Personal Injury Frequently Asked Questions
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How Can Patients Prevent a Surgical Error?
Few things make people more anxious than an upcoming surgery. We have all heard the horror stories about a doctor botching the procedure and leaving the patient to face a lifetime of adverse consequences of the surgical mistakes. There are several steps you can take to reduce your chances of being the victim of a surgical error.
Five Serious Surgical Errors and How to Prevent Them
The medical community keeps track of significant surgical errors. Medical professionals are supposed to report Serious Reportable Events (SREs) that happen during a surgery or other invasive procedure.
Here are the five categories of SREs and steps you might take to prevent these accidents from happening to you:
One error is the surgeon unintentionally leaving a foreign object inside the patient. Some foreign objects should remain in the patient, such as plates and screws to repair and stabilize a shattered bone. Other items, like sponges or clamps, can cause life-threatening infections, perforate organs, and create extreme pain if accidentally left inside the body after surgery.
While you cannot keep this from happening, you can discover right away if the surgical team left behind any unwanted souvenirs. Get a copy of the surgical notes. Read the pre-surgical count of sponges, clamps, and other objects and make sure it matches up with the post-surgical inventory.
Mix Up With Patients
With the high numbers of patients going through pre-op, anesthesia, surgery, recovery, and post-op in busy hospitals and outpatient surgery centers, sometimes the staff mix up the patients or their charts.
To make sure that the doctor knows which patient you are during the surgery, insist that your doctor, anesthesiologist, or another medical professional who talks with you in pre-op writes your name and the type of surgery with a surgical marking pen at the place on your body where the doctor will operate.
Wrong Type of Surgery
Surgeons are human beings, and sometimes they make mistakes, such as performing the wrong type of surgery on the patient. You do not want to wake up in recovery to discover that you had a complete hysterectomy when you went in to have a cyst removed.
The incorrect procedure is another error that you can prevent by having a member of the medical staff in pre-op write your name and the type of surgery at the incision site on your body with a surgical marker.
Wrong Part of the Body
Another serious surgical error is when the surgeon performs the correct type of procedure on the right patient but on the wrong part of the body. For example, the doctor removed the healthy kidney instead of the malignant one. The patient is left without a functioning kidney.
If you have the pre-op team write the name of the body part, for example, “right kidney” at the incision location and “NO” over the left kidney, you can sharply reduce the odds of a mix-up.
When a patient of normal health who does not smoke or abuse alcohol dies during or shortly after surgery, the surgical team must report the occurrence. Sometimes these patients die from previously undiscovered medical conditions, but others are the victims of medical error. Prevention of these errors will depend on the type of surgical mistake.
Damages for a Medical Malpractice Claim from a Surgical Error
If you are the victim of medical malpractice, you can get compensation for the losses you suffered, including:
- Additional medical expenses
- Additional lost wages
- Physical pain and mental anguish (pain and suffering)
- Depression and loss of enjoyment of life
What We Have to Prove to Win Your Case
We will have to prove medical malpractice with these elements:
- The surgeon had a legal duty of care toward you. Doctors must treat their patients with the same level of competence that other doctors would exercise in similar situations. When we show that you were the patient, the law will infer the duty of care.
- The doctor failed to perform up to the standard of care required by law. If the doctor made a mistake that a typical doctor in a similar situation would not have made, the doctor breached the duty of care. This breach is negligence. We will hire a medical expert to establish that your surgeon committed medical negligence.
- The negligence caused the harm you suffered. Our medical expert will testify as to this element of medical malpractice.
- You suffered measurable harm, like having to undergo additional surgery to remove the sponge accidentally left inside of you, as a result of the doctor’s negligence. We will use your medical records to prove the harm you suffered.
How to Get Legal Help for Surgical Error
At the Law Office of Jason R. Schultz, PC, we help people who have suffered harm because of medical mistakes. If you think that you or a loved one might be the victim of medical malpractice, we can investigate to see if you might be eligible for compensation. To set up your free, no-obligation consultation, please call us today at 404-474-0804.
Can a Car Accident Cause Degenerative Disc Disease?
A car accident can cause degenerative disc disease. Any kind of trauma to the neck or back, even an unnoticed minor injury, can speed up the process of spinal degeneration. Degenerative disc disease is not actually a disease; it is a natural part of aging. Over time, the flexible discs between the vertebrae in your back become worn. A back injury from a car accident can accelerate the breakdown of your discs.
