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claire's.jpgMore toxic, poisonous toy jewelry bracelets for kids have been recalled. These were bracelets that were sold at Claire’s as having high levels of harmful cadmium.

Federal regulators released the recall of children’s jewelry due to dangerous levels of the toxin cadmium saying they are expanding their investigation in order to keep these dangerous products out of stores to begin with.

The U.S. Consumer Product Safety Commission announced that inspectors at 10 of the nation’s largest ports are now screening children’s jewelry, often imported from China, for these toxic chemicals.

A voluntary recall of about 19,000 “Best Friends” charm bracelet sets manufactured in China and sold at the jewelry store Claire’s, over 3,000 stores which are located in North America and Europe.

Agency scientists confirmed independent test results that were reported by AP in January, which showed high levels of cadmium in the “Best Friends” bracelet.

“Cadmium is toxic if ingested by children and can cause adverse health effects,” said the recent recall announcement. Medical research shows that cadmium in high levels is a known carcinogen which can cause cancer, harm bones and kidneys.

Consumers should immediately take away bracelets from any children, and can return them to Claire’s for replacement or refund.

It is unknown why Claire’s waited four months to agree to a recall for the “Best Friends” bracelets it had sold in the year before the Associated Press coming out with the investigative story. This recent recall was the third one initiated because of the Associated Press’s investigation.
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The best way to resolve a bullying problem with the school is to try and take a non-adversarial collaborative approach. If that doesn’t work, you can pursue other legal means to protect your child’s rights. But the best strategy is to try and resolve it with the school principals and teachers as part of a team, using a non-adversarial approach if at all possible.

In order to protect your child’s rights, and insure that you can reach a positive resolution, it is important to document all communications in writing. Getting your child’s teachers, principals, guidance counselor, and other school administrator’s email addresses is an important first step. Rather than coming across adversarial, be polite but firm in all emails, telephone calls, and face to face conversations. Let them know that you appreciate their commitment to educating children and ask for help. Let them know that your child is in danger at school and does not feel safe.

Ask for a meeting with the school principal and teachers to address this problem and work out a strategy for how to handle future bullying incidents. Let the school administrators know that you expect them to implement zero tolerance for bullying policies, enforce Georgia law, and to punish the kids who are bullying in addition to informing the parents of those involved.

After the meeting, document the results of the meeting in writing via email or letter to the principals and teachers, confirming the plan that was set in place to protect your child and thank them for helping you resolve this issue.

If communicating with the principals, teachers, and school administrators fails to work, there are other steps that you can take to solve your child’s bullying problem. Here are a couple suggstions to keep in mind:

1. If another child or teenager assaults your child (e.g. punches them in the face or gravely injures them) consider pressing charges. You shouldn’t go to the local police station in instances when dealing with a minor. Rather, you can contact the school resource officer and you can file a report with the local juvenile court to file an official complaint against the juvenile delinquent for unruly behavior. This will show both the bully and the bully’s parents that you mean business and will not tolerate or accept your son or daughter to be the victim of violence and harassment.

2. Consider hiring an attorney. A good attorney will understand the legal implications and duties that the school has to prevent your child from becoming the victim of incessant bullying.
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The statute of limitations on a written contract is six years and the statute of limitations on an oral contract is four. This means you have a six or four year time frame to sue a party who has breached their contract with you. What if someone entered a written or oral contractual agreement with you but the statute of limitations has already expired?

Well, the law in Georgia under O.C.G.A. §9-3-110 states: “A new promise in order to renew a right of action already barred or to constitute a point from which the limitation shall commence running on a right of action not yet barred, shall be in writing, either in the party’s own handwriting or subscribed by him or someone authorized by him.”

The new promise may be express or may be implied from an acknowledgement of an existing debt. The new promise or acknowledgement, in addition to being in writing, must meet two requirements: 1) it must be made by the debtor to the creditor, and 2) must “sufficiently identify the debt or afford a means of identification with reasonable certainty,” although it is unnecessary that the acknowledgment state the amount of debt. See National City Bank v. First Nat’l Bank, 193 Ga. 477 (1942.) Additionally, a new promise to pay may be evidenced by a series of letters. Id.

