Atlanta Injury Law Blog - Ken Shigley | Georgia Personal Injury Lawyer, Attorney, Law Firm

Scalp avulsion (“scalping” or “scalp degloving“) is a severe injury that occurs when the scalp is torn away from the skull. Our personal injury law practice has seen scalp avulsion and degloving injuries resulting from car and truck accidents, dog attacks, and industrial accidents.

In the case of a car or truck accident, scalp avulsion can occur when a person’s head is forcefully struck or dragged against a hard surface, such as the road, the car or truck itself, or another object. This can cause the skin, tissue, and hair on the scalp to be forcibly torn away from the skull.

The force of the impact and the direction of the movement can also contribute to scalp avulsion. For example, if a person’s head is thrown forward and then suddenly jerked back, the movement can cause the scalp to be torn away from the skull. This can also occur if a person’s hair gets caught in a moving part of the car or truck, such as a wheel or engine compartment.

A dog attack can cause scalp avulsion if the dog bites and tears off a portion of the scalp, typically at the crown of the head or around the hairline. This can result in a traumatic injury to the scalp, with tearing of the skin, subcutaneous tissue, and blood vessels, and may also involve damage to underlying muscles, bones, and nerves. We have had cases of dog attacks, usually involving pit bulls. In one case, a young girl walking to school in her neighborhood was attacked by two pit bulls that came out of their owner’s yard into the street, attacked the child, and ripped her scalp from her skull. It may be unfair to stereotype an entire breed of dogs, but too many vicious dog attacks are by pit bulls.

Any injury that includes scalp avulsion may also cause a traumatic brain injury.

Scalp avulsion is a serious injury that requires emergency medical attention. It can result in significant bleeding, damage to the underlying tissue and bone, and the potential for infection. Treatment may involve surgery to reimplant the scalp tissue, repair the damage and restore blood flow to the affected area.

If you or a loved one have suffered a scalp avulsion or degloving injury, call us at 404-253-7862.

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Johnson & Ward has been a leading personal injury and wrongful death specialty law firm in Atlanta since 1949. The founders of the firm were also among the founders of the Georgia Trial Lawyers Association. Current partners include former presidents of the State Bar of Georgia and the Atlanta Bar Association.

Ken Shigley, senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was the lead author of eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School.

A broken ankle is a painful, often complex, and potentially disabling injury. It is essential to obtain expert medical care and if there is a potential legal claim for the injury, legal counsel familiar with the injury.

Ankle fractures can be caused in many ways, through impact, twisting, and crush injuries.  We often see ankle fractures incurred through Impact in car and truck accidents or falls from a considerable height. Ankle crush injuries may occur when a heavy object rolls or falls over the ankle.  Impact injuries also may result from a pedestrian being struck by a vehicle.

Ankle fractures comprise about nine percent of all fractures. They are the most common lower limb fractures in the United States, and are the most frequent fracture injuries seen in hospital emergency departments.

Symptoms may include pain, swelling, bruising, and an inability to walk on the injured leg. Complications may include a high ankle sprain, compartment syndrome, stiffness, disunion, and post-traumatic arthritis. A relatively simple non-displaced fracture may be treated with “RICE” (rest, ice, compression, and elevation).  However, more complex ankle fractures are likely to require surgery.

There are many varieties of ankle fractures. Some involve hairline fractures that are overlooked as people assume it’s merely a sprain and do not get a proper medical examination with x-rays for a long time. This can lead to unfortunate complications.

The ankle joint includes three bones – the talus (top of foot), the tibia (shin bone) and the fibula (thin calf bone connecting to the outside of the ankle joint).

Trimalleolar fractures are the least common and most severe ankle injuries, as there are three breaks in the fibula and tibia. These usually result from a high-impact accident, but may occur in less dramatic occurrences. Trying to walk with a trimalleolar fracture would be very painful and might damage your ankle ligaments and tendons. The prognosis is often poor. Treatment of a trimalleolar fracture almost always involves surgery called “ORIF” (open reduction – internal fixation) with the insertion of rods, screws, and bone grafts. After surgery, there is extensive physical therapy. It often involves permanent impairment with a substantial effect on the quality of life.

For example, we represented a woman who was airline passenger walking through an airport concourse when she was struck by a passenger cart running silently and too fast. We obtained a video of the entire incident which showed her foot flopping from one side to the other as both her fibula and tibia were snapped in two and separated from the talus. It was touch-and-go whether she would require a rare ankle joint replacement surgery. While she was able to return to work, she had a permanent injury and had to give up her beloved activities of running with her dog and equestrian competitions.