Degenerative Disc Disease Symptoms
When your discs are breaking down, you might feel pain and stiffness in your neck, back, arms, or legs. You might have weakness, numbness or tingling in your arm or leg. If your injury was in your neck, your shoulders, arms, and hands might be affected. For a lower back injury, your legs and buttocks can be the locations of your pain.
Some people do not notice any symptoms, while others experience debilitating pain. As you get older, your symptoms generally worsen because the discs continue to deteriorate. If your spine becomes unstable, you can experience painful muscle spasms from your body trying to hold itself in place correctly.
Treatments for Degenerative Disc Disease
Non-invasive treatments include:
- Physical and occupational therapy to strengthen the back muscles and restore flexibility
- Medications to reduce inflammation and relieve pain and muscle spasms
- Using adaptive furniture, such as kneeling or reclining chairs
- Wearing a corset or brace
- Facet rhizotomy, which involves applying a radiofrequency current to the damaged disc area to deaden the nerves and prevent the transmission of pain messages from the spine to the brain.
Invasive treatments include:
- Injections of local anesthetic and steroids into the joints around the damaged disc, also called facet injections
- Thermal treatments, such as intradiscal electrothermal annuloplasty (IDET), which involves inserting a catheter into the disc and applying heat to the disc to reduce pain
- Spinal fusion/stabilization surgery, to fuse two vertebrae together and relieve extreme pain in an unstable neck or back.
- Decompression surgery removes pieces of the bony material around the disc to lessen the pressure on the nerves and reduce pain
How Degenerative Disc Disease Can Impact Your Life
Degenerative disc disease can make it challenging to maintain gainful employment if you suffer from chronic pain or if your job involves activities that you cannot perform because of the condition, such as:
- Lifting heavy objects
- Sitting for long periods of time
The condition can also impact your ability to perform activities that bring enjoyment to your life, such as hiking, engaging in sports, or traveling. In severe cases, it might be hard for you to live independently without assistance.
How We Prove Your Damages for Degenerative Disc Disease Related to a Car-Accident
You can get compensation for your injuries if you suffered a neck or back injury and developed degenerative disc disease from a car accident that was not your fault. Every case is different, but here are some of the more common types of damages in these situations:
- Medical Expenses: We will use your bills, receipts, and insurance statements for the ambulance, hospital, doctor, surgery, physical therapy, prescription drugs, and any other medical intervention you had to undergo because of the crash.
- Lost Wages: Your employer records will show the income you lost because of the collision, medical treatments, and recuperation from your injuries.
- Ongoing Medical Problems: Since degenerative disc disease is a condition that gets worse as you get older, people often continue to have medical problems. We will gather the medical records to prove the amount of this loss and use experts to estimate your anticipated future medical expenses.
- Decreased Future Earnings: If your injuries and disc degeneration cause you to have to take a lower-paying job or not work as many hours, we will work with a vocational expert to calculate the amount of your lost future income.
- Pain and Suffering: We will determine a fair amount to compensate you for the physical pain and mental distress you suffered from your injuries.
- Loss of Enjoyment of Life: It can put a damper on your outlook on life when you are enduring chronic pain, cannot engage in enjoyable activities, and know that things are only going to get worse as you age. We will seek damages for this loss.
How to Get Legal Help for Your InjuryThe Law Office of Jason R. Schultz, PC helps people who have suffered injuries due to the negligence of someone else. If you are suffering from a car accident which caused degenerative disc disease, call us today at 404-474-0804, and we will set up your free consultation. There is no obligation.
Can a Car Accident Cause Spinal Stenosis?
- Herniated disc
What is Spinal Stenosis?
Spinal stenosis is a condition in which the spaces inside your spine narrow and put pressure on the nerves within the spinal column. The lower back (lumbar stenosis) and neck (cervical stenosis) are the two most likely places for spinal stenosis to occur.
Although osteoarthritis causes more spinal stenosis than any other factor, trauma-caused stenosis can create a medical emergency and cause permanent nerve damage. If you fracture or dislocate one or more of the bones in your spinal column (vertebrae), the displaced bone can injure the discs and nerves in your spine. If you already had osteoarthritis or another underlying condition before the wreck, you could develop spinal stenosis more easily than a person of normal health.
