An insurance policy is terminated either by nonrenewal by
the insurer or by cancellation, whether effected by the insurer or the insured.
Nonrenewal occurs when the insured or the insured does not wish to renew the
policy after its stated date of expiration, cancellation occurs while these
parties generally the insurer, which is determined at the contract of insurance
before it is to expire under its own terms. When the insurer cancels an
automobile policy it must tread carefully to avoid the myriad pitfalls created
by the statutory scheme of OCGA section 33-24-44. The cancellation notice must
be in writing pursuant to OCGA section 33-24-44b, be unequivocal, i.e., the
notice of cancellation must only state a desire or intention to cancel, it may
not be a demand for payment for that it is deemed equivocal, and thus, not a
proper notice of cancellation. Further, the notice must state that it is the
intention of the Company that the policy shall cease to be binding from the
expiration of the stipulated number of days following the time when its
intention is made known to the insured. It is also insufficient to tell the
insured that the policy will be canceled unless premiums are paid by a certain
date. This is simply a demand for payment.Contact an Atlanta DUI lawyer to help you with your case today.
Wednesday, May 15, 2013
Tuesday, May 14, 2013
If a plaintiff fails to file an affidavit and that failure
is raised by motion to dismiss filed contemporaneously with the initial
responsive pleadings, the complaint is subject to dismissal. If an affidavit is
not filed with the complaint, a plaintiff may not dismiss the lawsuit and
refile the case after the expiration of the statute of limitations and obtain
the benefit of the renewal statute, unless the court makes a determination that
the affidavit was available and not filed due to a mistake. The failure to
attach the affidavit is generally not an amendable defect. If the required
affidavit is not filed with the complaint, the complaint is subject to
dismissal for failure to state a claim. A dismissal for failure to state a
claim is a dismissal on the merits and is with prejudice. Since the renewal
privilege under OCGA 9-2-61 does not apply to cases decided on the merits, once
a case is dismissed for the failure to attach an affidavit, it will not be
subject to renewal. A mistake of law as to whether the affidavit should be
filed may not be a mistake for purposes of this subsection, at least one case
has held that an affidavit can be available if it is in existence and acquirable
by the plaintiff, as opposed to being in the actual possession of the
plaintiff. In 2005, the Gen. Assembly added an additional medical negligence
filing requirement. As of February 16, 2005 all medical negligence complaint
must include a contemporaneously filed medical authorization. The language of
the new statute mirrors the language of OCGA 9-11-9.1 with respect to the types
of matters that require authorization and also specifically encompasses actions
against entities that base liability on the conduct of a medical professional.
OCGA 9-11-9.2 is unenforceable. The Georgia Supreme Court held that the medical
authorization provision fails to meet the requirements of the federal HIPPA
provision, and hence it is unenforceable. Contact an Atlanta DUI lawyer if you
are charged with a statute that is unconstitutional.
Friday, May 3, 2013
patient-Psychiatrist privilege | Atlanta DUI lawyer
Patient psychiatrist privilege
The patient psychiatrist privilege
does exist in Georgia. To claim the privilege under OCGA 24-9-21 (5) the
patient must voluntarily seek the assistance of the psychiatrist. This creates
a confidential relationship. That a patient seeks to recover damages for mental
and emotional injuries as a plaintiff in a civil case for personal injuries
does not constitute a waiver under OCGA 24-9-40. In very rare cases however,
when some fundamental constitutional right is at stake, the privilege may yield
to the constitutional right. A party waives the psychiatric privilege when the
party calls his or her psychiatrist to testify at trial on the party’s behalf
when the mental status of the parties at issue. Moreover, where the
psychiatrist or mental health workers consulted for evaluation and testimony
rather than treatment or appointed by the court for such purpose, no privileged
relationship arises as protected under the act. Defendant may obtain portions
of the plaintiff’s records that might contain privileged information, if the
privileged information is deleted. For example, a record of comments made to a
nurse at a mental health unit would not come under the patient psychiatrist privilege
unless the nurse was an agent of the psychiatrist. The discovering party may be
able to obtain any records that do not have privileged communications. Any
communication not made to a psychiatrist or one of his agents would not be
privileged. Obtaining information from medical records however, would still be
subject to federal HIPPA requirements.
To determine what is protected and what is not protected at state law, the
trial court should you in in camera inspection and only make available for
discovery what does not involve communications with the psychiatrist or
psychologist or their agents.Contact an Atlanta DUI lawyer today to help you with your case.
Tuesday, April 30, 2013
Obtaining records from a non-party | Atlanta lawyer
To obtain records from a nonparty
who is not a practitioner of the healing arts, hospital, or health care
facility, counsel can file for the production of documents under OCGA
9-11-34(c)(1). The nonparty discussing the requested information has 30 days to
respond under this procedure. Records that could be obtained under this statute
include employment records, school records, Worker’s Compensation reports, or
other insurance files. These records do not implicate HIPPA and do not come
under the medical authorization form requirement of OCGA 9-11-9.2.
OCGA 9-11-35A authorizes physical
or mental examinations for parties to a lawsuit. An examination ordered
pursuant to this section is commonly called an independent medical examination.
A party can request the court to order a party to submit to the examination.
The order may be made only on motion and for good cause shown upon notice to
the person to be examined and to all parties and shall specify the time place
and manner condition and scope of the examination and the person or persons by
whom it is to be made OCGA 9-11-(35)a. The party that is submitted to the
examination may request a report about the examiner’s findings from the party
who requested the examination. If this request is made the party requesting the
examination should provide the party who was examined a detailed report of the
examining physician setting out his findings, including results of all tests
made, diagnoses, and conclusions, together with like reports of all earlier
examinations of the same condition. The court can order this report if the
physician fails to make the report his testimony can be excluded OCGA 9-11-35
b3. Contact an atlanta lawyer for help with your case today.
Third party requests | Atlanta lawyer
To obtain records from a nonparty
who is not a practitioner of the healing arts, hospital, or health care
facility, counsel can file for the production of documents under OCGA
9-11-34(c)(1). The nonparty discussing the requested information has 30 days to
respond under this procedure. Records that could be obtained under this statute
include employment records, school records, Worker’s Compensation reports, or
other insurance files. These records do not implicate HIPPA and do not come
under the medical authorization form requirement of OCGA 9-11-9.2.
OCGA 9-11-35A authorizes physical
or mental examinations for parties to a lawsuit. An examination ordered
pursuant to this section is commonly called an independent medical examination.
A party can request the court to order a party to submit to the examination.
The order may be made only on motion and for good cause shown upon notice to
the person to be examined and to all parties and shall specify the time place
and manner condition and scope of the examination and the person or persons by
whom it is to be made OCGA 9-11-(35)a. The party that is submitted to the
examination may request a report about the examiner’s findings from the party
who requested the examination. If this request is made the party requesting the
examination should provide the party who was examined a detailed report of the
examining physician setting out his findings, including results of all tests
made, diagnoses, and conclusions, together with like reports of all earlier
examinations of the same condition. The court can order this report if the
physician fails to make the report his testimony can be excluded OCGA 9-11-35
b3.Contact an atlanta lawyer today with help on your case.
What you need to know about HIPPA | Atlanta lawyer
As part of the health insurance portability and
accountability act of 1996 HIPPA, Congress authorized United States Department
of Health and Human Services to promulgate regulations establishing strict
privacy protection for health care information and medical records. These
records are codified at 45 CFR 160 and 164 and are known collectively as the
HIPPA privacy rule. The rule generally precludes a health care provider from
using or disclosing protected health information except as permitted by the privacy
regulations. The rule generally precludes a health care provider from using or
disclosing protected health information except as permitted by the privacy
regulations. As a practical matter, the HIPPA privacy rule does create new
barriers for attorney seeking to obtain an individual’s medical records or
other protected health information for use in litigation. Moreover, any less
restrictive state laws, including rules of procedure, or any state laws
contrary to the requirements of the HIPPA privacy regulations are preempted by
the federal regulations. Knowledge of the HIPPA regulations is therefore
important for lawyer seeking to serve subpoenas and make other formal or
informal discovery requests during litigation. As a practical matter, the HIPPA
privacy rule does create new barriers for attorneys and you will as well as
will is seeking to obtain individuals medical records or other protected health
information for use in litigation. Under HIPPA, discovery of individuals
medical records may generally occur in one of 3 ways 1) through a signed authorization 2) through
subpoena or other appropriate discovery request 3) pursuant to a court order.
