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This month’s issue of the Georgia Bar Journal includes my swan song (“End of Year Report”) which I delivered June 1, 2012, at the plenary session of the State Bar annual meeting in Savannah. For those who need somnolent bedtime reading, here is the text as edited and published

End of Year Report
Kenneth L. Shigley

The bylaws of the State Bar of Georgia specify the duties of the president. One of the responsibilities is to “deliver a report at the Annual Meeting of the members of the activities of the State Bar during his or her term in office…

Advocates of tort reform often call for “loser pays” legislation. Georgia already has five different “loser pays” rules. In earlier posts I have discussed OCGA § 9-11-68, enacted as part of tort reform legislation in 2005, which includes both the offer of judgment / offer of settlement rule and the frivolous claims and defenses rule.

O.C.G.A. § 9-15-14, enacted in 1986, provides for a motion for award of fees and expenses against a party that had asserted a claim or defense “that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or…

ABCO Transportation, Inc., a refrigerated freight haulder based in Dade City, Florida, has had for several years an unsatisfactory record of unsafe driving violations with the Federal Motor Carrier Safety Administration. When a trucking company has a record as bad as ABCO, often there are issues of management turning a blind eye to safety, in my experience as a trucking trial attorney.

ABCO’s poor safety record culminated July 2012 when an ABCO truck driver ran a red light on Thornton Road in Douglas County, Georgia, causing a tragic crash that took the lives of two AutoTrader.com employees and injured…

Today, after 25 years of labor by countless volunteers on a succession of hard-working bar committees, the new Georgia Evidence Code was passed.  Unless I’m in court somewhere, I expect to be present when it is signed into law by Governor Nathan Deal. Appropriately enough, he sponsored an earlier version of the bill in the State Senate in 1990.

The new Evidence Code replaces a hodgepodge of case law largely derived from the Code of 1863. It is based upon the Federal Rules of Evidence which were enacted in 1975 and have been adopted in some form in 42 states including all states contiguous to Georgia.

The politics of this has been fascinating and totally inappropriate for me to detail in a blog post.

Kudos to House Judiciary Committee Chair Wendell Willard and Senate Judiciary Committee Chair Bill Hamrick, a heavy majority in both houses of the legislature, and current State Bar President Lester Tate, who carried the ball over the goal line despite a pair of last minute "poison pill" amendments. Georgia State Law School professor Paul Milich, who has served many years as Reporter of the Evidence Study Committee, has done much of the heavy lifting and deserves credit. I would be remiss to overlook the roles played by Ray Persons and Tom Byrne as chairs of the Evidence Study Committee and by nearly every State Bar president since the late 1980s.

Of course there are those of us who are happy to practice law with or without the new evidence code, and some who late in their careers don’t want to learn anything new. However, it is based upon the Federal Rules of Evidence which nearly all lawyers under 60 studied in law school. With its incorporation of several features unique to Georgia law, I think it is an improvement upon both the hodgepodge of Georgia evidence law and the Federal Rules of Evidence. All in all, it is a net gain for the justice system in Georgia.

Click here for Professor Milich’s summary of the new Evidence Code.

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Large burn injuries today are treated with split thickness skin grafts. A dermatome, a tool comparable to a cheese slicer, is used to harvest thin slices of epidermis from donor sites on an uninjured part of the body. The harvested skin may then be meshed in order to cover a larger area  by making lengthwise rows of short, interrupted cuts,  offset by half a cut length like bricks in a wall. The effect reminds one of the top of an apple pie crust.

Graft donor sites are often even more painful than burn sites.  The pain is both burn and donor locations may be absolutely surreal, beyond the capacity of words to describe. Donor sites may take longer to return to something normal coloration. The grafted sites, however, may always appear somewhat scarred and discolored with traces of the graft mesh pattern.

Now, according to a report on CNN, researchers are developing a technique to use inkjet printer technology to "print" live skin cells on a burn injury. It may be five years from clinical use.

A skin "bio-printer" was developed by modifying a standard store-bought printer by adding a three-dimensional "elevator" that builds on damaged tissue with fresh layers of healthy skin.

Skin-printing involves several steps. First, a  piece of skin about half the size of a postage stamp is taken from the patient using a chemical solution.Those cells are then separated and replicated in large quantities in a specialized environment that catalyzes this cell development. Then the new cells are put in a printer cartridge, and printed on the patient. The printer is placed over the wound at a distance so that it doesn’t touch the burn victim. It is described as " like a flat-bed scanner that moves back and forth and put cells on" the patient. Once the new cells have been applied, they mature and form new skin.

The potential for improving burn treatment is transformational. No longer would burn victims suffer from excruciating pain on large donor sites. And the new skin evenly "printed" on the injured area should be able to grow without the kind of lattice scarring and discoloration common in skin grafts today.…

In personal injury law practice in Atlanta, Georgia, we often deal with treating doctors who don’t want to bother with testifying for their seriously injured patients, and with a small number of doctors who make a good living by consistently testifying for the defense almost without regard to the facts.

Of course, most treating physicians are caring, compassionate and helpful to their patients, just as most lawyers are conscientious, ethical and hard working. It is a small minority within both professions that create many problems for the ethical majority.

An article in today’s Fulton County Daily Report highlights both categories of problems with medical testimony. It also underscores the deficiencies of the Georgia medical narrative statute and the need for effective cross examination of doctors who consistently testify for insurance companies to deny all injury claims.

