open fracture: the broken bone has punctured the skin.
  • Location of fracture:
  • Pattern of fracture
    • Transverse fracture: a break is a straight horizontal line across the femoral shaft.
    • Oblique fracture: a break is an angled line across the shaft.

    • Spiral fracture: Twisting force causes a fracture line that spirals around the shaft like stripes on a barber pole or candy cane.
    • Comminuted fracture: bone has broken into three or more pieces.
    • Open or compound fracture: bone fragments stick out through the skin or a wound penetrates down to the broken bone, the fracture is called an open or compound fracture. This involves increased damage to the surrounding muscles, tendons, and ligaments, and higher risk for complications—especially infections—and take longer to heal.

Femoral fractures often require complex surgery. When a surgeon opens up the thigh to put bone fragments back in proper alignment that is call “open reduction.” That contrasts with “closed reduction” in which a surgeon is able to align bones fragments without cutting. When the surgeon uses rods (also called nails), screws and other hardware to secure the fragments together, that is called “internal fixation.” The entire procedure is “open reduction – internal fixation,” abbreviated as “ORIF.”   Rods (nails) inserted in the middle of the femoral shaft and secured with screws, plates, and wires. This internal hardware is usually left in the body long-term.

Some also required external fixation devices temporarily on the outside of the thigh. Complications may arise if these devices are misaligned in any way, or with infection, nerve damage, blood clots, and bones setting in incorrect positions. Sometimes more than one operation is required.

We have handled many cases involving complex femur fractures, working closely with treating orthopedic surgeons to accurately communicate the full reality of such injuries, including impairment ratings, disability factors, and custom medical illustrations.

In one femur fracture case arising from a truck wreck in a conservative,  rural Georgia county, Ken Shigley obtained a jury verdict of $2,345,940.17, roughly $1.2 million more than we asked for. That was the result of providing the jury a method of determining value in such a manner that the jurors decided to award more than the amount that we asked for in closing arguments.

If you or a loved one has suffered a femur fracture due to a truck crash or other traumatic injury, call us at 404-253-7862.


Johnson & Ward has been a leading personal injury specialty law firm in Atlanta since 1949.
Ken Shigley is a former president of the State Bar of Georgia (2011-12), triple board certified by the National Board of Trial Advocacy, recipient of the Traditions of Excellence Award for lifetime achievement, and was lead author of Georgia Law of Torts: Trial Preparation and Practice (2010-21). He graduated from Furman University and Emory University Law School.
John Adkins specializes in personal injury and wrongful death litigation. He is an honor graduate of Kennesaw State University and Thomas Jefferson School of Law in San Diego.
Ed Stone specializes in personal injury and wrongful death litigation. He is a graduate of Kennesaw State University and John Marshall Law School in Atlanta.

 

 

 

Syringomyelia and Chiari Malformation Injuries

Syringomyelia and Chiari malformations are relatively rare, closely related, neurological conditions that may be congenital but also may be caused or severely aggravated by trauma in an accident such as head or neck injury an automobile collision. MRI (magnetic resonance imaging) and CT (computer tomography) scans are essential to the diagnosis of both.

Physicians accustomed to dealing with musculoskeletal injuries such as fractures, disc herniations, and whiplash, often completely miss the diagnosis of these extremely painful and debilitating injuries. They may even accuse the patients of exaggeration or malingering.

Chiari malformation is a little-understood condition in which the lowest area of the brain, the cerebellar tonsil, is forced out of the normal place inside the skull. While generally a congenital preexisting condition, it may have been asymptomatic and undiagnosed until aggravated by trauma. This in turn may compress portions of the brainstem and upper spinal cord, causing severe headaches, dizziness, vertigo, clumsiness, vision problems, spastic movement of limbs, and numbness or weakness in arms and legs. It may lead to paralysis.

A woman was a brilliant, successful professional when she was involved in an apparently minor car wreck. Doctors viewed her debilitating pain with skepticism, accusing her of malingering. She was disabled from her successful business career and virtually bedridden for years, going to close to 100 doctors before finally finding one who understood the traumatic aggravation of a previously asymptomatic congenital Chiari malformation, and how to treat it. After finally finding a medical team that knew how to treat the traumatically aggravated Chiari malformation, she recovered a good quality of life and launched a successful new career.

Recently, our firm recovered insurance policy limits of almost a million dollars for a young woman with a preexisting congenital Chiari malformation whose condition had been dormant several years before a collision with a commercial truck. Doctors who first saw her after this collision had limited understanding of Chiari malformation. Fortunately, she found her way to a neurologist deeply experienced in treating this condition. With seasoned medical care, her symptoms improved. With lawyers who understood the long-term implications of Chiari malformation, she recovered the maximum amount of money available without having to go through years of litigation and trial.

Syringomyelia is a condition of the spinal cord more often than not closely related to Chiari malformation. It is characterized by a fluid-filled cavity or cyst known as a syrinx that forms within the spinal cord. A syrinx can expand over time compressing or destroying the surrounding nerve tissue. Frequently seen symptoms include pain in the shoulders and neck, muscle weakness, pain and stiffness in the legs, numbness or decreased sensation, especially to heat and cold, scoliosis (abnormal curvature of the spine), muscle contractions, and ataxia (uncoordinated movements). It may eventually lead to paralysis and death.

