Personal Injury Frequently Asked Questions
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What Does a Wrongful Death Lawyer Do?
A wrongful death lawyer can help the surviving loved ones or the estate of the deceased person bring a lawsuit against the party responsible for the death of a spouse, child, or parent if the death was from someone else’s negligence or intentional act. The attorney can evaluate the facts, determine who is liable, collect the evidence, and litigate the case.
Identify Who Can File a Wrongful Death Case
The decedent’s estate, through the personal representative, can file a lawsuit for wrongful death in Georgia. The surviving spouse of a deceased adult can bring legal action. Any child of the adult decedent can sue for wrongful death if there is no surviving spouse.
When a child dies, the child’s surviving spouse or child has the first priority for filing a lawsuit for wrongful death. If the deceased child left behind no spouse or children, the decedent’s parents can bring the case. In the event of no such survivors, a personal representative or the executor or administrator of the estate can file the lawsuit.
You do not have to figure out these legal issues. We can talk with you and let you know who can file a wrongful death lawsuit in your situation.
Gather the Evidence to Prove Your Case
Your wrongful death lawyer will collect the accident report, medical records, and any other relevant information to build your case. We can also talk with witnesses and hire experts, if appropriate.
File and Handle the Lawsuit
Filing lawsuits can be tricky, and with so much at stake in a wrongful death case, you might want to have a professional on board. Your wrongful death lawyer can prepare the documents, arrange for service on the defendants, file the initial pleadings with the court, and handle the lawsuit.
What We Have to Prove in a Wrongful Death Case
We have to prove all four of these elements to hold someone responsible for the wrongful death of your loved one:
Duty of care. The defendant must have had a legal duty toward the decedent. Let’s say that the defendant was driving while intoxicated when he hit and killed a pedestrian. All drivers have a duty to follow the laws when operating motor vehicles, including being sober and cautious.
Breach of duty of care. When a person fails to satisfy the duty of care, it is negligence. Driving drunk is negligence.
Causation. The negligence must be what caused the death of the decedent. Driving while above the legal limit for blood alcohol caused the defendant to crash into the pedestrian, killing him, so this fact pattern meets the causation element.
Measurable damages. Loss of the financial support or services of the decedent are examples of measurable damages that the beneficiaries of the wrongful death lawsuit can experience. If the deceased pedestrian was the mother of a young child, that child has lost the support and services of her mother.
A wrongful death attorney will investigate the case and gather the evidence to show that the claim satisfies all four required elements of liability.
Identify & Pursue Damages in a Wrongful Death Case
Personal representative. The personal representative of the decedent can request an award of damages that includes the expenses, like medical bills for the fatal injury and the funeral and burial costs.
The personal representative stands in the shoes of the deceased person and can seek the financial losses of the death, as well as any other claims the decedent would have if he had survived the injury.
Surviving loved ones. The surviving loved ones can seek damages for the “full value of the life” of the decedent, which can include economic losses, like the total income he would have earned during his lifetime. Georgia law does not reduce the income by the living expenses the deceased person would have incurred. The survivors can also seek compensation for the loss of companionship and other non-economic losses.
How to Contact a Wrongful Death Lawyer
Sometimes a family suspects that someone else’s carelessness or intentional act robbed them of their loved one. In these tragic situations, you can talk with a lawyer who will treat you and your family with respect and dignity.
We will not charge to talk with you and let you know if you might be eligible for compensation. Please call us today at 404-474-0804, so that we can arrange your free consultation. There is no obligation.
Can I File a Lawsuit for a Misdiagnosis?
If you were the victim of a misdiagnosis, you might be able to sue the doctor or medical facility whose mistake caused the incorrect diagnosis. Let’s say that you went to the doctor to find out why you had certain symptoms, but your physician diagnosed you with a disease or condition you did not have.
As a result, you might have undergone unnecessary procedures, endured pain from your untreated condition, and lost valuable time treating your actual ailment. Eventually, you received the correct diagnosis after going through physical discomfort, mental anguish, and financial expense.
You probably want to know if you can sue the medical professional who misdiagnosed you. If the doctor violated our state’s standard of reasonable care, you might be able to file a medical malpractice lawsuit.
Misdiagnosis Alone Does Not Equal Malpractice In Every Case
A misdiagnosis does not always mean that the physician committed malpractice. For example, if the laboratory mixed up your test results, your lawsuit might be against the lab, not the doctor.
