What is Medical Malpractice?

Words in magnifying glass -Malpractice Professional negligence

Medical malpractice occurs when a doctor, nurse, hospital, or other healthcare provider harms a patient through a negligent act or a failure to act. In simple terms, it’s when a medical professional’s mistake, one that a reasonably skilled and careful professional would not have made, causes you injury. A medical malpractice lawyer can help you understand whether your situation meets this standard.

Understanding what does and does not count as medical malpractice can give you a clear picture of what it takes to hold a negligent provider accountable.

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Key Takeaways about Medical Malpractice Claims in Georgia 

  • Medical malpractice is defined by a healthcare professional’s failure to provide the accepted “standard of care,” resulting in patient injury or death.
  • A successful claim in Georgia must prove four key elements: a duty was owed to the patient, that duty was breached, the breach directly caused an injury, and the injury resulted in specific damages.
  • The “standard of care” refers to the level of competence and skill that a similar, prudent medical professional would have provided under the same circumstances.
  • Examples of medical malpractice include misdiagnosis, surgical errors, medication mistakes, and birth injuries.
  • Georgia law sets strict deadlines, known as the statute of limitations and statute of repose, for filing a medical malpractice lawsuit.

Understanding the “Standard of Care” in Georgia

Medical malpractice case file on a desk with legal documents, a stethoscope, and office supplies. When you hear lawyers and judges talk about medical malpractice, the term “standard of care” will come up frequently. So, what does it mean? Think of the standard of care as the set of unwritten rules that competent medical professionals are expected to follow. It’s the level of care and skill that an average, prudent provider in the same medical field would have used in a similar situation. It’s not about being perfect; medicine is complex, and bad outcomes can happen even with the best care. Instead, it’s about being reasonably careful and competent. For example, the standard of care for a heart surgeon in a metro-Atlanta hospital is based on what other reasonably skilled heart surgeons across the country would do during that same procedure. It’s not about a local custom, but a national benchmark of professional competence. A failure to meet this standard is often called a “breach” of the standard of care, and it is the first step in building a case for medical negligence.

The Four Elements You Need to Prove a Medical Malpractice Claim

To move forward with a medical malpractice claim in Georgia, you can’t just say a mistake was made. The law requires you to prove four specific things. Think of them as the four legs of a table—if one is missing, the whole thing falls apart.

Duty

First, you must show that the healthcare provider owed you a “duty of care.” This is usually the easiest part to establish. A duty is created the moment a doctor-patient relationship is formed. When you seek treatment from a doctor, and they agree to treat you, a professional duty of care is automatically established. They have accepted the responsibility to provide you with competent medical care.

Dereliction (or Breach) of Duty

This is the core of a medical malpractice case. Here, you must prove that the doctor or hospital failed to meet the established standard of care. This is the “negligence” part of the equation. It means the provider did something that a competent provider wouldn’t have done, or they failed to do something they should have done.  A breach isn’t just a simple mistake; it’s a departure from accepted medical practice. For instance, leaving a surgical sponge inside a patient or prescribing a medication despite a clear allergy noted in the patient’s chart are clear breaches of duty.

Direct Cause (Causation)

Next, you have to connect the dots. You must show that the provider’s breach of duty was the direct and proximate cause of your injury. Proximate cause is a legal term that means the harm was a foreseeable result of the negligent action. It’s not enough that a doctor made a mistake; that specific mistake must be the reason you were harmed.  For example, if a doctor failed to diagnose cancer but the patient’s outcome would have been the same even with a timely diagnosis, causation may be difficult to prove. However, if the delayed diagnosis allowed the cancer to spread, making treatment far more difficult and a full recovery less likely, then causation is much clearer.

Damages

Finally, you must prove that you suffered actual harm, or “damages,” as a result of the injury. Damages are the law’s way of measuring the losses you have sustained. Without provable damages, there is no case. These can include a wide range of losses, both economic and non-economic.
  • Economic Damages: These are the tangible financial losses you’ve incurred. This includes things like additional medical bills to correct the error, lost wages from being unable to work, and the cost of future medical care or rehabilitation.
  • Non-Economic Damages: These are the intangible losses that don’t have a precise price tag but are just as real. This covers things like physical pain and emotional distress, mental anguish, permanent disability or disfigurement, and loss of enjoyment of life.
Proving all four of these elements is essential for any medical malpractice claim to move forward and be successful.

Common Examples of Medical Malpractice

Medical malpractice can happen in any healthcare setting, from a family doctor’s office in Kennesaw to a major surgical center. While every case is unique, many fall into several common categories.
  1. Misdiagnosis, Missed Diagnosis, or Delayed Diagnosis: This is one of the most frequent types of medical errors. It happens when a doctor incorrectly diagnoses an illness, fails to diagnose it at all, or takes too long to arrive at the correct diagnosis. When conditions like cancer, stroke, or heart attacks are missed, the consequences can be devastating.
  2. Surgical Errors: Mistakes made in the operating room can have lifelong effects. These “never events”—errors so serious they should never happen—include operating on the wrong patient, performing the wrong procedure, operating on the wrong body part, or leaving surgical instruments or sponges inside a patient’s body.
  3. Medication Errors: A mistake at any point in the medication process can cause serious harm. This includes a doctor prescribing the wrong drug, a nurse administering the wrong dose, or a pharmacist filling a prescription incorrectly.
  4. Anesthesia Errors: Anesthesiologists have a critical job, and even a small mistake can lead to brain injuries, coma, or death. Errors can include giving too much or too little anesthesia, failing to monitor a patient’s vital signs, or using defective equipment.
  5. Birth Injuries: Negligence during pregnancy, labor, or delivery can cause serious and permanent injuries to a newborn, such as cerebral palsy or Erb’s palsy. These cases can result from a failure to monitor fetal distress, improper use of forceps or vacuum extraction, or a delay in ordering a necessary C-section.
These examples of medical malpractice illustrate just a few of the ways a patient can be harmed when the standard of care is not met.

What Steps Can You Take If You Suspect Medical Negligence?

Medical malpractice case file on a desk with legal documents, a stethoscope, and office supplies While your health should always be your top priority, there are a few practical steps you can take to start gathering information and protecting your rights.
  • Get a Second Opinion: The most important step is to ensure you are getting the proper medical care now. See another doctor who is not affiliated with the one you suspect of negligence. This will help you understand your current health status and what treatment you need moving forward. It can also confirm whether your previous care was appropriate.
  • Request Your Medical Records: Under federal law, you have the right to obtain copies of your medical records. Contact the hospital or clinic’s medical records department and request a complete copy of your file. These documents contain the detailed story of your treatment and are essential for evaluating what happened.
  • Keep a Detailed Journal: Memory can fade over time, so it’s a good idea to write everything down. Document your symptoms, pain levels, and any limitations on your daily activities. Note all medical appointments, conversations with doctors, and medications you are taking. This personal record can be incredibly valuable.
Taking these steps can help you feel more in control and provide a clear foundation of information as you decide what to do next.

Georgia’s Time Limits for Filing a Medical Malpractice Claim

One of the most critical things to understand about medical malpractice in Georgia is that you have a limited window of time to take legal action. This deadline is set by a law called the statute of limitations. A statute of limitations is a law that sets a strict time limit on your right to file a lawsuit in civil court. In Georgia, the general rule for medical states that you must file a claim within two years from the date the injury or death occurred. Georgia also has a second, stricter deadline called the statute of repose. This is an absolute deadline that says no claim can be filed more than five years after the date of the negligent act, regardless of when you discovered the injury. There are very few exceptions to this rule. Because these deadlines are so strict and can be complex, it is crucial to understand how they apply to your situation. If you miss the deadline, you may lose your right to seek compensation forever.