There are several congenital or idiopathic causes of syringomyelia, but it also may be caused or severely aggravated by trauma in an accident. Posttraumatic syringomyelia is the term used for cases that result from trauma. Such injuries often are initially diagnosed as a mere whiplash.

World famous golfer and prominent Atlanta lawyer Bobby Jones acquired traumatic syringomyelia in a freak accident in 1929. His symptoms gradually became noticeable before he was finally diagnosed in 1950. Over the years, he progressed from leg braces, a cane,  walker,  wheelchair, and finally was confined to bed.

We represented a woman with traumatic syringomyelia who was fortunate to get to a highly rated neurosurgeon who was able to relieve excess pressure from the syringe in her spinal cord. We were able to recover before trial the maximum of all insurance coverage available. She went on to become prominent in advocacy for people with syringomyelia while developing a successful real estate sales career.

If you or a loved one has received a diagnosis of Chiari malformation or syringomyelia after a truck crash or other traumatic injury, call us at 404-253-7862.


Johnson & Ward has been a leading personal injury specialty law firm in Atlanta since 1949.
Ken Shigley is a former president of the State Bar of Georgia (2011-12), triple board certified by the National Board of Trial Advocacy, recipient of the Traditions of Excellence Award for lifetime achievement, and was lead author of Georgia Law of Torts: Trial Preparation and Practice (2010-21). He graduated from Furman University and Emory University Law School.
John Adkins specializes in personal injury and wrongful death litigation. He is an honor graduate of Kennesaw State University and Thomas Jefferson School of Law in San Diego.
Ed Stone specializes in personal injury and wrongful death litigation. He is a graduate of Kennesaw State University and John Marshall Law School in Atlanta.

 

Due to the unvaccinated, it is a terrible time to be badly injured in Georgia

For decades, I have represented the victims of catastrophic car and truck crashes. The most seriously hurt among them, with brain and spinal cord injuries, owed their survival in the days and weeks after injury to treatment in trauma centers and Intensive Care Units (ICU). Only later were they even eligible to benefit from excellent rehabilitation programs such as those at Shepherd and Emory.

Now ICU capacity at Georgia hospitals is virtually exhausted due to treatment of Covid-19 patients, about 97% of whom are unvaccinated. Both the physical capacity of hospitals in terms of ICU bed space and the human capacity in terms of trained staff are at a breaking point.

Ambulances transporting injury victims are being diverted from hospitals that are over capacity with unvaccinated Covid patients. Both hospitals with  Level 5 trauma centers in metro Atlanta,   Grady Hospital, and Wellstar Atlanta Medical Center,  this week are on “total diversion,” as emergency and ICU rooms are full. A trauma victim who normally would go straight to one of these hospitals, may not get in. Piedmont, Northside, and Emory Midtown are also diverting emergency patients because they are over capacity with most-unvaccinated Covid patients. Even if a trauma victim is accepted in an ER, there may be severe delay of treatment due to saturation of hospital capacity.

A friend who was a long-time ICU nurse at a major Atlanta hospital spent her last several months before retirement in the “war zone” of the first wave of Covid-19.  Like many dedicated medical personnel, the demands of the pandemic drove her to the decision to retire for the protection of her health and the well-being of her family. Seasoned ICU nurses are not easily replaced.

If a loved one is badly injured in Georgia today, with life depending on access to the best medical care, such access may be delayed by the decisions of people who chose not to get a readily available vaccine.

If you are hesitant to be vaccinated against Covid-19, remember that it’s not all about you. If your decision to forego vaccination lands you in a crowded ICU, it could be fatal to some innocent person suffering an unrelated injury or other medical crisis.


Call us today at our Atlanta office 404-253-7862 or submit your inquiry online, and find out if we can help.

A senior counsel in the firm of Johnson & Ward, Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law. and Truck Accident Law. He is one of only three Georgia lawyers to earn board certification in Truck Accident Law. He has served as a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its eleventh annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation, and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law SchoolMr. Shigley is a widower, father of two adult children, and an elder in his church. 



10 things to do after a car crash

A car crash can be one of the most traumatic events most people are likely to experience. It is an unexpected event that can be instantly life-changing for you and your family. There are 10 very important things that you need to do after a wreck in order to protect you, your family, and the compensation relief that you deserve.

1)                     Stay at the scene – The shock and trauma of being in an accident can cause you to not think clearly. However, it is very important that you stay at the scene of the accident and that you do NOT leave the scene. If you do leave the scene of the accident then it could imply guilt as well as result in criminal charges against you. Stay at the scene and wait for the police to arrive.

2)                     Call 911 and report the crashIt is very important that you call 911 and report the accident. Especially if you or the other party are injured. As soon as you can, call 911 and report the accident. If you call 911 first, then you will be able to explain what has happened and the events surrounding the scent better than anyone else can at that time. So call 911 and report the accident.

