Articles Posted in Personal Injury

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rat.jpgContaminated food can cause injury or even death to consumers and cause expensive, costly lawsuits to sellers, making it very important that food is produced and stored in sanitary conditions. Yesterday federal agents seized food products from a rat infested warehouse in East Point Georgia, owned by the United Food Service Company. Close to one million dollars of contaminated food was confiscated.

U.S. Attorneys issued a statement stating: “The insanitary conditions alleged to exist in this warehouse where food is stored are simply unacceptable,” and that “This office has moved quickly to prevent the FDA-regulated products stored in this rodent-infested warehouse from being sold to unsuspecting consumers.

According to authorities, the Food and Drug Administration inspected the warehouse and documented an active and widespread rodent infestation, photographing and videotaping multiple live rats, dead rats, and rat nesting sites.

In Georgia, liability for knowingly or negligently selling unwholesome provisions has been imposed by statute since 1863. The seller has a duty to know the condition of the food that he sells, because contaminated food can seriously injure or even kill a consumer. And because the seller is in the best position to know the food, he is the one who will be held liable.

The plaintiff does have a duty to exercise ordinary care to avoid getting injured by consuming the bad food. The plaintiff must prove that the food was unwholesome and this is not established by the mere fact that the plaintiff became sick after eating it. However recovery is possible based on circumstantial evidence that rules out every other reasonable hypothesis that could be an explanation for his or her illness.
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3380698228_eeec3387dd.jpgUnfortunately, recent studies and an FDA alert have shown that high flow intra-articular (post-operative) pain pumps may be the likely cause of sever cartilage damage and joint pain in the shoulder, and possible other joints too. The pain in the shoulder is medically known as postarthroscopic glenohumeral chrondrolysis (PAGCL), which is a debilitating condition that requires constant medical attention and, many times, surgery.

The FDA has spoken on this issue, mandating that pain pump manufactures warn patients and physicians about the potential debilitating effects of these pain pumps. In fact, the FDA sent notice to manufactures stating that “the FDA did not clear pain pump infusion devices using the anesthetics for “intra-articular” or joint surgery. The pumps are approved to be used after abdominal and other surgeries, such as hysterectomies.”

If you are using a pain pump to regulate pain, due to surgery on your shoulder, back, knee or hip, you should consult your doctor immediately, especially if you are experiencing the following symptoms:

1. Decreased range of motion in your shoulder;
2. Popping in your shoulder;
3. Weakness in your shoulder; or 4. Continual pain in the shoulder area.

A manufacture’s failure to warn about a foreseeable or reasonably foreseeable, negative effect may give rise to a legal claim against that manufacture. Product liability claims are complicated and typically, very protracted. You will need a very effective attorney, who knows how to maximize your position at the negotiating table and in the court room.

If you or someone you know has been injured by an intra-articular pain pump, or have been diagnosed with postarthroscopic glenohumeral chrondrolysis (PAGCL), call Williams Oinonen because you may have a claim against the pain pump’s manufacture. We give an initial consultation.
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med image.jpgToday we would like to briefly discuss some of the steps you can take to avoid medical errors, in general. Although we help victims of medical errors seek justice and compensation, the best solution is to be informed, so you can avoid ever needing an attorney due to a tragic experience caused by medical error.

Medical errors can leave you or a loved one with severe physical injuries and emotional pain and suffering. As you know, medical errors can happen in a variety of places such as hospitals, clinics, out patient surgery centers, doctors’ offices, nursing homes, pharmacies and patient homes. On this blog, we have written about prescription errors, physician errors, nursing errors, and dental errors, to name a few. And these errors typically involve medicines, surgeries, diagnosis, and lab reports. Now we would like to discuss a few steps you can take to help avoid medical errors.