Georgia law includes a provision for use in evidence of medical narrative reports in lieu of physicians’ testimony. The statute and case law require that narratives be written in plain English intelligible to the jury and not filled with technical jargon. It is extremely difficult to get doctors to dictate a medical narrative in plain English.

The article focuses on a narrative report signed by a plaintiff’s treating physician.  At trial it came to light that the plaintiff’s attorney had drafted the report which the doctor signed. That apparently impacted the jury’s view of the credibility of the report.

To get a treating physician to testify live in court is so difficult and expensive that it almost never happens in personal injury cases.  The cost of taking a doctor’s deposition on video to use at trial is often $2,000 or more.  And the prices charged by medical personnel keeps going up. Doctors have charged us $1,500 just to dictate a one or two page letter for use as a narrative report. We were recently informed that it would cost $1,500 per fifteen minutes just to interview a physician’s assistant.  We have encountered doctors who charge $500 or more just to add a signature to a report that was already in their medical charts.

Because of the cost of obtaining doctor’s testimony, attorneys are often forced to use the medical narrative statute. However, the same doctors who charge thousands of dollars per hour to testify about their treatment of their patients charge up to a thousand dollars to dictate a narrative report, and are either unable or unwilling to provide a report phrased in layman’s terminology rather than medical jargon.

Therefore, in order to use the medical narrative statute lawyers may be forced to interpret the doctor’s technical language into plain English, and provide the intelligible version to the doctor to sign. But if it comes to light that the lawyer drafted the version used in court, the effect can be devastating.

That’s why I have just about abandoned use of the medical narrative statute unless there is already an intelligible, signed report in the medical records. One might as well bite the bullet and pay the exorbitant cost to take a deposition on video to play for the jury in court.

The second point in the article was that a well known  semi-retired orthopedist had been effective in persuading the jury that the plaintiff’s condition was almost entirely preexisting and that there was no serious injury. He regularly reviews files and conducts adversarial medical exams for insurance companies, and has testified hundreds or thousands of times that

I have taken that same doctor’s deposition a few times. The last time he testified for the defense in one of my cases, I had a stack of his prior depositions and was able to thoroughly neutralize his testimony by revealing that he has made a good living for decades by consistently testifying on behalf of insurance companies that no one is injured in an accident.  Watching the jury’s response to his video testimony was pretty amusing. 

Representing an injury survivor in a personal injury case is hard work. Putting together the evidence to present at trial is expensive. Nothing is simple. Nothing is easy. Everything takes more time, effort and money than most people suspect.  Anyone who expects treating physicians to be uniformly cooperative in helping their patients is dangerously naive. And when the defense brings in one of the "usual suspects" among defense doctors to claim that the person was not really hurt, the plaintiff’s lawyer must be prepared to that the defense doctor head on.

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On September 4th in Atlanta, Angel Rivers, 21, was ejected and killed in a fiery crash when the Chrysler in which she was an occupant was rear-ended by a drunk driver.  Witnesses saw Donis Hodges recklessly driving a 2006 BMW M6 just before he crashed into the Chrysler near Hamilton E. Holmes Drive.

Charges  against Hodges include DUI, first-degree homicide by vehicle, following too closely and reckless driving. On Monday, a judge set bond for Hodges at $310,000.  After the hearing, Rivers’ mother, Shatavia Little, told CBS Atlanta she’s angry that the judge allowed bond for Hodges. “This is not like he hit a squirrel. It’s not like he hit a stray dog. He killed a human being. That’s my baby,” she said.

Georgia wrongful death law provides for recovery of the "full value of the life" of the person killed.

Unfortunately, after any such tragic accident, victims’ families are often immediately besieged by "runners" attempting to unethically solicit for lawyers who are willing to risk disbarment.  Georgia Rule of Professional Conduct 7.3 provides, in part: "A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer. . . . The maximum penalty for a violation of this Rule is disbarment."

 

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This afternoon in Douglas County, my former home, a 2001 Ford Explorer crashed due to tread separation on a tire and predictable driver reaction to that event. The 39 year old driver from Austell was killed.

Tire failure is a well known cause of fatal crashes. Some time back I made the joint damages presentation for a team of products liability lawyers who recovered a total $9.2 million for members of a college cheerleading squad who were riding in a passenger van that rolled over after tread separation in a defectively manufactured tire.

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It’s a long way from experiments with lab mice to clinical treatment of humans, and as a Georgia trial attorney in Atlanta, I only represent human spinal cord injury survivors.

However, it is interesting to observe progress in animal experiments that may someday carry over to treatment of humans.

According to an article published in Nature Neuroscience, researchers from UC Irvine, UC San Diego and Harvard recently announced they had induced nerve regeneration in mice with severe spinal cord injury.  They deleted an enzyme called PTEN (a phosphatase and tensin homolog), which controls a  molecular pathway that regulates cell growth. PTEN activity is low during development but turns on when growth is completed. Previously, researchers showed they could block PTEN in mice to regenerate nerve connections from the eye to the brain after optic nerve damage. The new research gives some degree of hope that such nerve regeneration could take place in the injured spinal cord.

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The word on the extended family grapevine tonight is that my wife’s cousin’s daughter, Alex McArthur, a recent Davidson College graduate, has been named Ms. Wheelchair America for the coming year. She has been in a wheelchair three years due to muscular dystrophy.

Last year, one of our clients, Alyson Roth, a spinal cord injury survivor, was Ms. Wheelchair California and a runner up for Ms. Wheelchair America.

Both Alyson and Alex are bright, beautiful and courageous young women.

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