3)                     Do not admit fault or apologize – DO NOT say “I’m sorry” or apologize at the scene of the accident. Your judgment can be flawed in the emotions of the moment. Fault can be sorted out later. An impulsive statement can be used as an admission of guilt against you. It is very important to make sure that the police officer does not put your apology in their police report as well. So DO NOT apologize or say “I’m Sorry”.

4)                   Limit your conversation about the accident with the other party – After the crash, seek to exchange insurance information but do not get into further conversation. The other party may try to talk with you about what happened and why you did what you did or why they did what they did. It is very important that you do not engage in this type of conversation with the other party. Be polite and exchange information. If the other party tries to talk about what happened, politely refrain from such conversation until the police arrive.

5)                   Get photos and videos of the vehicles and the scene – Everyone these days has a smartphone so it is very important to remember to take pictures and videos of the scene. Try to take pictures and videos of the cars in the accident and the damage to both cars from all angles. Video the surrounding areas such as street intersections and weather conditions. Pictures and video of the surrounding area can be valuable information to your case. If the other driver was in a business vehicle, get clear photos of all writing on it. If it is a large truck get pictures of the truck door and all permit stickers.

6)                     If Injured, don’t move around – After the accident, the most common injury is a neck or back injury. This injury can be magnified or even cause permanent damage if you move around after the accident. If you feel like there is significant damage to your neck, back, or any body part then don’t move or get out of your car. Wait for the ambulance and first responders to arrive and check you out first. You may need to be carried out on a stretcher into the ambulance.

7)                     Go to the hospital if you have any injuries – At the time of the accident it is very important to take a moment and do a self-assessment of how your body is feeling. The adrenaline will be rushing through your body after an accident, so it will be difficult to feel certain pain until the adrenaline leaves your body. Take a minute and assess how you are physically feeling. Neck and back injuries will begin to hurt after the adrenaline is gone, so if there are any injuries, let the ambulance take you to the hospital to be checked out immediately.

8)                     Do not talk to the other party’s insurance company – After the accident, the other party’s insurance company will try to call you and get a statement from you of the events of the accident. They will do this over a recorded line. Other than giving the name of an attorney you have actually hired, do not talk to them or give any statements to them about the crash. The insurance company is not on your side and they are going to try and ask you questions that imply that you are guilty and responsible for the accident. Do Not speak to them.

9)                     Call our team AtlantaInjuryLawyer team at Johnson & Ward – After a motor vehicle crash,  you need advice and a road map on how to handle this traumatic experience. We have helped thousands of clients in your same situation navigate the legal process and battle the insurance companies. His experience will help you get fairly compensated and reimbursed for the injuries that you suffered. Call us at (404)253-7862.

10)                   Let your Attorney be your Advocate to the Insurance Company – The insurance company is not your advocate or your friend. Even your own insurance company does not have your best interest in mind. The insurance company works for the best interest of the insurance company. Their primary goal is to not pay out any money and then their second goal is to pay out the least amount of money possible. Let the AtlantaInjuryLawyer team at Johnson & Ward be your voice.


Ed Stone is a trial attorney specializing in personal injury law, including truck accidents, auto accidents, wrongful death, workers’ compensation, premises liability claims, dangerous or defective products,00 medical malpractice, and related Plaintiff’s tort litigation. He was born in Miami, Florida. He graduated from Kennesaw State University where he received a B.B.A. in Finance and Economics. After a first career in banking, he earned his J.D. degree from Atlanta John Marshall Law School in Atlanta, Georgia.

Member: Mr. Stone holds membership in the State Bar of Georgia and the Georgia Trial Lawyers Association. He is admitted to practice before all Georgia Superior, State, Probate, and Magistrate Courts. He is a member of Kennesaw Lodge No. 33, F & A. M., and a member of Pi Kappa Phi fraternity. Mr. Stone sits on the Board of Directors for the non-profit children’s charity, Lekotek of Georgia, founded in 1983, which has been helping families of all incomes and ethnicities whose children have physical and/or cognitive disabilities.

Legislation to update insurance rule for interstate trucking

The minimum liability insurance required for large trucks in interstate commerce was set at $750,000 forty years ago in 1981 at the beginning of the Reagan Administration. Everything else has gotten more expensive in the past forty years. Nothing costs the same since then–not the truck, the repairs, the gas, or the tolls, so it is completely unrealistic for the truckers to have the same insurance as they did forty years ago.

If adjusted for the Consumer Price Index, it would be $2,203,415.84 today. People who are injured by trucking negligence need to pay their medical bills so trucking safety advocates have sought for years to bring some balanced fairness to others on the road. If adjusted to the rate of medical inflation it would be about $5 million.

This year, legislation is moving forward in Congress to adopt a compromise increase to   $2 million as a reasonable compromise.

The principal opposition to this inflation adjustment on minimum insurance coverage for large trucks is the Owner-Operator Independent Drivers Association (OOIDA). While portraying itself as the representative of individual truck drivers, OOIDA operates largely as an insurance company. That is a pattern familiar in several national organizations that portray themselves as grassroots groups but are essentially insurance companies.

On June 10, 2021, U.S. House Committee on Transportation and Infrastructure approved a provision of the 2021 Highway Bill to increase the minimum insurance required for interstate motor carriers for the first time in forty years, from $750,000 to $2,000,000, over the opposition of congressmen allied with OOIDA.