On the other hand, if the physician should have known the flawed test results were wrong, the doctor might have breached the duty of care. By way of example, if the lab reported that your thyroid biopsy showed advanced cancer, but your surgeon biopsied your lung, not your thyroid, then your doctor had reason to question the lab results.
Misdiagnosis Versus Failure to Diagnose
A failure to diagnose is different from a misdiagnosis. A misdiagnosis happens when the medical professional diagnoses you with something you do not have, such as mistaking pancreatic cancer for stress-related inflammatory bowel syndrome.
A failure to diagnose is when you tell your doctor about symptoms you are experiencing, but they fail to diagnose your condition. For example, if you went to the emergency room with all the classic symptoms of kidney stones, but they say it is just food poisoning and tell you to go home and drink plenty of fluids, they have failed to diagnose your actual condition.
The Requirement of Measurable Harm
Georgia law requires quantifiable harm for medical malpractice. If you did not suffer quantifiable harm, you do not have a claim. The law usually measures damage in dollars or physical harm. If the misdiagnosis caused you to incur additional medical expenses or compromise your health, those facts satisfy the requirement of measurable harm.
Let’s say that a patient had cancer, but the doctor misdiagnosed it as something else. A year after the patient reported the symptoms that should have caused the physician to explore the possibility of malignancy, another doctor discovered the cancer. In the intervening time, the cancer progressed to an untreatable stage. The patient suffered quantifiable harm.
On the other hand, if the original doctor realized the mistake one day after the misdiagnosis and called the patient back in to begin appropriate treatment, there was nomeasurable harm. Emotional distress by itself is not quantifiable harm for purposes of misdiagnosis.
Georgia’s Standard of Reasonable Care for Medical Malpractice Lawsuits
The misdiagnosis must violate the doctor’s statutory duty to practice medicine using a “reasonable degree of skill and effort.” GA Code § 51-1-27 (2016). The law does not hold medical professionals to a standard of perfection. The mistake must be a failure of the duty of reasonable care to amount to medical malpractice.
Getting Help for a Lawsuit for Misdiagnosis
The Law Office of Jason R. Schultz, PC can help you if you or a loved one was misdiagnosed. We will analyze the facts to see if a medical professional committed medical malpractice. Call us today at 404-474-0804 to set up your free consultation.
Can I Sue an Apartment Complex for Negligent Security?
The property owner can be liable if you suffer injuries because an apartment complex failed to take reasonable measures to keep you safe while on the property or did not take steps to prevent foreseeable assaults or attacks. Georgia law makes landowners responsible to people who get hurt as a result of negligent security.
What Constitutes Negligent Security at an Apartment Complex
If all four of these factors occurred, the apartment complex is liable for injuries from negligent security:
1. The apartment complex owed the plaintiff (injured person) a legal duty of care. The complex has to take reasonable measures to keep the apartment complex and its approaches safe for everyone who is present legally. Approaches include things like sidewalks, parking lots, and garages.
The duty of care applies to the residents, their guests, employees of the apartment, vendors, visitors, and others who are on the premises for a lawful purpose. For example, a letter carrier or meter reader has the protection of Georgia law because they are on the property for a legitimate reason. On the other hand, the landowner has no duty to provide adequate security for a trespasser.
By way of example, an apartment complex employs several maintenance persons who enter the individual units to repair problems that the residents report to the manager. The company has a duty to hire trustworthy people for this job, since the residents are in a vulnerable position when someone goes into their apartments.
2. The apartment complex violated its duty of care. If the apartment failed to provide security for the circumstances, it breached its duty of care. It is negligence when someone fails to meet the requirements of a duty of care.
Someone stole keys from a wall case in the apartment manager’s office. Although she discovered the theft, the manager took no steps to prevent foreseeable harm from this situation, like changing the locks.
A new handyman at the complex stole the keys. The handyman had a criminal record of breaking and entering. The apartment complex did not know about his criminal history because the company did not perform a background check when it hired him.
Also, the company did not have security cameras in the office or anywhere at the complex. Footage from security cameras could have shown who stole the keys and recorded who went into specific apartments.