How a Georgia Medical Malpractice Attorney Can Help Navigate the Process

Navigating a medical malpractice claim is an incredibly complex process filled with legal hurdles and medical jargon. An attorney who handles these types of cases can help you understand your options and guide you through each step. Research from institutions like Johns Hopkins Medicine suggests that medical errors are a significant public health issue, and addressing them requires a thorough understanding of both medicine and law. A legal team can take on the burden of the process, allowing you to focus on your health and recovery. Here are a few ways an attorney can assist:
  • Investigating Your Claim: They will conduct a deep dive into the facts of your case, gathering medical records, and identifying exactly what went wrong.
  • Consulting with Medical Reviewers: To prove your case, you need testimony from other medical professionals. An attorney will work with qualified reviewers in the appropriate field to determine if the standard of care was breached.
  • Filing the Right Paperwork: Georgia has specific procedural requirements for malpractice cases, including filing an “affidavit of merit” along with the lawsuit. This is a sworn statement from a medical professional confirming that there is a basis for the claim.
  • Dealing with Hospitals and Insurers: They will handle all communications with the healthcare provider’s legal team and their insurance company, advocating for your best interests.
An attorney serves as your advocate, working to build the strongest case possible while ensuring all legal rules and deadlines are met.

Medical Malpractice FAQs

Here are answers to some common questions people have when exploring this topic.

Yes, in many situations, a hospital can be held responsible for the negligence of its employees, such as nurses, technicians, or staff doctors. This legal concept is called vicarious liability or “respondeat superior,” which means the employer is responsible for the actions of its employees while they are on the job. A hospital can also be held directly liable for its own negligence, such as failing to properly screen its staff or not having adequate policies in place to promote patient safety.

Most personal injury attorneys who handle medical malpractice cases work on a contingency fee basis. This means you do not pay any upfront fees to the lawyer. Instead, the lawyer’s fee is a percentage of the financial compensation they recover for you, whether through a settlement or a court verdict. If you do not win your case or receive a settlement, you do not owe the attorney a fee.

Signing a consent form is standard practice before most medical procedures. In it, you acknowledge that you have been informed of the known risks, benefits, and alternatives to the treatment. However, a consent form is not a waiver of your right to competent care. It does not give a doctor permission to be negligent or make a preventable mistake. You are consenting to the known risks of a procedure, not to harm caused by a failure to meet the standard of care.

Get the Answers and Support You Deserve

A headshot of a male professional wearing a navy blue suit, white shirt and shiny blue tie.
Joel Williams, Medical Malpractice Attorney in Kennesaw
We know that suffering an injury because of a medical professional’s mistake is a profound betrayal of trust that can leave you feeling lost and powerless. The compassionate attorneys at Williams Elleby Howard & Easter are here to listen to your story and help you understand your options. We treat our clients like family, offering clear guidance and dedicated advocacy every step of the way.  If you believe you or a loved one has been harmed by medical negligence, contact us at (404) 389-1035 or through our online form for a free, no-obligation consultation. Let us help you find the answers you deserve.
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What are Georgia’s Car Seat Laws?

Child sitting in front facing car seat with a thumbs up.

What Are Georgia’s Car Seat Laws?

Georgia has specific laws that require certain car safety seats for children. Children’s lives are precious, priceless and irreplaceable, so of course you want to protect them in every way you can. One of the ways that you can ensure your child’s safety is by utilizing the proper car seat every time you put them in a vehicle. However, it can be tricky to know what car seat your child needs. Today we will discuss what Georgia law tells us about your child’s car seat needs. Georgia has a statute, O.C.G.A. 40-8-76, which lays out child safety seat requirements. Georgia’s Car Seat Safety Statute is a primary law rather than a secondary law, meaning that you can be pulled over and cited for a violation, even if you have not committed another traffic violation.

Where Should My Child Be Seated in The Car?

First and foremost, children under the age of 8 should always be in the back seat as required by Georgia law. It is recommended that children under the age of 13 ride in the back seat. All children under the age of 8 must be seated in the back seat in a proper safety seat based on their age, height and weight. Motor vehicle crashes are the number 1 cause of death of children in the US age 14 and under. Children seated in the front have a 40% to 70% higher risk of injury or death than children seated in the back. The linked study indicates that the center rear seat is the safest, with a risk reduction of 9%-24%. The reason that the center rear seat is the safest is because it is the position in the vehicle where the passenger is least likely to suffer an airbag injury or fatality. Children in the front seat are more likely to suffer injury or death caused by airbag deployment.

Which Car Seat is Right for My Child According to the Law?

Every child is different and Georgia laws account for that. Let’s look at age, weight and height requirements for child safety seats.

Georgia Law on Car Seats for Newborns and Infants:

You want to make sure your infant is protected in a rear-facing car seat until they are over the age of one year AND over 20 pounds. If your one-year-old is not yet 20 pounds, keep them in a rear-facing seat at least until they reach that milestone. It is recommended to keep your child rear-facing as long as possible. Even if your child is over 20 pounds, you may keep them in a rear-facing seat as long as that seat is rated for their weight and height per the manufacturer’s instructions.

Rear facing seats have harness-type straps that go over the head and should fit snuggly across the shoulders and chest. Some of these rear facing seats are designed to be rear facing only, while others are convertible models that can be adjusted to suit your child’s needs as they grow. Rear facing only seats usually come with a base that stays in the car, and the seat itself clicks onto the base. This makes it easier to transport your child to and from the car and also helps to ensure that the seat stays properly installed in your vehicle.

Georgia Law on Car Seats for Toddlers (One to Three Years):

Once your infant has reached one year AND 20 pounds, you can then transition them to a forward-facing car seat with a harness if you choose to do so. Just like the rear-facing seats, these front facing seats have harness-type straps that go over the head and should fit snuggly across the shoulders and chest. Your child should remain in a forward-facing seat with a harness until they are at least four years old AND over 40 pounds. Again, safety is our number one priority, so even if your child is over the age of four and over 40 pounds, you may choose to keep them restrained by a harness in a rear or front facing seat so long as the seat is rated for their weight and height per the manufacturer’s instructions.

Georgia Car Seat Laws for Young Children (Four to Eight Years):

Finally, your child is ready to graduate into a big kid booster seat! This means they have reached age four and are over 40 pounds. Your child should remain in a booster seat until they have reached the height of 4’9”. Children using booster seats are 59% less likely to be injured in a crash than those using a seatbelt alone, per the Georgia Department of Highway Safety. In this age range, children should remain in the back seat.

Children under 4’9” cannot safely sit in a car’s seat with the seatbelt alone, because the seatbelt will not fit them properly. The purpose of the booster seat is to position the child and the seatbelt so that your child is properly secured. Some of these seats have high backs, while some of them are backless. High-back booster seats are for smaller children, while the backless seats are for taller children.

Eight to Eighteen Years:

Once your child has reached the height of 4’9”, they may graduate from the booster to a regular car seat with seatbelt. Once your child reaches the age of 8, he or she may ride in the front seat, with either a booster, or without once they meet the height requirement. It is important that the seatbelt fit the child properly. The lap belt should sit snugly across the upper thighs (not the stomach), and the shoulder belt should rest snugly across the chest (not the neck or face). Your child should be tall enough to sit in the seat with their back to the seat and their knees bent over the edge of the seat comfortably. Your child needs to be able to maintain this seat position throughout the entirety of your trip, otherwise, they need to remain in a safety seat.