The greatest threat of injury and death to truck drivers comes not from smaller vehicles on the highways, but from collisions with other large trucks. We have represented a number of semi-truck drivers over the years who were badly injured when their trucks were struck by other tractor-trailers. It is ironic that OOIDA would oppose the inflation adjustment of insurance that would protect its own members against the greatest threat of injury to themselves.

The legislative process is contentious. The struggle to update trucking insurance coverage for forty years of inflation is far from over. Those that oppose that update will pull out all the stops in the House Rules Committee and in the Senate to block measures for improved trucking safety and adequate compensation for the victims of large truck crashes.


Call us today at our Atlanta office 404-253-7862 or submit your inquiry online, and find out if we can help.

A senior counsel in the firm of Johnson & Ward, Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law. and Truck Accident Law. He is one of only three Georgia lawyers to earn board certification in Truck Accident Law. He has served as a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its eleventh annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation, and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law SchoolMr. Shigley is a widower, father of two adult children, and an elder in his church. 

Shigley continues on board of Institute for Continuing Legal Education

Ken Shigley

Shigley on board of Institute for Continuing Legal Education

Kenneth L. Shigley , an Atlanta personal injury attorney, continues on the board of the Institute for Continuing Legal Education(ICLE), on which he has served since 2008. Mr. Shigley previously served as Chairman of the Board. He is also a former president of the State Bar of Georgia and received the “Traditions of Excellence” Award from the Bar in 2019.

The Georgia Institute of Continuing Legal Education is a not-for-profit educational service of the State Bar of Georgia and is responsible for providing continuing legal education for all lawyers in the State of Georgia. The Institute is a consortium of the Bar and the Law Schools of the Universities of Georgia, Emory, Mercer, Georgia State, and Atlanta’s John Marshall Law School.

Mr. Shigley is the first Georgia lawyer to attain three board certifications from the National Board of Trial Advocacy, in Truck Accident Law (2019), Civil Pretrial Practice (2012) and Civil Trial Advocacy (1995). He is lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters West, 2010-20), former chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and has been a speaker or program chair at continuing legal education programs throughout Georgia and the United States since 1994. With this background, Shigley continues on board of Institute for Continuing Legal Education after twelve years of service on the board.

The Institute provides over 300 seminars, webinars, and video seminars to the members of the State Bar of Georgia each year. The Supreme Court of Georgia requires that every active member of the State Bar successfully complete at least 12 hours of legal education in order to maintain their license to practice law. The twelve trustees of the Institute of Continuing Legal Education are charged with the responsibility of developing programs and instituting policies that will provide legal education for members of the State Bar of Georgia.

Mr. Shigley may be contacted for consultation on cases of wrongful death and serious personal injury at (404)253-7862.

7 things you need to know about your herniated cervical disc injury

Some idiot who wasn’t paying attention slammed into your car. You had what you first thought was “just a whiplash.” That hurt, but you thought you could just laugh it off and your neck injury would be ok in a few days.

But over time it just hurt worse. Pain, numbness and tingling radiated down one or both shoulders and arms.

Eventually, a doctor had you slide into a long, noisy metal tube for an MRI (magnetic resonance imaging) scan. Now your doctor says you have something called a herniated disc that will require a lot more treatment than you ever imagined.

What do you need to know?

  1. Know your cervical spine anatomy.

Your spine is a stack of 33 interlocking bones called vertebra, processes, and coccyx (tailbone). Your spinal cord runs from your brain down the middle of this stack of vertebrae to nerves that branch off to your arms, legs, and various body parts.

Your neck (cervical spine) supports your head, which weighs about 10 pounds, regardless of the amount of knowledge the brain does or does not hold. As your head rotates, the cervical spine has the most range of motion of any part of the spine.

The cervical spine includes seven vertebrae numbered C1 to C7. The first vertebra (C1) is ring-shaped and connects directly to the skull. This joint allows for the nodding (“yes” motion) of the head. The second vertebra (C2) is a peg-shaped axis, with a projection called the odontoid, around which the atlas pivots. This joint enables you to make the side-to-side or “no” motion of your head.

  1. Know your vertebral anatomy.

Every vertebra in the spine has three main parts: a drum-shaped bone designed to bear weight and withstand compression, an arch-shaped bone that protects the spinal cord, and star-shaped processes that serve as outriggers for muscle attachments.

Between the bony vertebrae are spongy cushions called intervertebral discs that serve as shock absorbers, keeping the bones from rubbing together. Discs are often compared to a radial car tire. An outer ring called the annulus contains crisscrossing fibrous bands sort of like the tire tread. Inside each disc is a gel-filled center called the nucleus sort of like tire tube.

Another popular analogy is to compare a disc to a jelly donut, with the annulus compared to the bread and the nucleus to the jelly.

On the back of each vertebra are projections of bone that form the vertebral arch, which consists of two supporting bones called pedicles and two layers of tissue called laminae. Within the spinal canal are the spinal cord, ligaments, fat, and blood vessels. Beneath each pedicle, a pair of spinal nerves exit emerge from the spinal cord and go through openings called foramen to branch out through your body.