Bimalleolar fractures occur when there are breaks in the bony bumps on both sides of the ankle, the lower parts of both the tibia and fibula, the lateral malleolus and the medial malleolus. These bones connect with the talus to form the ankle joint. The ankle is supported by ligaments on both sides that stabilize the foot under the leg and lock the fibula and tibia together. Bimalleolar fractures can affect these ligaments. Because this is an unstable fracture, ORIF surgery is usually required.

The more complex an ankle fracture, the more difficult the treatment and recovery. If bones are shattered into many pieces the surgical reconstruction can be especially tricky involving several screws and plates at peculiar angles. The worst ankle fractures may be comminuted (broken in more than one place), intra-articular (fracture extends into the joint), open (bone fracture breaks the skin), or some combination of those factors.

Sometimes a subtle ankle fracture may be misdiagnosed as a mere sprain. Proper diagnosis of ankle fractures may include musculoskeletal ultrasound, MRI, CT scans, and weight-bearing CT scan.

A serious, complex ankle fracture, or one in which treatment is inadequate, may cause a permanent limp, limitation of activities, and a degree of permanent impairment.

If you or a loved one have experienced a serious ankle fracture due to the negligence of someone else, call us at (404)253-7862 or complete the inquiry form on this website.

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

Ken Shigley, senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was the lead author of eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School.

Foot drop injury is a common complication of nerve injuries in the back, hip or legs. Also called “drop foot,” it is a result of weakness or paralysis of the muscles involved in lifting the front part of the foot.

Foot drop injury can be a frightening development for a person who is accustomed to being very active. It makes it hard to lift the front part of the foot, so it might drag on the floor when in walking. To compensate, one raises the thigh when walking as though climbing stairs (steppage gait), to help the foot clear the floor. This exaggerated gait might cause you to slap your foot down onto the floor with each step. Imagine trying to run, participate in sports, or do one’s normal work and other life activities in this condition.

I developed foot drop at age 39 due to a herniated disc at L5-S1 in the low back after a side   impact T-bone collision in an intersection.  It was frightening to find myself unable to walk normally. For weeks I had experienced increasingly severe sciatic pain, but I was unwilling to take off time from work to deal with it. Then I woke up morning to find that my leg no longer worked.  Fortunately, one of the top neurosurgeons in Atlanta was able to fit me into his schedule that week. He fixed it so that I was able to run marathons afterward. Most people are not that lucky.

The most common cause of foot drop is compression of the peroneal nerve that controls the muscles involved in lifting the foot. Traumatic injuries leading to foot drop can include fracture to tibial plateau, Patellar dislocations, ankle inversion injury, sciatic neuropathy resulting from either a traumatic injury of the hip or secondary to surgery and lumbosacral injuries.

The peroneal nerve is a branch of the sciatic nerve that wraps from the back of the knee to the front of the shin. Because it sits very close to the surface, it may be damaged easily. A pinched sciatic nerve resulting from a low back injury can cause drop foot.

Injuries to the leg or low back from car and truck accidents are a frequent cause of drop foot. That was what happened to me. Other causes include brain and spinal cord disorders such as amyotrophic lateral sclerosis (ALS), multiple sclerosis, diabetes,  stroke, and muscle or nerve disorders such as muscular dystrophy, polio or Charcot-Marie-Tooth disease.  Risk factors other than traumatic injury can include activities that compress the peroneal nerve such as habitually crossing legs, prolonged kneeling or squatting, and wearing a leg cast. The peroneal nerve can also be injured during hip or knee replacement surgery, which may cause foot drop. Foot drop may also occur as a complication of abdominal or pelvic surgery or radiation treatments.

Treatments for foot drop can include:

• Surgery to relieve the underlying nerve compression. That worked beautifully for me at 39. Unfortunately, it is not effective for everyone.
• Physical therapy to strengthen or stretch the muscles in the leg and foot
• Braces, splints or shoe inserts to help hold the foot in position
• An electrical nerve stimulation implant to help the nerves work

If foot drop persists, it may qualify for a permanent impairment rating under the  American Medical Association Guides to Evaluation of Permanent Impairment, 6th Edition.

If you or a loved one has a foot drop injury caused by another’s negligence, call us at 404-253-7862.

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

Ken Shigley, senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was the lead author of eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School

Low back fracture injuries often arise from high-energy events such as car and truck crashes. We have seen hundreds of them in decades of personal injury law practice.