Complications of Spinal Stenosis
If left untreated, spinal stenosis can worsen and cause you to suffer permanent damage, including:
- Balance issues
Symptoms of Spinal Stenosis
Because a car accident can cause spinal stenosis, you should get a medical evaluation right away if you experience any of these symptoms:
- Neck pain
- Back pain
- Pain or muscle cramps in your legs when you walk or stand for an extended time
- Weakness in one or both of your hands, arms, feet, or legs
- Difficulty walking and keeping your balance
- Bladder or bowel problems
Treatments for Spinal Stenosis
Your doctor will likely use imaging tests to gain detailed information about the exact location and extent of your spinal injury or stenosis. X-rays, MRIs, CT scans, and CT myelograms are the usual imaging tests for these conditions. Armed with the data from the imaging tests, your doctor will develop a treatment plan.
Unless you have a severe case or a medical emergency, your doctor will tend to begin with conservative, non-invasive measures, which can include:
- Monitoring your condition with regular follow-up appointments
- Advising you to take over-the-counter pain relievers such as ibuprofen (Motrin, Advil), acetaminophen (Tylenol), or naproxen (Aleve) for a short time
- Prescribing short-term or long-term use of opioids, while warning about the risk of addiction to these codeine-related medications
- Using a trial run of anti-seizure medications like Neurontin or Lyrica or nightly doses of antidepressants to reduce your nerve pain
- Sending you to physical therapy to stabilize, strengthen, and increase the flexibility of the spine
If these treatments are not successful, or if you have a severe injury, your doctor might try:
- Steroid injections at the site of the stenosis in your back
- Decompression procedure, using a needle-like tool to remove part of a ligament near the stenosis to allow more space and relieve the nerve compression
- Back surgery, such as laminectomy (removing part of the affected vertebra), laminotomy (carving a hole in part of the vertebra), laminoplasty (creating a hinge on part of the vertebra to open up space – this surgery is only performed on the neck, not the lower back), or minimally invasive surgery (with less damage to surrounding tissue)
Risks of Spinal Surgery
All surgery carries some risks. While some people experience a reduction in their discomfort and other symptoms after surgery for spinal stenosis, others do not. Possible complications of surgery for spinal stenosis after a car accident include:
- Symptoms the same or worse after surgery than before
- Deterioration of the spinal nerves
- A blood clot in one of your legs
- A torn membrane around the spinal cord
Compensation for Trauma-related Spinal Stenosis
Your damages claim can include multiple components in these complex cases, including losses from:
- The original trauma (medical bills and lost wages)
- The spinal stenosis that developed
- Complications from surgery or another treatment (additional medical bills, lost wages, pain and suffering)
- Short-term and long-term impacts on your life from the multiple medical conditions (ongoing medical treatments, long-term care costs, disability, decreased earning potential, chronic pain, mental distress, depression, loss of enjoyment of life, loss of consortium)
What to Do After a Spinal Injury from a Car Accident
Protect your health and well-being by getting medical attention right away. Do not sign papers or agree to a settlement with the insurance company. If you agree to a quick settlement early in your medical treatment, you are locked into that amount of compensation, even if your medical bills keep piling up for additional treatments.
How to Get Legal HelpThe Law Office of Jason R. Schultz, PC will protect you from a lowball settlement with the insurance company. We will calculate a fair amount of compensation and negotiate directly with the insurance company for you. Call us today at 404-474-0804 today to get your free consultation.
Can a Car Accident Cause Fibromyalgia?
Physical injury can cause fibromyalgia. People who sustain harm to their bodies in car accidents are at higher risk of developing fibromyalgia than people who have not suffered trauma. Despite the skepticism of some doctors to the very existence of fibromyalgia, researchers proved more than 15 years ago that the condition is a legitimate illness and can result from physical trauma.
Fibromyalgia syndrome (FMS) is not a psychological or psychosomatic issue. FMS is a chronic musculoskeletal condition in which patients experience pain spread over a regional, as opposed to a discrete, area of the body, plus an increased sensitivity to pain in specific locations. FMS is one of the most common illnesses that rheumatologists treat.
How a Car Accident Can Cause Fibromyalgia
Medical researchers do not yet understand the mechanism by which physical trauma can lead to FMS, but they do know that people with the illness often have experienced a physical injury to the same area of the body during the six months before the onset of FMS symptoms.
If you have chronic muscle pain, tenderness, fatigue, or other signs of FMS shortly after injuring that part of your body in a car accident, the crash might be the cause of your current problems. Also, other medical conditions make you more susceptible to developing FMS after trauma, including:
- Lupus (systemic lupus erythematosus)
- Spinal arthritis (ankylosing spondylitis)
- Rheumatoid arthritis
There might be a genetic component to FMS, because having a family member with FMS might make you more likely to have the disorder.
