Sexual Assault and Medical Malpractice

Medical Assault Malpractice Personal Injury Attorney Georgia

Georgia Doctor Practices After Sexual Assault

WSB-TV reported recently on a North Georgia doctor who committed sexual assault against his patients. He touched one of his female patient’s genitals unnecessarily during exams without wearing gloves, and made inappropriate comments about how they felt, according The Independent Mail. The patient caught the conversation on tape. After several of his other patients with similar complaints came forward, he was prosecuted for sexual assault. Even after the tape was admitted as evidence, the jury in his first trial could not come to a verdict. Faced with a retrial, the doctor plead guilty to a reduced charge of simple battery and served a light sentence. Georgia’s medical board placed restrictions on his license that require him to have a chaperone present when treating female patients and to wear gloves. But he is still practicing medicine in Toccoa.

Sexual Assault as Medical Malpractice

Dr. MacDonald has been convicted of a crime and censured by his professional body. There might also have been a civil lawsuit. Would Dr. McDonald’s actions have qualified as medical malpractice? Medical malpractice lawsuits usually argue that the doctor failed to diagnose or treat a patient competently, leading to medical problems. In other words, the standards of behavior in a medical malpractice case are determined by the standards of the medical profession. Of course, the medical profession would normally expect its members to respect the privacy and dignity of their patients wherever possible, but enforcing this standard doesn’t require a medical malpractice lawsuit. Typical medical malpractice cases involve failing to identify a medical condition correctly, failing to prescribe the appropriate medicine or treatment, or waiting too long to prescribe the correct treatment.

Civil Lawsuits for Sexual Assault

Victims of sexual assault by medical professionals can file a lawsuit for the civil law equivalent of assault and battery. Similar to the criminal version, civil assault requires that the doctor intentionally touch another person without that person’s consent. If a doctor fails to get his patients’ consent to touch them, he could be liable in a civil suit for battery.  Section 16-6-5.1 of the Georgia Code specifically provides that, in sexual assault prosecutions against doctors who abuse their patients, consent is not a defense. Victims of assault can seek punitive damages (damages meant to punish the wrongdoer ), as well as damages for physical injuries and emotional distress.

Get Help with Medical Malpractice

If you or someone you know has been the victim of medical malpractice or misconduct, you need to get legal help. Contact  Medical Malpractice attorney Joel Williams. He can help you understand your rights and help you get the compensation you deserve.

When are Punitive Damages Recoverable ?

Punitive Damages in a Personal Injury Civil Case GA

What Are Punitive Damages?

Punitive damages are awarded to punish, penalize, or deter a defendant. They are often described as “vindictive” or “exemplary” damages. O.C.G.A. § 51-12-5.1 (a).  A jury is authorized to impose punitive damages when it concludes, based on clear and convincing evidence, that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. O.C.G.A. § 51-12-5.1 (b). Certainly willful misconduct may lead to the imposition of punitive damages but willfulness is not required. Scapa Dryer Fabrics, Inc. v. Knight, 332 Ga. App. 82, 92 (2015) (“It is not essential to a recovery for punitive damages that the person inflicting the damages was guilty of willful and intentional misconduct.”). “It is sufficient that the act be done under such circumstances as evinces an entire want of care and a conscious indifference to consequences.”  Hodges v. Effingham County Hosp. Authority, 182 Ga. App. 173, 175 (1987) (quoting Battle v. Kilcrease, 54 Ga. App. 808, 809 (1936)).

Is Gross Negligence Enough For Punitive Damages?

Georgia law suggests that “gross negligence” is not enough to support a claim for punitive damages. Wardlaw v. Ivey, 297 Ga. App. 240, 242 (2009) (“neither negligence nor gross negligence alone can support a punitive damages claims.”). Therefore, it is only logical that “an entire want of care and a conscious indifference to consequences” is something more than “gross negligence.” So what does “conscious indifference to consequences” mean? Georgia appellate courts define this phrase as “an intentional disregard of the rights of another.” Miller v. City Views at Rosa Burney Park GP, LLC, 323 Ga. App. 590, 597 (2013) (quoting Tyler v. Lincoln, 272 Ga. 118, 120 (2000).

“[W]hether a tort was sufficiently aggravating to authorize punitive damages is generally a jury question.” Tookes v. Murray, 297 Ga. App. 765, 768 (2009). “[A] jury may award punitive damages even where the clear and convincing evidence only creates an inference of the defendant’s conscious indifference to the consequences of his acts.” Tookes, 297 Ga. App. at 768 (emphasis added). However, punitive damages may only be awarded when actual compensatory damages are also awarded. Morris v. Pugmire Lincoln Mercury, Inc., 283 Ga. App. 238, 241 (2007).

What Is The Limit That Can Be Awarded For Punitive Damages?

In most Georgia cases, an award of punitive damages is limited to a maximum of $250,000.00. O.C.G.A. § 51-12-5.1(g). There are two exceptions to this cap on damages which are outlined in O.C.G.A. § 51-12-5.1(e)(1) and (f):

(e)(1) In a tort case in which the cause of action arises from product liability, there shall be no limitation regarding the amount which may be awarded as punitive damages.

(f) In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm, or that the defendant acted or failed to act while under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to that degree that his or her judgment is impaired, there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor but such damages shall not be the liability of any defendant other than the active tort-feasor.

In short, there is no cap on punitive damage awards in products liability cases and in cases where the defendant intended to cause harm or was drunk or high.

Lawsuits That May Award Punitive Damages.

Punitive damages may be awarded in a wide variety of lawsuits including claims involving automobile wrecks, premises liability, plane crashes, tractor-trailer wrecks, medical malpractice, legal malpractice, fraud, and trespass.

