I point out this recent decision to applaud the Supreme Court for disbarring these guilty lawyers, and also to inform people that hiring runners is a practice used only by the worst of the worst.  If you are ever approached by a runner, first of all, please do not sign up with that outfit, and second, report the lawyer and the runner to the Georgia Bar.  These bad apples give honest lawyers a bad name.

If you are in need of a lawyer, please ask a friend, co-worker or family member for a recommendation. Whatever you do, never hire a lawyer that calls you out of the blue.

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The facts of the case are relatively straightforward; the defendant was driving his truck to a job site when he looked down at his cell phone to find a telephone number.  Because he was looking at his cell phone and not the road, he did not see that the traffic in front of him had stopped.  The defendant failed to notice the cars in front of him until it was too late, and he rear ended the car in front of him.

The injured plaintiff sued seeking punitive damages in addition to compensatory damages.  For those of you who read this blog that are not lawyers, punitive damages are pretty rare, and are awarded when there is evidence of intentional conduct or a “conscious indifference to consequences”.  The damages awarded in most personal injury cases are called compensatory damages.  These are damages for lost wages, medical expenses and pain and suffering.

The Court declined to allow punitive damages in the Lindsey case because using a cell phone in Georgia while driving is permissible.  The Court also said that the defendant was not speeding, was not under the influence, nor did the defendant have a history of distraction related accidents showing a pattern dangerous driving.

This case is interesting because it says that cell phone use by itself will not lead to punitive damages.  The Court, however, leaves the door open for punitive damages claims when cell phones are involved and there are other aggravating circumstances.  So for example, if a person is speeding while using a cell phone, this may lead to punitive damages.  Or if a person has caused a wreck before because of cell phone use, then there could be a potential claim for punitive damages.

Bottom line, be careful when you are driving and using a cell phone.  The best policy is to not talk on your cell phone when you are driving.

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After having such a great time in 2010, the Cobb County Trial Lawyers Association, along with help and support from the Georgia Trial Lawyers Association, decided once again to sponsor a booth at Constitution Day on the Marietta Square.  Constitution Day is a day of education and camaraderie centered on the United States Constitution.  Each Amendment is represented by a booth, where volunteers are stationed to teach and engage in healthy dialogue about the importance of our Constitution.  Naturally, our group chose the 7^th Amendment, which is our right to a civil jury trial.

As we began to setup our booth, we were welcomed by absolutely beautiful weather and an amazing scene.  American Flags were gently rustling in the breeze, smells of BBQ wafted through the air and live music played on the Marietta Square stage.  The GTLA booth came together quickly.  We had a huge banner telling everyone who we were, folders containing information about Civil Justice and two inspirational quotes from Thomas Jefferson and John Adams flanking our table.  With our booth looking impressive, we began welcoming guests.

The majority of the people attending Constitution Day are members of the Tea Party, Libertarians or Republicans.  These groups of people saw our booth and often openly wondered why “a group of trial lawyers” would be at an event like this.  We smiled politely and told them in no uncertain terms, that when it came to Civil Justice we had more in common then they thought.  We told the patrons we believed, like them, in personal responsibility, the Constitution and small government.  We explained that a jury is the smallest and most local form of government in our society.  We then said that many politicians who call themselves “conservatives” act like hypocrites when they propose big government ideas like state wide or national “tort reform”.  After spending time explaining our beliefs, we began making friends and convincing people that “tort reform” was simply another way for the insurance industry to erode our 7^th Amendment Right to Trial by Jury.

I believe people walked away from our booth appreciating our passion for the Civil Justice system and with a better understanding of why “tort reform” is contrary to our Constitution.  I hope there is a 3^rd Constitution Day so we can continue this important dialogue.

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Mrs. Boller filed a wrongful death lawsuit claiming there should have been an ambulance and a defibrillator on site, and if there had been, her husband likely would have survived.  The Court of Appeals disagreed with Mrs. Boller and decided the Woodruff Arts Center had no duty to provide emergency medical services to patrons.  The Court of Appeals explained that Georgia has a long standing general rule that “a person us under no duty to rescue another from a situation of peril which the former has not caused.”

What do you think?  Did the Court get this decision right?  Do you think the legislature should enact a law requiring emergency medical services at events like this?

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CHILD’S INTENTIONAL CONDUCT

The Georgia Legislative Code provides, in part: “Every parent or guardian having the custody and control over a minor child or children under the age of 18 shall be liable in an amount not to exceed 10,000.00 plus court costs for the willful or malicious acts of the minor child or children resulting in reasonable medical expenses to another, damage to the property of another, or both reasonable medical expenses and damage to property.”  Therefore, parents have potential liability of up to $10,000 for the willful or malicious acts of their minor child.  The purpose of this statute is to discourage juvenile delinquency.  Examples of behavior which have caused parents to have to pay under this law include driving automobiles recklessly and burglarizing homes.

PARENT GIVING PERMISSION

A parent can be held responsible for the entire amount of the harm done because of the actions of their child if they instruct the child to do something, and it is done negligently.  An example might be where a father tells his young son to repair some steps at their home.  If the child does a bad job, and someone is injured when the steps give way, the parent may be responsible to pay for all of the harm done.  This liability is based on a principal/agent model, where the principal is responsible for the harm done by the agent. Another common example of this type parental liability arises where the head of the household furnishes a child a car to use to carry out a family activity, or family business.  Generally, there is no liability to a car owner when someone else uses the car negligently.  The rule may be otherwise, however, where the owner knows that the person who is lent the car is an irresponsible driver or where the car is provided to a family member to further a family interest.  The so called “family purpose doctrine” requires a close examination of the circumstances surrounding the provision of the car to the family member before it can be decided that the parent is responsible for the injuries that were caused when the child has a wreck.

PARENT SUPPLYING A DANGEROUS INSTRUMENTALITY

If a parent supplies a child with something that is potentially dangerous, and does not properly supervise the child, the parent can be made to pay for the harm done by the child.  This liability is not limited by statute, and, therefore, may require payment for the entire amount of the harm done.  The standard used by Georgia courts to determine parental liability is whether the parent exercised ordinary care when he/she allowed the child to use the “dangerous instrumentality”.  If there is responsible supervision by the parent and little reason to expect harm, the parent will probably not be found responsible for accidental harm that occurs.  A golf club, a gun, a rotary lawn mower and a go-cart are examples the courts have considered to raise a question for a jury to decide on the issue of parental negligence for furnishing a dangerous instrumentality.  Whether a child is old enough and mature enough, and whether there is enough parental supervision in place considering any foreseeable harm are common sense questions.  A parent who uses good judgment in providing a child access to instruments should not suffer liability for accidental harm.

This information is general and a close examination of the particular circumstances is necessary to form a professional judgment about liability.

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1.  Fewer than 2 percent of doctors each year were the subject of a successful claim, in which the insurer had to pay a settlement or court judgment.

2.  About 7.5 percent of doctors have a claim filed against them each year.

3.  1 in 5 malpractice claims against doctors leads to a settlement or other payout.

These numbers hardly point to a “wave” of litigation involving medical malpractice.  Ms. Chandra, in a recent interview concluded: “Trial lawyers say cost is a barrier to bringing a claim to court.  There are very high up-front costs for hiring expert witnesses and preparing a case. Doctors, hospitals and their insurers often have significant money and legal firepower.  Some states also have caps on malpractice awards. So, usually, only very strong cases with high expected payouts are pursued.  Given the expense and other difficulties involved in winning, it’s doubtful most claims are filed on a greedy whim.”

This is even more evidence that shows there is not a “crisis” when it comes to medical malpractice.  Please question any politician that declares the solution to our healthcare system is Tort Reform.  Do not let your right to the courthouse be taken away by the insurance industry.

Please read the the article about this study.  Here is the link to the New England Journal of Medicine article.

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Limited Government.  This is the battle cry of every Tea Party supporter and conservative you meet.  You hear “keep big government out of my life” and “issues need to be handled locally”.  If conservatives and Tea Party members truly believe in small local government, then they should be against Tort Reform.  Tort Reform seeks to take power away from a jury.  Tort Reform says big government knows better about the outcome of a given case rather than a group of local citizens that have heard all the evidence in a case.  A jury is the simplest and smallest form of government there can be.  What can be more indicative of local, small government than twelve citizens from your community deciding democratically an issue that affects local people.  If you support small government you must be against Tort Reform.

Personal Responsibility.  Another main tenet of conservative thought is people should not rely on others and should be responsible for their actions.  Our civil justice system ensures that people are responsible for their actions.  Everyone agrees that if someone throws a rock through your window they should replace your window.  People also agree that the replacement window should be as close to the window that was broken as possible.  Basically, you need to be responsible for what you do, no matter who you are.  Tort Reform proponents may say they believe in personal responsibility, but their proposals for new laws say otherwise.  The laws Tort Reformers propose say certain people and certain corporations do not need to be responsible for their actions.  Tort Reform would allow doctors to be able to pay less for what they break and, in some instances, says doctors are simply not responsible for their actions, in other words, they have immunity.  Tort Reform is not just about doctors.  Another big push by Tort Reformers is to give corporations special rights.  Rights ordinary citizens do not have.  If you are a conservative, and you believe in personal responsibility, you must be against Tort Reform.