Many medical errors occur when doctors and their patients do not communicate effectively. In fact a recent study supported by the Agency for Healthcare Research and Quality found that doctors need to help their patients make informed decisions. Patients who are uninformed will logically be more susceptible to making errors regrading their medical care. So what can you do:

1. Be involved in your healthcare treatment– This could be the single most important thing you can do: participate, be an active partaker in all decisions that affect your health. Research shows that being active in your health care treatment leads to better results.

2. Make sure that you inform your doctor about all medications you are taking, including herbal remedies, vitamins, and over-the-counter drugs.

3. Make sure your doctor knows about any allergies or adverse reactions you have had to certain medications. This will help avoid prescription errors, doctors giving you the wrong medication.

4. When your doctor writes you a prescription, make sure you read it. Too many times, we pass off illegible prescriptions as “doctor talk.” You must ensure that you read the prescription given to you and that you understand it. Think about it: if you can’t read your doctor’s handwriting, there is a good chance, your pharmacist may not be able to read it either.

5. When you receive your medication from your pharmacist, double check, by asking if the medicine you are being given is indeed the medicine your doctor prescribed. The last thing you want is the wrong medication.

6. Read the label on your medication before you leave your doctor’s office or the pharmacy. If you don’t understand how to take your medication, ask the pharmacist or your doctor.

7. Ask for written information about the side effects that your medication may cause.

8. Regarding hospitals, you should consider choosing a hospital that has treated many patients affected by your same illness. You should also consider asking anyone who comes in direct contact with you, to wash his or her hands (bacteria infection can cause serious illness).

9. When you are discharged from a hospital, ask the doctor to explain your treatment plan.

10. How new is the doctor who is treating you? (Regardless of whether he or she is an emergency room doctor or in-patient doctor.)

We’ve come across a recent article that talks about how “greenhorn” doctors (“newbies”) have casued a serious spike in “fatal medication errors” throughout the United States. A recent study found that in counties with “teaching” hospitals, fatalities due to medication errors spiked each July, the same month that new doctors begin their residency.

Regrettably, even after taking some of the above-mentioned precautions and more, people will still be the victims of medical error. If you are one of those unfortunate people, call Williams Oinonen LLC today, because we will represent your case with zeal and ethics, with a view towards doing what’s best for you, always.
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nursing home.jpgIdeally, long-term health care facilities such as nursing homes will provide your loved one with long-term assisted living that respects their dignity. Georgia law recognizes three types of long-term health care facilities: personal care homes; skilled nursing facilities; and intermediate care homes. Some are privately owned, while others are state-owned. Some receive Medicare/Medicaid funding. And some care for the elderly or children or those who suffer from severe mental and physical challenges. Unfortunately, as the above-mentioned incident illustrates, regardless of who owns the home, or what type of long-term health facility it is, many times your loved one is mistreated (institutionally abused), a reality that really enrages and hurts both the abused person and those who love and care about him or her.

Recognizing an area of needed involvement, the Georgia legislature enacted a bill of rights for residents of long-term health care facilities (O.C.G.A. § 31-8-100). These rights include the right to receive care and treatment, and services, adequate and appropriate for your loved one’s condition; the right to choose amongst different forms of treatment; the right to refuse treamenent; the right to request a different doctor; the right to participate in the care and treatment plan developed for you or your loved one; the right to privacy; and the right to only be restrained in extremely limited circumstances, amongst others.

The object and purpose of Georgia’s patient bill of rights is to ensure respect for the dignity and self determination of each person living in a long-term health care facility. Additionally, because the legislature recognized the special circumstances in which these vulnerable people find themselves, and their potential to be abused and neglected, Georgia law allows you or a legal guardian to sue for damages for any violation of the Bill of Rights. Also, you should know that you may bring a suit, without exhausting administrative remedies.