As always, the easiest and most direct way to receive
protected health information is through a valid patient authorization. After
HIPPA, however, patient authorizations must be more detailed than those
accepted before the rule became effective. The HIPPA privacy regulations
dictate exactly what information a valid authorization must contain, and these
regulations should be consulted if counsel intends upon drafting the
authorization for a client or another patient.
A valid authorization that is one that includes:
1)
a description of the information to be used or
disclosed that identifies information in a specific and meaningful fashion.
2)
The name or other specific identification of the
person, or class of persons, authorized to make the requested disclosure.
3)
The name or other specific identification of the
person or class of persons, to whom the health care provider may make the
disclosure.
4)
A description of each purpose of the requested
use or disclosure. The statement at the request of the individual is a
sufficient description the purpose and individual initiates the authorization
and does not, or elects not to, provide a statement of the purpose.
5)
An expiration date or an expiration event that
relates to the individual or the purpose of the use or disclosure.
6)
Signature of the individual and date. If the
authorization is signed by personal representative of the individual, a
description of such representative’s authority to act for the individual must
also be provided.
In addition to these core elements
of the authorization must also contain statements adequate to place the patient
on notice of certain rights, including his right to revoke the authorization at
any time, and of the potential for the protected health information to be
redisclosed by the recipient. HIPPA regulations further mandate that the
authorizations be written in plain language and that a copy of the signed
authorization be provided to the individual whose protected health information is
sought. In practice health care providers found upon an authorization drafted
by counsel and will usually prefer their own authorization form. In which case,
practitioners need to ensure that the authorization includes a complete list of
people authorized to receive a copy of the protected health information
including the court, experts, witnesses, attorneys, and support staff.
Subpoena or other discovery request
In the absence of a valid patient
authorization, the HIPPA privacy rule also permits a health care provider to
disclose a patient’s protected health information in response to a subpoena,
discovery request or other lawful process provided such requests are
accompanied by specific assurances from the requesting party. The need for
these additional privacy assurances term satisfactory assurances under HIPPA is
sometimes referred to as a subpoena plus requirement. Satisfactory assurances
provided with a subpoena should be attached via a written statement and accompanying
documentation stating :
1) that reasonable efforts were
made to ensure that the individual who is the subject of the protected health
information has been given notice of the request.
2) that the notice include sufficient
information and time period so the individual could object to disclosure.
3) that no objection has been
filed, or if filed, was resolved by the court or administrative tribunal, and
the disclosures sought are consistent with that resolution.
Satisfactory assurances may
alternatively be provided by serving the health care provider with written
statements and documentation demonstrating that reasonable efforts have been
made by the requesting party to enter or obtain a qualified protective order. A
qualified protective order is one that prohibits the parties from using or
disclosing the protected health information for any purpose other than the
litigation or proceeding for which it was requested and requires the return or
destruction of the protected health information at the end of the litigation or
proceeding.
If the party seeking to discover
the HII attaches documentation providing that satisfactory assurances by either
method, the health care provider may disclose the patient’s medical records
without having a signed authorization from the patient himself.
The practical effect of the HIPPA
privacy rule has been an increase in the notice to the patients or their
representatives that protected health information is being sought and
potentially disclosed. Most third-party discovery requests under OCGA 9-11-34
are preceded by a letter from defense counsel to the patient’s counsel that
protected health information will be sought from a specific provider within 10
days via a 3rd party request. Patient’s counsel can acquiesce by
silence, consent affirmatively, or object to the provider. If privileged
materials may be contained within the requested materials the best practice is
to object in writing to the disclosure of the privileged materials only. This
procedure will adhere to HIPPA and allow for discovery and investigation of the
claim.
HIPPA prohibits ex parte
communication among defense counsel and the patient’s providers without the
patient’s consent concerning protected health information. This is HIPPAs most
significant impact on medical negligent litigation in Georgia. The net effect
of this change is to require more mutual interviews or depositions with providers
and to eliminate secret communications. While defense counsel’s unilateral
access to providers has been limited access through discovery tools, which
provides notice to all parties, is available. The Georgia civil practice act
intent was for all parties to have notice of discovery tools and HIPPA simply
requires that the disclosure protected health information is done with proper
notice also. The Court of Appeals has held that a surviving wife who brings a
wrongful death claim against medical providers for her husband’s death is
authorized to have the medical records of her deceased husband. Because she
brought the action under the Georgia wrongful death statute, and because under
the statute she has the authority to act for the deceased person, HIPPA does
not bar her from obtaining the records.
The Georgia Supreme Court has
ruled that HIPPA does not allow defense attorneys to informally interview
plaintiff’s treating physicians. Such ex parte contacts are not allowed under
the act, and the act takes precedence over Georgia law related to the discovery of a plaintiff’s
medical records.Contact in Atlanta lawyer about your case today.
Sunday, April 28, 2013
Economic caps | Atlanta lawyer
OCGA 51-13-1 applies to medical negligence cases that arise
on or after February 16, 2005. It places limits on non-economic damages. In
case against health care providers noneconomic damages are limited to $350,000
regardless the number providers and even if the jury’s verdict for noneconomic
loss specifically exceeds the cap. A 350,000 cap also applies to actions
against health care facilities. With respect to health care facilities a
Applies to each facility but for 2 or more facilities the cap Cannot exceed
700,000. The facility Encompasses all providers for which vicarious liability
applies. Thus the provider and facility must be independent to have a $700,000
cap, otherwise the single facility Will
apply. For example, in a case against multiple independent providers, a single
$350,000 Will apply regardless of the number of negligent providers. In a case
against a physician or hospital for the Hospital alleged to be vicarious
liable, a single $350,000 Applies. When the hospital and the doctor
independently negligent the facility or provider Both apply, and a total of $700,000
Will apply. Noneconomic damages means damages for physical and emotional pain,
discomfort, anxiety, hardship, distress, suffering, inconvenience, physical
impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of
society and companionship, loss of consortium, injury to reputation, and all
other nonpecuniary losses of any kind or nature. This term does not include
past or future:
medical expenses, including rehabilitation and therapy.
Wages or earnings capacity, income. Funeral and burial expenses.
Based on the statutory language to Applies to all cases,
including wrongful death and catastrophic injury cases. The Treats derivative
claims as one claim and limits the combined claims. Thus a husband and wife would
be considered one claimant when bringing a loss of consortium claim.Contact an Atlanta lawyer today for help with your case.
Transfer of a case to a different venue | Atlanta DUI lawyer
The Gen. Assembly also introduced forum non-conveniens to
Georgia during the 2005 legislative session by enacting OCGA 9-10-31.1 which
applies to all cases. Georgia statutory forum non conveniens doctrine allows a
court to dismiss or transfer a case that is otherwise in a proper venue upon
consideration of 7 factors,
relative ease of access to sources of proof.
Availability and costs of compulsory process for attendance
of unwilling witnesses
possibility of viewing the premises, if viewing would be
appropriate to the action,
unnecessary expense or trouble to the defendant not
necessary to the plaintiff’s own right to pursue his or her remedy administrative difficulties for the forum courts
Existence of local interests in deciding the case locally,
and
the traditional deference given to a plaintiff
choice of forum. Contact an Atlanta lawyer today for a consultation about your case.
