The Atlanta Injury News Blog

October 2010 Archives

Medical Malpractice Lawsuits: A Primer

Nothing is guaranteed when you're sick or injured and seeking medical attention; sometimes it just doesn't work out. But when it's the result of a physician not meeting the standards of the medical profession, he or she can be sued for medical malpractice.

Medical malpractice occurs when a patient is harmed by a "negligent act or omission" by the physician, according to FindLaw, but hospitals and government agencies that operate medical facilities also can be named as defendants.

Courthouse News Service reported that the 3rd U.S. Circuit Court of Appeals tossed out a lawsuit alleging injuries from cell phone radiation. Judges said it was the job of the Federal Communications Commission to determine whether or not cell phones are safe to use.

The ruling upheld the dismissal of class action status at the lower court and said juries in such cases should not be allowed to "second guess" the FCC's conclusions about the safety of cell phones.

A 15-year-old girl identified only as "Jewel" who appeared on an episode of "The Tyra Banks Show" as a sex addict broke her silence on CBS's "The Early Show," according to CBS News. Her mother filed a $3 million negligence suit, claiming the show failed to obtain parental consent for her appearance.

Jewel answered a casting call last year for a show about sex addiction and was flown to New York without her mother's knowledge, according to the suit. She said she was "infatuated with Tyra Banks" and saw it as an opportunity to meet her in person.

High-end German carmaker BMW voluntarily recalled roughly 130,000 cars with twin-turbo engines immediately following ABC News' airing of a report about potential problems with the cars. BMW also is recalling more than 20,000 2008 X5 SUVs in an unrelated action.

The BMW recall includes twin-turbo models manufactured between 2007 and 2010 that "may experience a failure of the high-pressure fuel pump" and could cause "reduced engine performance," according to BMW. The carmaker said 40,000 of the vehicles will need to be outfitted with a new high-pressure fuel pump.

Starr's Mill High School football player Grant Aasen, who suffered a serious brain injury a little more than a week ago, has made an amazing recovery, according to Fox Atlanta. He was hit in the facemask and on the back of the head before he made his way to the sidelines and collapsed.

The teen athlete underwent emergency brain surgery after being life-flighted to Atlanta Medical Center; physicians say he probably would have died if not for the quick action. Dr. Paul King, the Atlanta Medical Center physician who operated on Grant Aasen, described the seriousness of his injury:

"He had a deadly type of injury, acute hemorrhage on top of the brain."

Halloween Safety: 13 Tips

Halloween is all about celebrating the spookier side of life, but it's no fun when people get hurt. The Orlando Sentinel culled some bits of advice on Halloween safety from the U.S. Food and Drug Administration, the Consumer Product Safety Commission and the Centers for Disease Control intended to help its readers have a fun but safe time trick-or-treating this weekend.

So if you'd rather spend Nov. 1 counting your treats instead of calling an Atlanta accident attorney, the following 13 Halloween safety tips can help:

Bright from the Start: Georgia Dept. of Early Care and Learning investigated Hopewell Montessori School in Paulding County after a 2-year-old boy was found walking down a nearby road, according to the Atlanta Journal-Constitution. The early-childhood facility is not licensed.

The boy was found walking along Harmony Grove Church Rd. in Ackworth on Oct. 19, according to Paulding Sheriff's Cpl. Brandon Gurley. He pointed in the direction of Hopewell Montessori School when a woman found him and asked him where he belonged.

Army reservist Tasha Hill said she's not convinced justice was served after Troy Dale West was sentenced to six months in jail for beating her at a Cracker Barrel restaurant in Morrow, according to the Atlanta Journal-Constitution. So she may file a civil lawsuit against either her attacker or the restaurant, she told reporters.

Troy West had claimed that Tasha Hill spat on him, presenting it as a justification to "punch and kick" her. Much of the incident was captured on surveillance but not the alleged spitting, which she denied:

"It was really shocking to hear that debate. I want the public to know I did not spit on the man."

Atlanta injury attorney Andrew Speaker may proceed with his invasion of privacy lawsuit against the Centers for Disease Control following the 11th U.S. Circuit Court of Appeals reversal of a lower court ruling, the Atlanta Journal-Constitution reported. He claims the federal agency publicize his tuberculosis (TB) diagnose in order to get more funding.

