Atlanta Personal Injury Lawyers Blog

As an Atlanta wrongful death lawyer who practices in north Georgia, I recently represented the divorced parents of an adult child killed in a trucking accident. The deceased was unmarried and had no children. One of the big issues was how the divorced parents would share the wrongful death proceeds from the settlement or the jury award. The following is a little of what I learned on the issue.

If the deceased child does not leave a surviving spouse or child, the parents have the right of recovery. The parents have the right jointly if they are married and living together. If either parent is deceased, the surviving parent will have the right of recovery. If both the parents are living, but are divorced, separated, or living apart, both parents continue to have the right, but that right is affected by the following:

If one parent refuses to proceed or cannot be located to proceed to recover for the wrongful death of a child, the other parent has the right to hire a lawyer on behalf of both parents and the results are binding on both parents. In this situation, except as discussed below, the ultimate recovery is to be shared equally by both parents. Where the absent parent cannot be found, their share will be held for two years. After two years, the parent who initiated the recovery can petition the court for the absent parent's funds.

Alternatively, either parent may file a motion prior to trial requesting the judge apportion any judgment awarded in the case. The judge will then have a hearing where each parent will have the opportunity to produce evidence of their relationship with the deceased child. After the hearing, the judge determines the percentage of the judgment to be awarded to each parent based on the parent's relationship with the child, including permanent custody, control, and support, as well as other factors the judge considers pertinent.

An example of how a judge might apportion damages is found in the Georgia case Hall v. Bailey. In this case, the deceased child was a 20 year old unmarried man. His mother petitioned the court to determine how to apportion the wrongful death proceeds between her and the father. After hearing, the judge awarded the mother 95% of the proceeds and the father 5% of the proceeds. The decision was based on evidence showing the father had really no relationship with the son. The parents were divorced when the son was 3 years old. The mother had custody of the son, provided for his day-to-day care during his minority, and maintained a close relationship him until he died. The father paid court ordered child support, but had little contact with him after the divorce. The son never spent the night with his father after the divorce, and the father did not exercise his visitation rights with the son.

These are some of the Georgia rules regarding how divorced parents share the proceeds from a settlement or a jury award stemming from the wrongful death on a child. I imagine there is no greater grief than that experienced by the surviving parents of a deceased child. If you are in a place where you would like to discuss how these rules might apply to you, please do not hesitate to call me directly at 404-488-4492.

As an Atlanta car accident lawyer, I try to read as much as I can about the types of accidents that occur in Atlanta and north Georgia. I read a very interesting article in the AJC online this week. According to the article, 5 people have died in wrong way crashes since November 2009, and the department of transportation says 22 have died on Atlanta roads since 2004. According to a study conducted by the DOT several years ago, most wrong way collisions are caused by drivers under the influence of alcohol or drugs or failing to take prescription medication.

The consequences of wrong way collisions are almost always catastrophic. Life changing injuries and death are the expected outcomes. Accordingly, victims of collisions with wrong way drivers need experienced personal injury lawyers to handle both the complex legal and complex damages issues that arise in these types of cases. Legally, because most drivers are DUI, the lawyer needs to know the ins and outs of pursuing punitive damages as well as the general damages of medical expenses, lost wages, etc.

Because the damages are catastrophic, the lawyer needs to know the complex medicine involved with life changing injuries and Georgia wrongful death law. The lawyer must also know the how to assist the catastrophically injured client to recover damages to take care of the long term needs of the client, which can include future income, future medical care, and future in home care, as well as other such issues.

Because the cost of such long term needs can be astronomical, the lawyer must also be an expert in finding available insurance to fund these damages. This is often one of the most difficult parts of handling a catastrophic injury case. It is heart breaking when the health care plan for a catastrophically injured client is in the millions and there is little or no insurance available to fund the plan.

The lawyers in our office have the experience to handle these types of cases. If you would like to discuss your claims with us, please do not hesitate to contact our office. We would welcome the opportunity to assist you.

As a medical malpractice attorney practicing in Atlanta and north Georgia, I was very pleased to hear that the Georgia Supreme Court has struck down a Georgia Statute setting a $350,000.00 cap on pain and suffering damages in medical malpractice cases. In Atlanta Oculoplastic Surgery v. Nestlehutt, No. S09A1432, the court found the cap unconstitutional because it denies the citizens of Georgia the right to a trial by jury as allowed under the Georgia Constitution.

I had written in an earlier blog that I thought that medical malpractice victims would likely remain hampered by the pain and suffering cap even if it had been struck down by the Supreme Court. The reason I thought this was because it looked like the Georgia Legislature would likely to try to quickly amend this law to insure the cap remained in place if it was truck down. Because of the rational of the Supreme Court in making its decision, I know longer feel the cap will be a problem in the future.

Because the Court held the statute was unconstitutional because it denies citizens the right to a jury trial, I don't think there is anything the legislature or the Governor can do to make future legislation capping damages constitutional. The only way a cap could be reinstated is if the citizens of Georgia passed a constitutional amendment allowing such a cap. This won't happen in my opinion because it would require an amendment taking away each individuals right to a jury trial.

The Georgia legislature initially enacted the caps to curtail the filing of "frivolous" medical malpractice lawsuits. But in reality, because of the expense involved in prosecuting these types of claims, in my opinion, there has never been a need to curtail "frivolous" suits. It has always simply been too costly to file any medical malpractice lawsuit unless the claims were serious and pursuing damages for significant injuries. What the caps really did was curtail legitimate suits. It is a good day for the citizens of Georgia that they are no longer in place.

As a medical malpractice attorney practicing in Atlanta and north Georgia, I was disappointed to hear the Georgia Supreme Court upheld parts of the 2005 tort reform this week making it very difficult, if not impossible, for Georgia patients to recover damages against emergency rooms and their doctors and staff. In a vote along what appear to be political party lines, the 4-3 majority of the court upheld the Georgia statute requiring patients to establish by clear and convincing evidence that an ER doctor committed gross negligence in order to prevail in a malpractice suit. Gross negligence is defined under Georgia law as the failure to exercise even a slight degree of care.

The majority's rational for upholding the law was basically that the legislature had legitimate reasons to promote affordable malpractice insurance for hospitals. Of course, medical malpractice insurance companies in Georgia consider the ruling a victory. Unfortunately, what is a victory for the insurance companies is a loss for the citizens of Georgia. In my opinion it is now almost impossible for a patient to successfully bring a medical malpractice claim against an emergency room doctor.

This is now the state of the law in Georgia when it comes to suing ER doctors. The only way the law will change will be if our General Assembly and Governor decide to amend the statute. I don't see this happening for a very long time, if ever. It will most likely happen if, and when, the political make up of our state government changes from pro-business and pro-insurance to pro-citizen -- from Republican to Democrat.

Fortunately, at this time, the law remains the same regarding bringing claims against other health care providers. Accordingly, the citizens of Georgia can pursue legitimate claims against non-emergency medical providers to recover damages for the often catastrophic consequences caused by medical negligence. If you believe you or a loved one might have such a claim, please do not hesitate to call my office to speak to me about it.