Articles Posted in Wrongful Death

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Tekila Mynon Glass, age 30, from Riverdale, Georgia was charged with misdemeanor vehicular homicide as a result of the death on Sept. 18, 2011 of a 1-year-old child who was in a stroller at Lenora Park in Gwinnett County.

Witnesses who observed Ms. Glass strike the child in the stroller as she backed up with her 2005 Chrysler Pacifica through the parking lot at Lenora Park on Lenora Church Road are urged to contact the Accident Investigation Unit at 770-338-5675.

Tekila Mynon Glass, was charged with improper backing which resulted in the death of Olivia Hellwig. Broooke Hellwig was the mother of Olivia Hellwig. Ms. Hellwig was pushing Olivia in her stroller when her young daughter was killed.

Olivia Hellwig was transported to Children’s Healthcare at Egleston in Atlanta where very sadly she tragically died. Her mother, Brooke Hellwig, was also treated for injuries police said. Her greatest injury of course was the loss of her young daughter due to the negligence of Ms. Glass.

Gwinnett County police report revealed that Glass’ vehicle carried six passengers. The police request that anyone who has witnessed the accident and has yet to speak with investigators to please contact the Accident Investigation Unit at 770-338-5675.

Good Georgia Lawyer urges our legislature to craft stricter laws that will keep pedestrians safe and prevent terrible tragedies that result in the loss of life. In the event a Georgia citizen dies due to the result of someone’s negligence, then the negligent driver is generally held liable for a failure to exercise reasonable care while driving. Hopefully, it is the case that Ms. Glass carried an ample insurance policy so that the family of the young child she killed may receive damages—money given as compensation to assist a family in a personal injury suit.

In Georgia, there are two major types of damages–compensatory and punitives. Punitives punish and deter the offender from injuring someone in the future. Compensatory helps with medical bills, funeral costs, pain and suffering.

If you know someone who has experienced the loss of a loved one due to the negligence of a person or a corporation, we encourage you to seek legal advice immediately.

Good Georgia Lawyer implores all Georgians to drive carefully: always pay attention when backing up your vehicle in a parking lot. You never know what precious cargo may be in your path and your life as well as the life of someone else can change in a split second if you are not exercising caution at all times while driving.
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A very sad tragedy occurred for a Clayton County, Georgia family this past weekend. Franky J. Cassidy, a 24-year-old man was struck and killed while riding his motorcycle home from work. Marvlyn Eugene Martin, was drunk driving when he ran into Cassidy’s motorcycle head on at 4 a.m.

Police stated that Martin had a blood-alcohol count of .192 percent, more than double the legal limit. Martin was charged with driving under the influence, homicide by vehicle, having an open container of alcohol in his vehicle and other traffic violations.

The Atlanta Journal Constitution reported that as of yesterday, Martin was held without bond on the homicide charge in the Clayton County jail.

The fact that Martin was driving intoxicated will certainly be admissible and would be the primary factor for proving punitive damages in a wrongful death lawsuit. At a trial of any civil or criminal action arising from actions alleged to have been committed by any person in violation of O.C.G.A. 40-6-391, evidence of the amount of drug or alcohol in a person’s blood, breath, urine or other bodily fluid at the alleged time, as determined by chemical analysis shall be admissible. Cheevers v. Clark, 214 Ga. App. 866 (1994).

When a police officer requests a driver to submit to a chemical test because of actions alleged to have been conducted while driving a motor vehicle under the influence of drugs or alcohol, and the police officer arrests that persons, O.C.G.A. 40-6-392 requires that the police officer informs him at the time of the arrest of his or her right to an independent analysis to test the amount of drugs or alcohol present in the blood stream in order for the test administered by the police to be admissible at trial to prove the accused was driving under the influence of drugs or alcohol. Carswell v. State, 171 Ga. App. 455 (1984).
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footballs.JPGDear Dr. John Barge:

Our law firm urges you to submit a DOE proposed rule pursuant to O.C.G.A. §50-13-4(b) that protects our young Georgia student athletes from further injury and death due to heat related illnesses as a result of sports practice in high temperatures during the most dangerous months of the summer. As you know, just last week, two Georgia high school students have died from heat exposure during football practice – two deaths that should have been completely treatable and avoidable. These deaths are two too many.

Consequently, we ask that you take action by issuing State DOE recommendations to local county school districts, in addition to submitting a proposed rule concerning school sports safety before another student’s life is put at risk.