How Can I Be Sure My Child’s Safety Seat is Properly Installed?

According to a 2002 study, 81 percent of children are incorrectly restrained when traveling in a vehicle. In Georgia, you can go to your local fire department or any of the other locations linked below to learn how to properly install a car seat.

Georgia Department of Highway Safety’s list of Child Safety Seat Fitting Locations.

A Child Passenger Safety Technician (CPST) can also help you properly install your child’s car seat.

Child Safety Seat Tips:

  • When the child is seated in a seat with a harness, the retainer clip at the top of the harness should sit at armpit level.
  • Harness straps should be flat and untwisted and should be adjusted snugly.
  • Lap belts should be fitted low and snugly across the hips.
  • Shoulder belts should not sit across the face or neck, and should never be behind the child’s arms or back.
  • Make sure your child’s safety seat is correctly rated for their height and weight per the manufacturer’s instructions. Always follow the manufacturer’s instructions for your child’s safety seat.
  • Do not use a secondhand safety seat or a seat that has been in a collision or has been recalled. The National Highway Traffic Safety Administration has a tool that allows you to search and see if your child’s seat has been recalled. It is also important to register your car seat! Complete the registration that comes with your child’s car seat to receive notifications if the seat is ever recalled.
  • Your child should not wear a large or puffy coat when in a safety seat, as this can prevent proper fitting of the harness, shoulder or lab belts. We’ve included a link to some tips to help keep your child warm and safe in the winter months while on the road.
  • Car seats should be used for travel only. Do not allow your child to remain strapped into a car seat outside of the vehicle. This practice has resulted in unfortunate infant deaths. Car seats are not a replacement for cribs or bassinets.
  • Do not use a seat that is too old, or has any visible damage, such as cracks or missing parts.
  • Be a role model! Always wear your seatbelt (It’s the law, after all!) and help your child build the healthy habit of always buckling their seat belt when on the road. Remember, click it or ticket!
  • Never leave your child unattended in or around a vehicle.

Your child’s safety is your highest priority as a parent. Ensuring that they are properly restrained every time you drive is the best way to keep your kids safe on the road. We have linked a recent Car Safety Seat Product Listing to help you choose the seat that is right for your child.  For more child passenger safety information, please visit the Georgia Governor’s Office of Highway Safety website.

Mediation Process in Personal Injury Cases

Personal Injury lawyers shaking hands after a successful negotiation.

Understanding Mediation in Personal Injury Cases: A Path to Settlement

When pursuing a personal injury claim, the process of settling your case can take many different routes. In some instances, claims are settled before a lawsuit is even filed or shortly after a lawsuit is filed. In some cases, a settlement may not occur until just before the trial is set to begin. One of the key tools in the settlement process is mediation – a method used by attorneys in personal injury cases to help parties reach a resolution before the case goes to trial.

What is a Mediation in a Personal Injury Case? What is a Mediator?

Mediation is a structured, formal process used to resolve disputes between parties. Using a mediator is part of the overall ADR (alternative dispute resolution) process, which includes arbitration and other dispute resolution services. It is essentially a settlement conference, typically overseen by a neutral third party known as a legal mediator. Mediators are often experienced professionals, such as retired judges or lawyers who have extensive experience in the legal field in which you are mediating. For example, in the personal injury space, you can expect to have a mediator that was an insurance defense lawyer and maybe even a plaintiff’s attorney so that the parties can rely on their experience when trying to resolve the dispute. Their role is not to make binding decisions but to facilitate a productive discussion between the parties involved, helping them weigh the strengths and weaknesses of their respective cases. The goal is to encourage settlement by making both sides more aware of their options, and also their risks.

While some cases may be mediated prior to filing a lawsuit, mediation typically occurs after the lawsuit has been filed, and the discovery process has been completed so both sides are armed with the knowledge to allow them to make a sound decision on whether to resolve the case at mediation. The discovery phase of a personal injury lawsuit is when both sides exchange information about the case, including exchange documents, pictures and videos, and also taking depositions of witnesses and experts, allowing each side to understand the other’s position.

What Happens During the Mediation Process?

At the start of mediation, both parties typically participate in a general conference. In this initial meeting, both the plaintiff and defendant (and their respective lawyers) usually present the key points of their case. The plaintiff will outline the strengths of their case, as well as the weaknesses of the defendant’s case. Likewise, the defense lawyer will do the same, allowing both sides to gain a clearer understanding of each other’s arguments. The actual injured party typically does not speak during this time, nor are they required to answer any questions.

After this conference, the parties separate into their individual rooms. The mediator will then move between the rooms, discussing each side’s position, exploring offers and counteroffers, and providing insights into the risks and benefits of continuing the case versus settling. The mediator’s goal is to bridge the gap between the parties, gradually moving both toward a compromise.

The Goal of Settlement: Finding the Middle Ground

The success of a mediation ultimately hinges on whether the least amount the plaintiff is willing to accept is less than or equal to the most amount the defendant is willing to pay. To visualize this, think of buying a car. The car salesman has a price, but they know the buyer won’t pay the full price. Likewise, the buyer knows they won’t pay the sticker price but will make a lower offer. The negotiation process involves moving toward a price where both the buyer and the seller are satisfied. Similarly, in mediation, if the defendant’s maximum offer meets or exceeds the plaintiff’s minimum acceptable settlement, a resolution is reached.

However, not all cases settle during mediation. If the parties can’t agree, the case will proceed toward trial. Despite this, mediation tends to have a high success rate, largely because experienced attorneys can assess the risks involved and recommend a reasonable settlement value.

Do You Have to Testify at Mediation?

A common question clients ask before attending mediation is whether they will have to testify or make a statement. In most cases, the answer is no. While the process may vary from case to case, it is not necessary for the client to testify, and it is certainly not required. The role of the client is to make the final decision about what they are willing to accept in terms of a settlement, based on the attorney and mediator’s advice and suggestions. Most of the talking during mediation is between the client and the lawyer while the mediator is out of the room. Sometimes, the mediator will ask questions, but this is done without the other side in the room, or their lawyers, and is usually only to get a further understanding of the issues. Which leads me to my last, and final point….

Is the Mediation Confidential?

Anything that is discussed in mediation is strictly confidential. This includes what is said between the parties and any discussion with the mediator outside the presence of the other side’s attorneys. The mediator is only allowed to tell the other side what you and your lawyer allow the mediator to say. The process is confidential to encourage the parties to be open and forthright in their attempt to resolve the case without the fear of anything being said in the mediation to be used against them in court. You cannot go to trial after a failed mediation and proclaim “the defendant only offered us $5 at mediation! Can you believe that?!”

Is Mediation the Best Course of Action for Your Case?

Mediation is an effective tool in personal injury cases, providing a way to settle disputes before they reach the courtroom. It allows both parties to present their case and receive expert advice from a neutral mediator, which can guide them to a mutually agreeable settlement. However, the success of mediation ultimately depends on the willingness of both sides to compromise.

If you have been injured due to someone else’s negligence, it’s important to understand the options available to you, including the possibility to mediate your personal injury case. At Williams Elleby Howard and Easter, we offer free consultations to help guide you through your personal injury claim and determine the best course of action for your situation.

Call us today at 833-LEGALGA or visit us at gatrialattorney.com for more information.  Call Us! It Won’t Hurt ™

Georgia Personal Injury Claims and AI

A glowing AI micro precessor chip floating just above a dark circuit board.