Connecting vertebrae are facet joints that allow movement of the spine. Each vertebra has four facet joints, two attaching to the vertebra above (superior facets), and two that connect to the vertebra below (inferior facets.)

Wiring all this together are ligaments, tough bands that connect the vertebrae, protect the discs, and stabilize the spine. The three principal ligaments of the spine are the anterior longitudinal ligament (ALL), ligamentum flavum, and posterior longitudinal ligament (PLL).

  1. Know the anatomy of your spinal cord and spinal nerves.

The spinal cord is the thickness of your thumb and runs about 18 inches from the brainstem to the first lumbar vertebra protected within the spinal canal. Any damage to the spinal cord can cause paralysis and loss of sensation below the level of injury.  A spinal cord injury in the cervical spine (neck) may cause quadriplegia (also called tetraplegia), total or partial loss of both motor and sensory in the arms and legs. A spinal cord injury to the thoracic or lumbar area may cause paraplegia, the loss of motor and sensory function in the legs and trunk.

Branching off the spinal cord are 31 pairs of spinal nerves. These act as “telephone lines” carrying messages back and forth between various body parts and the spinal cord, and thence to the brain, to control sensation and movement. The front (ventral) root carries motor impulses from the brain and the back (dorsal) root carries sensory impulses to the brain. The spinal nerves go down the spinal canal alongside the spinal cord, until reaching the intervertebral foramen from which is exits to communicate with the appropriate body parts.

Once a spinal nerve passes through the intervertebral foramen, it forms two branches. The smaller branch (posterior primary ramus) turns toward the back to supply the skin and muscles of the back of the body. The larger branch (anterior primary ramus) turns the opposite direction to the skin and muscles of the front of your body. The spinal nerves are numbered by the vertebrae above which they exit the spinal canal. The eight cervical spinal nerves are numbered C1 through C8.

The spinal nerves communicate sensory and motor messages with specific areas that form a striped pattern across the body called dermatomes. Doctors use dermatome patterns to diagnose the location of a spinal problem based on the area of pain or muscle weakness.

  1. Know about disc bulges and herniations.

As we age, the annulus in all those intervertebral discs begins to dry out and become less flexible. That natural degeneration happens to everyone, often without causing any pain. Many senior athletes have spines that would look like forty miles of bad road in an MRI image but can run marathons and triathlons just fine.

With age and reduced flexibility, we become more vulnerable to disc injuries with any sort of trauma. It can be as simple as lifting something heavy or sudden twists and turns.

Often, however, people go along in life just fine despite silent degeneration in the spine until a trauma, such as is common in a motor vehicle collision involving sudden kinetic forces greater than encountered in daily life.

The mechanism of injury in a rear-end collision “whiplash” includes head acceleration backward and forward, pressure on nerve root ganglia, stretching of facet capsules, or damage to facet articular cartilage. Studies of the biomechanics of kinetic forces demonstrate four mechanisms of injury in rear-impact collisions. These include vertebral intersegmental rotations, facet capsule shearing, facet pinching, and rapid increase of pressure around the cervical nerve roots. All these occur suddenly and simultaneously. The angle of head rotation at the time of impact can surprisingly decrease the extent of the injury. The neck’s response to whiplash-type impacts is modified by impact awareness, muscles studied, and direction of impact. The peak bending moment of the lower neck and the peak angular acceleration of the head are predictors for the risk of neck injury in a rear-end collision.

The kinetic forces in any form of auto collision – rear end, sideswipe, t-bone or head-on – can injury intervertebral discs.  Many factors in collisions affect the extent of the injury, including the direction of impact, impact velocity, change in velocity (i.e. delta-v), restraint use or misuse, and the presence or absence of airbags. Cervical (neck) disc injuries are most common in rear-end and sideswipe collisions.

When collision forces cause damage to the annulus of a disc, the nucleus can push out, creating a disc bulge that presses on a spinal nerve serving a specific area of the body. When the nucleus oozes out the annulus, like jelly squirting out of a jelly donut, it can compress on one or more nerves can cause radiculopathy — severe pain, numbness, tingling, and even loss of motor function. This is a herniated disc, also known as a “slipped disc.”

Cervical radiculopathy occurs when a herniated disc in your neck compresses or irritates a nerve in your neck that emerges from your spinal cord. This nerve compression can cause pain that radiates into your shoulder, and muscle weakness and numbness radiating down through your arm and hand.

When a herniated disc pinches the spinal cord, this may lead to symptoms referred to as myelopathy. Symptoms of cervical myelopathy include neck and arm pain, tingling and numbness, and problems with your fine motor functions such as threading a needle, buttoning a shirt, or writing.  When a herniated disc compresses both exiting nerves and the spinal cord that is referred to as myeloradiculopathy. Cervical myelopathy can cause an unsteady gait, loss of body consciousness of whether your hands and feet are, and in severe cases weakness of arms and legs and loss of bladder and bowel control.

  1. Know about non-surgical treatments for cervical disc herniations.

Surgery is not the first option unless there is an emergency, such as a disc pinching the spinal cord causing weakness. Because conservative, non-surgical treatments can take a long time and involve a lot of pain in the interim, people who require immediate surgery sometimes consider themselves fortunate by comparison.