Lack of affidavit filed with the complaint | Atlanta lawyer
Lack of an affidavit filed with the complaint
If a plaintiff fails to file an affidavit and that failure
is raised by motion to dismiss filed contemporaneously with the initial
responsive pleading, the complaint is subject to dismissal. If an affidavit is
not filed with the complaint, that plaintiff may not dismiss a lawsuit and
refile the case after the expiration of the statute of limitations and obtain
the benefit of the renewal statute, unless the court makes a determination that
the affidavit was available and not filed due to a mistake. The failure to
attach the affidavit is generally not an amendable defect. If the required
affidavit is not filed with the complaint, the complaint is subject to
dismissal for failure to state a claim. A dismissal for failure to state a
claim is a dismissal on the merits and is with prejudice. Since the renewal
privilege under OCGA 9-2-61 does not apply to cases decided on the merits, once
a case is dismissed for the failure to attach an affidavit, it will not be subject
to renewal. Only by dismissing and refiling the suit prior to the running of
the statute of limitations can the suit be revived if an affidavit is not
attached initially. When the court determines that the plaintiff had the
requisite affidavit within the time required by OCGA 911 9.1.c and the failure
to file the affidavit was a result of a mistake, renewal may be possible. For
example in Rector v. oh day, the parties agreed that the plaintiff had the
requisite affidavit and that it was inadvertently not filed. The plaintiff dismissed
and refiled the action, and in the renewal action, the Court of Appeals held
that the underlying facts are precisely the scenario that OCGA 9-11-9.1 (c) was
intended to address. Rector 268 Ga. App. at 867. Contact an Atlanta lawyer
today to help you with your case.
Saturday, April 27, 2013
Expert affidavit requirements | Atlanta DUI lawyer
Necessary affidavit
elements
An affidavit must
list the factual basis for each claim made. This may be done by discussing the
factual situation and the basis for the affiant’s knowledge. It may summarize
the foundational information and indicate that it has been gained from medical
records. The affiant may summarize the foundational information and indicate
that it is been gained from the medical records. If I am a also based affidavit
on factual allegations in the complaint that are presumed to be true and the
affidavit can also attach incorporate by reference all the medical records
relied upon. The affidavit must contain and set forth at least one specific act
of negligence or an omission that constitutes negligence. While no magic words
are listed in the statute, the affidavit must typically indicate that in the
affiant’s opinion, given the facts and circumstances outlined in the affidavit
from the medical records and factual allegations of the complaint assumed to be
true, the defendant professional violated the applicable standard of care.
Vicknair v. Miller to 23 Ga. App. 692, 1996. The affidavit should also contain
information that the violation of the standard of care caused or contributed to
the ultimate injury. While OCGA 9-11-9.1 does not specifically require
causation the failure to include causation in the affidavit opens the matter to
a potential motion for summary judgment on causation grounds which is simply
unnecessary in most cases. The affidavit must demonstrate on its face that the
expert is qualified. The affidavit must be signed and sworn to in person. The
lack of a properly executed notary jurat renders an affidavit insufficient. To
qualify as a practicing expert the expert affidavit must demonstrate on its
face that the expert not only has the requisite training, but that the expert
is specifically familiar with the specific practice alleged to be negligent but
actually performing the medical act with a sufficient level of frequency as
determined by the court, in the past 3 of 5 years. Spack v. trailer 288 Ga.
App. 898, 2007. It is not an abuse of discretion to dismiss medical negligence
complaint based upon an affidavit does that does not specifically reference
experience in the last 3 of 5 years despite a statement that generally
indicates familiarity with the standard of care or even a procedure based on 30
years experience. To qualify as a teaching expert, the witness must be an
employed member of the faculty at an educational institution and must have
taught others the medical act alleged to be negligent for at least 3 of the
past 5 years. Only members of the same profession may testify as experts
against one another, although a physician may qualify as an expert against
nurses, nurse practitioners, certified registered nurse anesthetists, nurse
midwives, physician’s assistants, physical therapist, occupational therapist,
or medical support staff if the physician can demonstrate the requisite
knowledge of the applicable standard of care in at least 3 of the past 5 years
prior to the alleged negligence. When a medical doctor or doctor of osteopath
is a defendant, only another medical doctor or doctor of osteopathic may
qualify as a standard of care witness. To qualify as a practicing expert, the
expert affidavit must demonstrate on its face that the expert not only has the
requisite training, but that the expert is specifically familiar with the
specific practice alleged to be negligent by actually performing the medical
act with the sufficient level of frequency, as determined by the court, in the
past 3 of 5 years. The expert affidavit must contain the qualifications or
credentials of the expert to demonstrate that the expert is competent to testify.
This can be accomplished by attaching a copy of the curriculum vitae or
actually having the affiant go through the credentials in the affidavit. In
light of OCGA 24-9-67.1 ACV may suffice for educational and professional
qualifications, but the body of the affidavit should include a statement
concerning the level of familiarity with the underlying medical procedure or
diagnosis in 3 of the last 5 years to avoid potential attacks and for teaching
experts the affidavit should state in addition to the curriculum vitae that the
expert is employed by the educational Institute and is not just an unpaid
clinical professor. OCGA 24-9-67.1 does not allow a nurse to testify or be an
expert against a doctor. It is not enough for an affidavit to state that the
standard of care was violated, the affidavit must detail and identify at least
one negligent act or omission. Edwards v. Van Straten 206 Ga. App. 21 (1992).
Pursuant to OCGA 9-11-15, if the affidavit is challenged the plaintiff may
amend the affidavit or cure it within 30 days of service of the motion alleging
the defect. A challenged affidavit will be construed most favorably to the
plaintiff and all doubts should be resolved in plaintiff’s favor, even if an
unfavorable construction of the affidavit may be possible. V. Wilson and Company
engineers and architects 262 Georgia 234 1992. Bell v. VB v. health Sys. Inc.
272 Ga. App. 856 (2005) section 8: 6 in the medical malpractice book. The
Georgia courts have construed affidavits as liberally as possible, as long as
such a construction does not detract from the gatekeeper function of OCGA
9-11-9.1 in eliminating frivolous cases. Contact an Atlanta lawyer for a free consultation.
Special pleading requirements | Atlanta DUI lawyer
OCGA 9-11-8 defines an action for medical malpractice as a
claim for damages resulting from the death or injury of a person arising out of:
a. Health medical dental or surgical service diagnosis
prescription treatment or care rendered by a person authorized by law to
perform such services or by any person acting under the supervision and control
of a lawfully authorized person: or
b. Care or service rendered by any public or private
hospital nursing home clinic, Hospital Authority, facility, or institution, or
by any officer, agent, or employee thereof acting within the scope of his
employment. Complaints for medical negligence are governed by the civil
practice act and notice pleading is generally sufficient. However special
pleading requirements apply to claims for medical negligence. An affidavit of a
competent expert allege at least one act of negligence OCGA 9-11-9.2 which. Require
the contemporary filing of the medical authorization was held in violation of
the Federal hippo rule in Allen v. Wright. When pleading a claim for medical
negligence for an amount less than $10,000, a sum certain must be alleged.
Nonconforming demands are subject to a motion to strike and authorize the court
to impose sanctions, including disciplinary action against counsel directly.