3. The plaintiff suffered harm because of the apartment’s negligent security.
The handyman used the stolen keys to enter residents’ apartments and steal their valuables. A resident who was home sick for the day surprised the handyman when he came into her bedroom to steal her jewelry. She screamed, and he struck her, knocking her unconscious. She sustained a traumatic brain injury.
The negligent security at the apartment complex caused the harm to the plaintiff. The company is liable to the injured person.
4. Adequate security would have prevented the crime. The complex made multiple mistakes, all of which contributed to the harm the plaintiff experienced. It was foreseeable that someone would use the stolen keys to break into apartments and that someone could get hurt as a result.
- Even though the manager knew that the maintenance people went into the homes of the residents, putting those residents at risk of harm, the company did not do background checks on these employees. The failure to perform a routine background check including a criminal record check allowed a dangerous person with a criminal record to have access to apartments. Adequate security includes hiring trustworthy people. Running background checks would have prevented this crime.
- Failing to store the keys in a locked place in the office gave the criminal the opportunity to break into apartments. Properly securing the keys would have prevented the crime. It was foreseeable that someone might steal keys that were accessible.
- Failing to take steps to protect the residents from harm upon discovering that someone had stolen keys is negligent security. Changing the locks and warning residents would have prevented the crime. It was foreseeable that someone would use the stolen keys to break into apartments.
- The manager did not install security cameras to deter criminal activity in the office or throughout the apartment complex. Security cameras could have caused the crook to choose not to steal the keys, or have documented who stole the keys so that the manager could call the police with the identity of the thief. It was foreseeable that an apartment complex with no security cameras would be at greater risk of criminal activity.
Getting Legal Help for an Injury from Negligent Security at an Apartment Complex
You can call the Law Office of Jason R. Schultz, PC for help if you got hurt because of negligent security at an apartment complex. We will be happy to talk with you and let you know if you might be eligible for compensation. Call us today at 404-474-0804, to set up your free consultation.
Can I Sue a Mall for Negligent Security?
Landowners in Georgia have to take reasonable steps to prevent foreseeable assaults or attacks and keep people on their premises safe. A mall can be liable to a person who gets hurt because the property owner did not provide adequate security. Premises liability is the type of law that can hold property owners accountable for injuries that happen on their property.
When a Mall is Responsible for Harm from Negligent Security
A property owner may be liable in some cases if someone has been assaulted on their property, in this instance a mall . We have to prove all four of these elements to hold a mall liable for negligent security:
1. The mall owed the injured person a duty of care. The mall has to protect its customers, visitors, guests, employees, vendors, and everyone who is on the property legally. Even if a person is not a customer, the mall must maintain reasonably safe premises and approaches, as long as the person is there for a lawful purpose, such as to make deliveries or read the water meter.
The landowner must keep the premises and approaches reasonably safe. An approach is something that one might expect a person to use to access the mall. For example, the parking lot and sidewalks surrounding the mall are approaches. On the other hand, the mall has no duty to provide security to protect trespassers..
2. The mall failed in its duty of care to the injured person. A business is negligent when it fails in its duty, such as the responsibility of providing adequate security. The mall should evaluate things like crime rates in the vicinity and the history of assaults and other criminal activity on its premises and approaches to determine what crimes are foreseeable.
The company should then formulate and implement a security plan that includes reasonable measures to prevent foreseeable crimes. For example, when there have been muggings in the parking lot at a mall, the company should install security cameras, make sure the parking lots are well-lit, and increase the patrols of security guards. Failure to take reasonable crime prevention measures after learning about crimes onsite is negligent security.
3. The mall’s negligence caused the injury. Inadequate security by itself does not create grounds for a claim against the mall. For instance, if you notice that a mall has no security cameras and the parking lot contains large areas that are dark after sunset, you cannot sue the mall for inadequate security.
The picture changes, however, if you suffer harm because of the negligent security. If someone attacks you because the mall did not provide adequate crime prevention security measures, the company’s negligence caused your injury, and you can sue them.
4. The mall could have prevented the harm with adequate security. Georgia law does not require mall to prevent every single crime. Not all crime is preventable. The law will, however, hold a property owner responsible if it could have prevented foreseeable crime but failed to do so.
The Requirement of Foreseeability
Some neighborhoods are safer than others. A mall in a low-crime area will have to provide and maintain adequate security for their location, but only to a certain extent because it is not foreseeable that significant crimes will occur there.
