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doctors.jpg “I was injured by a doctor and I need to find a lawyer” or “I was injured by the hospital and I need to find a lawyer,” are now scenarios where you have the constitutional right to seek fair and full recovery for pain and suffering.

Today was a wonderful day for the citizens of Georgia. The Georgia Supreme Court abolished the $350,000 cap that the Georgia legislature placed on medical malpractice cases. The Supreme Court ruled in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, that the law, which limited the amount of money a patient injured by a doctor or hospital’s negligence could recover, was unconstitutional.

Prior to the Georgia Supreme Court ruling, it didn’t matter if the doctor had cut off the wrong arm and leg of a patient, or even killed you due to medical negligence—$350,000 was the most you could recover for your pain and suffering. While someone with minor injuries (a minor misdiagnosis for example) wasn’t severely affected by this cap, this law hurt those who were severely injured the most. The Georgia Supreme Court case ruled on today provides a good example of the devastating affect the cap had on gravely injured people.

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Judge.jpgIn Georgia, and everywhere, as too many employers know, employees solicit (attempt to steal) clients from their former employer. There exist obvious and significant financial and professional incentives for employers to prevent this from happening. The answer is a well drafted non solicitation agreement, amongst other safeguards. The problem is that many non solicitation agreements are poorly drafted, because whoever drafted the agreement failed to take into account applicable, and stringent, Georgia laws. In the world of non compete/solicitation agreements, Georgia law is notorious for being extremely unfavorable to employers. And although the Georgia legislature passed employer-friendly legislation (HB 173) in this area, and Governor Sonny Perdue signed that legislation into law, voters must still amend the Georgia Constitution so that the legislature has the power to make HB 173 actual law. That may be difficult.

Regardless, Georgia courts, currently, strictly construe non solicitation agreements. That means: if any potion of your non compete/non solicitation agreement is held to be invalid, the entire agreement is void.

We have written about non compete and non solicitation agreements before on this blog. Today, we are writing this entry to give you a few considerations when reviewing or attempting to draft your own non solicitation clause, although we highly recommend that you seek a good lawyer who has experience in this area to help you with drafting these types of agreements; the stakes are too high to rely on a poorly drafted agreement made by someone who is not familiar with Georgia law.

Some considerations:

The law: “Georgia law is clear that unless the non-solicit covenant pertains to those clients with whom the employee had a business relationship during the term of the agreement, the non solicit covenant must contain a territorial restriction.” Trujillo v. Great Southern Equipment Sales, LLC, citing Advance Technology Consultants v RoadTrac, 250 Ga. App 317.

In Trujillo (the above-mentioned case) the employer illegally expanded the class of prohibitve clients by stating, within the non solicitation clause, that

“the non-solicitation restriction set forth in this Section 2 is specifically limited to Customers of Employer with whom Employee had contact… or about whom Employee had a confidential or proprietary information becasue of his/her position with Employer.”

As you can read, the employer started off great, by restricting the scope of the clause to clients that the employee truly had contact with. But then the non solicitation clause went awry of strict Georgia law, by stating that the employee could not solicit clients that he or she had gained confidential or proprietary information about, by merely working for the employer. While you may think that’s a reasonable restriction, Georgia courts do not.

The Trujillo court reasoned that the language pertaining to confidential and proprietary information did not constitute a valid confidentiality provision or a “reiteration” of the confidentiality clause found in Trujillo’s contract. Rather that language, in the Court’s opinion, constituted an impermissible attempt by the employer to broaden the class of customers (clients) whom Trujillo could not solicit. As a result, the court stated–and this is what really hurts employers– “because the non-solicitation clause was unenforceable, the non competition clause included in the agreement was likewise unenforceable.” That’s a result that you as an employer do not want.

What lessons can be learned? First, get a good lawyer that knows Georgia law in the area of non compete non solicitation agreements. Second, regardless if you’re an attorney or not, don’t try to be “slick” when drafting these agreements. The Trujillo court made it clear: just because you do not use the red-flag term all clients does not mean that you can avoid the harsh and scrutinizing results of Georgia law. Moreover, understand fully that if you decide to use broad language such as all clients, strongly consider placing a geographical limitation within the non solicitation clause.

Additionally, understand that non solicitation agreements do not mean that a client cannot solicit your employee– this area of law is tricky and involves other complex legal issues.

Ultimately, when you attempt to use a non solicitation agreement against an employee to protect your business interest, your success will depend on the facts of your case as applied to Georgia law. You need a good lawyer.
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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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Pharamcy.jpgThroughout the country, prescription misfills injure and sometimes kill hundreds of people, every year. As pharmacies become busier, the likelihood of pharmacy error increases. In 1998, Georgia took action to combat this problem. The Georgia Legislature strengthened laws and regulations regarding pharmacy conduct. Nevertheless, many people throughout Georgia continue to receive the wrong medication due to pharmacy error. Once you or a loved one has become a victim of pharmacy error, the question becomes: how do I maximize my recovery for the injuries I have suffered? The answer is not as simple as you may think.