When seeking in excess of $10,000 the complaint must allege that the party
demands judgment in excess of $10,000 and may not demand any further monetary
demand. When faced with a pleading that seeks medical factual admissions, the
best practice is to admit generally accepted medical facts with the proviso
that each patient is unique in that individual factors can create exceptions to
accepted medical facts. The most dangerous response to a medical fact
allegation is to allege a lack of knowledge, as such a response by the medical
professional can be used to demonstrate a lack of medical knowledge before jury
via a skilled cross-examination. In response to the actual complaint, the
requirement of an answer in a medical negligence case do not materially differ
from that of any other matter. The answer shall allege the defenses and shall
admit or deny the allegations of the plaintiff. If a party has no knowledge,
she should allege as such. The answer must also raise all affirmative defenses,
including the statute of limitations. The failure to deny an allegation that
requires a response constitutes an admission, except as to the matter of
damages. To avoid a default situation in state court, in answer must be filed
in response to a complaint, even if a motion to dismiss is filed. When a
medical malpractice case is in default, it is afforded special treatment under
OCGA 9-11-54. In cases where the demand is for in excess of $10,000, the
default trial on damages may only proceed after defaulting party has been given
3 days notice. Non-medical negligence cases are not afforded the special
notice. OCGA 9-11-54 section. In most litigation the complaint is viewed as one
of the more critical documents in the case. The requirements of OCGA 911 9.1
are what are critical in a medical negligence case. In all actions alleging
professional negligence, an affidavit of a licensed professional competent to
testify, which specifically sets forth at least one negligent act or omission
claimed to exist and the factual basis for each such claim, shall be attached
to the initial pleading. OCGA 9-11-9.1 a 2008 Merk v. St. Joseph’s Hospital of
Atlanta 251 Ga. App. 631 (2001). The purpose of OCGA 9-11-9.1 was to reduce the
number of frivolous negligence claims filed. The affidavit does not need to
make out a prima facie case that is capable of defeating summary judgment prior
to an answer. Sawyer v. Dekalb Medical Center to 34 Ga. App. 54 (1998). What
originally began as a pleading requirement has become one of the most litigated
areas in Georgia law. Several amendments OCGA 9-11-9.1 have attempted to
clarify the pleading requirement to avoid the mass of litigation a generated.
The current incarnation of OCGA 9-11-9.1 includes a grace period in creates a
very narrow exception to the contemporaneous filing requirement. If a good
faith basis exist to believe that the statute limitations will expire within 10
days of filing and if due to time constraints the plaintiff cannot prepare an
affidavit with a competent expert, the plaintiff may supplement a medical
negligence complaint with an affidavit within 45 days of filing. However, for
the grace period to apply, the plaintiff’s counsel must file an affidavit with
the complaint swearing that counsel or his or her law firm were retained not
more than 90 days prior to the expiration of the statute limitation. Failure to
file the attorney’s affidavit or evidence that the attorney was retained more
than 90 days prior to the expiration of the statute limitation shall subject
the complaint to dismissal. OCGA 9-11-9.1 act of the bishop to 94 Ga. App. 132,
2008. Even a pro se defendant is required to file an attorney affidavit in the
situation where they previously had counsel and the failure to attach attorney
affidavit or the professional negligence affidavit subjects the medical
negligence complaint to dismissal.Contact an Atlanta Atty. today with help for your case.
The sun never sets on fraud | Atlanta DUI lawyer
As a response to a statute of limitations
defense, a plaintiff sometimes asserts that the treating physician
misrepresented plaintiff’s condition or the care provided and that plaintiff
did not discover this misrepresentation until the statute of limitations had
run. To toll the statute, plaintiff must establish essential elements of fraud
within the physician-patient relationship or lose on summary judgment.
Allegations of negligent treatment, advice and misdiagnosis, even willful
negligence are insufficient to raise a question of fact on fraud. Fraud issues
are often fact intensive, and the appellate courts will examine the record
closely to see if plaintiff has raised and supported a reasonable inference of
culpable misrepresentation. Fraudulent conduct by the treating physician will
toll the statute of limitations OCGA 9-3-96 states if the defendant or those
under whom he claims are guilty of a fraud by which the plaintiff has been
debarred or deterred from bringing an action the period of limitation shall run
only from the time of the plaintiff’s discovery of the fraud. It is not enough
however for plaintiff to simply prove fraud. Fraud sufficient to toll the
statute limitation requires one: actual fraud involving moral turpitude on the
part of the defendant 2) the fraud must conceal the cause of action from the
plaintiff thereby debarring or deterring the knowing of the cause of action 3)
the plaintiff must have exercised reasonable diligence to discover the cause of
action, notwithstanding the failure to discover within the statute of
limitation. Kane v. Shoup 260 Ga. App. 723 2003. Note that plaintiff does not
have to prove actual fraud. The plaintiff has the burden of proving facts to
establish fraud to toll the statute Edmonds v. Bates 178 Ga. App. 69 (1986). To
toll the statute the fraud must involve moral turpitude not mere broken
promises, unfulfilled predictions or erroneous conjecture as to future events.
Also plaintiff must offer evidence of fraudulent misrepresentation made by each
defendant for whom plaintiff seeks to have the statute of limitations tolled.
Charter peach 3rd behavioral health system v. Kohout 233 Ga. App.
452 (1998). The statute is tolled only until the fraud is discovered or should
have been discovered unless excused. Plaintiff must exercise ordinary care to
discover the fraud, questions about the existence of fraud and plaintiff’s
diligence in discovering it are ordinarily jury questions. The plaintiff must
do more than make a bare allegation of fraud that is unsupported by the record
to raise an issue of fact. The patient physician relationship is a relationship
of trust and confidence. The patient with no expertise or training entrusts
his medical condition to the trained
physician the patient with no expertise or training entrusts his medical
condition to the trained physician. Because of this confidential relationship,
an exception arises to the requirement in typical fraud cases that defendant
makes some actual misrepresentation. Within the confidential relationship,
silence when the doctor should speak or failure to disclose what should be
disclosed will constitute fraud as much as an actual misrepresentation. Thus
within the doctor-patient relationship plaintiff need not prove actual fraud.
Relationship creates a duty that requires a doctor to inform the patient about
his condition. Nevertheless there must be evidence that there was an intent to
this conceal by silence. Charter peach for behavioral health system v. covert
233 Ga. App. 452 (1998). The Court of Appeals found sufficient evidence of
intent to conceal in Quattlebaum v. Co. wort 182 Ga. App. 473 (1987). There
defendant did not advise his patient that defendant had failed to connect the
left hepatic duct to the small intestine, and in fact prepared misleading and incorrect
medical records on this point. This conduct raised a jury question on fraud.
The court found a reasonable inference of a knowing concealment and cover up,
not just a mere misstatement. Similarly in set live v. Hackney 164 Ga. App. 740
(1982) defendant performed reconstructive breast surgery on the plaintiff.
Shortly after surgery he injected saline into the implants to improve the
appearance of her breasts. He told plaintiff that the implants were self
sealing when she inquired about the possibility of leakage. The court found
that defendant’s subsequent conduct in repeating the injections raise an
inference of fraud, even if he initially believed that leakage would not occur.
The court stated that concealment per se amounts to actual fraud when for any
reason one party has a right to expect full communication of the facts from
another.
Knowledge of the
misrepresentation
to toll the statute based on fraud plaintiff must show that
defendant knew that the misrepresentation was false at the time he made it.
Simply alleging fraud based on a misdiagnosis followed by continued treatment
is in sufficient.
The deterrence requirement
To toll the statute by fraud plaintiff must show that
defendant’s actions deterred him from discovering his true medical condition. It
is not sufficient that defendant made misrepresentations, plaintiff must of
been deterred from seeking further medical help because of such
misrepresentations.
The deterrence
requirement
To toll the statute by fraud plaintiff must show that
defendant’s actions deterred him from discovering his true medical condition. It
is not sufficient that defendant made misrepresentations, plaintiff must of
been deterred from seeking further medical help because of such
misrepresentations.
Once the patient seeks the help of another doctor who
informs the patient of the medical problems, the patient is no longer deterred
from discovering the fraud. If the patient seeks a 2nd opinion from
another physician, that generally stops the tolling effect of the fraud. The
same result occurs when plaintiff ceases going to the original doctor for
treatment and is accepted as a patient by another physician. Moreover, once a
defendant doctor discloses the existence of medical complications, even if
defendant has misdiagnosed those complications, plaintiff is no longer deterred
from learning the true facts. The court will look at plaintiff’s conduct in
reviewing fraud issues. The evidence may show that repeated recurrence of
symptoms put plaintiff on notice of the problem. Communications by plaintiff to
defendant may also show a lack of deterrence when plaintiff expresses
dissatisfaction with defendants care before the statute expires. Hendricks v.
squeaking ghost, 183 Ga. App. 201, 1987. When plaintiff suspects medical
problem and asks his doctor, the doctor’s assurances that plaintiff only
suffered from expected complications, like postradiation symptoms, may toll the
statute. For example in Lynch v. Waters 179 Ga. App. 222, 1986 plaintiff sued
defendants for negligent misdiagnosis of breast cancer. Over the course for
treatment, she repeatedly asked her doctors of any work to be done to ensure
her good health and was advised repeatedly that she had no cause to worry.