A mall in an area known for multiple assaults, muggings, and other criminal activity will have to take more security measures to protect its visitors from harm, because it is foreseeable that crimes will happen there.
While it might not seem fair to require one mall to spend more money on security than another, the safety of people on the premises is important enough for the law to demand that the mall implement reasonable security measures. Some crimes are not foreseeable for other reasons.
Inadequate Security at a Mall
The facts of each case are different. The level of required security will vary based on the local crime rates and the history of criminal activity in and around the mall. Some examples of negligent security can include failing to:
- Install security cameras after criminal events
- Provide bright lighting indoors and outdoors
- Repair broken locks, windows, gates, doors, fences, and alarm systems
- Warn visitors of foreseeable dangers
- Upgrade the security measures after criminal activity
How to Get Legal Help for an Injury from a Mall’s Negligent Security
The Law Office of Jason R. Schultz, PC can help people who suffer harm caused by negligent security at a mall. A premises liability and security attorney can explain your legal rights and tell you if you might have a claim for compensation. Call us today at 404-474-0804, and we will arrange your free consultation.
Can a Dog Bite Cause Tetanus?
Many have suffered dog bite injuries, and there is action to be taken when one is bitten by a dog. A life-threatening disease dog bites can cause is tetanus, often referred to as “lockjaw,” which is one of the reasons you should get immediate medical care after a dog bite. Tetanus shots only last for five to ten years, so you should talk with the medical treatment team about whether you need a tetanus injection or a booster shot. Contact The Law Office of Jason R. Schultz, PC at 404-474-0804 today to learn more information on dog bites and suffering from tetanus.
The Incubation Period for Tetanus
The typical time from transmission to illness is between three and 21 days, with an average of 10 days. Be aware, though, that tetanus can develop in as quickly as one day or can emerge several months after your injury.
Symptoms of Tetanus from a Dog Bite
One of the first indications that a person might have lockjaw is that the muscles of his jaws involuntarily clench and cramp. Other signs include:
- Difficulty swallowing
- Muscle spasms that you cannot control
- Stiff, painful muscles throughout your body
- Seizures that can appear as jerking or staring
- Fast heartbeat
Complications of Tetanus
The muscle contractions associated with tetanus can be so severe that they break your bones, and the struggle to breathe precipitated by the disease can be lethal. Ten to 20 percent of people who contract tetanus die from it. People with lockjaw can experience pulmonary embolisms (blood clots that travel to a lung) and pneumonia. If a loved one passes away due to complications of tetanus, it may constitute a wrongful death claim.
Medical science does not yet have a laboratory test that can definitively diagnose tetanus. A doctor will examine the patient, look for symptoms, and use a process of elimination to rule out other possible causes of the patient’s condition.
Physicians consider tetanus a medical emergency. The patient will need hospitalization, where he should receive:
- Human tetanus immune globulin (TIG) medication
- Drugs to stop the muscle spasms
- Tetanus vaccine
- Aggressive wound care
You might also need a machine to help you breathe.
How to Prevent Tetanus from a Dog Bite
Stay up to date with your tetanus vaccine. Tetanus shots do not last forever, so even if you have previously had a tetanus injection, you should talk with your doctor about whether you need a booster. In some situations, the shot is effective for ten years, but with particularly dirty wounds or in certain scenarios your doctor might recommend a booster every five years.
One component of preventing tetanus is to exercise aggressive wound care for every cut, scrape, scratch, puncture wound, animal bite, no matter how minor the injury appears to be. Wash the wound with soap and water, then apply antibiotic cream. Get professional medical attention if appropriate. You should get professional medical attention for every animal bite, as your physician needs to evaluate whether you need a tetanus shot, a rabies vaccine, or other medical intervention.
If your wound gets worse or shows any sign of infection, contact your doctor. If you develop any symptoms of tetanus, go to the emergency room immediately. Call our firm now at 404-474-0804 to find out more about dog bites causing tetanus.
Tetanus Does Not Spread from Person to Person
Unlike many other diseases that you can prevent with vaccines, you cannot catch tetanus from another person. The Clostridium tetani bacteria that causes tetanus is in the environment, usually in dust, soil, manure, and on contaminated objects, but the bacteria are also in the mouths of healthy dogs and other animals.