In Georgia, each pharmacist has an obligation to ensure that every prescription given to you is accurate. That means that the pharmacist must review the prescription (with a few minor exceptions). The pharmacist is also responsible for all decisions regarding your prescription that require “professional judgment.” For example, if you were to ask about a recent change in the color of your medication or about how your medication may interact with a current medication you are taking, the pharmacist–not the technical assistant–is responsible for answering these questions.

Furthermore, many physicians write your prescription in what seems like another language. Regardless, the fact that a prescription seems illegible is not an excuse for giving the wrong medication. By law, the pharmacist must call the prescribing physician to verify what your prescription is!

But merely receiving the wrong medication will not solely determine your recovery. You must be injured, and your injury must be provable, because the extent of your injury (for example medical bills, rehabilitation, and loss wages) will play a signiifcant role in your recovery process. Unfortunately, your recovery will also depend on another important factor: Were you at fault? And if so, to what degree was your fault?

Our experience has demonstrated that maximizing a victims recovery in prescription-error cases inevitably involves what Georgia law refers to as comparative fault–the extent of your fault in taking the wrong medication. For example, a few questions in the minds of insurance adjusters and probably jurors may be: how long have you been taking the medication you were supposed to receive? If you have been taking a particular medication for, say, 5 years, and your medication is a small red pill, then, when the pharmacist made an error by giving you a big orange pill: why did you take it? Didn’t the color warn you of a potential problem? That sounds unfair and it is; you did not make the mistake. But the harsh reality is that Georgia law permits insurance companies and juries to take into consideration the extent of your so-called “fault,” when deciding what compensation will be given to you for your injuries.

Lastly, in order to maximize your recovery, you need a lawyer who understands punitive damages, which is an amount of money given to you, as a way of punishing the wrong doer (in this case, the pharmacy) to deter future, similiar conduct. Punitive damages are not easy to recover. In fact, to recover punitive damages in Georgia, proving mere negligence or even gross negligence is not enough. That means that merely giving you the wrong medication will not help maximize your recovery, at trial or during negotiations. In the context of pharmacy error, your lawyer will most likely have to prove a complete “want of care” on the part of the pharmacy. This is tough. But a lawyer with pharmacy-error experience and strong legal skills definitely increases your chances of maximizing your recovery. Ultimately, everything will depend on an in-depth understanding of how the facts and evidence of your case apply to Georgia law.
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bullying.jpgThis week, the Georgia House finally passed a controversial bullying bill, the purpose of which is to strengthen the state’s anti-bullying laws.

Rep. Mike Jacobs (R-Atlanta) wrote the bill. It originally did not pass, but on Tuesday made it through as an amendment to a measure dealing with school bus safety.

The amendment was approved 95 to 55, and the bill then cleared 119 to 45.
Rep. Carolyn Hughley (D-Columbus) said the bill was needed and timely.

The new bullying law would allow administrators to transfer a bully to another school and would also make it a crime for principals to knowingly not report bullying to authorities. The bill was initiated because of an incident involving an 11-year-old DeKalb County student who killed himself last year because of bullying and teasing.

For those who have children who suffer from bullying, it is important to document your concerns in writing and express them to the school principal, assistant principal, and school superintendent. If the school administrators fail to cooperate or comply with Georgia anti-bullying laws, consider contacting a good Georgia lawyer to assist you.
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A California Highway Patrol police officer helped rescue a runaway Toyota Prius speeding out of control at 94 miles per hour to a safe stop after the car’s accelerator went out of control nearly killing the driver.

The driver explained that he wasn’t doing anything but the car kept speeding up and that he could smell brakes burning because he pressed the pedal so hard.

The CHP police car pulled alongside the Prius and officers told the Toyota driver over a loudspeaker to push the brake pedal to the floor and turn on the emergency brake. Additionally, the police got the car on a steep upgrade to slow it down.

After the car decelerated to 50 miles per hour, the driver shut off the engine and coasted to a halt. The police then maneuvered his car in front of the Prius as a precaution.

Toyota dispatched a field technical specialist to San Diego to investigate.
Toyota has recalled 8.5 million vehicles worldwide — more than 6 million in the United States — because of acceleration problems in multiple models and braking issues in the Prius.

Toyota owners have complained of their vehicles speeding out of control despite efforts to slow down, sometimes resulting in deadly crashes. The government has received complaints of 34 deaths linked to sudden acceleration of Toyota vehicles since 2000.
One of the crashes killed a California police officer last year with his wife, brother in law, and the couples daughter after his Lexus accelerator got stuck,slammed into another vehicle at about 100 mph, careened off the freeway, hit an embankment, overturned and burst into flames.
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Here is a very interesting video that discusses the Atlanta Oculoplastic Surgery v. Nestlehutt case about to be decided by the Georgia Supreme Court, which challenges the current Georgia cap on medical malpractice at $350,000 as unconstitutional.