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This is a video clip that would be hilariously funny if it was not so true. This is a conversation between an injured person and an insurance company adjuster. The insurance company adjuster represents the drunk driver who caused the injured person’s broken legs and brain injury.

Many people make the horrible mistake of trusting the insurance adjuster who represents the person that hurt them. No matter what type of injury case you are involved in, this is the worst thing you can do. The insurance adjuster is not on your side! Their only goal is to try and get you to settle for as low of an amount of money as possible.

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GA state patrol.jpgThe second fatal collision occurred last week in Moultrie, Georgia this time involving a motorcycle and truck. The Georgia State Patrol investigators reported that a 1996 Toyota Tacoma, driven by an 81 year old man named James Henry Smith, failed to yield when crossing a road, hitting a motorcycle that was driven by 30 year old Randy Larry Harris.

Very sadly, Mr. Harris was ejected from his motorcycle and died at the scene. Mr. Harris, a young man at age 30, tragically left behind a loving wife, children, and large extended family from West Berrien. He was a diesel mechanic and shop supervisor at the Berrien County Bus Shop, and a member of Ebenezer Baptist Church. The elderly driver who hit him was given a citation for failing to yield.

Very sadly, motor vehicle crashes such as this one are the leading cause of injury and death in the United States. The most recent 2010 report put out by the CDC (Center for Disease Control) reports that motor vehicle crashes are the leading in fact the cause of death among those age 5-34 in the U.S. The financial impact is also significant: the lifetime costs of automobile crash deaths and injuries among Americans was listed at $70 billion a year just a few years ago.

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New Georgia biking law General Assembly House Bill 101, which went into effect July 1, provides for safer bicycle riding for bicyclists and the motoring public.

It also spells out minimum safety guidelines for bicycle lanes in Georgia.

Georgia bikers say they hope the new law encourages motorists and bikers to be more careful. Reports of accidents between motorists and cyclists in 2009 and 2010 faulted cyclists at 48 percent of the time and motorists around 39 percent of the time. The remaining percentage was for no fault or when both parties (the cyclist and motorist) were both to blame.

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Georgia wrongful death lawyers at our firm have explained the laws concerning wrongful death before in other articles. Today’s article will explain when a minor can still sue for the wrongful death of their mother or father who died, even if it happened years ago.

An action for wrongful death in Georgia is solely created by statute and does not exist in common law. What this means is that the Wrongful Death Act in Georgia, O.C.G.A. § 51-4-1 et seq., must be strictly interpreted and not extended beyond its plain meaning and explicit terms.

Wrongful Death Statute of Limitations Extended for Minors:

The language of the Act, given its plain and ordinary meaning, does not contain a separate, internal statute of limitation that applies specifically to a wrongful death claim. As a result, O.C.G.A. § 9-3-33, the general two-year statute of limitation for personal injury claims, applies to wrongful death claims that do not arise from medical malpractice.

Under § 9-3-33, actions for injuries to the person generally shall be brought within two years after the right of action accrues.

Consequently, the courts have made clear in Georgia that if you have a wrongful death in Georgia, you must sue within the two years of your loved one’s passing in order to secure your claim. However, if your mother or father died while you were still under the age of 18, i.e. a “minor,” you will still have an additional two years after you turn 18 to file a wrongful death lawsuit.

Wrongful Death: Terminating Life Support Without Family Approval:

Under State of Georgia law, the decision of whether to continue or terminate life support belongs exclusively to the patient’s family or legal guardian, not to the hospital, the doctors, or the State. A claim based upon a physician’s termination of life support of a child over the objections of the child’s parents constitutes a claim for wrongful death. DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 843 (Ga. Ct. App. 2007)

In 2007, an important case arose after a young mother named Tara Hawkins fell and sustained severe head trauma. When Hawkins arrived at the Dekalb Medical Center, she was unconscious and sadly, she never regained consciousness. Hawkins, who was pregnant, remained on life support for nearly four months.

During that time, some of her physicians believed that she was brain dead and that her baby would not survive. Based upon these opinions, DMC repeatedly recommended an and the termination of her life support. Hawkins’ mother refused to agree to the abortion or termination of life support. On March 16, 2004, a DMC nurse discovered that Hawkins had spontaneously given birth to her son, Emmanuel Hawkins, without any medical assistance. Emmanuel weighed less than three pounds and suffered from numerous medical ailments.