Institutional abuse comes in many forms. Be on the look out for signs of mistreatment such as an unexplained or unexpected death of a patient; a serious injury such as broken bones; unexplained sores, welts and bruises; infections; unusual weight loss or weight gain; extreme dehydration; choking/gagging; and illnesses such as chronic aspiration/aspiration pneumonia (the elderly are particularly susceptible to this); and poor personal hygiene. A good lawyer will understand not only how to spot abuse but also how to uncover abuse through records request, testimony and other avenues.

Another reason you need a good lawyer to deal with nursing home abuse is the fact that there are so many laws and causes of action which apply to this situation. For example, and as stated, most long-term health care facilities receive federal and state funding, so Medicare/Medicaid regulations will apply. However, although Georgia law provides a private cause of action, many applicable federal laws such as 42 U.S.C. § 1395 do not. But the fact that a federal law does not provide a private cause of action does not mean that the standards established by those regulations cannot be used to demonstrate that a long-term heath care facility violated a standard of care it owed to your loved one.

Furthermore, you may have several different causes of action (legal claims) against the long-term health care facility. For example, you may have a professional negligence claim. This typically involves negligent conduct of a nurse or medical care provider. When a medical provider is responsible for injuring you or a loved one, hospital’s may be liable for those inujuries under the doctrine of respondeat superior, which means the employer of the negligent nurse/physician/medical provider is held liable. This type of claim is classified as a medical malpractice claim; that means that a host of procedural and substantive issues are involved. If your lawyer fails to follow “particular” procedural rules, your claim could be thrown out of court, forever.

Or, you may have an ordinary negligence claim, which typically does not involve an expert opinion or the tricky rules associated with professional negligence (malpractice) claims. Or, you may have a premises liability claim or a breach of contract claim or a class action claim. As you can read, a good lawyer is necessary to properly apply the facts of your case to all the applicable Georgia and federal laws and regulations, to ascertain which claim(s) you may have, and of those claims, which ones provide you with the best opportunity to maximize your recovery.

Ultimately, the outcome of you case will depend on many variables.
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Dog Bite Rock.jpgRecently, a pit bull attacked a pregnant woman who lives in Cobb County, Georgia. The pit bull initially attacked the woman’s dog but then attacked her. Luckily, the courageous woman kicked the dog and then grabbed its neck to protect her unborn child. We hope that both the mother and child are okay.

Everyday dogs attack people and leave their victims with serious injuries ranging from serious head trauma, facial lacerations, permanent disfigurement, broken bones, severe scarring, and sometimes death. In Georgia, as with everywhere, many times the victims are young children and the elderly. And as a person that has experienced several dog attacks, I also understand how psychologically traumatizing (long term) a dog attack can be. You/your loved one deserve to be compensated for the injuries and damages caused by dog bites, and vicious dog attacks.

We have written about dog attacks before on this blog. In that article we focused on the nuances of Georgia law that may prohibit you from maximizing your recovery, if you do not choose your lawyer wisely. In this article however we want to focus on what you should do immediately after being bitten by a dog, to help protect you and others, and to maximize your recovery for the injuries caused by dog bites, and vicious dog attacks. Whether you live in Dekalb County, Cobb County, Fulton County, Floyd County or Whitfield County, as long as you live in Georgia, you need to consider taking the following steps after being attacked (bitten):

1. Immediately seek emergency medical attention for your injuries;

2. Identify the owner of the dog that bit you and get his or her name, address, home telephone number, and social security number (if possible);

3. Take photographs of your injuries and preserve any torn clothing;

4. Detail, in writing, what happened to you (if you are in a condition to do so), being as specific as possible;

5. Do not talk to any insurance adjuster!

6. Contact a good dog-bite lawyer; and
7. Immediately contact your county’s animal control authority. Here is a list of a few:

a. Fulton County Animal Control, click here
b. Dekalb County Animal Control, click here
c. Cobb County Animal Control, click here
d. Gwinnett County Animal Control, click here
e. Whitfield County (Dalton, GA) Animal Control, click here
f. Floyd County (Rome, GA) Animal Control, click here

Your animal control authority can do a few things to help you. First, if a dog bites anyone, it must be quarantined to see if it shows signs of rabies or being vicious. Second, animal control can determine if a citation can be issued against the owner and then, animal control can issue a citation or ensure that a citation is issued against the owner of the dog that bit you. Reading our other article will demonstrate the importance of the citation with respect to a violation of local leash laws and your ability to maximize recovery for your injuries.