A fracture of a vertebra in the low back (lumbar) region causes back pain, often severe, that is aggravated by movement. When low back fracture injuries involve teh spinal cord or nerves, there may also be bowel/bladder dysfunction, numbness, tingling, or weakness in the limbs.

When low back fractrue injuries are caused by high-energy trauma, the patient may also have a brain injury and lose consciousness. There may also be other injuries—called distracting injuries—that cause pain that overwhelms the back pain. In these cases, a vertebral fracture is likely.

These can take many forms including vertebral fractures, ruptured or bulging discs, and damage to nerves, ligaments, tendons, and muscles. A single injury can have aspects of any or all of these components.

There are several varieties of low back vertebral fractures:

Compression fractures

Compression fractures are small breaks in the vertebrae that reduce the height of the vertebra. The people most vulnerable to compression fractures of spinal vertebra are post-menopausal women with reduced bone density associated with osteoporosis. With tiny cracks in soft bone, one is more vulnerable to trauma causing collapse of the vertebra. Smokers are somewhat more at risk than non-smokers. Although this can happen without a major incident, an accident such as being rear-ended by another vehicle can suddenly change the condition from merely vulnerable to acutely painful and debilitating. A common form of compression fracture involves the collapse of the front side of the vertebra. That is called a wedge fracture.   Such compression fractures can lead to chronic pain, height loss, disfigurement, impaired activities of daily living, increased risk of pressure sores, and the depression and psychological distress that commonly accompany chronic pain and loss of quality of life.

Burst low back fracture injuries

A more severe form of compression fracture is the burst fracture, which occurs when a vertebral body spread out in all directions. The increased severity is due to a couple of factors. First, bony fragments spread out in all directions bruising the spinal cord, potentially causing paralysis or other neurologic injuries. Second, when the entire margin of the vertebral body is crushed the spine is much less stable than in a wedge-type compression fracture. Burst fractures, especially in older people with brittle bones in whom it is difficult to attach plates and screws to bone, are often treated with vertebroplasty. That involves injection of bone cement into the damaged vertebra for stability and support of the spine. We have seen this most often in older women rear-ended by large trucks.

 Chance fractures / flexion-extension seat belt fractures

Named after the British radiologist who first defined it in 1948, a Chance fracture is an unstable spine fracture, usually at T10-L2, the thoracolumbar junction. About half of all spinal injuries outside of the cervical spine are this part of the spine. It is a type of flexion-extension fracture because the upper body is thrown forward, typically in a head-on collision,  while the pelvis is stabilized only  by a lap seat belt.  It is also called a  “seatbelt fracture” because it often occurs when, upon sudden deceleration, the spine forcefully bends over the lap seat belt which serves as a fulcrum, resulting in the separation of the middle and posterior elements of the spine. This was seen more often before shoulder harnesses became common.

CT and MRI scans are essential in the diagnosis and are called for when there is seatbelt bruising after a motor vehicle crash. This is a horizontal fracture extending from posterior to anterior through the spinous process, pedicles, and vertebral body. A Chance fracture is an unstable horizontal fracture extending from posterior to anterior through the spinous process, pedicles, and vertebral body. However, in about half of Chance fractures there are also concurrent intraabdominal injuries, especially spleen, bowel and bladder ruptures. Early recognition of this injury is critical as a delay in diagnosis significantly impacts clinical outcomes, but unfortunately, emergency physicians can easily overlook Chance fractures on clinical exam because patients may present without initial neurological deficits. Treatment often involves stabilization with a brace or cast, though more severe cases with neurological symptoms may are stabilized surgically.

Rotation low back fracture injuries

This less common fracture results from rotation of the low back  or extreme sideways (lateral) bending. With rotation fracture-dislocation, both bone and soft tissue around a vertebra are injured, often resulting in spinal cord compression. Treatment involves surgery to stabilize the spine, generally with places, screws, rods or cages.

Permanent Impairments after Low Back Fracture Injuries

Most lumbar spine fracture injuries involve an impairment rating under the American Medical Association Guides to Evaluation of Permanent Impairment.   Physical impairment as rated under this system is not the same thing as occupational disability. A person with a relatively low impairment rating may be completely disabled from a physically demanding occupation. But a person with the same physical impairment rating may be fully capable of doing an office job. We may also consider evaluation by a vocational rehabilitation expert to evaluate real-world disability.

If you or a loved one have suffer ed a low back fracture injury, call us at 404-253-7862.

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

Ken Shigley, senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was lead author of  eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School.

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 19^th 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.

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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.

 

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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.