This case illustrates the incredible injustice of limiting patients who are victimized or killed by medical malpractice of a fair and full recovery to pay for their injuries or death due to medical negligence.

Hopefully the Georgia Supreme Court will decide in favor of patients rather than the giant propaganda machine put out by the insurance companies concerning medical malpractice–a deceptive agenda that pushes profits over human lives.

Limiting caps on valid medical malpractice claims, where patients have been severely killed or injured due to medical negligence is both a gross injustice and patently unconstitutional. The 14th Amendment of our United States Constitution states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

We hope and pray for a good outcome for Mrs. Nestlehutt and all the other present and future Georgians who are victims of serious injury or death due to medical negligence.
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The Alabama State Conference of the National Association for the Advancement of Colored People (NAACP) with the family of Michael McIntyre, a young black man who was shot and killed after being gunned down five times in the back by Tallassee, Alabama Police on December 29th, is calling for the Department of Justice and FBI to conduct a thorough investigation into their son’s death. Tallassee is a small rural town in eastern Alabama with a population of 5000 and a racial makeup of 80 percent white and 18 percent black.

News reports stated that the Tallassee police was serving a warrant at an apartment where Michael was visiting a friend. Michael did not have any warrants for his arrest, nor were the police looking for him. Witnesses reported that they observed police officers chasing Michael, the lead officer having a gun in his hand and that they did not observe Michael having a gun or threatening the police with a weapon as he ran from them. The police attempted to taze Michael and then shot him in the back as he was running away from them. The Alabama Bureau of Investigation reported to the family that police’s first shot landed in Michael’s upper left back, the second shot went directly into his spine, the third into his left buttock , the fourth shot went into his aortic valve, and the last shot landed in his upper left buttocks.

Reports stated that the police claimed that Michael McIntyre had produced a pistol as he was running away from the police and a gun was later found by the scene. However, the family emphasized that witnesses they interviewed never observed Michael with a gun as he was being chased by the police, and that witnesses also reported that they observed the police back a white SUV up to Michael’s body and carry something from the back of the SUV towards the body immediately after the shooting.

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Con frecuencia, las personas preguntan cuánto vale su reclamación. Y la respuesta nunca es simple. En casos de lesiones personales, los abogados de Georgia determinan con demasiada frecuencia el valor del resarcimiento meramente multiplicando el monto de las facturas médicas de la persona lesionada. Sin embargo, su resarcimiento no debe estar vinculado, únicamente, con una fórmula simplista y matemática.

En pocas palabras, el valor de su resarcimiento dependerá de lo que el jurado sienta que vale su resarcimiento. Pero, dado que en la mayoría de los casos se llega a un acuerdo (sin llegar jamás a un juicio con jurado), su resarcimiento depende, en general, de lo que el abogado o la compañía aseguradora de la otra parte crean que un jurado “podría” pensar sobre el valor de su resarcimiento. Entran en juego varios factores para demostrarle a la otra parte el valor de su resarcimiento. Estos son algunos de ellos:

1. ¿Cuál fue su grado de culpa (si correspondiera) en provocar las lesiones? Su abogado debe saber cómo evaluar esto para maximizar su resarcimiento.
2. ¿Recibió tratamiento en la escena del incidente?
3. ¿Hizo declaraciones que hayan quedado registradas a los liquidadores de seguros en la escena?
4. ¿Lo llevaron de urgencia a la sala de emergencias?
5. ¿Tuvo que ingresar al hospital y permanecer internado?
6. ¿A cuánto ascendían sus facturas médicas?
7. ¿La persona que le provocó la lesión lo hizo con malicia/intención/mala fe? Esto es importante porque si las lesiones fueron causadas por malicia/mala fe, entonces es probable que pueda ser resarcido por “daños punitivos”, que es un monto de dinero que el jurado decide que se le pague a usted para castigar al infractor.
8. ¿Requirió una cirugía?
9. ¿Tenía una enfermedad preexistente?
10. ¿Su lesión se debió a una negligencia médica con respecto a una cirugía estética/plástica o cirugía dental?
11. ¿Su lesión fue provocada por un accidente automovilístico?
12. ¿En qué lugar ocurrió la lesión en Georgia? 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). Donde ocurrieron sus lesiones es importante porque el jurado de diferentes ciudades/condados tiende a ser más o menos favorable hacia ciertos tipos de accidentes provocados por negligencia.

Su abogado debe investigar exhaustivamente estos asuntos y otros para determinar adecuadamente el valor de su resarcimiento. Sólo entonces pueden comenzar las negociaciones que le den prioridad a su interés.
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Email: julie@goodgeorgialawyer.com

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