As stated, contact a lawyer immediately, tell the lawyer about the incident, and get feedback. Typically dog bites cases involve homeowner’s insurance coverage and you will need a good lawyer to deal with this process because the insurance companies’ goal is to pay you as little as possible for your injuries. That means the company will attempt to convince you to settle your case before you understand the full extent of both your injuries and your legal options.

You also need a good lawyer to protect you from your own health insurance company. Many times your health insurance company will seek reimbursement for medical expenses it paid on your behalf. A good lawyer will know how to shield you as much as possible from this situation. Other issues may involve worker’s compensation and federal assistance. The best option is to find an attorney who has effectively handled dog-bite cases.

Your compensation will ultimately depend on the facts of your case as they apply to Georgia law, and the extent of your injuries, especially long term. You need a lawyer who will maximize your negotiating position and demonstrate a conviction to take your case to trial, to ensure that you receive the compensation you deserve.
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Hospital.jpgThis article, briefly, deals with an important issue in the context of injuries suffered at a hospital due to medical negligence. The question is simple: is your case a medical malpractice case or a case of ordinary negligence on behalf of the hospital? The answer may be extremely complex and requires a keen attorney in this field. The distinction is significant because it will determine whether a significant portion of your compensation, for your injuries, will be restricted to a medical malpractice “cap.” In Georgia, there exist a “cap” on recovery in medical malpractice cases. The Georgia Legislature unfortunately implemented “tort reform” legislation which harmed patients by placing a $350,000 cap (ceiling) on non economic damages (injuries) that anyone receives due to medical malpractice. That means, in Georgia, if you are a victim of medical malpractice, the compensation that you receive for your pain and suffering that cannot be proven by recorded data such as medical bills, rehabilitation, loss wages, and so forth, will be severely limited.

Currently, medical malpractice “caps” are being challenged. But until this cap is overruled or modified, you will need an attorney who can, if possible, manuever around the medical malpractice claim (cap), to give you a stronger chance at higher compensation for your injuries.

In Georgia, “simply because an alleged injury occurs in a hospital setting, a suit to recovery for that injury is not necessarily a medical malpractice action.” For example, if a hospital employee commits a negligent act that injures you, the fact that the employee such as a registered nurse has expert medical credentials does not, by itself, mean that your case is a medical malpractice case and thus subject to the above-mentioned $350,000 cap. One of the determining factors is whether the negligent act required expert medical “judgment.” It’s complicated but one thing is for sure: the unique facts of your situation, as applied to Georgia law, must be scrutinized by a knowledgeable attorney to determine whether your case may be a case of ordinary negligence, instead of medical malpractice. For example, was your injury caused by the failure of a hospital employee to carry out a physician’s instructions or some other administrative or clerical act? Or perhaps the hospital had policies and procedures that were not complied with or failed to implement polices and procedures that comply with established law. Or perhaps the medical equipment that caused your injury was inadequate: in Georgia, hospitals have a duty to provide equipment reasonable suited for its intended uses.

Basically, all the above-mentioned issues fundamentally challenge the adequacy of the services and facilites provided to you rather than challenge the expert medical judgment of a hospital employee. As stated, this area of Georgia law can be very tricky. Your lawyer must understand these distinctions, and more, to effectively represent you.