Andrew Speaker's story made national headlines more than years ago when the CDC said at a press conference that a man with an extremely drug-resistant (XDR) strain of TB was being isolated in a hospital. This set off a panic because he had just gotten off an international flight.

Automobile accidents are quite common, which is one why motorists are required by law to carry liability insurance. While insurance companies usually handle the litigation, if necessary, it's important for motorists to understand injury law and what to do after a crash.

Every crash is different and sometimes all you need to do is exchange insurance and contact information. But other times it may be advantageous to get in touch with an Atlanta injury attorney

The following advice from FindLaw can help you protect yourself in the event of an automobile accident:

Fatal car accidents involving teenage motorists dropped by more than 30 percent in the past five years, according to a report by the Centers for Disease Control and Prevention cited by the Atlanta Journal-Constitution. The federal agency credits tougher limits on younger drivers enacted at the state level.

The number of fatal car accidents involving teens dropped from 2,200 in 2004 to 1,400 in 2008, according to CDC data. The rate of these incidents has been on the decline since 1996. CDC officials cite safer cars with airbags and highway improvements, in addition to tougher state laws, for the decline.

Georgia law states that a medical malpractice suit may be filed only if the complaint includes a sworn statement from an expert witness asserting that the defendant made an avoidable mistake, according to a Technorati article. That may seem reasonable in most cases; but what if the doctor amputated the wrong foot?

Wouldn't that type of blatant error be self-evident? One would think, but that's not how the law operates in Georgia.

It's significant because it means plaintiffs whose malpractice claims seemingly speak for themselves (i.e. an instrument "lost" inside a patient or the wrong kidney removed) generally cannot win summary judgment in Georgia. Summary judgment is granted by a judge when the relevant facts are not in dispute, according to FindLaw.

Cliques, rumors and generally cruel teenage behavior immortalized in the Lindsay Lohan movie "Mean Girls" is nothing new. But a cadre of students at J.C. Booth Middle School in Peachtree City may be flirting with defamation as they list the names of students suspected of being gay in a new web site, the Atlanta Journal-Constitution's Get Schooled blog reported.

The proliferation of text messaging and social media has only made the dissemination of potentially devastating gossip, and in some cases explicit images, easier and more efficient. The web site in question also rates students considered popular or good-looking.

Tylenol Recalled, Again, For Foul Odor

Drug maker Johnson & Johnson issued a recall of its popular Tylenol pain reliever, according to the Christian Science Monitor. In its sixth recall in just one year, Tylenol is being pulled from the shelves because a musty or moldy odor.

Mark Boston, spokesman for McNeil Consumer Healthcare, the Johnson & Johnson division that makes Tylenol, said the company is continuing to investigate the problem. The recall affects Tylenol 8-Hour Caplets and lot No. BCM155 specifically (bar code No. 3 0045-0297-51 8).

Perhaps taking a cue from Douglasville, which narrowly rejected an ordinance that would have effectively banned pit bulls from the city limits, Gwinnett County is now considering tough new restrictions on the breed, the Atlanta Journal-Constitution reported.

The county's proposed new ordinance would be less restrictive than the one proposed in Douglas, requiring pit bull owners to register their dogs and keep them in a secure enclosure. Owners of the potentially dangerous dogs also would be required to pay a registration fee, while having proof of inoculation.

Officials said Starr's Mill High School football player Grant Aasen is in stable condition and recovering after sustaining a serious head injury during a game against Northgate High School in Newnan, Fox Atlanta reported. His injury comes at a time of heightened anxiety over the prevalence of concussions and other brain injuries among youth athletes.

Earlier this week, for example, the governing body for Texas public school sports approved new rules for concussions, according to The Washington Post. The new rules, which take effect Aug. 1, 2011, require athletes to sit out at least one day after sustaining even a minor head injury.

Grant Aasen's injury was anything but minor. Officials said he was hit in the facemask and the back of his head before he struggled to the sidelines and collapsed. He was flown to Atlanta Medical Center by helicopter to stop bleeding on the brain.

Toronto Police Constable Adam Josephs filed a lawsuit against online video distributor YouTube (owned by Google Inc.), seeking the identity of a Canadian user and 24 other commentators he claims defamed him online, as reported by the National Post.

The article's headline refers to the plaintiff as "Officer Bubbles," which became his nickname after he was filmed threatening to arrest a 20-year-old woman on charges of assault if one of her bubbles landed on him during a recent G20 summit protest. The video, uploaded to YouTube, became a symbol of what many protestors believe was excessive force on behalf of Toronto police.