How FMS Can Impact Your Life
In addition to chronic muscle pain, fatigue, and tenderness, FMS can cause you to experience:
- Numbness or tingling in your hands and feet
- Sleeping disorders
- Stiffness when you awaken
- Painful menstrual periods
- Memory and processing problems
Damages You Can Get for FMS Caused by an Accident
When you develop FMS after a collision, you can have two categories of possible recoveries in a settlement:
- Damages from the initial injuries suffered in the crash
- Damages from the FMS you later developed
For both categories, your compensation could include these items:
- Medical expenses: This includes expenses for ambulance rides, emergency rooms, hospital stays, surgery, doctors, physical therapy, painkillers, and equipment like crutches or a wheelchair.
- Lost income: This includes replaced wages and other income you lost because of the wreck, your medical treatment, and recuperation time.
- Decreased future earnings: This includes your current and anticipated future medical condition that will lead to lower income for you.
- Long-term care and assistance: This is if the accident leaves you needing help with daily living activities and frequent medical treatments.
- Pain and suffering: This is for the physical pain and mental distress you experienced.
- Loss of enjoyment of life: If you no longer can perform activities that brought joy to your life, you may be able to recover this expense.
What to Do After a Car Accident
After a car accident, you should get immediate medical attention, even if you do not perceive significant injuries right away. The professionals in urgent care centers and emergency rooms know how to detect problems that might not exhibit visible signs at the time of the wreck. Some trauma, like internal bleeding and soft tissue damage, is not always apparent until a day or more after the accident. Even broken bones can go undetected.
Document your injuries from the wreck. If you try to tough it out with physical injuries from a collision and only go to the doctor six months later when you develop FMS symptoms, it will be challenging to link the FMS to the car accident.
Contact A Car Accident Lawyer
Do not settle your claim with the insurance company too early. If you accept a settlement and later develop FMS, you cannot go back to the insurance company and get more money. Make sure that you complete all treatment for your injuries and have no lingering effects, and even then, make sure you hire a lawyer to handle the resolution of your injury claim.
Get an evaluation of your claim from an experienced personal injury lawyer. If you contact the Law Office of Jason R. Schultz, PC, we will review your facts and tell you if you might be eligible for compensation. Call us today at 404-474-0804 to set up your free consultation. There is no obligation.
Can I Sue for a Slip and Fall Around a Swimming Pool?
Yes, you can sue for a slip and fall around a swimming pool if someone else negligently caused your injury. There are three steps to determining if someone is liable for your damages.
The Three Steps of Determining Liability
The law requires that you prove three things to sue for a slip and fall around a swimming pool:
Duty of Care
The person must have owed you a legal duty of care. If you are legally present at a public or private swimming pool, the owner of the pool has a reasonable duty to do things to keep you safe, like promptly fixing known defects or cleaning up spills. If, on the other hand, you are trespassing at a pool and you slip and fall, the pool owner might not have to pay your damages, unless the owner committed gross negligence or an intentional act.
Breached Duty of Care
The defendant must have breached their duty of care toward you. If they knew, for example, that the maintenance person who cleaned the pool left a slimy substance on the paved surface around the pool but did not bother to clean it up or post warnings, they did not meet her duty of care. Failure to satisfy the duty of care is a type of negligence.
Causation to Your Injury
The negligence must be what caused your injury. We are all negligent multiple times throughout any given day. We are only liable to others if our mistakes harm them. If you slipped and fell because of the slimy substance on the area around the pool, the fact pattern satisfies the causation element of liability.
What Happens If You Were Also Negligent
Often, more than one person is at fault when someone gets hurt. If this is what happened in your situation, you might be worried about whether your part in the mishap will bar you from recovering any compensation from the other party. Not to worry, Georgia follows the rule of comparative negligence. Under comparative negligence, also called comparative fault, your negligence will only prevent you from getting your damages if you were the one mostly at fault.
How Comparative Fault Works
Here is an example to demonstrate how comparative fault works:
Let us say that you were horsing around at the side of the pool and lost your footing because someone had spilled a slippery substance, like suntan oil. The pool had a sign that notified people of the pool rules, one of which was, “No Horseplay.”