What is AI? In its most basic sense, AI is artificial “intelligence” that allows machines or computers to perform tasks that would normally require human intelligence. Google Cloud gives us a straight-forward analysis of AI that includes brief answers to questions like: How does AI work? What types of AI exist? How does AI learn? What are some benefits of AI? 

AI can benefit our lives in many ways, but we should proceed with caution, especially when utilizing AI in conjunction with personal injury claims. When it comes to personal injury claims, this author, believes that current AI technology is a flawed tool for estimating the value of a person injury claim. My law partner and I dig into the “Why” in this video:

Don’t have time for a ten-minute video, no problem. Let’s take a real-world case example to understand the “Why”:

I provided Microsoft Copilot with the following prompt:

What is the value of a personal injury case with the following facts in the State of Georgia? A man visits a restaurant/bar and consumes 7 alcoholic drinks over a 4-hour period. When the bar closed, an employee asked the man to take some items outside. The man did so and was unintentionally locked out of the bar. It was very cold and raining outside. The man attempted to gain re-entry by knocking on the door and calling the employee. He was unsuccessful. Therefore, he tried to walk around the building to gain access through a rear entrance. As he walked around the building, he fell 11 feet off a concrete retaining wall and sustained significant injuries. The retaining wall was located in a dark unlit area of the property. The bar owner knew the retaining wall was a hazard; yet, no guards or railing were placed around the retaining wall. The most severe injuries were a moderate TBI and lower back disk injury. He was hospitalized for 5 days and incurred approximately $350,000 in medical bills. What is this case worth?

I received the following Answer:

I’m really sorry to hear about the injuries sustained in this incident. Determining the exact value of a personal injury case can be complex and depends on various factors, including the severity of the injuries, medical expenses, lost wages, and pain and suffering.

Given the details you’ve provided, the case involves significant injuries, including a moderate traumatic brain injury (TBI) and a lower back disk injury, with substantial medical bills of approximately $350,000. In Georgia, personal injury settlements can vary widely, but severe injury cases can sometimes reach settlements in the range of $200,000 to $500,000 or more.

It’s important to consult with a personal injury attorney who can evaluate all aspects of the case, including liability, negligence, and the extent of damages, to provide a more accurate estimate.

Would you like some help finding a reputable personal injury attorney in Georgia?

There is a lot to unpack here but I must start with the fact that CoPilot undervalued this case by over $4,000,000.00. This is the actual jury verdict our firm obtained in December of 2023 showing exactly what a 12-person jury awarded in a case with these facts:

A redacted legal document, specifically of a verdict form from a personal injury case in Cobb County Georgia where the plaintiff was found 25 percent at fault and the defendant was 75 percent at fault.
A piece of paper showing showing a Cobb County Georgia jury award of $1,840,000 on 12/15/2023.

You can learn more about this specific case here:     

But, I digress. Why, in this example does AI attempt to provide a numerical answer? Perhaps, it is because I asked it to. But why not answer the question in a way that acknowledges AI’s current shortcomings? An answer that simply encouraged me to seek the advice of an experienced lawyer would be more helpful and minimize the risk that I would be misled by the response.

The injured person would need to consult an experienced lawyer and discuss several issues that would arise in a case like this. So, what are some variables an experienced lawyer should consider in estimating case value?

  1. How can Georgia’s comparative fault laws effect a personal injury recovery? In Georgia, a jury can allocate percentages of fault between the Plaintiff, Defendant, and Non-Parties. The juries’ allocation of fault between those persons will determine whether the Plaintiff may recover and whether the Plaintiff’s total damages will be reduced. Georgia’s comparative negligence laws, would completely bar a recovery if the jury determined that the Plaintiff was 50% or more at fault. O.C.G.A. § 51-12-33(g). If the jury found the Plaintiff to be more than 0% but less than 50% at fault, the judge would be required to reduce the total damages awarded to the Plaintiff in proportion to his or her percentage of fault.
  2. Where would the lawsuit be filed? In legal circles, we call that “jurisdiction” and “venue.” Jurisdiction and venue matter! If a federal court has jurisdiction over the case, a lawyer must be admitted to practice before that court and intimately familiar with its local rules. Also, if a state court has jurisdiction, a lawyer must know what county is appropriate for filing suit. This is referred to as “venue.” Jury verdicts vary tremendously between counties in the State of Georgia and, on average, there is a clear difference in the amounts awarded by juries in traditionally conservative venues versus progressive venues.
  3. What is the legal status of the injured person? Was he an invitee, licensee, or trespasser? The duty owed by a property owner is different depending on whether the injured person is a business customer (invitee), social guest (licensee), or trespasser.
  4. Does the amount of time someone will suffer from the injury affect case value? Yes! The lawyer needs to determine whether the injuries are permanent. This is done by consulting with reputable medical professionals who can offer opinions about how the injuries will affect, if at all, the injured person over the remaining years of his or her life. Juries tend to award higher damages if the injured person suffers from his or her injuries for a long period of time.
  5. What if I’m injured, and the property has no insurance? If the property owner or occupier has no unencumbered assets and no insurance, the injured person may not want to bring a claim. After all, the “value” of the case is $0, if there is no person, entity, or insurer to pay for the damages. However, if the property owner has sufficient liability insurance to pay for the injured person’s damages, it may be worthwhile to bring a personal injury claim.

The list of variables one must consider when estimating the value of an injury case is lengthy, but the lesson here is that everyone should use extreme caution when using AI to assign “value” to personal injury claims. AI’s ability to provide an accurate response is limited by the information it is provided. If the person who submits an inquiry to AI does not know the proper variables to include in a question, he or she is likely to receive an inaccurate answer. AI is also limited by what it has “learned” and what information is available when it formulates an answer. AI will undoubtedly make many aspects of our lives easier, but it has a long way to go before it can be relied upon to provide reliable legal advice.

CoPilot did acknowledge that “It’s important to consult with a personal injury attorney who can evaluate all aspects of the case…” Kuddos to CoPilot for acknowledging this important fact; however, CoPilot made a monumental error that could harm the consumer by offering to find a “reputable” personal injury attorney in Georgia. I responded, “Yes” (and am not including CoPilot’s response here because I do not feel it is appropriate to provide additional publicity to one of the firms that was recommended).

CoPilot recommended four personal injury law firms. One of those firms was highly reputable and I would not hesitate to hire them for my own case. However, one of the firms is being sued in a class action in the State Court of Gwinnett County, Georgia for violating O.C.G.A. § 33-24-53 (Unlawful Solicitation of Personal Injury Victims), O.C.G.A. § 16-14-4 (Racketeer Influenced and Corrupt Organizations Act), and O.C.G.A. § 10-1-391 (Fair Business Practices Act). The style of the case can be found on the Georgia Court of Appeals website. Why would CoPilot recommend a law firm that is facing such accusations?

All in all, if you are injured and curious about the value of your case, don’t trust AI to provide a value or to recommend a law firm. Do your own research. Talk to lawyers and search for credible information on law firm websites and YouTube Channels. Many reputable law firms provide accurate and free information if you simply look for it. For example, you can find advice on anything from finding the right lawyer for your case to What is a Neck Injury Worth to How Long Will My Workers Compensation Case Take?

The decisions one makes after a personal injury will greatly impact his or her finances. Those decisions should be made with the advice of a reputable and experienced lawyer. CoPilot and I agree on this basic principle. Call a good lawyer. It won’t hurt.

Nursing Home Abuse and Injury Cases in Georgia

Elderly abuse from negligent nursing home in Georgia.