Beverly McClendon sued former supermodel and talk show host Tyra Banks for invasion of privacy and negligence after her then 15-year-old daughter appeared on the "Tyra Banks Show" for an episode on sex addiction, the Atlanta Journal-Constitution reported. The licensed social worker and McDonough resident said her daughter appeared on the show without parental consent.

Tyra Banks' producers posted an open call on the show's web site last year, which the teen answered and subsequently was selected to appear on the show. She allegedly was flown to New York and put up in a hotel prior to the paid appearance -- but Beverly McClendon said she had no idea where her daughter was at the time.

There's nothing like a soothing spa treatment to take the edge off a stressful day at work (or even elementary school).

The last thing you want during a bath or aromatherapy session is an explosion; but 516,000 children's Spa Factory Aromatherapy Fountain and Bath Benefits Kits are being recalled for that very reason, according to the Chicago Tribune's Problem Solver consumer blog.

Manufacturer JAKKS Pacific and the US Consumer Product Safety Commission announced another voluntary recall of the play spa kits, having issued a prior recall in January 2009.

Who knew that sitting at the bar while a scantily clad woman walks by could be so dangerous? Michael Ireland, former patron of the Cheetah strip club in West Palm Beach, won a $650,000 judgment for injuries sustained after stripper Sakeena Shageer's shoe made contact with his eye, the Palm Beach Post reported.

Sakeena Shageer said she was walking along the bar when she spun around in response to being touched, which caused her to accidentally strike the plaintiff in the eye with her shoe. Michael Ireland, who worked as a roofer, said he has experienced double vision ever since the September 2008 incident.

Despite efforts in many states (including Georgia) to reform medical malpractice laws, a new report by Aon Risk Solutions and the American Society for Healthcare Risk Management concluded that medical malpractice costs and insurance likely will go up in 2010 and 2011, according to Workforce Management.

The report predicted that 2009 claims costs, while still too early to know for sure, will exceed $8.6 billion. The report is available for purchase only and the article does not provide the historical costs that might offer some context, but it's purportedly a significant increase.

Atlanta Journal-Constitution columnist and former U.S. congressman Bob Barr makes no secret that he's adamantly opposed to the efforts of some city governments, including Douglasville, to enact restrictions or even outright bans on pit bulls. The dogs originally were bred specifically for fighting but have been adopted by a wide variety of individuals and families.

The 2008 Libertarian candidate for President stated that such laws are overly broad and harmful to individual liberty, even though a number of people have been maimed and even killed by pit bulls. He takes the position that only a small number of people "fail to properly train and control the dogs."

Beverly Munguia, who was injured after slipping and falling in a McDonald's fast food restaurant on the island of Maui, was awarded $5.67 million by a federal jury, the Honolulu Star Advertiser reported.

The 59-year-old Texas woman claims she fell on her buttocks on Nov. 25, 2007, which caused a burst compression fracture on one of her vertebra. Her attorney, Michael Cruise, said his client's L1 vertebra lost 90 percent of its height.

The attorney said Beverly Munguia underwent a pair of surgeries to correct the injury but claims she is now permanently disabled, suffers chronic lower back pain and is confined to a wheelchair "for most of the time."

The Louisiana Record reported on a lawsuit filed against Depuy Orthopedics Inc. and Johnson & Johnson Services for a hip replacement device that plaintiff Virgil Lewis claims is defective. The suit was filed in federal court in New Orleans.

Virgil Lewis, identified only as a Georgia resident, was fitted with a Depuy ASR Acetabular Cup during a complete hip replacement, according to his Oct. 6 civil complaint. The device was recalled and is the subject of a class-action lawsuit (see Related Resources, below, for more information).

While he said his wounds healed properly and that the device was properly positioned, he claims he suffered pain and "extreme weakness" in his hip and quadriceps despite "ideal conditions" for the procedure.

The U.S. Supreme Court was scheduled to hear arguments yesterday in a case that will decide whether plaintiffs may sue vaccine makers for injuries, Reuters reported. Vaccine makers currently enjoy a special level of protection against legal action, intended to keep them in business and developing new vaccines.

Typically, injury claims pertaining to vaccines go to a special no-fault program designed to compensate those who are harmed by vaccines.