Thus, the written acknowledgment or new promise establishes a new point from which the statute of limitations begins to run. See Langford v. First Nat’l Bank, 122 Ga. App. 210 (1970). This means, if someone owes you money but the statute of limitations has already run out—you can try to extend it by writing them a letter or email about the money they owe you to see if they respond. If they respond by acknowledging the debt (see the criteria as stated above) the statute of limitations will be extended.

Additionally, when a new promise is given, the duration of the limitation is governed by the nature of the original obligation; thus, a written promise reviving the period of limitation for a written contract would be six years. A written promise reviving the period of limitation for an oral contract would be four.
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“Sufrí lesiones por culpa de un médico y necesito conseguir un abogado” o “Sufrí lesiones por culpa de un hospital y necesito conseguir un abogado” son algunas de las situaciones en las que goza de un derecho constitucional para pedir un resarcimiento justo y pleno por el dolor y sufrimiento ocasionados, ya sea si las lesiones ocurrieron en Rome, Dalton, Condado de Cobb (Cobb County), Condado de Fulton (Fulton County), Condado de Gwinnett (Gwinnett County), Condado de Floyd (Floyd County), Calhoun o Condado de Dekalb (Dekalb County).

Hoy es un día maravilloso para los ciudadanos de Georgia. La Corte Suprema de Georgia derogó el tope de $350,000 que la Asamblea Legislativa de Georgia estableció para casos de mala praxis médica. La Corte Suprema, en el caso Atlanta Oculoplastic Surgery, P.C. contra Nestlehutt, declaró la inconstitucionalidad de la ley que limitaba el monto de dinero para resarcir a pacientes que fueran lesionados a causa de la negligencia de un médico u hospital.

Antes del dictamen de la Corte Suprema de Georgia, no importaba que el médico cortara el brazo o la pierna equivocada de un paciente o incluso que matara al paciente debido a una negligencia médica. El tope máximo para resarcir al paciente del dolor y del sufrimiento era de $350,000. A pesar de que una persona con lesiones menores (por ejemplo, un error de diagnóstico menor) no se viera gravemente afectada por este tope, esta ley perjudicaba principalmente a quienes sufrieran lesiones graves. El fallo de la Corte Suprema de Georgia del día de hoy es un buen ejemplo del efecto devastador que tenía el límite sobre personas gravemente lesionadas.

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En estos difíciles tiempos económicos, más y más consumidores se ven engañados por empresas que hacen publicidades falsas sobre sus productos y servicios, incumplen contratos o no cumplen con sus promesas. Si ha sido víctima de prácticas injustas o ilegales, la Ley de Prácticas Comerciales Justas de Georgia lo protege. Esta ley de Georgia regula las prácticas injustas o engañosas en las transacciones de los consumidores de Georgia, a las cuales se define como transacciones con fines personales, familiares o domésticos. La Ley permite a los ciudadanos particulares de Georgia iniciar juicios por infracciones en determinadas circunstancias. Las actividades prohibidas por la Ley de Prácticas Comerciales Justas de Georgia incluyen, pero no se limitan a, las siguientes actividades:

• Declaraciones falsas o confusas sobre un producto o servicio comercial 
• Describir bienes usados, incluso vehículos, como nuevos cuando en realidad no lo son • Afirmaciones falsas con respecto a la calidad particular de un producto o tipo especial de servicio

Si se han vulnerado sus derechos como consumidor de Georgia, hay recursos privados para sujetos dañados o perjudicados por un acto o práctica injustos o engañosos. Estos recursos pueden incluir:

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Profits Article.jpgOn this blog site, we have written about the difficulties that Georgia law creates for employers who want to recover punitive damages related to their breach of contract claims. Today we will briefly discuss another area that seriously affects the economic viability of both large and small businesses: recovering lost (anticipated) profits due to another party breaching your contractual agreement. Understandably, recovering lost profits may seem straightforward to you, but Georgia courts don’t see it that way. As we have said before, In Georgia, you need a good lawyer to navigate the tricky issues pertaining to breach-of-contract claims, including the difficulties associated with recovering lost profits, which you may be legally entitled to.