A national, privately-owned nursing home chain advertised its services with glossy brochures, showing its smiling staff serving 5-star dinners to happy residents in immaculate dining halls.  Pictures of nurses out of central casting were seen providing “concierge” medical care to healthy residents in beautiful bedrooms.  The goal, of course, was to induce residents and their families to believe that top-notch service was provided.  Both private insurance and taxpayer-funded Medicare was happily accepted. 

In reality, residents who were unable to feed or care for themselves routinely went without adequate nutrition and basic healthcare. In one instance, a diabetic patient died because he was not given a snack by a poorly trained and overworked nursing assistant.  A subsequent lawsuit by Williams Elleby Howard & Easter attorneys revealed the chain had a pattern of staffing shortages and inadequately trained staff that repeatedly resulted in substandard care.  After fighting hard to obtain internal records, the chain was required to turn over emails and memos that showed the profit motive behind these staffing shortages. 

“[R]esearch findings consistently show higher staffing levels are related to higher quality of care,” However, “under current government prospective payment systems, nursing homes make choices on how to allocate their resources. About 70% of nursing homes are for-profit facilities with an orientation to maximizing profits for owners and shareholders.”  

Failure to Meet Nurse Staffing Standards: A Litigation Case Study of a Large US Nursing Home Chain .

Providing substandard care including minimum staffing for residents, especially to increase profits, is illegal. 

Under federal regulations, nursing homes are required to:

  • Provide nursing care to all residents on a 24-hour basis in accordance with resident care plans.
  • Have a “licensed nurse to serve as a charge nurse on each tour of duty… and licensed nurses have the specific competencies and skill sets necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.”
  • The facility must meet or exceed a minimum of 3.48 hours per resident day for total nurse staffing including a minimum of 0.55 hours per resident day for registered nurses 2.45 hours per resident day for nurse aides; and
  • aides must be “able to demonstrate competency in skills and techniques necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.”

Code of Federal Regulations, 42 C.F.R. § 483.35.

A good way to research whether a nursing home has a history of poor staffing or other problems is to look on the Medicare’s “nursing home compare” website.  Medicare.Gov   This site provides information on nursing homes by location and includes comparisons on the quality of care and staffing. 

In many states, including Georgia, a nursing home that hurts someone by failing to follow regulations is liable for negligence and negligence per se.  For example, in 2006, the Georgia Court of Appeals specifically held that violations of nursing home staffing regulations allowed a resident’s family to sue for harm that resulted from the violations because “It is obvious that as a resident of the nursing home owned by [Defendant, Plaintiff’s] father belonged to the class of persons for whom these statutes and regulations were intended to protect, and that the injuries set forth in the complaint… were among those these same statutes and regulations were designed to prevent.”    McLain v. Mariner Health Care, Inc., 279 Ga. App. 410, 413, 631 S.E.2d 435, 438 (2006).

Some of the most important questions to ask when looking at a potential nursing home negligence or malpractice case are:

  • Did the harm result from a violation of a federal or state regulation;
  • Was there a pattern of such violations;
  • Was there a profit motivation behind the violations?

Nursing home cases can be complex and difficult to prove. Having an experienced lawyer who knows the federal and state regulations is important so that victims can understand their legal rights and options.

The experienced medical malpractice attorneys at Williams Elleby Howard & Easter, handle negligent nursing home cases throughout the State of Georgia. If you would like to discuss your case, call today to schedule a free consultation at 833-534-2542.

If you or a loved one has been harmed because a nursing home failed to properly staff and provide proper care, Attorney Marc Howard along with the Williams Elleby Howard & Easter team, can help you understand your personal injury claim and work to get you the compensation you deserve.

Georgia’s O.C.G.A. 9-11-67.1 Automobile Wreck Pre-suit Demand

Georgia’s O.C.G.A. 9-11-67.1 Pre-Suit Car Wreck Demands

Pre-Suit Demands in Auto Wreck Cases and Why They Are Important! A History on Georgia’s O.C.G.A. 9-11-67.1.

In almost every car wreck case it is important to send the at-fault insurance company a pre-suit demand. In Georgia, the law that controls pre-suit demands for car wrecks is found at O.C.G.A. § 9-11-67.1. 

This statute was first enacted in 2013 and set out the requirements needed to send a valid pre-suit demand in a car wreck case. 
Those requirements (or material terms) were as follows:

  1. State a time which such offer must be accepted, which shall not be less than 30 days
  2. The amount of the monetary payment
  3. The party or parties the claimant(s) will release if accepted
  4. The type of release, if any, the claimant(s) will provide to each releasee; and
  5. The claims to be released.

The code section also stated that the recipient could seek clarification regarding terms, liens, subrogation claims, medical bills, records, and other relevant information, and such clarification would not amount to a counteroffer.

This law was enacted in response to what were traditionally called “Holt demands.” These Holt demands were sent to insurance companies giving them typically no more than ten days to respond to a policy limits demand, along with other conditions the offeror deemed fit. Failure by the insurance companies to comply with Holt Demands would then lead to a bad faith claim against the insurance company for failing to pay the policy limits in a timely manner, and situations where insurance companies were potentially paying well above their policy limits for acting in bad faith by failing to settle per the conditions of the Holt demand. O.C.G.A. § 9-11-67.1 was enacted to bring clear rules to these demands.

Like most laws, once the initial statute was enacted there were some things that needed to be further refined. Thus, the law was amended in 2022, which modified the material terms and required clarity with what type of release was being offered (whether a full or limited release), and an itemization of what was to be provided to each releasee.

Some additional changes required:

  • The demand to include medical or other records in the offeror’s possession to allow the adjuster to evaluate the claim;
  • If a release was not provided in the demand, sending a proposed release by the adjuster was not considered a counteroffer;
  • Limiting the material terms of a demand to those listed in the code section; and
  • If payment was required by a certain day, that date could not be less than 40 days from the receipt of the offer.

The biggest impact of the 2022 amendment was confirming that the only material terms that could be included in the demand were those listed in the code section, and any other stated material term had to be agreed upon by both parties. It also allowed the recipient to provide a proposed release when accepting a demand, and that by doing so did not amount to a counteroffer.

In 2024, however, the statute was amended for a third time. Unlike the prior amendment, this amendment made some notable changes to the material terms. Specifically, the material terms were amended to include the following:

  • You must include a specific date by which such an offer must be accepted, which shall not be less than 30 days.
  • You must include a specific date by which payment shall be delivered, which shall not be more than 40 days from the offer.
  • A requirement that in order to settle the claim, the recipient shall provide the offeror a statement under oath regarding whether all liability and casualty insurance issued by the recipient that provides coverage or may provide coverage has been disclosed, along with a date in which such disclosure must be made, but not less than 40 days from receipt of the offer.

The newest amendment also clarifies that any disagreement with an immaterial term does not subject the recipient to a civil action from an alleged failure to accept an offer. However, seeking to modify any of the material terms would not be deemed a clarification.

Importantly, and as stated above, this type of demand only applies to death or injury resulting from a motor vehicle collision and must be sent prior to the filing of an answer. There are other types of demands that are sent in other personal injury cases, including premises liability, medical malpractice, and product liability cases, to name a few.

As you can see, this law has had some significant changes over the years, which is why it is important to consult with a knowledge personal injury attorney when you or a loved one has been injured in a car wreck.  In this video, Attorneys Joel Williams and Chase Elleby discuss the steps involved in settling a car wreck case to ensure you receive the compensation you deserve.