If the judge finds that you were ten percent negligence for engaging in horseplay in violation of the pool rules, you will get 90 percent of your damages. The comparative fault rule will reduce your compensation in proportion to the percentage of your fault. So, if you have $50,000 in damages from breaking your leg when you slipped and fell, you can get $45,000 after the $5,000 deduction for your ten percent fault.
How to Get Help
If you suffered an injury after a slip and fall at a pool, and you think someone else was at fault, please call the Law Office of Jason R. Schultz, PC. We will not charge to evaluate your situation and tell you if we think you might be entitled to compensation. For your free, no-obligation consultation with a premise liability lawyer, call 404-474-0804 today.
What to Do After a Hit and Run Pedestrian Accident?
After a car or truck hits you and leaves the scene illegally, you have to act fast as a pedestrian to protect your health and potential legal claim. Here is what to do after a hit and run pedestrian accident. Avoid pitfalls by using these ten tips:
1. Get To A Safe Place
If you can do so without risking additional injury or danger, get to a safe place nearby. If you cannot move from your location, ask someone to wave off traffic so that no one will run over you.
2. Call 911
The sooner the police know about the hit and run, the more likely they will be to catch the fleeing driver. It is against the law to leave the scene of an accident. Also, you need to know the identity of the driver to file a claim against his insurance company for your damages.
3. Gather As Much Information About the Car That Hit You As You Can
Make a note of the color and type of car or truck, as well as the approximate age and as much of the license plate as you were able to see. Even partial license plate information can help the police track down the vehicle’s owner.
4. Seek Eyewitnesses
Look around for potential eyewitnesses. They may have seen something you did not. That something might be the detail that the police need. Eyewitnesses might be able to fill in the blanks of what you did not see, such as other letters or numbers from the license plate, or the appearance and number of people in the car.
5. Talk To The Police
When the police arrive, tell them everything you can remember from the incident, including the street the car was on and the direction it went when it left the scene. Cooperate with the police, but do not say anything that could damage your claim. Some people have the habit of beating themselves up verbally when things go wrong, such as saying that it was their own fault they got hit because they were doing something stupid. Do not say anything critical of or negative about yourself to the police or anyone else.
6. Get Immediate Medical Attention
In the adrenaline rush that can happen with an accident, you might not feel pain the way you typically would. The blunt force trauma of a crash can cause broken bones and internal injuries that might not show visible symptoms right away. You can bleed to death internally before you know that you sustained damage to your internal organs.
7. See A Doctor
Make sure you tell the doctor and other medical personnel who treat your injuries that a car hit you. We will use your medical records to link your injuries to the hit and run accident, so that fact must be in your examination and treatment notes. If it is not, the defense may say your injuries are from something else, not from the hit and run. This defense tactic is another reason you must get medical attention immediately, so the insurance company cannot claim there was another cause.
8. Notify Your Insurance Company
While you need to report the incident to your insurance company, be careful about talking with an insurance adjuster and giving them or any other insurance company a written or recorded statement. Know the seven things not to say to an insurance adjuster; they can twist your words to mean something you did not intend, which could damage the value of your claim. Remember that insurance companies do not make a profit by paying money on claims – they make money by denying and marginalizing claims.
9. Recover From Your Injuries
Do your very best to get well and achieve the best recuperation possible. Physical therapy is often a component of treatment after an accident. Physical therapy can be painful, and it can throw a wrench into your schedule to have to attend therapy appointments two or three times a week for weeks or even months on end. Despite these facts, you need to complete all scheduled therapy and other treatments, so you will recover as much function as possible, and so the insurance company does not try to reduce the amount of your compensation.
10. Talk To A Lawyer
After doing these nine things after a hit and run pedestrian accident, consider speaking with a personal injury lawyer. Let the Law Office of Jason R. Schultz, PC handle the legal matters so that you can focus on getting your life back. Once you get a lawyer, the insurance company cannot harass you. They have to go through us for information and to negotiate a fair settlement. Never sign anything or agree to settle your case without first talking to a lawyer.
Call us today at 404-474-0804, and we will set up your free consultation and claim evaluation.
Can I Sue a Drunk Driver Who Caused My Car Accident?
Yes, you can sue a drunk driver for your injuries if the impaired person caused the crash. Driving while under the influence of alcohol is negligence. When drunk driving causes an accident, the negligent person is liable for the resulting damages.