You should also consider that the characterization of your law suit as a medical malpractice claim or as an ordinary negligence claim means a lot with respect to the procedural requirements that your attorney must navigate through, in order to avoid having your case thrown out of court. The law has made medical malpractice claims tough from the start. For example, by law, if you do file a medical malpractice claim and your attorney fails to attach an expert affidavit to your complaint, then, your complaint is voidable, not void. That means, if the defense team notices that your attorney failed to comply with the law, then they may move to have your case thrown out of court. If your case is thrown out, then you will most likely be forever barred from filing the same medical malpractice complaint. But there are exceptions, especially if the defense team failed to notice the missing affidavit upon answering your complaint. Again, the rules are tricky and tedious.
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image.jpgFrequently, people ask how much their claim worth. And the answer is never simple. In personal injury cases, too often attorneys in Georgia determine the value of a victim’s recovery solely based on multiplying the amount of an injured person’s medical bills. However, your recovery should not only be linked to a simplistic, mathematical formula.

Simply put, the value of your recovery will depend on what a jury feels your recovery is worth. But since most cases are settled (never reaching a jury), your recovery typically relies on what the other person’s attorney or insurance company feels a jury “may” think your recovery is worth. Several factor go into demonstrating to the other side the value of your recovery. Here are some of them:

1. What was your degree of fault (if any) in causing your injuries? Your attorney must know how to assess this in order to maximize your recovery.

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The law under O.C.G.A. §33-24-56.1 is very specific as to when your health insurance benefits provider can obtain reimbursement from your personal injury settlement due to the health benefits they provided you because of the injury. The law states that your health insurance benefits provider can only obtain reimbursement it has paid on account of the injury up to the amount allocated to those categories of damages in the settlement documents or judgment if they meet the following:

“1)The amount of the recovery exceeds the sum of all economic and noneconomic losses incurred as a result of the injury, exclusive of losses for which reimbursement may be sought under this Code section; and
2) The amount of the reimbursement claim is reduced by the pro rata amount of the attorney’s fees and expenses of litigation incurred by the injured party in bringing the claim.”

What does this mean for you? It means that only if an insurance company can prove that you have been fully compensated: “made whole” are they able to recover reimbursement. Here is an example to illustrate: let’s say you recovered $200,000 in a settlement for your personal injury claim, let’s also say the sum of all your economic and noneconomic losses totaled $300,000, and the insurance company paid $50000 in your medical bills for your injury which they are now seeking reimbursement. In this situation, the insurance company cannot go after your settlement money to get reimbursement because the sum of your recovery ($200,000) did not exceed your total economic and noneconomic losses, exclusive of losses for which reimbursement may be sought ($300,000-$50,000= $250,000).

However, if it did, we would then jump to the second prong of the statute which states that the amount of reimbursement still must be reduced “by the pro rata amount of the attorney’s fees and expenses of litigation incurred by the injured party in bringing the claim.”
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You’ve been injured in a serious accident and receive a $100,000 settlement for your injuries. Your health insurance company covered most of your medical bills. The question: Can your health insurance company seek reimbursement for all the medical bills they paid to treat your injuries? An effective attorney can help you with these questions.

Georgia statute §33-24-56.1 is known as the “Reimbursement Statute” under Georgia law. This law prohibits the insurance company from being reimbursed “if” you have not been fully compensated for all economic and noneconomic losses. §O.C.G.A. §33-24-56.1(b). Determining “if” you have been fully compensated requires a complete understanding of Georgia law because the issue is often complex.

Another important consideration is that O.C.G.A. §33-24-56.1(c) prohibits your health insurance company from withholding or reducing your coverage as a setoff for reimbursement. The law also prohibits insurance companies from creating policies or contracts that conflict with the law. O.C.G.A. §33-24-56.1. The law also sets forth a procedure to be followed by the you, the injured party in providing notice of the personal injury claim to the benefit provider (O.C.G.A. §33-24-56.1).

The point is clear: understanding the law when reviewing your policy is vital to maximizing your negotiating position with stubborn insurance companies, to help protect the compensation you receive, for the injuries you suffered.
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