Conservative, non-surgical treatments for cervical disc injuries include:

  • Medications:
    • Anti-inflammatory medications (NSAIDs). Ibuprofen medications such as Advil and Motrin and COX-2 inhibitors  such as Celebrex help reduce pain due to
    • Drugs such as Depo-Medrol (methylprednisolone) may be taken as pills to reduce inflammation over the course of a week.
    • Muscle relaxants. Muscle spasm in the area of a disc herniation can cause pain, so muscle relaxers help to alleviate that.
    • Anti-depressants. Tricyclic antidepressants, known by several brand names, can reduce nerve pain and aid sleep.
    • Medications intended primarily to control seizures may also alleviate nerve pain caused by a herniated cervical disc.
    • Opioids. These heavy-duty pain medications are sued for severe pain from a herniated disc, but as addictive drugs must be used only for limited times and with select patients.
  • Physical therapy and other conservative treatments.
    • Physical therapy.  Exercises to stretch your neck muscles may help reduce the pain of a herniated disc.
    • Limitation of painful activity.  When you have a herniated cervical disc, your doctor or physical therapist may advise you to avoid heavy lifting, overhead reaching, and neck rotation which may exacerbate pain in the period following a disc herniation.
    • Neck braces. While often lampooned in jokes about “phony” whiplash injuries, a cervical brace or soft cervical collar provide some rest for the cervical spine.
  • Epidural Steroid Injection involves the injection of an anti-inflammatory steroid space next to discs. An epidural steroid injection can treat pain at several levels in the spine. The purpose is to decrease inflammation directly around the affected nerve roots and behind the discs. Often medical and insurance company protocols require a series of two or three epidural steroid injections before scheduling surgery.
  • Nerve Root Block involves the injection of an anesthetic to relieve pain and pinpoint the location of the irritated nerve for diagnostic purposes.

For a person who is accustomed to an active lifestyle, the long journey of these conservative treatments can be a maddening diminution of the overall quality of life.

  1. Know about your cervical disc surgical options.

When and if all else fails, physicians will discuss with you surgical options for treatment of your herniated cervical disc.

  • Cervical nerve root rhizotomy is a percutaneous neural destructive technique that uses radiofrequency pulses to numb sensory nerve tissues that come from the muscles and enter the spinal cord to reduce neck pain. Once inactivated, the nerves cannot conduct pain sensations to the brain, thus decreasing or eliminating the pain completely. A cervical dorsal root rhizotomy may be used as pinched nerve treatment or to help relieve cervical neck pain. This is a minimally invasive procedure that provides symptomatic pain relief for many patients but is not the ultimate answer for a fully herniated disc.
  • ACDF: Anterior Cervical Discectomy and Fusion is perhaps the most common form of neck surgery for herniated cervical discs. It involves removal of the damaged disc, relieving pressure on the spinal cord or nerve root pressure. By taking away that pressure on the nerve, it and reduce re;ated pain, weakness, numbness, and tingling. You will sleep through this surgery under general anesthesia. Your surgeon will make a horizontal incision two or three inches long in the front of your neck, and work through that opening.

ACDF surgery has two parts:

  • Anterior cervical discectomy. Going in from the anterior, or front, of the cervical spine (neck), the surgeon removes the disc from between two vertebrae.
  • Fusion. A fusion of vertebrae is done at the same time as the discectomy to stabilize that portion of the cervical spine.  Fusion involves placing bone graft or implants where the disc originally was to provide stability and strength to the area. ACDF may at one or more levels of the cervical spine.

Traditionally, the fusion was done with a plug of bone taken from the patient’s pelvis, called autograft bone. Patients often complained that pain at the donor site in the hip was much worse than pain in the neck.

The most common ACDF procedure today is the use of allograft bone from a bone bank, harvested from a cadaver. Because there is no living tissue in the allograft bone graft, so there is little chance of graft rejection, like with an organ transplant. The speed of healing may be slower with allograft bone, particularly if there are multiple levels of vertebrae to be fused, and there is a very slight risk of disease transmission, roughly 1 in 200,000 to 1 in one million.

There are also manufactured bone graft substitutes that have no potential for disease transmission but do carry risks of inflammatory reactions.

With any of these fusion methods, doctors often secure the vertebra with metal plates and screws.

Cervical fusion and fixation eliminate flexion in that part of the cervical spine. As a result, the levels above and below the fusion encounter more significant stress over time, potentially accelerating degeneration of the discs above and below the fusion, also known as adjacent level disease.

Cervical disc replacement surgery involves implantation of a manufactured artificial disc.   Artificial discs are made of very hard plastic and metal, are attached to e adjacent vertebrae, and can mimic the normal motion of the intervertebral discs.In comparison to spinal fusion surgery, the potential benefits of artificial disc technology include more spine mobility after surgery and less stress on adjacent discs. Artificial discs are especially popular with younger and more athletic patients who look forward to  many active years.

Several artificial discs are currently being used in Europe. As these gain approval from the U.S. Food and Drug Administration, options for disc replacement surgery are continually increasing.

While artificial cervical discs can preserve motion at the operated segment in most patients, their durability over a patient’s life expectancy and effectiveness in reducing the rate of deterioration adjacent cervical levels are not yet entirely clear.

  1. Know about permanent impairment ratings.

Even after your entirely successful treatment for a herniated cervical disc, you will have some degree of permanent impairment as measured by the American Medical Association Guides to Evaluation of Permanent Impairment. The AMA Guides provide an objective framework for quantifying permanent impairment in patients who have an injury resulting in long-term loss of a body part or body function.

An impairment rating is not the same thing as a disability. A person may have a reasonably high impairment rating but still enjoy a full, active, productive life. Conversely, one may have ongoing pain and functional limitations that impede the quality of life but do not translate into a comparable impairment rating.

Impairment ratings are more significant in determining settlements in workers compensation claims than in car crash liability cases. However, even a small percentage of impairment rating may be presented to a jury as validation of a “thorn in the flesh” in assessing pain and suffering.

In cases of herniated cervical discs, there is a range of potential impairment ratings, briefly and incompletely summarized as follows:

  • 5% to 8% impairment of the whole person. Cervical disc herniation with radiculopathy improved after non-operative treatment.
  • 15% to 18% impairment of the whole person. Cervical disc herniation with radiculopathy improved after surgery.
  • 25% to 28% impairment of the whole person. Loss of segmental integrity or loss motion after an attempt at surgical repair.
  • 35% to 38% impairment of the whole person. Significant upper extremity impairment requiring the use of external functional or adaptive devices, due to total neurological loss at a single level or severe, multilevel neurologic dysfunction.

 We have decades of experience litigating cases involving neck and back injuries, including herniated cervical discs, cervical fusion surgeries, and impairment ratings. If you or a loved one have a herniated cervical disc due to someone else’s negligence, call us at 404-253-7862.


 

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West.

His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation, and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994).

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower, father of two adult children, and an elder in his church. When time permits, he enjoys travel, backpacking, and scuba diving.

America’s Top 100 Personal Injury Attorneys®

 

Top 100 Personal Injury Lawyers

Top 100 Personal Injury Lawyers

Kenneth L. Shigley, Sr., of Atlanta, Georgia, has been named one of America’s Top 100 Personal Injury Attorneys ® for 2020.

Selection to America’s Top 100 Personal Injury Attorneys® is by invitation only and is reserved to identity the nation’s most exceptional litigators for high-value personal injury, catastrophic injury, wrongful death, product liability, and medical malpractice matters.
To be considered for selection, an attorney must focus more than 50% of their active legal practice on personal injury, catastrophic injury, wrongful death, product liability, and/or medical malpractice matters. These minimum qualifications are required for initial consideration. Thereafter, candidates are carefully screened through Advanced Data Analytics evaluating a broad array of criteria, including the candidate’s professional experience, litigation experience, significant personal injury settlements and/or verdicts, peer reputation, and community impact in order to rank the candidates throughout the state.

Only the top 100 qualifying attorneys in each state will receive this honor and be selected for membership among America’s Top 100 Personal Injury Attorneys®. With these extremely high standards for selection to America’s Top 100 Personal Injury Attorneys®, less than one-half percent (0.5%) of active attorneys in the United States will receive this honor — truly the most exclusive and elite level of attorneys in the community.

Mr. Shigley’s qualifications include:

Kenneth L. Shigley

Ken Shigley – Top 100 Personal Injury Lawyers

  • President, State Bar of Georgia, 2011-12
  • Tradition of Excellence Award for lifetime achievement, 2019
  • First Georgia lawyer to earn three board certifications from National Board of Trial Advocacy (Truck Accident Law, Civil Trial Practice, Civil Pretrial Practice)
  • Chair, American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, 2015-16
  • Lead Author, Georgia Law of Torts: Trial Preparation & Practice
  • Chair, Institute for Continuing Legal Education in Georgia, 2012-13
  • Georgia “Super Lawyer” (since 2004)
  • “AV Preeminent” rating in Martindale-Hubbell Law Directory (since 1989)
  • Avvo 10.0 out of 10.0

See representative verdicts and settlements.

Wrongful death claims in Georgia

Wrongful death claims in Georgia are necessarily emotional. When a family member is killed by someone else’s negligence, grieving survivors often have mixed feelings about filing a wrongful death lawsuit for that death. Certainly no amount of money can bring the departed loved one back. However, a monetary award is the only way that civil law has to recognize the value of the life, compensate for the death, and penalize the party at fault.

Skillful legal advocacy in a wrongful death case can generate funds to care for the family’s real needs and with which the family may appropriately memorialize the life of the departed. Within the requirements of allocation of damages to the spouse and children, survivors can choose to put a monetary award for wrongful death to any good use, whether to support a family deprived of the breadwinner, to educate children, or to fund a charity in the memory of the deceased.

Georgia’s wrongful death law was first enacted before the Civil War. It is one of the most humane wrongful death statutes and body of case law in the United States. Georgia law on wrongful death differs significantly from the wrongful death laws of all neighboring states. In most ways the Georgia law is better, but not always. If the facts provide a choice among different states, we weigh all the options as to where a case should be filed. Under multijurisdictional practice rules, we can handle all matters prior to filing suit in court in all but two states. When necessary to file suit in a state other than Georgia, we associate local counsel and obtain admission to practice pro hac vice in the other state.