What We Have to Prove to Win Compensation for You in a Drunk Driving Accident
In order to sue a drunk driver, we have to prove their negligence caused the wreck that hurt you. There are three elements to negligence:
Duty of Care
This factor is the easiest of the three to prove since all drivers have a duty of care. They must operate their vehicles in a prudent manner, keep an alert lookout, and follow the laws and rules of the road (which include not drinking and driving).
Breach of Duty of Care
Breach of the duty of care is negligence. Driving while impaired violates the duty of care in two ways—a drunk driver is not operating their vehicle in a prudent manner, and is breaking the law against driving while under the influence. We will prove this breach of duty by using the police report from the accident and information from the criminal DUI case.
This is if the injuries you sustained were the result of the drunk driver, and not someone else. For example, if one driver ran a red light and another driver was drunk, and the driver who ran the red light caused your injuries, we must pursue a claim against that driver. On the other hand, if the drunk driver slammed into your car and caused the harm to you, we can sue the drunk driver. We will use the police report, your medical records, and accident reconstructionist experts, if needed, to build your case on causation.
What Damages You Can Get in an Impaired Driving Crash
Every case is different, and we cannot state an amount you can expect to receive for your losses without evaluating the individual facts of your claim. There are, however, ways to get justice for drunk driving by collecting damages, which may include:
- Medical expenses: This category can encompass all reasonable costs for medical care you had to undergo because of the wreck. Some examples are bills from the ambulance, emergency room, hospital, surgeon, specialists, your regular doctor, prescription medications, and physical therapy. We will use the medical records and invoices to prove this aspect of your claim.
- Lost wages: You can recover income you lost because of the crash, your medical treatment, and recuperation time away from work. We will establish this item by using your employer’s records.
- Long-term care: If you need long-term care because of catastrophic injuries from the collision, we can include the anticipated costs in your claim. We use medical and vocational experts to show the court what you will need.
- Decreased earning capacity: Some people need to cut back their hours or take a lower-paying job after severe injuries from a motor vehicle accident. If this happens to you, we can pursue your losses.
- Disability: If you are unable to work due to your injuries, we can include this in your claim. We use medical and vocational experts to prove these claims.
- Pain and suffering: Anyone who has suffered significant injuries in a car crash knows that merely getting the out-of-pocket losses from the wreck paid by the at-fault driver is grossly inadequate to compensate you for the experience. We will use your medical bills and lost wages to calculate a reasonable amount you should get for your pain and suffering.
- Other non-economic losses: Depending on the facts of your case, it may be appropriate to seek compensation for things like disfigurement, loss of enjoyment of life, and loss of consortium.
What Happens if You Were Partly at Fault
Georgia law will allow you to recover part of your losses even if you were also to blame for the accident, as long as your negligence was less than 50 percent of the cause of the wreck. This legal concept is comparative fault (or comparative negligence), and the 50 percent cutoff makes Georgia’s rule of law on this issue modified comparative fault.
Here is how Georgia’s modified comparative fault works:
- If the drunk driver was, by way of example, 90 percent at fault and you were only ten percent at fault, you will get 90 percent of your damages. So, if you had $100,000 in losses, the law would reduce your compensation in proportion to the amount of your fault. After the ten percent reduction for your negligence, you would recover $90,000 of your $100,000 claim.
- If, on the other hand, both you and the other driver were driving while impaired, the judge might find you each equally at fault, that is, each of you are 50 percent negligent. The 50 percent bar to recovery would preclude you both from getting damages from each other.
Who Is Liable for a Pool Drain Accident and Injury?
If you or a loved one has suffered injury from a pool drain accident, you might wonder who is responsible for your losses. Liability will depend on the facts of your case, but these are some of the primary considerations we will evaluate when we investigate your claim.
The Danger of Pool Drains
Pool drains work by sucking hundreds or thousands of gallons of water out of the pool to circulation through the pool’s filtration system. When a person gets too close to a large pool drain, the results can be tragic. The powerful suction can trap the person underwater, resulting in drowning or horrific physical injuries.
Federal Law on Pool Drain Safety
Congress enacted the Virginia Graeme Baker Pool & Spa Safety Act (P&SS Act) after the granddaughter of former Secretary of State James A. Baker III drowned because of a pool drain in a spa. The suction of the drain trapped and drowned the seven-year-old girl, despite the efforts of adults to pull her free.
The federal legislation requires that all public pools and spas have raised, curved drain covers instead of the older-design of flat covers, which are more likely to trap people. Pools that do not have at least two compliant drains must have an automatic shut-off system or other safety features to prevent suction from trapping or injuring swimmers.