Strict Constructionism.  This means strictly interpreting the Constitution.  Conservatives and Tea Party activists say they hold the Constitution sacred, but in order to believe the Constitution is a sacred document, and should be strictly construed, you cannot support Tort Reform.  Tort Reform seeks to limit the Seventh Amendment to our Constitution.  The Seventh Amendment ensures trial by jury in civil cases.  Trial by jury and the importance of letting a jury decide issues between people is one of the most important hallmarks of our country, or at least it was to our founding fathers.  Thomas Jefferson said this about trial by jury “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”  Tort Reform allows the “anchor” of trial by jury to taken away.  If you consider yourself a “strict constructionist” you cannot support Tort Reform.

Do not let politicians claiming to be conservatives push for Tort Reform.  Tell these “conservatives” what they really are, mouth pieces for big business and hypocrites.

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This is how the typical scenario plays out, a person who has valid health insurance is injured in a car wreck that was not their fault.  Following the car wreck, the injured person is transported to the emergency room to be treated for their injuries.  What you expect, when you have health insurance, is that the hospital will send the bill to the health insurance company to be paid.  This is not what is happening.  Instead, the hospital files a “hospital lien” against the injured person’s personal injury claim for the amount of the hospital bill.  The reason the hospital is doing this is because the hospital could potentially make more money this way.  For example, a hospital may only get paid $300 from a health insurance company for a bill (due to negotiated rates), but if that same bill is converted into a “hospital lien” the hospital could potentially get paid the full $1,000 from the wreck victim.

The Georgia Supreme Court in MCG Health Inc. v. Owners Insurance said this practice is not permitted.  In MCG Health the injured car wreck victim was an active duty member of the Army.  The injured serviceman racked up an $18,259.61 medical bill.  Instead of sending this bill to TRICARE (the health insurance for military members) the hospital filed a “hospital lien”.  The injured serviceman then settled his personal injury lawsuit for $50,000.  At the time of settlement, the hospital swooped in and demanded its $18,259.61.  The lawyer for the serviceman said this was unfair and did not release the funds.  Had the hospital submitted the bill to TRICARE at the outset, the amount of money paid to the hospital would have been significantly smaller.  The Georgia Supreme Court agreed that the hospital could not side step the injured serviceman’s health insurance, stating that allowing a hospital to do this would ”defeat the purpose of these agreements which is for TRICARE beneficiaries to have their healthcare costs paid in full at the negotiated rates without fear of further recourse.”

While the MCG case is specifically about TRICARE reimbursement, it is my hope that this case will help stop this unfair practice of hospitals not submitting bills to health insurance companies.

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The Georgia Court of Appeals recently examined a case involving whether a county could be sued if one of its officers failed to follow policy and procedure with regard to high speed police chases.  In Strength v. Lovett, a police officer pulled over a 19 year old for making an illegal U-turn.  The 19 year old pulled his car over and handed the police officer his license without incident.  The 19 year old driver only had a provisional driver’s license that required him to have a passenger with him that was over 21.  The driver did not have a 21 year old with him at the time, so the police officer called the 19 year old’s aunt to pick him up and take him home.  While the officer was waiting for the aunt to arrive, the 19 year old suddenly took off, and the officer gave chase.  After covering over four miles with speeds exceeding 90 miles per hour, the 19 year old eventually collided with another car, killing one of that car’s occupants.

The family of the deceased brought a wrongful death lawsuit alleging that the police officer recklessly decided to pursue the fleeing vehicle.  The family of the innocent victim pointed out specific polices the pursuing officer failed to follow.  For example, the county had a written policy that said, “it is of paramount importance that the officer weigh the seriousness of the offense against the danger to the officer and others who might be affected by the pursuit” and “it may be wise to abandon pursuit of misdemeanor offenders rather than continue a highly dangerous pursuit”.  The family also pointed out that the officer was still in possession of the offender’s driver’s license, so it would be easy to get an arrest warrant and apprehend the suspect at a later time.

Despite the seemingly clear reckless behavior on the part of one of its officers, the county still argued that it was immune from a lawsuit.  The Georgia Court of Appeals disagreed with the county, explaining that if an officer acts with reckless disregard for law enforcement polices and procedures when pursuing a fleeing suspect, then the county is not immune from a lawsuit.

In my opinion, the Court of Appeals got this one right.  Police procedures are there for the protection of the officer and the general public.  This case is a tragic example of why high speed police chases are almost always bad ideas.  Had the police officer done what he was trained to do, an innocent life would have been spared, and the fleeing suspect would have eventually been caught.

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What if this happens, but there is not someone as talented as the man wearing the Florida Gators t-shirt shown in the photo sitting next to you?  Is the baseball team responsible for your injury?  The answer in almost all cases is “no”.  If you purchase a ticket to go to a baseball game, and sit in an area that is obviously unprotected, you are assuming the risk that you could get hit by an errant ball or bat.  So the best advice when going to a baseball game is, pay attention, and if at all possible, bring along a friend that can catch a bat with one hand and hold his beer with the other.