Attorney Joel Williams handles punitive damage cases and he offers free consultations. Call today to meet with Joel and gain a better understanding of whether you may have a claim for punitive damages.

Workers Compensation Subrogation Claims in Georgia

workers compensation subrogation claims

When an employee is injured on the job, he or she may be entitled to worker’s compensation benefits. Georgia law also allows the injured employee to bring a separate claim against any third party that is responsible for causing the injuries. When this happens, the employer or the employer’s workers compensation carrier may assert a subrogation claim. Subrogation is the right of the employer or insurer to seek indemnification against the at-fault third party for the benefits it paid to an employee because of the third party’s negligence.

For example, imagine an employee of John Doe Construction Company is driving from his office to a job site when a negligent driver rear ends him causing him significant personal injuries. The employee may be entitled to workers compensation benefits because he was injured on the job but he also has a right to sue the negligent driver for causing the wreck.

In situations like this, the employer or its worker’s compensation insurer has a right to seek indemnification against the negligent driver for benefits it pays to the employee due to the negligence of the at-fault driver. The right of the employer or worker’s compensation carrier to seek indemnification is set by statute. O.C.G.A. § 34-9-11.1. However, employers and their insurance carriers are not entitled to recover the benefits paid just because they have a statutory right to assert a subrogation claim.

Employers or the workers compensation insurer must prove three things in order to succeed in their subrogation claim:

1. Worker’s compensation benefits must be paid,
2. The benefits must be paid “under circumstances creating a legal liability against some person other than the employer,” and
3. The employee must be “fully and completely compensated” for all economic and noneconomic losses incurred as a result of the injury.

O.C.G.A. § 34-9-11.1. Requirement 3 is often referred to as the “made whole doctrine” and is the most difficult element for employers or their insurers to prove.
Georgia law is clear that the injured employee’s right to full and complete compensation takes priority over the insurer’s subrogation right.

In general, ‘an insurer may not obtain reimbursement unless and until its insured has been completely compensated for his losses.’ This rule arises upon the rationale that [w]here the insurer or the insured must go unpaid to some extent, the loss should be borne by the insurer since the insurer has already been paid a premium for assuming this risk and would have been obligated to pay medical expenses regardless of its insured’s negligence and regardless of whether a culpable third party could have been found.

Simpson v. Southwire Co., 249 Ga. App. 406, 408-409, (2001), citing Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646, 647 (1997).

The employer or workers compensation carrier bears the burden of proving that injured claimant has been fully and completely compensated. Georgia Electric Membership Corp. v. Garnto, 266 Ga. App. 452, 454 (2004); City of Warner Robins v. Baker, 255 Ga. App. 601 (2002); Ga. Elec. Membership Corp. v. Hi-Ranger, 275 Ga. 197, 198 (2002). At a minimum, the employer bears the burden of demonstrating that the settlement fully and completely compensates the Plaintiff for all past, present and future damages, including economic and non-economic losses.

If you have been injured on the job due to the negligence of a third party and have received workers compensation benefits, you may receive letter from the workers compensation carrier notifying you that they intend to assert a right of subrogation for any amounts you recover from the at-fault party. When this occurs, you need the assistance of an experienced attorney to not only help maximize your recovery against the at-fault party, but also to help you address any subrogation claims made by your employer or the workers compensation carrier.

Bloody Atlanta – Apartment and Hotel Crimes

Wrongful Death in Atlanta Apartment and Hotel Crimes Attorney Georgia

Bloody Atlanta – Apartment and Hotel Crimes

Have you been the victim of a criminal attack at an apartment complex or hotel in the Atlanta area? Unfortunately, many apartment complexes and hotels in the Atlanta area are a hot bed for criminal activity. Many people who are victims of a violent crime at these facilities do not realize that they may have a claim against the property owner and management company if the property owner or manager did not exercise reasonable care to keep the property safe from criminal activity.

In some instances, Georgia law allows innocent crime victims to bring a claim against negligent property owners and managers who fail to take reasonable precautions to deter criminals from coming onto their property. Far too often, people are victims of armed robberies, murders, rapes, or stabbings because apartment complexes and hotels do not take reasonable steps to keep criminals away from their tenants and guests. There are several things that apartments and hotels can do in an effort to deter criminals from preying on their guests. Examples include:

  • Perform proper security audits to determine the level of crime as well as the level of deterrence needed
  • Security Guards and Courtesy Officers
  • Controlled Access Gates and Fencing
  • Adequate Lighting
  • Landscaping which does not provide hiding places for criminals
  • Metal or Solid Wood Doors with dead locks
  • Security Cameras
  • Warning Signs announcing the existence of alarms and/or that the property is patrolled regularly
  • Organize neighborhood watch meetings
  • Proper screening on employees and contractors who will be present on the premises
  • Background checks on prospective tenants

Perhaps the easiest and cheapest measure that apartments and hotels can, but often fail to do, is obtain the crime statistics for their property and the surrounding area and work with local law enforcement to keep drugs and gang activity off their property.

Apartments and hotels should never sacrifice security for profits. When they do, criminals often take advantage of the situation and innocent people are murdered, shot, stabbed, and raped.

If you or a loved one have been killed or suffered a violent criminal attack at an apartment complex or hotel in the Atlanta area, call Joel today for a free consultation. In times like these, you need a lawyer who knows the law and that is willing to do the hard work necessary to determine if you have a valid claim. Negligent security cases involve unique and often complicated legal and factual issues. Joel has handled dozens of these cases and brought them to successful resolutions either through settlements or trials resulting in millions of dollars in recoveries for his clients. You can trust Joel to stand beside you and fight for the justice you deserve.