The bacteria must enter the body through cuts, scrapes, bites, puncture wounds, and other breaks in the skin. When a dog bites you, its teeth transmit the Clostridium tetani bacteria into your body. The bacteria create a poison that attacks your muscles and makes them contract beyond your control.
So, while you do not need to worry about your friends or family “catching” tetanus from you if a dog bite exposed you to the disease, you have to monitor your health closely with one of these wounds. It is always better to be safe than sorry in this situation.
Getting Help for Tetanus After a Dog Bite
First, get immediate medical care after any dog bite. One must take all dog bites seriously given the potential of multiple infections that can cause result in permanent nerve damage, amputation, or even death.
Second, call us. The Law Office of Jason R. Schultz, PC, can investigate who might be liable for your injuries and take action to get you the compensation you deserve so that you can focus on getting well. Call us today at 404-474-0804 so we will set up your free consultation with no obligation as well as answer any questions you have about a dog bite causing tetanus. We do not charge legal fees until you win.
How Are Wrongful Death Settlements Divided?
If your loved one died because of the negligent or intentional act of another person, you and some other people may be entitled to some compensation. The question is, once you settle a wrongful death claim, how does Georgia law divide the settlement proceeds among the relatives and loved ones of the decedent?
You need to know what to expect if you find yourself in this situation. Sometimes another person can have priority over you and eliminate your right to compensation, but in other cases, you may get compensation instead of someone else.
The priorities for distribution of settlement proceeds will depend on the facts of your case. Also, the rules are different if the decedent was a child as opposed to an adult.
How Georgia Law Distributes the Recovery for the Wrongful Death of an Adult
When an adult dies because of the wrongful act of someone else, whether negligent or intentional, the surviving loved ones may have a right to compensation.
Suppose Joyce died in a car crash that was the result of another driver’s negligence. Joyce left behind her husband, Tom, and their children, Charlie and Maggie.
In the wrongful death lawsuit, the insurance company for the at-fault driver offered one million dollars. Tom, as the surviving spouse, has the right to accept this settlement without the consent of the children or the approval of the court. The distribution will be as follows:
- The surviving spouse, Tom, will get at least $333,333 as the spouse’s share. The spouse’s share is one-third of the total recovery.
- Tom will have to divide the $1,000,000 equally with Charlie and Maggie, up to the point at which Tom still gets his spousal share. If there were no surviving children, Tom would receive the entire $1,000,000. With one surviving child, Tom and the child would each receive $500,000. If there are three or more children, Tom will get $333,333, and the children would equally divide the $666,667.
- A guardian will have to hold in trust any child’s recovery that is $15,000 or more if that child is under the age of majority.
- Children born out of wedlock get to receive a share of the recovery the same as children born in marriage.
- Grandchildren of the decedent can also receive part of the recovery, but they do not necessarily share equally with the others.
- The debts and liabilities of the decedent will not reduce the amount of recovery in a wrongful death claim.
Distribution of Wrongful Death Proceeds for the Homicide of a Child
The priorities are different for the death of a child. A surviving spouse or child of the decedent can bring an action to recover for the full value of the life of the child. If the deceased child left no surviving spouse or children, the parent or parents of the child can file the lawsuit.
Georgia law imposes these rules on parents who pursue wrongful death claims for the homicide of a child:
- If only one parent is alive, the surviving parent has the right to receive the entire recovery.
- If both parents are alive, the parents can recover the proceeds of the settlement jointly.
- Both parents have the right to recovery if they are divorced, separated, or living apart.
- If one such parent (divorced, separated, or living apart) refuses to participate in the claim or the other parent cannot find this parent, the parent who wants to proceed can go forward with the action. In cases like this, the settlement is binding on both parents.
- These parents will share the proceeds equally unless one parent is absent or the parent who brought the action files a motion requesting a different distribution.
- In the situation of an absent parent, the court will hold that parent’s share for two years, after which time the other parent can petition the court to release those funds to the parent who initiated the action.
- A parent can ask the court to apportion the proceeds in a fair manner (rather than equally) to account for each parent’s relationship with the child including the permanent custody, control, support of the child, and other relevant factors.
How to Get Help for a Wrongful Death Case in Georgia
Do not worry about these rules – we can explain them to you personally. We can talk with you about the facts of your case and analyze who may benefit from a wrongful death settlement and how Georgia law will distribute the proceeds. Call 404-474-0804 today to schedule a free consultation.