Williams, Elleby, Howard, & Easter serves clients throughout the State of Georgia. If you or a loved one suffered a personal injury as a result of a car wreck, the attorneys at Williams, Elleby, Howard, & Easter can help you understand what possible claims you may have and work to get you the compensation you deserve. To schedule a free consultation, call 833-534-2542 today.

Autonomous Vehicles and Georgia Personal Injury Law

Woman reading a magazine while riding in a self-driving car, with digital displays showing autonomous vehicle technology.

Navigating a New Legal Landscape: Self-Driving Cars and Georgia Personal Injury Law

What once seemed like a futuristic pipedream is now a reality- The Insurance Institute for Highway Safety expects there to be 3.5 million vehicles with self-driving capabilities on the road by 2025. While this technological advancement promises greater convenience and safety on the roads, it also raises complex legal questions, especially concerning personal injury claims.

Understanding Self-Driving Technology

Self-driving cars, also known as autonomous vehicles, utilize advanced sensors, cameras, and artificial intelligence algorithms to navigate roads without human intervention. Tesla, a frontrunner in this field, has been developing its FSD mode, which aims to enable fully autonomous driving capabilities. While most major automakers’ new vehicles provide backup sensors, front crash warning systems, laser-guided cruise control and lane assist features to help cars remain in the correct lane, Tesla is the first to take the next step toward providing a truly autonomous vehicle.

Tesla’s Full Self-Driving (FSD) Mode

Tesla’s FSD mode represents a significant leap forward in autonomous driving technology. It incorporates features such as Autopilot, Navigate on Autopilot, and Traffic Light and Stop Sign Control. These features allow the vehicle to practically drive itself. Once engaged, the system will drive the vehicle with virtually no human intervention. It is capable of seeing and reacting to other vehicles on the road, changing lanes, reading road signs, obeying traffic lights, yielding to pedestrians, navigating to locations, and parking itself all without human intervention. While these features offer convenience and enhanced safety, they also pose two major questions: (1) are they safe and (2) what are the legal considerations in the event of accidents or injuries.

Are Autonomous Vehicles Safe?

Determining the safety of autonomous vehicles is difficult because there is currently no reliable way to confirm whether a driver was using the automated driving mode at the time of a crash. However, most safety agencies agree that automated driving systems offer significant potential to reduce traffic crashes. The National Highway Traffic Safety Administration (NHTSA) of the U.S. Department of Transportation reports that 94% of crashes in the United States are caused by some sort of human error, with the leading causes being driving under the influence, distracted driving, and driving while tried. Therefore, the Department of Transportation found that automated driving systems “have the potential to significantly reduce highway fatalities by addressing the root cause of these tragic crashes.”

However, the question still remains as to whether these systems are “safe enough” to rely on for day-to-day use. I have spent the last three months driving a Tesla with Full Self-Driving capabilities and am not ready to say that it is “safe enough.” While I am, by no means, a safety expert, I can definitely say there were moments where, if left unchecked, the car would have caused a crash.

FSD technology does so many things well. However, there are certain situations where it fails miserably and others where it is just annoying. It fails miserably at seeing large white objects on clear sunny days. I have twice been in situations where I was stopped at a stop sign and the car almost pulled out directly in front of a large white vehicle crossing the intersection in front of me. Had I not been paying attention and disengaged the system, the FSD would have caused a crash in both instances. The FSD is annoying in the time it takes to make decisions in certain situations. At times, I can sense the car “thinking” about whether an action is safe. This feels like it takes forever and really slows down other traffic in the area. For example, when the car parks itself, it stops in the middle of the parking lot for a significant amount of time as it measures/plans its path to park. Also, when waiting to pull out from an intersection, the car will wait quite a while when there is no traffic coming to ensure it is safe to go. While these delays are probably safer, it does seem to cause congestion and annoyance to other drivers.

Despite my anecdotal evidence of issues with the technology, Tesla has published data showing that its FSD technology is safer than human driving. Tesla’s data reveals that it recorded one crash for every 7.65 million miles driven using its FSD technology, while the most recent data available from NHTSA reveals that, in the United States, there was one crash approximately every 670,000 miles driven. Thus, Tesla claims that its FSD technology is 1,100% safer than the average American driver.

Legal Implications of Autonomous Vehicles

Determining liability in a crash involving an autonomous vehicle will likely be much easier due to the technology available on the vehicles. All autonomous vehicles are equipped with multiple cameras, which record and store data in real time. Therefore, after a crash, it is much easier for the responding office to pull the video from the car to see exactly what happened in the wreck and determine who was at fault. The driver of the autonomous vehicle is still responsible for the actions of the car; thus, fault would still lie with the autonomous vehicle driver even if the crash occurred while operating in self-driving mode.

The more complicated question involves insurance coverage. Who must pay for the crash? To date, Georgia law has not passed any statutes directly addressing insurance coverage as it relates to autonomous vehicles. Therefore, normal negligence and insurance law applies, which would make the driver of the at-fault vehicle and her insurance company responsible for the damage caused by the crash.

However, in a crash involving serious injuries where a malfunction of the autonomous driving software caused the crash, an injured party may be able to pursue a products liability claim against the manufacturer of the car/software. These cases can be complex; nevertheless, it is most certainly an avenue that an experienced personal injury attorney would explore should the facts warrant it.

The Rise of Robo-Taxis: What You Need to Know

Beyond individual ownership, the concept of Robo-taxis, or autonomous ride-hailing services, is on the horizon. Companies like Tesla and Waymo are exploring the potential for deploying fleets of self-driving vehicles for on-demand transportation. While this promises greater accessibility and efficiency, it also raises questions about insurance coverage, regulatory compliance, and passenger safety. Deploying these types of vehicles on Georgia’s roads will most certainly require new laws to determine what types of insurance coverage is required and who would be responsible for providing that coverage. Only time will tell how this plays out in the Georgia Legislature.

How to Protect Your Rights in a Self-Driving Future

In the face of rapid technological advancement, it’s crucial for individuals to stay informed and proactive about their legal rights. If you’re involved in an accident involving a self-driving car, here are some steps to take:

   1. Seek Medical Attention:

           Your health and safety should always be the top priority. Seek medical attention for any injuries sustained in the accident.

   2. Document the Scene:

           Gather evidence, including photographs of the accident scene, vehicle damage, any relevant road conditions, and check with the autonomous vehicle driver to see if there is video of the crash.

   3. Contact Law Enforcement:

            Report the accident to the police and obtain a copy of the accident report.

   4. Consult with an Attorney:

            A skilled personal injury attorney can help preserve evidence, assess your case, advise you on your legal options, and represent your interests in negotiations or litigation.

Conclusion

Self-driving cars hold the promise of a safer and more efficient transportation future. However, as with any technological innovation, there are legal considerations that must be addressed. By understanding your rights and seeking knowledgeable legal representation, you can navigate the complexities of personal injury claims in the age of self-driving cars. The experienced personal injury attorneys at Williams Elleby Howard & Easter work hard to get accident victims the compensation they deserve.

Located in Kennesaw, Georgia, Williams Elleby Howard & Easter serves clients throughout the State of Georgia. If you or a loved one suffered an injury as a result of a autonomous vehicle, Attorney Jared Easter at Williams, Elleby, Howard, & Easter can help you understand what possible claims you may have and work to get you the compensation you deserve. To schedule a free consultation, call 833-534-2542 today.

Medical Malpractice Misdiagnosis

Female patient in a hospital bed holdong her face.