Sibutramine, the active ingredient in Abbott's recently pulled diet drug Meridia, has been banned by the Food and Drug Administration. But that doesn't mean the banned substance isn't turning up in other places, The Wall Street Journal reported.

That's because the FDA doesn't regulate "dietary supplements," the category that includes herbal and other unregulated supplements. Some weight-loss "nutritional supplements," as they're often labeled, still contain sibutramine, according to Cambridge Health Alliance physician Pieter Cohen.

The National Insurance Crime Bureau (NICB) stated in a recent report that more so-called "slip and fall" personal injury claims against businesses are being scrutinized for potential fraud, CBS Atlanta reported. Slip and fall claims are typically filed against a business or property owner for allegedly failing to maintain a safe environment, leading to injury.

Joe Wehrle, CEO and president of NICB, said some of the fraudulent claims are tied to organized crime rings that stage slip and fall accidents. And he said the number of questionable claims has spiked, citing a 57 percent increase in the volume of claims referred to NICB as being potentially frivolous or fraudulent:

"While many people have legitimate accidents in stores and businesses across the country, we've seen a growing number of cases that have some indication of potential fraud."

The Atlanta Journal-Constitution reported that Ella Salter, the 4-year-old granddaughter of Democratic gubernatorial candidate Roy Barnes, was scheduled to undergo surgery for a broken arm and shoulder sustained after a head-on collision on Sunday.

A spokeswoman for the candidate said doctors will place pins in her arm and shoulder. Ella Salter's sister, 6-year-old Lilly Salter was released from Children's Healthcare of Atlanta at Scottish Rite shortly after being treated for minor cuts to her face.

The U.S. Consumer Product Safety Commission fast-tracked efforts to urge McDonald's to recall 12 million drinking glasses depicting characters from the film "Shrek Forever After," the Associated Press reported. While the recall took place on June 5, details of the potential hazards have just now surfaced.

Federal regulators concluded that a typical 6-year-old child could be exposed to dangerous levels of cadmium by touching one of the glasses just eight times in one day, according to federal documents obtained by AP.

Portia Gray, the mother of deceased West Virginia State University student Ra'Sean Gray, filed a wrongful death lawsuit against Bayer  claiming her son died as a result of the August 2008 explosion at a Bayer CropScience Institute plant, the Charleston Daily Mail reported.

Ra'Sean Gray died less than three weeks after the blast at Thomas Memorial Hospital after the 19-year-old was admitted for respiratory problems. An autopsy concluded that he died from a pulmonary embolism, which is a blood clot in the main artery of the lungs.

Delta Air Lines flight attendant Jeanette French filed a lawsuit against the airline and pilot Loren Gus Pryor, claiming "severe emotional distress" for an alleged drunken encounter during an overnight layover in Dakar, Senegal, the Atlanta Journal-Constitution reported.

She claims the pilot and others from the flight were making a loud scene at the hotel pool while drinking beer taken from the plane. When she informed them that alcoholic beverages were illegal in the Muslim country, Loren Pryor allegedly grabbed her by the shoulder, twisted her around and shoved her away.

The pilot allegedly warned her that "You don't want to [expletive] with me" while other pilots laughed and shouted obscenities at her:

"You're not my mother. Now get the [expletive] out of here."  

Assault is committed when an individual tries to physically strike another or acts in a threatening way in which the other person believes he or she is in danger, FindLaw explains. One commits battery when the attempt or threat is actually carried out and someone is struck or even just touched in an inappropriate manner.. 

They often go hand in hand, since battery typically is preceded by assault. In addition to criminal acts, which are treated as violations against society and punishable by incarceration and other sanctions, FindLaw tells us that assault and battery in Atlanta also are "intentional torts" in civil cases.

Jennifer Dawn Jones, a Georgia woman whose husband was killed when a plane crash-landed on a South Carolina beach, is suing the plane's manufacturers and owner for negligence and wrongful death, according an Associated Press article.

Robert Gary Jones, her 38-year-old husband, was killed when a single-engine plane built from a kit made a quiet approach from behind and hit him. He had been listening to his MP3 player while jogging and probably didn't hear the plane, authorities said. He was on a business trip at the time.

While the Internet has given tens of millions of individuals the ability to share their views through blogging, the key difference is that professional reporters have training, fact-checkers, strict editorial standards, an editing process and the liability backing of their organizations.