Here’s the problem: The Georgia Court of Appeals feels that “ordinarily, anticipated profits are too speculative to be recovered.” However, the term ordinarily, used by the Court, does not mean anticipated profits are never recoverable. There are circumstances that may allow you to recover anticipated (lost) profits when a person breaches a contractual agreement made with you.

Ask yourself the following questions, because if you call us based on this entry and/or others, we are going to definitely ask you the following questions, and many more:

1. Is your business established? That is, how long have you been around? Typically, new businesses have a much harder time recovering lost profits because many do not have “definite, certain, and reasonable” data to support their claim for lost profits. That means, to Georgia courts, your profits lean more towards being speculative than certain, so recovery may be more difficult.

Ask yourself: if my business has been around for only one year, or two, can I really claim that, had the other party not breached our contract, my profits were almost certain? If the answer is yes, then a few counters would be: how do you know? where is the consistent data? Aren’t the first 0-5 years extremely volatile, profit-wise, for businesses? Evidently, young businesses have it tough in this area of recovery.

2. Even if you own an established business and have definite, certain, and reasonable data to demonstrate lost (anticipated) profits, Georgia courts (and we) still want to know: At the time you and the other party entered into the contract, which was eventually breached, did the breaching party understand that breaking the contract would produce negative economic consequences for your business? Again, due to the confusing nature of this issue, focus on what was understood at the time you entered into the contract.

For example, you may have had a significant event that was dependent on your contractual agreement being executed in a “time-of-the-essence” manner. Did the breaching party know that? Did you make that known in the contract? Or, was it an oral agreement, which would involve entirely different legal issues regarding proof of the understanding.

Notably, the two above-mentioned issues do not have to be proven with mathematical certainty. But your lawyer must:

1. Show the probable gain [profits], with great specificity;
2. Show the expenses incurred in realizing such profits, with great specificity; and 3. Demonstrate that the lost (anticipated) profits incurred are directly related to the acts of the party who breached the contract.

As you can read, the situation is complex, and the above-mentioned are just a few of the issues and questions that must be properly analyzed.

Simply put, contract disputes are difficult. Find a good lawyer who understands how to maximize your total recovery.
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En todo el país, los errores en el surtido de medicamentos recetados producen lesiones y, a veces, matan a cientos de personas todos los años. A medida que las farmacias tienen más trabajo, aumenta la probabilidad de que cometan un error. En 1998, Georgia tomó medidas para combatir este problema. La Asamblea Legislativa de Georgia fortaleció leyes y reglamentaciones sobre el comportamiento de las farmacias. Estas leyes aplican a todos los lugares de Georgia, como Rome, Dalton, Condado de Cobb (Cobb County), Condado de Fulton (Fulton County), Condado de Gwinnett (Gwinnett County), Condado de Floyd (Floyd County), Calhoun o Condado de Dekalb (Dekalb County). No obstante, muchas personas en todo Georgia siguen recibiendo medicamentos equivocados debido a errores de las farmacias. Una vez que usted o alguno de sus seres queridos haya sido víctima del error de una farmacia, surge la pregunta: ¿cómo maximizo el resarcimiento por las lesiones que he sufrido? La respuesta no es tan fácil como puede pensar.

En Georgia, cada farmacéutico tiene la obligación de garantizar que cada medicamento recetado que sea entregado a usted sea el correcto. Esto significa que el farmacéutico debe revisar la receta (salvo algunas excepciones menores). El farmacéutico también es responsable de todas las decisiones sobre su receta que requieran un “criterio profesional”. Por ejemplo, si usted preguntara sobre un cambio reciente en el color del medicamento o sobre cómo su medicamento puede interactuar con otro medicamento que ya está tomando en ese momento, el farmacéutico -no el asistente técnico- es responsable de responder a esas preguntas.

Más aún, muchos médicos le recetan un medicamento que parece escrito en otro idioma. No obstante, que una receta se vea ilegible no es excusa para que le den un medicamento equivocado. Por ley, el farmacéutico está obligado a llamar al médico que le haya emitido la receta ¡para verificar cuál es el medicamento recetado!