Two days after giving birth, DMC terminated Hawkins life support, and she died that very day. There is no evidence in the record that, prior to terminating life support, Hawkins was terminally ill or that her death was imminent, nor was there any evidence that her brain function deteriorated or that her prognosis changed after Emmanuel’s birth. No family member, including Hawkins’ mother, had agreed to the termination of life support. Further, Hawkins did not have a “living will” or other advanced medical directive, and there was no court order giving DMC permission to terminate life support without the family’s consent.

On May 15, 2006, more than two years after Hawkins’ death, her mother, Nonnie Hawkins, as the next friend and natural guardian of Emmanuel Hawkins, filed a lawsuit against DMC, Marshall Nash, M.D., and DeKalb Neurology Associates, LLC. The lawsuit asserted a claim against DMC for “tortious termination of life support,” claiming that the hospital discontinued life support without the permission of her mother, the consent of any family member, or a court order.

The Georgia Court of Appeals ruled that based upon the plain language of the statutes at issue, the lack of an internal statute of limitation in the Wrongful Death Act, the lack of language limiting the application of the tolling provisions in the Wrongful Death Act, and the absence of any Georgia appellate court rulings to the contrary, that the minority tolling provision of OCGA § 9-3-90 (a) applies to a wrongful death action brought by a minor for the death of a parent when the action is not based upon medical malpractice.

What this means in plain English is that if you are a person less than 20 years of age whose father or mother was wrongfully killed (outside of medical malpractice reasons) you may still have a wrongful death claim against the person or entity responsible, even if your parent died long ago.

However, because this law is so complex and because the clock is ticking on the expiration date of such a claim, it is important to seek competent, legal counsel as soon as possible.
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In Georgia, who is allowed to bring a lawsuit when someone dies? Wrongful death is a terrible thing for any loved one to go through. Oftentimes, many family members are not only emotionally affected by their loved one’s loss but can be significantly impacted financially as well.

The people allowed to bring a wrongful death action are in strict order under Georgia law. Currently, the wrongful death claim is considered property of the estate of the deceased, thus potentially involving a large group of the loved one’s heirs at law. This can naturally mean a lot of people could have a legal claim depending which relatives are still alive.

Wrongful death lawsuits in Georgia may be maintained primarily by three different persons or groups: (1) surviving spouse or children, O.C.G.A. § 51-4-2 (2) parents, O.C.G.A. § 51-4-4 and (3) the decedent’s personal representative. O.C.G.A. § 51-4-5.

Unfortunately for the grand-kids, the statute vesting the right to recover for wrongful death in the surviving spouse or children does not permit participation in the recovery by a grandchild unless his parent was an original claimant and dies during the pendency of the litigation.Tolbert v. Maner, 271 Ga. 207, 208-209, 518 S.E.2d 423 (1999).

However, one of the many unique attributes within Georgia’s wrongful death law is that it provides exclusive standing to maintain the action on the surviving husband or wife of the dead spouse without giving all the rights to the claim in him or her (without allowing her claim to all the recovery). “The spouse is required to share the proceeds with the children. This means the spouse acts not solely as an independent party but rather as an individual and as a representative of the children.” Mack v. Moore, 256 Ga. 138, 138, 345 S.E.2d 338 (1986) (overruled on other grounds by, Brown v. Liberty Oil & Refining Corp., 261 Ga. 214, 403 S.E.2d 806 (1991)).

The surviving husband or wife of the dead spouse holds any amount recovered in a wrongful death action subject to the law of descents. This means the money from a wrongful death claim must be divided between the surviving spouse and the decedent’s children (or the children’s descendants equally if the child is dead), with the spouse taking a child’s share, but not less than one-third. O.C.G.A. § 51-4-2. Illegitimacy of a child is no bar to his participation in the recovery.

In an action for the wrongful death of a parent or spouse, the lawsuit does not go away because of the death of the plaintiff. It survives to the remaining children of the deceased O.C.G.A. § 51-4-2(b) or to his personal representative.O.C.G.A. § 51-4-5. Fortunately, it is not subject to any debts of the dead person. O.C.G.A. § 51-4-2(e).

Brothers and sisters of the decedent do not have any rights to proceed with a wrongful death action. If the only relatives living are siblings, the right to file a wrongful death claim will fall upon the decedent’s personal representative who would administer the estate.

In any event, all wrongful death claims have statutory deadlines that will expire if a lawsuit is not filed in time. Consequently, if you are interested in considering a wrongful death suit, it is important to seek legal counsel as soon as practicable.
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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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