Misdiagnosis Medical Malpractice Lawsuits in Georgia

Although not every case of misdiagnosis in Georgia leads to injury or a medical malpractice lawsuit, the impact of serious injuries resulting from misdiagnosis is significant. In 2023, joint researchers from the Johns Hopkins School of Medicine and Harvard Medical School  determined that annual misdiagnoses in the United States resulting in serious injury ranged from 598,000 to 1,023,000 patients.  Newman-Toker DE, Nassery N, Schaffer AC, et al Burden of serious harms from diagnostic error in the USA BMJ Quality & Safety 2024;33:109-120. The study defined “serious” as any case involving permanent injury (morbidity) or death (mortality). 

Additionally, the National Academies of Sciences, Engineering, and Medicine (NASEM) published a consensus report which emphasized the urgent need for change to address diagnostic errors, which pose a major challenge to healthcare quality. The Committee defined a misdiagnosis as “the failure to

  • (a) establish an accurate and timely explanation of the patient’s health problem(s) or
  • (b) communicate that explanation to the patient.”

NASEM, 2015, Improving Diagnosis in Health Care. Washington, DC: The National Academies Press.  

Should I File a Lawsuit for Misdiagnosis?

When injured patients and their attorneys are considering whether to file a medical malpractice lawsuit based on a misdiagnosis or delayed diagnosis, several critical questions come into play:

  1. Accuracy and Timeliness of Diagnosis:
  • Was the initial diagnosis accurate and timely? A misdiagnosis occurs when a healthcare provider fails to establish an accurate and timely explanation of the patient’s health problem.
  • Evaluating the accuracy and timing of the diagnosis is crucial in determining whether there was negligence or error.
  1. Harm Caused by Misdiagnosis:
  • Did the misdiagnosis result in serious harm that could have been avoided? Patients must demonstrate that the harm they suffered directly resulted from the misdiagnosis.
  • This harm can include permanent injury (morbidity) or even death (mortality).
  1. Expert Testimony and Support:
  • Can all aspects of the case be supported with testimony from medical experts? Expert opinions play a significant role in medical malpractice lawsuits.
  • Expert witnesses can provide insights into whether the misdiagnosis fell below the standard of care and caused harm.
  1. Justification for Legal Action
  • Are the injuries severe enough to warrant pursuing a medical malpractice lawsuit? Legal proceedings can be expensive and time-consuming, especially when they involve medical malpractice.
  • Weighing the severity of injuries against the costs involved is essential when deciding whether to proceed with legal action.

Seeking Compensation for Misdiagnosis in Georgia Requires the Help of an Experienced Medical Malpractice Attorney

Imagine these scenarios: A pregnant woman is told everything is normal at a prenatal appointment, but she is showing signs of premature labor.  A brain infection is thought to be cancer, subjecting the patient to dangerous radiation therapy that makes the infection worse and causes brain damage.  Critical imaging showing internal bleeding is not communicated in a timely manner, resulting in the patient’s death.  These are all examples of medical misdiagnoses cases that resulted in tragic outcomes and, eventually, medical malpractice lawsuits filed by Williams Elleby Howard & Easter.

When a misdiagnosis results from negligence, Georgia laws provide a remedy for the victim. Like most states, Georgia requires every licensed treater to exercise “reasonable care and skill” when treating a patient.  Ga. Code § 51-1-27.  In limited circumstances involving patients admitted through an Emergency Department (“ED” or “ER”), a treater is immune from malpractice claims unless the treater is guilty of “gross negligence,” which is a failure to exercise even slight care.  Ga. Code § 51-1-29.5 .

The duty to exercise care when treating patients applies to anyone providing treatment for compensation including medical doctors, nurse practitioners, physicians’ assistants, laboratories, chiropractors, and physical therapists.  In the case of a failure to communicate a condition to a patient, there can also be claims against staff at hospitals, doctor’s offices, and laboratories.

Proving Harm in Misdiagnosis Cases

Even if a negligent misdiagnosis occurred, Georgia law also requires a patient to prove that the misdiagnosis “caused or contributed to cause … harm.  In the legal world, we refer to this concept as “proximate causation.” To meet this burden, a medical malpractice plaintiff must present expert testimony.” Harvard v. John D. Archbold Mem’l Hosp., Inc., 365 Ga. App. 171, 174, 877 S.E.2d 816, 819 (2022).   For instance, in 2022, the Court of Appeals of the State of Georgia reviewed a case involving a stroke victim who did not get timely treatment due to delayed lab work and CT scan results.  However, the patient’s expert witness could not testify that the delay made a difference “to a reasonable degree of medical certainty,” or more likely than not.   So, the Court held that the case could not proceed to trial.  Harvard, 365 Ga. App. at 176.  

Moreover, injured patients and their attorneys must assess the economic viability of filing a medical malpractice lawsuit. At its core, the question is whether the damages resulting from malpractice outweigh the substantial financial costs associated with legal proceedings. Most medical malpractice lawsuits require more than $100,000.00 in expenses to pursue. These expenses encompass things like expert witness fees, filing fees, record retrieval fees, medical illustration and animation fees, deposition fees, and more. Additionally, the patient’s attorney invests countless hours in the case. Therefore, evaluating whether the case justifies the financial and time commitments becomes crucial for both the patient and their legal representative.

The Time Limit for Bringing a Misdiagnosis Lawsuit in Georgia

In misdiagnosis cases, understanding the time frame for filing a lawsuit is crucial.  In Georgia, nearly all medical malpractice cases adhere to a 2-year statute of limitations, requiring patients to file a lawsuit within 2 years from the date of negligence.  Ga. Code § 9-3-71. The Supreme Court of Georgia emphasizes that, “except in the most extreme circumstances,” the statute of limitations begins to run “immediately upon the misdiagnosis.”  However, there’s an exception: if the misdiagnosis results in a “new injury” such as a pre-cancerous mole progressing to metastatic cancer.  Amu v. Barnes, 283 Ga. 549, 551, 662 S.E.2d 113, 116 (2008). Since a patient might not know about the misdiagnosis initially, the clock could start ticking before they realize the need to investigate potential malpractice.  Like any malpractice case, seeking advice from a qualified attorney promptly is advisable.

Misdiagnosis Medical Malpractice Attorneys in Georgia

Medical malpractice cases can be complex and difficult to prove. This is especially true when it comes to misdiagnosis cases. Even though these claims can be difficult to win, victims of harm should still understand their legal rights and options.

The experienced medical malpractice attorneys at Williams Elleby Howard & Easter, handle misdiagnosis medical malpractice cases throughout the State of Georgia. If you would like to discuss your case, call today to schedule a free consultation at 833-534-2542.

If you or a loved one has been harmed because a doctor failed to properly diagnose an illness, Williams Elleby Howard & Easter, can help you understand your misdiagnosis claim and work to get you the compensation you deserve.

Distracted Driving is a Real Problem in Kennesaw, GA

distracted driving accidents deadly

Automobile Accidents are a Real Problem in Cobb County, GA

According to Georgia Automobile Crash Data published by the Georgia Department of Transportation (“GDOT”) on its crash data portal, there were 25,716 accidents in Cobb County, Georgia during 2022. 10,603 people were injured in those accidents and 77 died.  These statistics are alarming but they are down right scary when we break them down further. These statistics suggest that in 2022, on average, 70.45 accidents occurred every day in Cobb County. Again, on average, 29.04 people are hurt in these accidents every day and someone died every 5.18 days.