How the Law Applies to Your Situation
Public pools: If the drain accident or injury happened in a public pool or spa that did not comply with the P&SS Act, the owner will be negligent for failure to follow the law. There is no excuse that the owner needed more time, since the act is now ten years old. In fact, the U. S. Consumer Product Safety Commission (CPSC) celebrated ten years with no reported drain entrapment-related deaths of children in public pools or spas. Any public pool or spa that is operating in violation of the law will have to answer for injuries or accident.
Private pools: The P&SS Act does not apply to private pools. The Georgia Department of Public Health has rules for swimming pools, spas, and recreational water parks, but those regulations do not apply to:
- Private swimming pools, hot tubs, or spas at single-family homes only for the use of the residents and their guests
- Apartment complex pools
- Country club pools
- Subdivision pools only for the use of subdivision residents and their guests
- Therapeutic pools or chambers
- Religious ritual baths
If the pool drain accident happened in a public pool that failed to follow the federal or state law, and your injury occurred because of that failure, the pool owner will be liable for your damages. If the accident took place in a private pool, the owner could still be responsible under the theory of negligence.
How a Private Pool Owner Can Be Negligent About Drains
If the pool owner knew that the pool drain was damaged, defective, or otherwise dangerous but did not repair or replace the equipment, the owner can be responsible to people who sustain injuries. Property owners must fix hazardous conditions on their property or warn their guests about the risk of injury. If the pool owner knows that people will be swimming in a pool with a dangerous drain, she can at least turn off the pool pump to stop the suction of water through the drain.
When there is no barrier or fence around a pool, the owner can be liable for injuries that could have been prevented by an enclosure. Even if not required by local ordinances, it can be negligence if the owner does not protect the public, particularly children, from “attractive nuisances” like swimming pools that draw children to them and then lead to injuries.
Liability under negligence requires:
- A duty of care: Pool owners have a duty of care toward people who are anticipated to use the pool.
- Breach of duty: If the pool owner does not protect potential swimmers from a known dangerous drain or provide an adequate enclosure to offset the attractive nuisance quality of a swimming pool, the owner is negligent.
- Causation: If the negligence caused the accident or injury, the pool owner is liable for the damages.
Damages for a Pool Drain Injury
After we prove that the negligence caused the injury, depending on the facts of the case, we can hold the pool owner responsible for:
- Medical expenses
- Lost wages
- Ongoing medical treatments
- Long-term care
- Decreased earning potential
- Pain and suffering
- Loss of enjoyment of life
These injury claims usually fall under the pool owner’s insurance policy. If you call the Law Office of Jason R. Schultz, P.C. at 404-474-0804, we will schedule your free consultation to evaluate whether you are entitled to compensation for your losses.
Are Medical Malpractice Awards Taxable?
You might have to pay taxes on some portions of your medical malpractice award. The IRS considers some aspects to be taxable income for purposes of your federal income tax return, but other parts are not. Georgia will only tax your medical malpractice award if the IRS does.
How to Determine How Much of Your Medical Malpractice Award is Taxable
You have to break your settlement or award down into its various components to find out how much of it is taxable. The main areas of medical malpractice compensation cover four areas.
Physical Injuries or Illness
You will not have to pay taxes on the part of your award the legal documents designate for your physical injuries or illness. If you deducted your medical expenses from your taxes in a prior year and got a tax benefit by doing so, you will have to include the amount deducted from your taxes. It will be “other income” on line 21 of your federal income tax Form 1040.
Compensation for lost wages are subject to federal and state taxes and Social Security and Medicare taxes. The reason you have to pay all these taxes on this portion of your settlement is that these funds replace the wages you lost because of the malpractice, and wages are taxable.
Emotional Distress or Mental Anguish
If the damages for your distress were because of a physical illness or injury, the compensation is not taxable. You will have to claim taxable income as any deductions you took for those medical expenses on your taxes in previous years, if you received a tax benefit from those deductions, just like with medical expenses for physical injuries or illnesses. On the other hand, if your emotional distress or mental anguish was not the result of physical injury or illness, your compensation is taxable, subject to reduction by certain medical expenses for treatment of your distress.
The IRS will tax the portion of your award designated as punitive damages, whether for physical injury or illness, for mental distress, or some other reason. Include this portion of your settlement on line 21 of your federal income tax Form 1040 as “Other Income.”