Based on their misrepresentations about her condition she refrained from
seeking further medical advice. Under these facts the court found an issue of
fraud. The plaintiff failed to seek medical treatment based on reliance upon
defendant’s misdiagnosis, rather than a knowing misrepresentation of plaintiff’s
medical condition, the statute of limitations will not be tolled. Whether the
defendant knew about plaintiff’s condition and knowingly misrepresented it,
whether plaintiff justifiably relied on defendant’s misdiagnosis, or whether
plaintiff failed to exercise ordinary care for her own safety are generally
questions for the jury. Plaintiff has the burden of proving that defendant
fraudulently deterred him from seeking further medical assistance that kept him
from discovering defendant’s negligence. The appellate courts will closely
scrutinize Plaintiff’s evidence. In Montgomery v. with Ritchie 151 Ga. App. 66,
1979 plaintiff presented evidence that in 1977 her spinal fusion was not solid.
The defendant had operated on plaintiff’s back in 1974. The court found that
evidence of a failed fusion in 1977 would not support inference that the fusion
was not solid in 1974, therefore the statute limitations was not tolled based
on defendants’ assurances that surgery was successful and that she should not
be concerned about her continuing pain. In Gillis v. Palmer the only evidence
of fraud was plaintiff’s testimony that defendant doctor told them that there
was no problem. Nothing in the record gave any indication of concealment or any
effort to deter the patient’s from seeking further medical help. On the other
hand, the patient’s knew that the shots were more painful on the occasion in
question and also noticed unusual knots in their hips. Consequently they were
on notice of facts sufficient to require them to exercise due diligence in
discovering any negligence. Evasion by the treating physician upon direct
inquiry by the patient may be sufficient to raise a fact issue on fraud.
Concealment of material facts may amount to fraud under such circumstances.
OCGA 9-39-71 b imposes a five-year statute of repose on medical malpractice
claims that cuts off claims 5 years after the negligent or wrongful act or
omission occurred. The rationale for this provision is that due to the
uncertainty of aging, health and intervening events, it is reasonable to limit
liability for injury or death occurring more than 5 years from the date of
medical treatment. Because the statute of repose sets a limit on what is
actionable, it cannot generally be tolled. Nevertheless, an exception arises
when the injuries in fact occurred during the period of liability, but
defendant by fraud concealed such injuries. The doctor cannot deceive the
patient for 5 years and assert the statute of repose. The sun never sets on
fraud. Lasoya v. Sunay 193 Ga App 814, 1989.
Contact an Atlanta DUI lawyer today to help you with your case.
Friday, April 26, 2013
Fraud by the physician | Atlanta DUI lawyer
As a response to a statute of limitations defense, a
plaintiff sometimes asserts that the treating physician misrepresented
plaintiff’s condition or the care provided and that plaintiff did not discover
this misrepresentation until the statute of limitations had run. To toll the
statute, plaintiff must establish essential elements of fraud within the
physician-patient relationship or lose on summary judgment. Allegations of
negligent treatment, advice and misdiagnosis, even willful negligence are insufficient
to raise a question of fact on fraud. Fraud issues are often fact intensive,
and the appellate courts will examine the record closely to see if plaintiff
has raised and supported a reasonable inference of culpable misrepresentation.
Fraudulent conduct by the treating physician will toll the statute of
limitations OCGA 9-3-96 states if the defendant or those under whom he claims
are guilty of a fraud by which the plaintiff has been debarred or deterred from
bringing an action the period of limitation shall run only from the time of the
plaintiff’s discovery of the fraud. It is not enough however for plaintiff to
simply prove fraud. Fraud sufficient to toll the statute limitation requires
one: actual fraud involving moral turpitude on the part of the defendant 2) the
fraud must conceal the cause of action from the plaintiff thereby debarring or
deterring the knowing of the cause of action 3) the plaintiff must have exercised
reasonable diligence to discover the cause of action, notwithstanding the
failure to discover within the statute of limitation. Kane v. Shoup 260 Ga.
App. 723 2003. Note that plaintiff does not have to prove actual fraud. The
plaintiff has the burden of proving facts to establish fraud to toll the
statute Edmonds v. Bates 178 Ga. App. 69 (1986). To toll the statute the fraud
must involve moral turpitude not mere broken promises, unfulfilled predictions
or erroneous conjecture as to future events. Also plaintiff must offer evidence
of fraudulent misrepresentation made by each defendant for whom plaintiff seeks
to have the statute of limitations tolled. Charter peach 3rd behavioral
health system v. Kohout 233 Ga. App. 452 (1998). The statute is tolled only
until the fraud is discovered or should have been discovered unless excused.
Plaintiff must exercise ordinary care to discover the fraud, questions about
the existence of fraud and plaintiff’s diligence in discovering it are
ordinarily jury questions. The plaintiff must do more than make a bare
allegation of fraud that is unsupported by the record to raise an issue of
fact. The patient physician relationship is a relationship of trust and
confidence. The patient with no expertise or training entrusts his medical condition to the trained physician the
patient with no expertise or training entrusts his medical condition to the trained
physician. Because of this confidential relationship, an exception arises to
the requirement in typical fraud cases that defendant makes some actual
misrepresentation. Within the confidential relationship, silence when the
doctor should speak or failure to disclose what should be disclosed will
constitute fraud as much as an actual misrepresentation. Thus within the
doctor-patient relationship plaintiff need not prove actual fraud. Relationship
creates a duty that requires a doctor to inform the patient about his
condition. Nevertheless there must be evidence that there was an intent to this
conceal by silence. Charter peach for behavioral health system v. covert 233
Ga. App. 452 (1998). The Court of Appeals found sufficient evidence of intent
to conceal in Quattlebaum v. Co. wort 182 Ga. App. 473 (1987). There defendant
did not advise his patient that defendant had failed to connect the left
hepatic duct to the small intestine, and in fact prepared misleading and
incorrect medical records on this point. This conduct raised a jury question on
fraud. The court found a reasonable inference of a knowing concealment and
cover up, not just a mere misstatement. Similarly in set live v. Hackney 164
Ga. App. 740 (1982) defendant performed reconstructive breast surgery on the
plaintiff. Shortly after surgery he injected saline into the implants to
improve the appearance of her breasts. He told plaintiff that the implants were
self sealing when she inquired about the possibility of leakage. The court
found that defendant’s subsequent conduct in repeating the injections raise an
inference of fraud, even if he initially believed that leakage would not occur.
The court stated that concealment per se amounts to actual fraud when for any
reason one party has a right to expect full communication of the facts from
another.Contact an Atlanta DUI lawyer today about your case.
Obtaining a tolling because of incapacity | Atlanta lawyer
To toll the statute limitations for disability, plaintiff must take a number of steps involving the medical records. OCGA 9-3-97.1. Plaintiff must request a copy the medical records for the patient's medical treatment from any health care provider having such records by certified or registered mail, return receipt requested. If the request is made by a patient's attorney, the request should include a proper medical authorization to record. The request must reflect of the records reviewed by an injured person for a possible medical malpractice. If plaintiff filed a suit in reliance upon this provision to toll the statute a limitation, the complaint must reflect such reliance in OCGA 9-3-97.1 and have attached as exhibits copies of the request, the medical release, and the evidence of mailing. No. Limitation will be tolled for more than 90 days except under this provision.Contact in Atlanta DUI lawyer today.
