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.

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.