October 2006

I love it when I see a court use my points to rule my way on an unrelated case.

We have a case in which we represent the estate and siblings of a young man who was killed by a drunk driver.  Their father had more DUI’s than anyone in the history of Georgia on spent most of the deceased son’s life in prison including a conviction for DUI/vehicular homicide. On one of his times out of prison he physically abused the son.  A  juvenile court made a judicial finding of physical abuse and gave custody of the kid to an adult brother.  Of course, when the young man was killed several years later by a drunk driver, the father who was a DUI recidivist promptly filed suit for wrongful death.  Representing the siblings of the decedent — the other adult offspring of the abusive drunk — I filed a petition to determine heirship.  A Superior Court judge agreed with our position that the father forfeited parental rights by cruel treatment when he was adjudicated to be guilty of physical abuse, did not appeal, and did not take advantage of the opportunity for family reunification. We also had arguments about abandonment, but there was some small shred of evidence of de minimis support that made that a jury issue.  Well, we won summary judgment in the Superior Court and the father appealed to the Georgia Court of Appeals.

Now in another case, the Court of Appeals has adopted virtually the same arguments we used in our appellate brief in another case, finding that another deadbeat dad forfeited his parental rights, including the right to recover for wrongful death of the child,  through abandonment. In Baker v. Sweat, A06A0892 (decided October 13, 2006), the administrator and siblings of a deceased adult were ready to settle with the insurance company for the wrongful death with deadbeat dad showed up claiming all the money. Much as in our case, there was a long, sad litany of the sperm donor’s failure to support the child or engage in the child’s life. The Court held:

If it is established that a parent has lost his or her parental power under OCGA § 19-7-1 (b), the parent’s right to share in the proceeds of a claim for the wrongful death of his or her child is also forfeited.

OCGA 19-7-1 (b) provides for loss of parental rights through either abandonment or cruel treatment.  Since anything can go wrong at any time, we are keeping our fingers crossed that we will get the same result in our case.

One of the disturbing things we encounter in trucking litigation is the lack of any regulatory requirement of screening for obstructive sleep apnea, even though so many truck drivers fit the profile to be at high risk for the disorder — middle aged, overweight, hyptertensive, sedentary, etc. According to a July 2002 study released by the Federal Motor Carrier Safety Administration (FMCSA), 28.1 percent of Commercial Drivers License holders have mild, moderate or severe sleep apnea.

Now Schneider National has published a white paper that reveals its sleep apnea screening and treatment program has generated a return on investment in the form of savings on medical costs, accident reduction, reduced turnover and increased productivity.

Most significant for public safety, the study showed a 73 percent reduction in preventable driving accidents among a group of 225 SDB-diagnosed drivers treated with Continuous Positive Airway Pressure (CPAP) devices, which are essentially breathing masks that use air pressure to ensure airways remain open during sleep.

An Emory Medical School doctor working with victims of traumatic brain injury at Grady Hospital in Atlanta has published a study suggesting that the female hormone progesterone can be a safe, effective treatment for brain injury

Animal studies have indicated that giving progesterone soon after injury reduces brain swelling, prevents nerve death and improves functional outcomes. Lead researcher Dr. David W. Wright and colleagues note that progesterone’s advantages over other potential treatments include its ability to quickly enter the brain, history of safe use, ease of administration, and low cost.

Wright, from Emory University in Atlanta, and colleagues included in their study 100 adults with brain injury who reached the emergency department within 11 hours of injury. Patients were randomly assigned to receive an intravenous dose of progesterone or inactive "placebo".

The death rate in the 30 days after injury was 13 percent in the progesterone group compared with 30 percent in the comparison group. This suggests that progesterone cut the risk of death by 57 percent.

Wright’s team was able to contact 92 percent of patients who survived 30 days. There was evidence that progesterone improved the recovery of patients with moderate brain injury. Patients with severe injury seemed to glean no benefit from the hormone.

Dr. Wright says his results are preliminary and broader studies are needed.