Statute of repose for incompetent persons | Atlanta DUI lawyer
Exceptions and disabilities
OCGA 9-3-90 generally protects minors and persons legally incompetent because of mental retardation or mental illness or such when the cause of action accrues.. Mental incapacity tolls the statute is the unsound mind that renders the plaintiff incapable of acting for himself or herself in order to carry on her business, to undertake or maintain a suit for the recovery of the property, to prosecute her claim, and to manage the ordinary affairs of life. Charter peach for behavioral health system 233 Ga. App. 452 (1998). Whether one did not manage his own affairs or whether he managed them unsuccessfully or badly does not control the test for mental incapacity. The test is one of capacity whether the individual been of unsound mind could not manage the ordinary affairs of his life see Kumar v. Hall, 262 Ga. 639 (1992). Dowling v. Lopez, 211 Ga. App. 578 (1993). OCGA 9-3-73 specifically controls the application of disabilities and exceptions applicable specifically to medical malpractice cases. The exceptions delineated by subsection B and C specifically, the general application of OCGA 9-3-90 in medical malpractice cases. OCGA 9-3-73 B states: notwithstanding article 5 of this chapter, all persons who are legally incompetent because of mental retardation or mental illness and all minors who obtain the age of 5 years shall be subject to the periods of limitation for actions for medical malpractice provided in this article. A minor who has not attained the age of 5 years shall have 2 years from the date of such minors 5th birthday within which to bring a medical malpractice action if the cause of action arose before such minor attains the age of 5 years. OCGA 9-3-73 B.Consequently, persons who are legally incompetent because of mental retardation or mental illness and persons over 5 years of age are subject to the applicable statute of limitations for medical malpractice claims. A minor who has not reached age 5 at the time the cause of action arises has 2 years from his 5th birthday to file the action. OCGA 9-3-73 see further restricts the statute of limitations to practice cases and states-
Notwithstanding subsection a and B of this code section, in no event may an action for medical malpractice be brought by or on behalf of a person who is legally incompetent because of mental retardation or mental illness more than 5 years after the date on which negligent or wrongful act or omission occurred. Or after 5 years from the date on which the negligent or wrongful act or omission occurred if such miner was age 5 or older on the date of such act or omission. This provision imposes a statute of repose for legally incompetent persons, 9-3-73D.Contact an Atlanta lawyer today for help with your case.
Medical malpractice case | Atlanta DUI lawyer
Fixed or foreign object?
The two-year statute of limitation pursuant to OCGA 9-3-71
does not apply in cases where a physician leaves a foreign object in the
patient’s body. OCGA 9-3-72 states a foreign object statute of limitation: the
limitation code section OCGA 9-3-W1 shall not apply where foreign object has
been left in a patient’s body, but in such a case action shall be brought
within one year after the negligent or wrongful act or omission is discovered.
For the purpose of this code section, the term foreign object shall not include
a chemical compound fixation device, or prosthetic aid or device. In such case
the plaintiff must bring the action within one year discovery of the negligent
or wrongful act or omission. The code sections specifically excludes a chemical
compound, fixation device, or prosthetic aid or device as a foreign body. The
statute of repose stated in OCGA 9-3-71 does not apply in a foreign object case
and will not bar a case brought under the statute of limitations, even if the
case is filed more than 5 years after the negligent act. A band v. Klotz to 43
Ga. App. 271 (2000). Under this section, discovery means the time at which
plaintiff actually learns of the negligence or could have learned of it by the
exercise of ordinary care. Childers v. Tauber
148 Ga. App. 157 (1978).
Although OCGA 9-3-72 specifically excludes chemical
compounds and certain fixation and prosthetic devices from its purview, it does
not define a foreign object. Recent decisions on this issue provide helpful
guidelines in determining when to apply the one-year statute. A bulldog clamp
is not a fixation device because its purpose is to temporary occlude an artery
during surgery. Unlike certain devices such as pins and sutures that are
designed to remain in the body a bulldog clamp should be removed before
completing the surgery, therefore, is a foreign object. A suture even though
ordinarily considered a fixation device, will come under the foreign object
limitation if placed and left in the wrong part of the patient’s body. A surgical
sponge and a steel arterial clamp are foreign objects because they should be
removed before completing surgery. A dental file and a broken drill bit are
foreign objects. A dental bridge is not a foreign object because it comes under
the exclusion covering fixation or prosthetic devices. The failure to find and
remove a foreign object like a piece of metal from a cutting tool or pieces
surrounding face that entered plaintiff’s body as a result of some injury does
not, under the one-year rule. In both examples the objects were not left by
some deliberate act of the physician in treating the patient, rather he failed
to find the object and remove it, which amounts to simple misdiagnosis and mistreatment.
Defendants’ failure to inform patient of the foreign object does not raise a
separate cause of action, nor does fraud or misrepresentation claims condition
related to the foreign object. Fraud would toll the statute of limitations
until discovery of the object. Upon discovery, the statute begins to run.
Defendant broke off a piece of dental file in plaintiff’s mouth during a root
canal. Plaintiff returned the next day, and defendant supposedly take care of
the problem. 9 months later plaintiff consulted with another dentist who found
the file still embedded in the tooth. Plaintiff filed a complaint over one year
from the time of this discovery. Denial of defendant’s motion for summary
judgment was reversed. Even if misrepresentation occurred, plaintiff discovered
the existence of the file still embedded in her tooth from another doctor. The
statute a limitation was only told up to the point that plaintiff discovered
the problem with her tooth from another doctor. In Ballard v. Rappaport 168 Ga.
App. 671 (1983), plaintiff filed a claim alleging negligent surgery. Her
amended complaint specifically alleged that the contract claim did not arise
out of the care and treatment provided by defendant as a medical doctor. The
medical malpractice claim was dismissed, but the court liberally construed
plaintiff’s complaint and reverse the trial court’s grant of summary judgment
on the contract claim would affirm the grant of the malpractice claim. The
plaintiff’s complaint provided no factual basis for the breach of contract
claim.Contact an Atlanta lawyer today for help with medical malpractice case or any case you may have.
Statute of repose | Atlanta lawyer
The statute of repose imposes an absolute limit on the time
within which an action may be brought. An exception to this rule applies when a
plaintiff has filed a medical malpractice action within the statute limitation
in the statute of repose and later amends the complaint to add a wrongful death
claim after the patient dies. This assumes that the death arose out of the same
negligent conduct as alleged in the original complaint for medical malpractice.
To complement the two-year statute of limitations the Gen. Assembly enacted a 5
year statute of repose. OCGA 9-3-71 the State: notwithstanding subsection a of
this code section, in no event may an action for medical malpractice be brought
more than 5 years after the date on which the negligent or wrongful act or
omission occurred. OCGA 9-3-71 see explained that subsection B creates a
five-year statute ultimate repose and abrogation. The statute of repose cuts
off a medical malpractice claim 5 years after the date of the negligent act
unless the plaintiff filed suit within that period. The statute ultimate repose
does not bar a cause of action from being brought, which is a defense to the
merits that can be waived, but abrogates any cause of action so that no cause
of action continues to exist; thus, the cause of action ceases to exist in law
after the 5 years had passed. As a consequence statute ultimate repose
delineate the time period in which a right may accrue. Likewise even if the
injuries arising from the negligent acts occurred less than 5 years before the
suit was filed within 2 years of the statute of limitations, statute of repose
cuts off all claims filed more than 5 years after the date of the last negligent
or wrongful act or omission. Although a timely filed complaint will prevent the
statute of repose from attaching, a voluntary dismissal after 5 years brings
the statute of repose back into effect, and the case cannot be refiled. This is
different from the statute of limitations. If the complaint is filed within the
statute of limitations, dismissed pursuant to OCGA 9-11-41 a, and then refiled
after the two-year statute of limitations would have run, the case will stand
on its original footing and not be cut off. Wright v. Robinson 262 Georgia 844.