Bloggers mostly just have opinions, even if some have proven to be worthy citizen journalists and have broken important stories. But what bloggers don't have is the liability protection of a news organization, as a Los Angeles Times article explains.

Matthew Burke, a 37-year-old military surgeon who served in Iraq, was riding his bicycle with a group of friends when a man driving an SUV hit them from behind, the Atlanta Journal-Constitution reported. As of Oct. 4, his was in critical condition and fighting for his life.

His brother, Paul Burke, told reporters, "We don't have any long-term prognosis. It's a very serious situation." He has been unconscious since the incident after sustaining brain trauma.

At least 13 high school students were injured and one was killed when a school bus traveling on Highway 113 near I-20 ran into a ditch and crashed, according to the Atlanta Journal-Constitution. The Georgia State Patrol said the driver of the bus was a trainee, 59-year-old Kenneth Ross Herringdine.

The deceased passenger was 17-year-old James Rashawn Walker. Injured passengers were taken to various area hospitals, including Atlanta Medical Center, Tanner Medical Center in Carrollton, Tanner Medical Center in Villa Rica and Higgins General Hospital in Bremen.

Kelly Meigs, a spokeswoman for the Tanner Health System, said the three at Higgins were in "fair condition," while the other nine were in "good" condition. She said the injured passengers range in age from 15 to 45.

Much to the disappointment of celebrity tabloids and rubberneckers everywhere, "Real Housewives of New Jersey" cast member Danielle Staub and ex-husband Kevin Maher won't be airing their dirty laundry for all to see, according to Fox News.

The two warring parties settled a defamation suit brought by Kevin Maher, who claimed she lied about him raping her on a bed of broken glass at gunpoint and killing her dog by hanging. Kevin Maher settled the libel suit just one day before the reality television star was scheduled for a deposition.

Grieving father J.B. Coram wrote an op-ed in the Macon County News to clarify his reasons for filing a wrongful death lawsuit for the prescription drug overdose of his daughter, Elizabeth Coram. The 22-year-old college senior died on July 9 2009 from an overdose of illegally obtained Oxycodone mixed with alcohol, according to the local Highlands' Newspaper (PDF).

The Highlands article discusses the region's prescription drug abuse problem in the context of the arrest of 27-year-old Nick McCall for the alleged sale of prescription drugs on the black market.

J.B. Coram named Larry Murray and Adam Hicks, both residents of the Macon County town Highlands, as defendants in the lawsuit.

Granted, most people don't drive an eight- or 12-cylinder BMW or Rolls Royce, especially in this economy. But those who do should be aware of a recall that affects 198,000 of the aforementioned vehicles built between 2002 and 2010, The Wall Street Journal reported.

BMW said it plans to recall certain BMW 5 Series, 6 Series, 7 Series and some Rolls Royce models in order to fix a brake problem. The cars are not at risk of brake failure but the affected vehicles have the potential of leaking fluid used in the power-assist braking system.

A fourth alleged victim of sexual coercion by Atlanta-area pastor Bishop Eddie Long has filed a lawsuit, CNN reported. The suit, filed in DeKalb County, claims the pastor coerced him into a sexual relationship during a 2005 trip to Kenya.

Plaintiff Spencer LeGrande, now 22, was 17 years old at the time of the alleged abuse. The suit reveals some shocking details about what allegedly took place during the trip.

Former Dahlonega Chamber of Commerce president Gary Powers sued the city in Fulton County Superior Court after sustaining injuries from a fall, the Dahlonega Nugget reported. He was putting up Christmas decorations in November 2008 and fell while leaning against a utility pole, according to the suit.

Georgia injury attorney Steven Leibel, who is representing Gary Powers, named Utility Lines Construction Services Inc. (ULCS) and Georgia Power Company as defendants, addition to the city of Dahlonega. ULCS was hired by Georgia Power to do maintenance work on the utility poles on the public square where the plaintiff was injured.

The U.S. Consumer Product Safety Commission has recalled more than 10 million toys manufactured by Fisher Price, as reported by ABC News. The Fisher Price recall includes trikes, tricycles, high chairs and other popular children's toys for potential choking hazards and potentially dangerous protruding parts, CPSC warned:

"Consumers should stop using recalled products immediately unless otherwise instructed."

The following is a list of products affected by the recall: