Atlanta Personal Injury Lawyers Blog

As an Atlanta medical malpractice lawyer practicing in North Georgia, I was amazed to read about another Georgia lawsuit claiming a doctor and hospital staff committed malpractice by leaving a towel in a patient during surgery. The towel was apparently left in the patient's abdomen during a partial colectomy on February 17, 2007.

According to the article in the DaltonNow.com, the patient continued to suffer abdominal pain, nausea, vomiting, dizziness, and loss of appetite for a full two years. It wasn't until February 26, 2009, when the patient had exploratory surgery to try to figure out what was wrong that the towel was discovered.

Continue reading "Georgia Doctor and Hospital Sued for Medical Malpractice for Leaving Towel in Patient" »

As a medical malpractice lawyer practicing in Atlanta and north Georgia, I am regularly asked by potential clients to review the facts surrounding possible medical malpractice claims to determine whether successful claims and lawsuits can be made against medical providers. The decision to pursue a medical malpractice claim is complicated. The costs involved regularly exceed tens of thousands of dollars and the chance of success is often slim. One of the first items I look at when reviewing a possible claim is whether the claim/lawsuit can me timely made. If it can't, there is no reason to look any further as to whether a claim can be made.

The time to bring a medical malpractice claim/lawsuit is called the statute of limitations. The statute of limitations for most medical malpractice cases is two years. Specifically, the O.C.G.A. § 9-3-71(a) provides in part: "an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred." This requires the injured person or the representative of someone killed to bring the claim within two years from the date the injury occurred, not two years from the date the malpractice occurred. It is important to remember and understand that the date of malpractice may be different than the date of injury.

This distinction most often becomes an issue in cases involving a misdiagnosis. Typically, the date of the injury is considered to be the date of a misdiagnosis. But in many cases the injuries sued for begin after the misdiagnosis. To allow the statute of limitations to begin before the patient could possibly be aware of the misdiagnosis would be unfair. In this situation, the statute begins to run from the date the symptoms manifest to the patient. In other words, when the injury occurs after the date of the negligent medical treatment, the statute of limitations runs from the date the injury is discovered.

There are exceptions to the general rule that medical malpractice lawsuits must be brought within the two year statute of limitations. The most notable are cases involving foreign objects and children. I will probably discuss these in a future blog. What is import to know is that medical malpractice lawsuits are the most complicated personal injury and wrongful death claims that are made in Georgia. You need to be sure to retain a lawyer that is experienced handling these types of cases. We are. Please do not hesitate to contact me if you would like to discuss whether you might have a valid claim for medical malpractice or to simply to discuss your situation. It would be my pleasure to speak with 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.

As an Atlanta medical malpractice attorney practicing throughout north Georgia, I am always interested in keeping up on the latest changes in Georgia law that affects my practice. Today I read an article in the Fulton County Daily Report, a legal newspaper published throughout Georgia, which was very interesting to me. The article was about how the Supreme Court of Georgia is expected to rule soon on a key issue crucial to medical malpractice victims and the lawyers who represent them. The case, docketed to the September term, must be decided by the end of March.

Atlanta Oculoplastic Surgery v. Nestlehutt, No. S09A1432, involves the constitutionality of a $350,000 cap on pain and suffering damages in medical malpractice cases (which was part of comprehensive tort reform passed in 2005). Fulton County State Court Judge Diane E. Bessen struck down the caps on noneconomic damages, ruling that they violated the Georgia Constitution's guarantees of a right to trial by jury and to equal protection under the law. Judge Bessen further held that the caps infringed upon the separation of powers by interfering with the trial judge's usual role of forcing plaintiffs to choose between a reduced award and a new trial when a jury verdict is found by the court to be too high. The Georgia Supreme Court must now decide whether to keep the $350,000 pain and suffering cap in place, or to strike it down as unconstitutional.

Regardless of how the Georgia Supreme Court rules on this issue, medical malpractice victims are likely to remain hampered by the pain and suffering cap. This is because the Georgia Legislature is likely to try to quickly amend this law to insure that the cap remains in place if it is truck down by the Georgia Supreme Court.

As reported in the Fulton County Daily Report, Sen. John J. Wiles, R-Kennesaw, indicated that he would file legislation to respond to the Supreme Court if it overturns parts of the tort law. "As a strong supporter of tort reform in 2005, I would most certainly offer legislation to address any judicial decision adverse to the important provision contained in the current Georgia law that protects the citizens of Georgia," Wiles said in a statement. Senator Wiles and the Legislature could respond to the high court's rulings by simply passing new legislation, or a response may require amending the state constitution. It will depend on the legal grounds the justices use to find the legislation unconstitutional.

If the Georgia Supreme Court does strike down the pain and suffering cap for medical malpractice claims in Georgia, there may be a window of opportunity for injured malpractice victims to bring their cases while no restrictions on pain and suffering awards are in place. Competent legal representation for medial malpractice claims is essential. This is yet another example of just why that is.