Does a Personal Injury Case Survive Death?
The survivors (close loved ones) of a victim in a personal injury case can pursue personal injury damages through either a wrongful death or a survival action in Georgia after the injured person dies. There are, however, limitations of each type of action.
Survival Actions in Georgia
Suppose a perpetrator is abusing the elderly in nursing homes in a state that does not allow survival of actions for personal injury. If the aged abuse victim dies before receiving compensation, the court would have to dismiss the action, and the abuser would not have to pay for his misdeeds.
Because Georgia allows a personal injury cause of action to survive the death of the harmed person, the survivors of the decedent can continue the lawsuit. If there is no one with the right of survivorship, the personal representative of the deceased person can pursue the action. Survival of actions law also applies to injuries and deaths from criminal behavior.
Wrongful Death Actions in Georgia
Georgia law allows wrongful death lawsuits when the decedent died because of someone else’s criminal conduct. So, if the negligence caused a death, a wrongful death lawsuit might be the best course. There are differences, however, in the kind of damages you can recover in survival and wrongful death cases. In a wrongful death case, the survivors can recover for the “full value of the life of the decedent.”
It is impossible to put a dollar amount on a person’s life, but the law attempts to provide a yardstick for compensation for the surviving loved ones. One aspect of the full value is how much money we can reasonably expect the decedent would have earned if he had lived a typical number of years.
Example of the value of a person’s life: if the deceased person died at age 40 due to someone else’s negligence, he likely would have worked another 25 years or longer. If he earned $80,000 a year, the income would have totaled $2,000,000 without including raises in salary over the years. We can use a vocational expert to explain to the court the reasonable amount of money the deceased would have earned if he had lived. The law does not subtract the living expenses the decedent would have incurred if he had not died.
In addition to income, the personal representative can also recover the medical, funeral, and burial expenses of the decedent that resulted from the injury and death. The courts can also put a dollar value on the services a person performs for the family, like housekeeping and yard work.
The purpose of punitive damages is to punish the defendant for shockingly unacceptable behavior and to deter others from similar actions.
For an award of punitive damages, the plaintiff must convince the court that when the defendant harmed the plaintiff, the defendant acted:
- Intentionally or
- Without caring about how his actions injured others.
What Happens When the Negligent Person Dies
Do not assume that you have no legal remedy if the negligent person who harmed you or killed a loved one also dies. The rule in Georgia about personal injury claims surviving death includes the death of the at-fault person.
We can sue the personal representative for the same damages that we could have sought against the negligent person if she had not died, except in this situation, we cannot go after punitive damages. This law also applies to injuries and deaths that involved criminal activity.
How to Get Help for a Wrongful Death or Survival Action
You do not have to figure out whether a wrongful death or survival action is the best legal remedy for you and your family. Call the Law Office of Jason R. Schultz, PC, and we will talk with you about your situation at no charge and no obligation. You can contact us at 404-474-0804, to set up your free consultation. We will sort out which type of lawsuit is appropriate and will not charge any legal fees until you recover compensation.
Do Personal Injury Cases Go to Trial?
Most personal injury cases settle out of court without having to go through a trial. Some of these cases still go to trial due to many factors. These factors can influence whether a case settles or not. Some of the common variables include:
The Insurance Company Questions Who Was at Fault
Sometimes the person who caused the injury panics and denies being at fault. Even when there are witnesses, some people will deny running a stoplight, texting while driving, engaging in road rage, being under the influence of alcohol, and other apparent hazardous behavior.
In this situation, both the plaintiff and the defense have to do more work to prove the facts. If the defendant persists in denying his actions, the case might have to go to trial so that a judge can tell him that his story is false.
The Police Report Contains Errors
A case might not settle is if the law enforcement officer who came to the scene wrote down incorrect information that became part of the police report. This circumstance is likely if the error benefits the defendant. An accident reconstruction expert can investigate the scene and vehicles, make calculations, and testify that it is scientifically impossible for the wreck to have happened the way the flawed report says that it did.
The Insurance Company Thinks That You Might Be Exaggerating Your Injuries
If you suffered significant injuries from a low-impact collision, the insurance company might refuse to settle the case for the amount you deserve. Occasionally severe trauma can result from a fender-bender, but you will have to prove that fact to a judge.