1993. Also, amending the complaint to add the real party plaintiff after the
five-year statute repose is run but when the complaint was properly filed will
not bar the amendment. This statute does not cut off actions for contribution
from tortfeasors in medical malpractice actions. The statute of repose can also
be the basis for granting a motion in limine to cut off a medical providers
negligent acts that occurred outside of the five-year limitation period.
Furthermore the statute of repose applies to medical claims for battery and
negligent hiring, negligent retention negligent supervision, and negligent
entrustment. The statute repose stated in OCGA 9-3-71 however does not apply in
a foreign object case and will not bar a case brought within the one-year
statute of limitations even if the case is filed more than 5 years after the
negligent act. Actual fraud in concealing tortious injury by a physician to
avoid suit will equitably estop the raising of the statute of repose by such
defendant. The plaintiff must prove the doctor’s intent to keep the patient
from discovering the injury to equitably estop the statute of repose. Osborne
v. Goldman to269 Ga. App. 303 (2004). In this case plaintiff failed to prove
defendant fraudulently withheld information from the patient.
The two-year statute of limitation pursuant to OCGA 9-3-71
does not apply in cases where a physician leaves a foreign object in the
patient’s body. OCGA 9-3-72 states a foreign object statute of limitation: the
limitation code section OCGA 9-3-W1 shall not apply where foreign object has
been left in a patient’s body, but in such a case action shall be brought
within one year after the negligent or wrongful act or omission is discovered.
For the purpose of this code section, the term foreign object shall not include
a chemical compound fixation device, or prosthetic aid or device. In such case
the plaintiff must bring the action within one year discovery of the negligent
or wrongful act or omission. The code sections specifically excludes a chemical
compound, fixation device, or prosthetic aid or device as a foreign body. The
statute of repose stated in OCGA 9-3-71 does not apply in a foreign object case
and will not bar a case brought under the statute of limitations, even if the
case is filed more than 5 years after the negligent act. A band v. Klotz to 43
Ga. App. 271 (2000). Under this section, discovery means the time at which
plaintiff actually learns of the negligence or could have learned of it by the
exercise of ordinary care. Childers v. Tauber 148 Ga. App. 157 (1978).
Contact a Atlanta lawyer today to help with your case.
Saturday, February 9, 2013
Burden of Proof | Atlanta DUI lawyer
Burden of proof
Plaintiff has the burden of proving that defendant is liable
for medical negligence that defendant failed to exercise the standard of care,
and that such failure caused plaintiff's injuries. OCGA 24-4-1 (1995) burden of
proof generally lies upon the party who is asserting or affirming a fact and to
the existence of his case or defense the proof of such facts is essential. If
the negation or negative affirmation is in all essential to a party's case or
defense.
The burden of proof is determined by pleadings, and where a party has the burden of
proof to establish a fact by a preponderance of the evidence it remains on him
throughout the trial unless the defendant admits a prima facie case by the
plaintiff. The burden of proof includes both the burden of persuasion and the
burden of production. The burden of production is a party’s duty to introduce
enough evidence on an issue to have an issue decided by the factfinder, rather
than decided against the party in a preemptory ruling such as summary judgment
or directed verdict. Stated another way the term burden of proof has two
applications. First is the necessity of establishing certain set of facts by
evidence which preponderates to a legally required extent. This covers
plaintiff's duty to convince the jury of all the necessary elements of medical
negligence claim. That it is of necessity which rests on a party at a
particular time during the trial to create a prima facie case in his own favor
or to overthrow one when created against him. Contact an Atlanta dui lawyer to discuss the burden of proof in your case.
A mere conclusionary affidavit from plaintiff's expert that
defendant's negligence amounted to gross negligence will not defeat summary
judgment when OCGA 51-1-29 applies. When emergency-room physician immediately
ordered x-rays of the patient's way to determine if he suffered a fractured,
had a radiologist read the x-rays, and relying on the radiologist read the
x-rays to make her diagnosis, as a matter of law treatment did not amount to
the exercise of slight care. Pottinger v. Smith 293 Ga. App. 626 (2008). The
standard of care applicable to this treatment a physician provides his patient
is a national standard. The local standard does not apply. If an expert bases
his opinions on a local standard, his testimony has no evidentiary value and
should be excluded. Consequently testimony based on a general surgeon should
you in a sophisticated medical community is insufficient as it evidence of the
practice of medicine in Atlanta or Fulton County. Since locality rule does not
apply, an expert needs no personal knowledge of the standards of practice and
community where the alleged negligence occurred. Furthermore because the
standard is a general or national standard, what a particular doctor would have
done under the circumstances will not raise an issue of fact on negligence when
defendants presents evidence that he did exercise that degree of skill and care
required in general. The issue is not what an individual doctor would have
done; the issue is what the standard of care requires. Johnson v. Riverdale
anesthesiologist Associates 275 Ga. 240 2002. This case held that it would be
improper to ask a defense expert if he would have pre-oxygenated the patient
before the procedure and that what the expert person would've done under the
circumstances is not admissible. Contact an Atlanta DUI lawyer today for a free consultation.
OCGA 51-1-27 and the statutory standard for a medical malpractice case
OCGA 51-1-27 states the statutory standard for medical
malpractice action: the person professing to
practice surgery or the administering of medicine for compensation must
direct the exercise of his profession a reasonable degree of care and skill.
Any injury resulting from a want of such care and skill shall be a tort for
which a recovery may be had. This section sets a duty or standard that medical
practitioners must satisfy in caring for
patients. This duty arises on the implied contract between patient and physician,
public considerations about the nature of the practice of medicine, and the
consensual nature of the relationship between patient and physician. A
departure from the standard, constitutes negligence, and the plaintiff will
have a cause of action for defendants' failure to exercise reasonable care and
skill. Case authority has explained that degree of skill and care required is
that degree of skill and care which under similar conditions and like
surrounding circumstances is ordinarily employed by the medical profession
generally. Note that a failure to exercise care and skill may arise by failure
to exercise care only or by failure to exercise skill whole or by failure of
both. him and Contact an Atlanta Dui lawyer today for a free consultation.
Friday, February 8, 2013
The standard of Care | Atlanta lawyer
Case authorities as explained that degree of skill and care
required is that degree of skill and care which under similar conditions and
like surrounding circumstances is ordinarily employed by the medical profession
generally. This statement of the standard of care had 3 major elements. First
it focuses on the exercise of care and skill in treating the specific patient
or the specific problem, the similar condition element. 2nd and describes
quality of care that the physician must provide, ordinary medical care. 3rd ordinary care requires what
a physician generally provide a national standard not a local standard. This!
Principles of the standard of care applies generally to medical providers. But
in light of the new statute protecting medical providers who render emergency
medical treatment, practitioner should consult OCGA 51-1-29.5 T.C. is the
ordinary care standard applies the treatment given to in plaintiff's 4 if the gross negligence
standard applies because the claim involves emergency treatment. A mere
conclusionary affidavit from plaintiff's expert that defendant's negligence
amounted to gross negligence will not defeat summary judgment when OCGA 51-1-29
applies. When an emergency emergency-room physician immediately ordered x-rays
of a patient's leg to determine if he suffered a fracture, had a radiologist
read the x-rays, and relying on the radiologist read the x-rays to make her diagnosis,
as a matter of law treatment did not amount to exercise of slight care. Pottinger
v. Smith 293 Ga. App. 626, 2008. Contact in Atlanta Atty. today for free
consultation.
Medical malpractice elements | Atlanta lawyer
A
claim for medical malpractice is a specialized negligence action. There are 4
essential elements of a cause of action for negligence. First a duty to conform
to a certain standard of care to protect others from unreasonable risk of harm,
2nd a breach of this duty, and 3rd, a legally attributable causal connection
between the breach and the injury, and forth, some damage or injury to a
legally protected interest from the breach of the duty. These 4 elements are
summarized as the duty or standard of care, proximate cause, and injury.