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contract.jpgAlmost everyone in our country is affected by contract agreements. And people and businesses break those agreements all the time. That’s reality. And when someone or a business fails to perform as he or she promised, in accordance with a contract, clients seem to always ask: can I recover more money as punishment for the reproachable manner in which our contract was breached? The answer, in Georgia: maybe.

The Georgia code expressly states “[u]nless otherwise provided by law, exemplary damages shall never be allowed in cases arising on contracts.” O.C.G.A. § 13-6-10. (Exemplary damages are commonly referred to as punitive damages, a penalty [punishment] imposed against the wrong-doer to deter future, similar conduct.)

As you can read, the Georgia code disfavors punitive damages for breach of contract actions, and the Georgia courts have agreed. But, there exists avenues other than stating your claim as a breach of contract, in order to maximize your recovery if punitive damages seem warranted. You may be able to claim that the person who breached your contract committed a civil tort against you.

A civil tort is an unlawful violation of a private right other than a breach of contract, generally. That means the wrong-doer must breach an independent duty created by statute or common law that, importantly, was owed to you. And that breach of duty must be the actual or proximate cause of your injury (damages). So if a person or business committed a civil tort against you arising out of a contract, then, punitive damages may be possible, under Georgia’s civil tort statute, O.C.G.A. § 51-12-5.1.

For example, if a a person keeps a car without paying rental fees owed to you by contract, Georgia courts have reasoned that the civil tort of conversion may be claimed against that wrong-doer (and punitive damages possible), since he or she is unlawfully in possession of your property, after defaulting on payment. Or, maybe fraud or deceit was committed against you in the context of a contract agreement. Or, maybe a third party (stranger to the contract) interfered with your contractual rights and thus caused your contract to be terminated.

The above-mentioned civil claims are complex, but nevertheless they are tort claims, and while they may arise out of a contract dispute, these type of claims carry with them an independent cause of action that “may” entitle you to punitive damages. Ultimately, the substance of your claim–as “truly” being a tort claim rather than being a breach of contract claim in disguise–will determine if punitive damages are on the table, in Georgia.

(You must always be mindful that punitive damages, in Georgia, can be difficult to recover because the conduct in question must be more than merely negligent conduct or even grossly negligent. Generally, the conduct must be intentional or willful, or demonstrate a complete want of care that would lead an ordinary person to presume that the wrong-doer had a conscious disregard for the consequences of his or her action[s].)

You definitely need a good lawyer when dealing with breach of contract issues because whether or not punitive damages are possible, a good lawyer still must evaluate issues such as liquidated damages provisions (O.C.G.A. § 13-6-7); mitigation of damages (O.C.G.A. § 13-6-5); recovery of lost profits; and recovery of actual, remote, or consequential damages, amongst many other considerations.

Every case is different. So your recovery will depend on a good lawyer who can apply the unique facts of your case to the multiple facets of Georgia law.
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disability.jpgUnder federal law, the Americans With Disabilities Act places strict limits on collecting and using an employee’s medical information. Employers should never require a job applicant to take a medical exams or answer medical questions before the employer makes a job offer. However, employers may condition a job offer on the satisfactory result of a post-offer medical exam or inquiry if it is a prerequisite for all new employees in the same job description.

If this post-offer medical exam or inquiry reveals that the person had a disability and the person is consequently not hired, the reason the person was rejected must be related to their job and necessary for the business. Additionally, the employer must also show no reasonable accommodation was available that would have enabled this person to perform the essential job functions, or that if the employer had provided an accommodation it would have posed an undue hardship.

Finally, information from all medical exams and inquiries must be collected and maintained on separate forms, in separate medical files, and must be carefully handled as a confidential medical record. Nonetheless, supervisors and managers may be informed about the necessary restrictions and accommodations required for the employee’s job duties, and safety staff may be informed if the person’s disability could require emergency treatment. There are also exceptions dealing with state workers’ compensation offices, insurance companies, and government investigations.
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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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