In Georgia there are two separate claims that can be made for a death.

“Wrongful death” claim for full value of the life.

First is a wrongful death claim for the full value of life which belongs to survivors designated by statute: spouse, children, parent, or heirs at law depending on the circumstances. It defines the “full value of the life”   of the person who died to include both economic and intangible aspects. Georgia law does not mandate any rigid formula or arbitrary on the damages awarded in a wrongful death case, but rather the “full value of the life” is determined by the enlightened conscience of an impartial jury. Unlike some states, however, the subjective grief of the survivors is not part of the calculation of damages.

The economic aspects of “full value of the life” include the projected lifetime income and benefits and the value of their uncompensated services to family and community, reduced to present value.

In determining the intangible aspect of “full value of the life”  fair and impartial jurors are guided by their “enlightened conscience” in assessing the quality of life, relationships, activities, passions and pursuits, and determine what the experience of living was worth to that person who died. The intangible value of life is not reduced to present value.

“Survival action” for the estate of the deceased.

Second is what courts call a “survival action” because the rights of the decedent survive the death and belong to the estate of the deceased. That claim may be pursued by the executor or administer seeking compensation for the pain and suffering  before death plus the medical and funeral expense. Separate from the wrongful death claim on behalf of designated beneficiaries, the administrator or executor of the decedent’s estate has a claim for the decedent’s medical and funeral expenses, and for conscious pain and suffering before death.

Punitive damages may be awarded in connection with such a survival action on behalf of the estate but not for the wrongful death claim. Experienced legal counsel can weigh the factors in deciding whether to include a punitive damages claim.

Where the decedent died almost immediately after impact but could see what was about to happen, a claim for the mental pain of recognizing impending death may have great value. In appropriate cases, an accident reconstruction can help establish how much time the person had to recognize impending doom before being killed.

The decedent’s family members may choose to pursue both claims or only one of them depending on what makes the most sense under the circumstances. It is entirely appropriate in Georgia for the family, with experienced legal counsel, to pursue both claims, or to choose to file one claim and abandon the other.

Effect of liens.

Medical liens are often a factor in deciding what claims to include in a lawsuit. Liens for medical bills and other debts of the decedent apply to an estate’s claim but not to the wrongful death claim of survivors designated by statute. If there is limited insurance coverage and medical liens, survivors may decide to pursue only the wrongful death claim which is not subject to such liens, or to allocate all but a token amount of a settlement to the wrongful death claim. If liability insurance is ample and liens are light, however, it may be worthwhile to include the estate’s claims.

Valuation.

Because valuation of a wrongful death claim is affected by many factors, including disputed issues of liability, contributory negligence, comparative negligence, assumption of risk, proximate causation and insurance coverage considerations, it is important not to confuse the value of a case with the true value of the departed loved one’s life. We have handled wrongful death cases in which the recovery was $8,000,000 and others in which the recovery was $250,000 or less, all dependent upon the interplay of facts, insurance, and legal issues.

Who has the right to sue for wrongful death?

We often receive inquiries from family members whose rights to recover for wrongful death of a deceased family member are severed by operation of law. Sometimes we can work around these challenges, but sometimes not. It is important to get all close relatives of the deceased on the same page, but if the family is splintered and dysfunctional that can be virtually impossible.

A wrongful death claim in Georgia belongs to survivors who are identified by statute:

– A surviving spouse has the right to sue for wrongful death in Georgia, but must share the recovery equally with surviving children of the decedent. Where the surviving spouse is required to share a wrongful death recovery with the decedent’s minor child, the child’s share up to $15,000 may be held by the child’s natural guardian without posting a bond. If a minor child’s share of the recovery is $15,000 or more, a guardian of the child’s property must be qualified in probate court, and a bond posted. The bond requirement may be avoided if the probate court approves a structured settlement with annuity payments going to the child after attaining age 18, with the cash held by the child’s natural guardian remaining less than $15,000.

– If there is no surviving spouse, the right goes to surviving children. If the surviving spouse is missing, a court may permit the children to pursue the death claim alone.

– If there is neither a spouse nor child surviving, then the decedent’s parents have the right to sue under Georgia law. If the parents of a deceased child are divorced or living apart, the trial court has full discretion to allocate the wrongful death recovery between them, considering any pertinent factors. There have been cases of an uninvolved absentee father being limited to as little as one half of one percent of the total recovery for the wrongful death of a child.

– In the absence of a surviving spouse, child or parent, the administrator of the decedent’s estate can sue on behalf of the next of kin. Even if the next of kin is a minor, e.g., a sibling, an anomaly in current Georgia law requires that an administrator file suit on behalf of the minor beneficiary within two years from the date of death rather than tolling that time limit due to the child’s age.

Call us today at our Atlanta office 404-253-7862 or submit your inquiry online, and find out if we can help.


Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower, father of two adult children, and an elder in his church. When time permits, he enjoys travel, backpacking and scuba diving.