Insurers tend to work within a range of expected outcomes for particular types of cases. If your case involves a higher amount of damages, though, the adjuster might not have authority to settle the case, so you may have to go to trial.
The Insurance Company Wants More Information About Any of the Facts
If the defendant’s insurer is not satisfied with the amount of detail in the police report and other evidence, they might keep digging to get more facts to help their case. Gathering evidence can be time-consuming and can delay settlement. At some point, the judge might insist on setting the case for trial.
The Defendant Is Not Moving Forward on the Case
It is to the advantage of the insurance company to hold on to its money as long as it can. Paying claims takes money out of the pocket of the corporation. If the insurer delays the case for too long, the judge will set the case for trial.
Additionally, insurance defense lawyers usually have a high-volume caseload. If the insurance defense lawyer assigned to your case does not prioritize your case due to being overworked, your case might end up in trial by default.
The Defendant Hired an Expert Witness
It can be necessary to hire an expert witness to explain a particular aspect of the case. For example, one might need:
- A medical expert to testify about the extent of your injuries and that the accident caused the harm
- A vocational or rehabilitation expert to explain to the court how your injuries will impact your career and your daily life
- An accident reconstruction expert to prove to the court the speed at which a car was traveling or how the wreck happened
It takes time for these experts to review the records, perform their calculations, reach their conclusions, and write their reports. And experts are expensive. After the insurance company has paid for an expert, they might feel as if they should take a chance on a trial since they have already incurred such high litigation costs.
The Insurance Company Wants to Send a Message
An insurance company is a large corporation. If the insurer wants to send a message that they will defend all claims aggressively, they might take many cases to trial that should settle no matter how careless their insured was or how much you deserve compensation. When a case gets caught in a corporate decision like this, the adjuster will not agree to a settlement.
Call the Law Office of Jason R. Schultz, PC, today at 404-474-0804, and we will set up your free, no-obligation consultation to talk about your personal injury case.
Can I File a Lawsuit for a Concussion?
If you have experienced a concussion, you might have worries about what the future holds for you. Depending on the facts of your case, you might be facing various symptoms of a traumatic brain injury, such as chronic headaches, difficulty concentrating, personality changes, cognitive impairment, and blood clots in the brain. With all of these possibilities, you might wonder whether you can file a lawsuit to protect yourself and collect damages.
The party that caused the injury that resulted in your concussion must be legally responsible for your injury if you are going to file a successful lawsuit. We have to build a case that meets all the requirements of liability for the law to require the person to pay you money.
The Cause of the Concussion Matters
Not every concussion can be the subject of a lawsuit. Someone else must have wrongfully caused your concussion through negligence or an intentional act. Some common causes of concussions include:
- Sports injuries
- Motor vehicle accidents
- Criminal attacks
Depending on the facts of your case, you may have grounds to file a lawsuit for your concussion. For example, you may be able to work with a car accident lawyer to pursue compensation for concussion-related damages caused by a motor vehicle accident.
Elements of Liability for a Concussion
We will explore each of the four elements of liability for your concussion case.
Duty of care
All drivers have a duty to operate their vehicles with caution and to keep a lookout for other cars and pedestrians. All persons have a duty to obey the law and not intentionally harm others.
Breach of duty (negligence)
When a person breaches the duty of care, he is negligent. Examples can include:
- When a driver rear-ends another vehicle because she was texting while driving and not watching the road.
- When a person punches another person in a bar fight.
Causation of injury
The person’s negligence must be the thing that caused your concussion. If your injury resulted from something else, you have to explore getting compensation from the person who caused your harm.
You must sustain a physical injury with damages, like medical bills, to satisfy the fourth element of legal liability for personal injury. If your fact pattern meets the requirements of all four elements, you can file a lawsuit for your damages.
How to Get Help with a Lawsuit for a Concussion
At the Law Office of Jason R. Schultz, PC, we will talk with you about your injury and explore who might have legal responsibility for your losses. Just call us today at 404-474-0804 for your free case evaluation.
What Is the Standard of Care for Medical Malpractice Cases?
If you have experienced an unexpected result from your medical care or if your doctor misdiagnosed you, you might be asking whether there is anything you can do about it. An unfavorable outcome alone is not enough to win a medical malpractice case. The doctor or medical professional must have failed to act within the standard of care.