Sometimes the Georgia appellate court joined proximate cause and injury as one
element. As a consequence the practitioner may read cases that mention only 3
elements of the malpractice claim; one a duty inherent in the doctor-patient
relationship, breach of that duty by failing to exercise the requisite degree
of skill and care, and this failure being the proximate cause of the injuries
sustained. Although these elements are commonly presented in this sequence, the
Supreme Court of Georgia has ruled that a jury charge that restricts the order
for addressing the constituent elements of negligence claim can have a harmful
effect of precluding the jury from giving proper consideration to the totality
of the facts and circumstances relevant to the ultimate determination. Critser
v. McFadden, 277 Ga. 653 (2004). The Supreme Court reversed a case because the
trial court instructed the jury to first consider the question of negligence,
and then go to the question of proximate cause, and then move to the question of
damages. Critser court erroneously gave a jury instruction that person should
consider the question of negligence or whether the defendant departed from the
standard of care, as I will explain that phrase to you. If you find the
defendant did not depart from the applicable standard of care, then he should
go no further and you would return a verdict in favor of the defendant. Contact an Atlanta lawyer immediately for a free consultation.
Sunday, January 27, 2013
Atlanta insurance lawyer | Duty to read insurance contract
Duty of the insured to read an
insurance contract
nobody wants to read their
insurance contract. It's tedious, long, and boring. However, you may want to
read that insurance contract. You may want to read your insurance contract because
the law recognizes that an insured has a duty to read insurance contract as
issued and to determine whether it provides the desired or expected coverage.
Pickering v. Allstate Ins. Co. 254 Ga. App. 27 (2002). If the provisions of the
contract are expressed in unambiguous terms, the insured will be bound by those
terms. He's charged with knowledge of the terms and conditions of the written
policy and particularly to determine whether those terms and conditions are
consistent with the coverage he intended to receive from the insurer. So the
bottom line is we need to read that insurance contract. Of course, this duty to
read the insurance contract into another terms and conditions arises only upon
delivery of the policy to the insured. This only make sense as you cannot know
something that you don't have. If, therefore, the coverages agreed to between
insurer and insured, a loss occurs before delivery of the policy, an insured
will not be bound by the terms contained in the contract to the extent that
they are not consistent with the terms agreed to and which the insurer had a
duty to incorporate into the policy. See Greenway Ins. agency 213 Ga. App. 14
(1994), insurer had a duty to read the application she signed, which clearly
indicated the coverage provided, although copy of the policy had not been
delivered before the covered loss. Contact an Atlanta lawyer if there is a
discrepancy in your insurance policy or you have obtained a policy inconsistent
with what you bargained for. Contact an Atlanta lawyer immediately for help.
No automobile insurance | Atlanta lawyer
Atlanta lawyers know the general
rule that statutory provisions are incorporated by law into the insurance
contract does not necessarily apply to statutory exclusions. The difference in
the two rules may be demonstrated by their effect on the contract. Statutory
provisions which require coverage will be enforced even if not included in the
contract. However, the law recognizes that an insurer may provide greater
coverage than that required by law. Accordingly, any statutory exclusion which
limits or lessons coverage otherwise available to the insured not apply where
an insurer in its contract provides such coverage within its contract,
notwithstanding the statutory exclusion of coverage. For that reason, statutory
exclusions are not automatically read into an insurance contract so as to limit
the coverage available to an insured. To be sure, the law allows an insurer to
provide greater coverage than that required by statute. Rockwell v. Continental
casualty 198 Ga. App. 545 (1991). Contact an Atlanta DUI lawyer if you have any questions regarding your insurance coverage.
What is an exclusion | How does it affect the cove andve in my case?rage I ha
Atlanta lawyers know that the courts consider insurance
policies as contracts of adhesion, since they are drawn by legal draftsmen of
the insurer and the insured has no opportunity to negotiate or change the terms
and conditions of the contract. Thus, in the construction of an insurance
contract standard is not what the insurer may have intended its words to mean,
but what a reasonable person in the position of the insured would understand
the words to mean. This standard requires a policy be read as a layman would
read it and not as it might he analyzed by an insurance expert or an attorney.
Automobile insurance contracts
generally follow the same format. For liability coverage the insurer broadly promises
coverage for certain losses occasioned by an accident involving the
maintenance, ownership, or use of an insured automobile. The broad
all-inclusive coverage is then restricted or limited by the express terms of
the policy. Limitations of broad coverage in the policy include the limits of
liability and maximum coverage available for an insured event. Exclusions
enunciate those conditions which if applicable to a loss arising out of an otherwise
insured automobile accident, restrict or eliminate coverage. For example, a
business use exclusion void coverage while the otherwise insured automobile is
being used in connection with the insured's business. It is the expression of
these limitations to coverage that the courts apply a more strict construction
of the contract language. Accordingly, exceptions, exclusions, and other
limitations of the contract must be narrowly construed and, are more strictly
construed against the insurer. As applied in the construction of the contract,
the insurer is bound thereby to express all limitations to coverage clearly and
explicitly. Contact an Atlanta lawyer today to discuss your case.
Contact an Atlanta autoinsurance lawyer | Atlanta lawyer
Atlanta lawyers know that the
issuance of automobile insurance contracts and the protection promised to the
public in those contracts is considered a matter of such strong public interest
that the Gen. Assembly has adopted a detailed statutory scheme governing the
issuance of insurance contracts and the required provisions deemed necessary
for the protection of the insured and the public. Those statutes governing
insurance contracts are codified at OCGA section 33-1-1. The statutory
provisions require that certain provisions be made part of the automobile
insurance contract. To enforce the statutory scheme and to insure that the
insurer and the public receive all the protection granted by statute a
provision containing any contract of insurance issued in this state will be
disregarded by the court if it is at variance with the mandatory statutory
provisions. Payne v. Piedmont life Ins. Co. 120 Ga. App. 630 (1973).
Atlanta lawyer and contract interpretation | Atlanta lawyer
You may wonder what courts look at when deciding what an insurance policy means. The courts have held that the insurer in preparing its policy had the burden of using language that is clear and precise. If a policy of insurance is so drawn as to require an interpretation, and is fairly susceptible to different constructions, the one will be adopted most favorable to the insured. Policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions therein will be strictly construed against the insurer, as they are issued upon purchase forms, prepared by expert's, at the preparation of which the insured has no voice. Any exclusion sought to be invoked by the insurer will be liberally construed in favor of the insured and strictly construed against the insurer unless some thing is clear and unequivocal. If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred. Contact an Atlanta lawyer today for advice regarding your insurance policy.
Your Insurance company denying your claim? I Contact an Atlanta lawyer today
Many Atlanta lawyers who practice automobile insurance Law know that
there are times when policies can be ambiguous. Most of the time there is a
clause or some sort of exclusion inserted in the policy which is confusing, not
something the insured was expecting, or just plain not fair. As plaintiff's
attorneys it is our job to look at the policy and argue why coverage should
exist even though there may be an exclusion or some other language in the
policy that the insurance company will try and use to preclude coverage from
the insured. The insurance company is in the business of making money and if
there is any way to prevent having to pay a claim they will find it. The law
gives us some background information on what we need to know about construing
insurance contracts where there may be ambiguity or confusion.
Automobile liability insurance is a matter of contract, and
the written policy issued by the insurer and delivered to the insured makes a
written agreement of the parties. Rules of construction which apply to written
contracts generally apply to insurance contracts. While policy of insurance
shall be construed liberally in favor of the object to be accomplished, and its
provisions will be strictly construed against the insurance company, or is
susceptible of two constructions, that construction will be adopted most
favorable to the insured, yet its contract of insurance should be so construed
as to carry out the true intention of the parties. The same rule of construing
an insurance policy or bond strongly against the insurer and favorably to the
insured applies to the application or matters contained therein, as to the
policy itself, the instrument having been prepared by the insurer. Jackson
Nat'l life Ins. Co. v. Snead 231 Ga. App. 406 (1998).
If your insurance company is denying a claim that you feel
should be paid please contact in Atlanta Atty. today.
Subscribe to:
Posts (Atom)