Taxes on Interest You Receive on Your Medical Malpractice Award
Sometimes judges award interest on damages awards to compensate the successful plaintiff who had to wait a long time to get paid, particularly if the case went up on appeal. You will have to pay taxes on the interest you receive on your award. The amount will go on line 8a of your IRS Form 1040 as “interest income.”
IRS Publications with Additional Information on the Taxability of Medical Malpractice Awards
The IRS provides two publications to help you sort out the taxability of your malpractice compensation.
The Law Office of Jason R. Schultz, PC handles medical malpractice and personal injury claims. We are not tax lawyers. This article is for informational purposes only. You should talk with a professional tax advisor about the tax issues of your medical malpractice award.
For a free consultation and case evaluation of your medical malpractice claim, please call us at 404-474-0804.
What Are Medical Malpractice Caps?
The term “medical malpractice caps” refers to statutory limits on the amount of damages you can receive through a settlement or court’s judgment in your medical malpractice claim. The Georgia statutes place no limits on economic damages in medical malpractice cases.
Georgia law does, however, limit how much a person can recover for non-economic damages in medical malpractice cases. The Georgia Supreme Court declared the statutory cap on non-economic damages in these cases to be unconstitutional in 2010, but the law is still on the books. Experts debate whether the law is enforceable.
The Statutory Limits on Non-Economic Damages in Medical Malpractice Cases in Georgia
The statutory limit on non-pecuniary damages does not apply to losses for past or future medical expenses, rehabilitation, therapy, lost wages, diminished earning capacity, income, funeral or burial costs, the value of lost services, or other monetary losses. The statute (which the Georgia Supreme Court declared unconstitutional in 2010), limits successful medical malpractice plaintiffs (including malpractice that results in wrongful death) to the recovery of non-economic damages of no more than:
- $350,000 total against one or more healthcare providers– regardless of how many healthcare provider defendants named and alleged to be negligent in the case
- $350,000 total against a medical facility and all entities and persons who may be vicariously liable
- $700,000 total against all medical facilities – regardless of the number of medical facility defendants named in the case and alleged to be negligent
- The total of all non-economic damages cannot exceed $1,050,000 – regardless of the number of defendants alleged to be negligent.
The Georgia Supreme Court Case That Declared Medical Malpractice Damages Caps Unconstitutional
In 2010, the Georgia Supreme Court heard the appeal of Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt et al., (Nestlehutt), from a trial court ruling that the Georgia statute that limits non-economic damages in medical malpractice cases was unconstitutional. The Georgia Supreme Court agreed with the trial court that the damages caps are unconstitutional because they encroach on the right to a jury. Juries, not legislatures, are supposed to determine the amount of damages a plaintiff should receive.
Nestlehutt involved a patient who suffered disfigurement from complications after plastic surgery on her face. The trial jury awarded a total verdict of $1,265,000, which included $115,000 for past and future medical expenses, $900,000 for the patient’s pain and suffering, and $250,000 for her husband’s loss of consortium claim. The trial court declared the damages caps statute unconstitutional and entered judgment for the full amount the jury awarded. The state Supreme Court affirmed.
Types of Damages in Medical Malpractice Cases in Georgia
There are three main categories of damages potentially available in medical malpractice actions in Georgia:
- Economic damages: This category includes medical expenses, lost wages, decreased earning capacity, ongoing medical care and assistance, home and vehicle modifications, and other out-of-pocket expenses you incurred because of the medical malpractice. Economic damages are also called “financial losses.” There are no limits on these damages under Georgia law.
- Non-economic damages: This category includes non-financial harm you suffered as a result of the medical malpractice, including physical pain, discomfort, and suffering, emotional pain and suffering, mental anguish, anxiety, distress, hardship, inconvenience, disfigurement, disability and physical impairment, loss of enjoyment of life, loss of consortium, loss of companionship, and other non-economic losses that arose from the malpractice.
- Punitive damages: Punitive damages in Georgia are sometimes limited to $250,000. Judges assess punitive damages to punish a wrongdoer, not to compensate victims, which is why in some cases, most of the damages go to the state treasury, not to the injured person. Judges rarely award these damages in medical malpractice cases because there must be proof the defendant did not merely make a mistake, but rather acted with malice, fraud, intent, or with conscious disregard for the consequences of the defendant’s actions.
If you or a loved one has suffered harm from medical malpractice, the Law Office of Jason R. Schultz, PC, can help. Call 404-474-0804 to get a free consultation.