Georgia Statute on Medical Malpractice
The section of the Georgia Code that gives plaintiffs the right to file medical malpractice actions is GA Code § 51-1-27 (2017), which states the following (emphasis added).
“A person professing to practice surgery or the administering of medicine for compensation must bring to 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.”
Elements of Medical Malpractice in Georgia
Analyzing that statute, we see that it contains three elements. We have to prove all three facets of the statute to prevail in a medical malpractice action. The factors are:
- The person you want to sue (defendant) must be someone who professes to practice surgery or administer medicine for compensation, and
- The defendant must have failed to bring to the exercise of his profession a reasonable degree of care and skill, and
- The lack of care or skill must be the cause of an injury.
What Constitutes a Reasonable Degree of Care and Skill
When “reasonableness” is the yardstick by which we measure conduct, you can get different results in cases with similar fact patterns. Reasonableness is a judgment call.
If you accuse a person of exceeding the speed limit, you can measure the speed of the person’s vehicle and compare it to the legal speed limit. Establishing a violation is a simple matter.
Violating the standard of care in medicine is not such a straightforward task. You may work with expert witnesses who can testify that the doctor failed to act with a reasonable degree of care and skill.
Examples of Possible Violations of the Standard of Care
Although doctors have some leeway in how they perform procedures and practice medicine, there are some protocols that the medical community at large will agree are essential. If a doctor deviates too far from these rules, other members of the medical establishment might have the opinion that the doctor violated the standard of care.
Since these situations are usually fact-centered, it is best to use hypotheticals to try to understand the standard of care. Here are a few:
Accepted diagnostic testing. A woman went to the urgent care center complaining of a severe sore throat and pain when swallowing. She had a fever of 102.5, body aches, headache, and little red dots at the back of the roof of her mouth.
The urgent care doctor told her to take Tylenol, drink lots of orange juice, and get plenty of rest. The doctor did not perform a strep test or put her on antibiotics.
The woman did, indeed, have strep throat, which is a bacterial infection. The untreated strep led to post-streptococcal glomerulonephritis, which is inflammation of the kidney. She sustained permanent kidney damage.
The doctor’s failure to perform a strep test was likely a violation of the standard of care, which could make the doctor liable for medical malpractice.
Accepted treatment. A man went to the emergency room with a mangled hand from a dog bite. He reported that a stray dog attacked and bit him. The dog then ran away with an unusual gait. The man said that the dog had frothy saliva around its mouth.
The emergency room staff cleaned and dressed the wound, using sutures where appropriate. They gave the man painkillers and told him to see his primary care doctor if he saw any signs of infection. They did not administer rabies shots or advise the man about the possibility of rabies.
Over time, the man began to feel as if he had the flu and had itching around the bite area. He became confused and agitated, then experienced hallucinations.
The man’s family took him to the emergency room, but once a person shows the signs of rabies, there is no effective treatment. The man died of rabies.
The emergency room staff’s failure to address the possibility of rabies was likely a violation of the standard of care, at the level of medical malpractice.
Accepted level of skill. A woman asked her dermatologist to recommend a plastic surgeon to repair her facial scars from a car accident. The dermatologist said that he could perform the surgery. He did not tell the woman that he had no training in or experience with the type of procedure she needed.
The dermatologist botched the surgery, causing much worse disfigurement. The doctor’s failure to bring a reasonable degree of skill to the treatment of his patients was a violation of the standard of care and subjected him to a medical malpractice claim.
Accepted level of care. A man went into an outpatient surgical center to have his tonsils removed. Unbeknownst to him, since he was under general anesthesia, the surgeon was under the influence of opioids, to which the doctor had an addiction. The painkillers caused the surgeon to be less precise in his surgery, and he permanently damaged the man’s vocal cords.
Performing surgery while under the influence of drugs was a violation of the standard of care. The surgeon can be liable for medical malpractice.
Getting Legal Help for Medical Malpractice in Georgia
Although we discussed several hypothetical scenarios, you do not have to sort out whether the doctor or medical facility violated the duty to exercise a reasonable degree of care and skill. We can help you analyze if you have a medical malpractice case and then build a case to prove medical malpractice liability.
Just give us a call today at 404-474-0804 today for your free consultation.