Distracted Driving is a Dangerous Habit for Many Georgia Drivers

A major cause of deadly traffic accidents is distracted driving. In today’s high paced world, drivers can be distracted by many things ranging from cell phones to kids arguing in the back seat. 52,149 of the 57,605 distracted driver convictions reported to the Georgia Department of Driver Services in 2021, were for violations of O.C.G.A. § 40-6-241(c) Unlawful Use of Wireless Device. Of all the counties in Georgia, Cobb County had the third most convictions for violations of O.C.G.A. § 40-6-241(c). The only Georgia counties with more convictions for Unlawful Use of a Wireless Device were Fulton and Gwinnett Counties. Detailed distracted driver data reports for Georgia can be found on the Georgia Department of Driver Services website.

Despite extensive research showing just how big of a problem distracting driving is, drivers continue to engage in behavior that causes them to lose focus on the road. People often underestimate the risk of talking on the phone, text messaging, eating while they drive, or overestimate their ability to multitask. But with lives at stake, practicing safe driving habits is crucial.

Careless Tractor Trailer Drivers Drive While Distracted

Just a few years ago, this author was contacted by a potential client after he was rear-ended by a tractor trailer driver on Interstate-285 outside of Atlanta. At first glance, the case seemed to be fairly routine but things got interesting when I filed suit and obtained the tractor-trailer driver’s cell phone records.

During the lawsuit, I served written discovery on the tractor-trailer driver, his employer, and his insurance company. Initially, they vehemently denied that he was using his cell phone at the time of the crash. Specifically, the driver claimed he was checking his mirrors as a safety measure prior to the crash:

Screenshot of a motor vehicle accident report highlighting the official description of the crash.

His cellular provider’s records told a different story. The driver was, in fact, engaged in a lengthy text messaging conversation during his trip and at the time of the crash. This was easily proven by comparing the Georgia Crash Report – Crash Date & Time to the driver’s cell phone records as shown below:

Screenshot of a motor vehicle accident report highlighting the documented time of the crash.
Screenshot showing detailed phone records of text messages, including dates and times messages were sent and received, illusttrating distracted driving risks.

When this tractor trailer driver was texting and driving, he knew that his actions were dangerous. He said so in his deposition testimony:

6         Q.  Did you know at the time of this
7.    wreck and did you believe at the time of this —
8.    that this wreck occurred that texting and driving
9.    was, as on this video we just watched, one of the
10.  most dangerous things you can do while driving a
11.  vehicle?
12.       A.  Yes, I was aware.
13.       Q.  And did you it anyway?
14.        A.  Yes.

This driver’s dangerous choice to text and drive caused significant injuries to my client that resulted in a very expensive and risky neck surgery. As a consequence of this driver’s choice to text and drive, my client will never be the same. He has internal hardware to stabilize his spine and he will never again be the same father and husband he once was. In addition to my client’s serious injuries, this driver’s employer had to pay a large amount of money to settle this claim.

Nobody “won” in this situation. A man’s life was forever altered and a company lost a lot of money due to its driver’s dangerous choice to text and drive. We should all keep this lesson in mind so we don’t make the same dangerous mistake.

Common Bad Habits to Avoid While Driving in Georgia

  1. Texting. This is a bad and dangerous habit in Georgia and throughout the country. Texting while driving is extremely dangerous. Some research shows that the dangers of texting and driving can be as profound as those associated with drinking and driving. Texting and driving should always be avoided for safety reasons. Moreover, it is illegal to do so in Georgia and punishable by a fine. 
  1. Using apps or other phone functions. Equally dangerous is using your phone to access apps, music, or any other functions. For instance, one study suggested that the rising popularity Pokemon Go was causing more accidents on the road because game-obsessed drivers sometimes try to play as they drive. Like texting, using smartphone applications while driving should always be avoided.
  1. Talking on the phone. Some studies show that even hands-free cell phone conversations present a significant risk. Although hands-free calling is a safer way to communicate than texting, you should be aware that it still presents a risk on the road.
  1. Eating and drinking. Some people eat and drink when they drive. In fact, at one time or another most people have probably tried to grab a bite or sip on a soda while behind the wheel. While there are some circumstances where this might be safe, you should never eat or drink anything that takes both hands, is messy, or can be easily spilled.
  1. Any other multitasking. There are countless other ways a person can be distracted trying to multitask as they drive. Anytime you are taking attention away from your driving to do something else, it can be a problem and a safety hazard.

Distracted Driving Poses Significant Financial Risks

Distracted driving poses significant financial risks, impacting individuals and society at large. Lets explore some financial consequences that may arise from this dangerous behavior:

  1. Increased Auto Insurance Premiums: Traffic violations related to distracted driving lead to higher automobile insurance premiums. When you receive a citation for distracted driving, your automobile insurance costs can increase significantly. According to The Zebra, a 2024 cell phone violation can increase your insurance premiums by 21.56%. Repeated offenses can compound these costs resulting in prohibitively expense automobile insurance premiums. 
  1. Insurance Claims and Payouts: Insurance companies are in the business of making money. Distracted driving accidents result in property damage and personal bodily injury payouts. An “at-fault” distracted driving accident will almost certainly increase the at-fault driver’s premiums. However, the financial fallout does not stop with that driver. When more distracted driving accidents occur, automobile insurers will have higher overall claims expenses. This means that those increased expenses will be passed along to the public in the form of higher premiums.
  1. Property Damage and Repairs: Distracted driving often results in crashes, leading to property damage. Repairing or replacing damaged vehicles can be expensive, especially in the modern world where vehicle maintenance and repair costs continue to rise.
  1. Medical Expenses: Distracted driving accidents can result in injuries to drivers, passengers, and pedestrians. Medical expenses, including hospital bills and doctor visits can quickly add up.
  1. Legal Fees and Fines: Most states have enacted laws that impose monetary fines on individuals who plead guilty or are convicted of distracted driving. For example, in Georgia, the monetary fines can be found at O.C.G.A. § 40-6-241(f)(1).
  1. Lost Wages and Productivity: When distracted driving leads to accidents, the accident victims often miss time from work to deal with car repairs, doctor’s appointments, etc. This can result in lost income for the victims and lost productivity for employers when their employees are unable to perform their job duties efficiently.
  1. Vehicle Depreciation: Most of us know that the resale value of a damaged vehicle is much less than a non-wrecked vehicle. Even after repairs, potential buyers may hesitate to purchase a car with an accident history.
  1. Business Costs: When commercial vehicles are involved in distracted driving accidents, the businesses often face repair costs, insurance claims, and lost revenue. For example, when a tractor trailer driver is involved in a distracted driving accident, the trucking company will likely face several claims that include damaged cargo, property damage, worker’s compensation, and even third-party bodily injury. It may not end there. If the company has a history of distracted driving accidents caused by its drivers, it may face regulatory penalties and lose business from customers that hire it to transport goods.

Distracted Driving is a Top Concern for Automobile Accident Lawyers

Personal injury automobile accident lawyers are usually interested in whether the at-fault driver was distracted at the time of the wreck that injured their client. There are many reasons for this but the primary reason is that injury claim and lawsuit awards are usually larger when the are aggravating circumstances that contribute to the wreck.

So, why are monetary awards typically larger when someone causes a wreck while they are distracted? In this author’s experience, it is because the distracted driver is less sympathetic than an attentive driver who simply made a mistake.

In most situations, a conscious choice must be made to take whatever action caused the distraction. For example, someone must choose to use their cell phone. They must choose to wear earbuds. They must choose to check their email. They must choose to play a game. They must choose to apply makeup. A conscious choice is much different from an innocent mistake where someone, for example, misjudges the distance between themselves and another driver.

Additionally, drivers that violate a distracted driving law may be negligent per se. This means the law presumes that the distracted driver breached their duty of care and is negligent as a matter of law. In negligence per se cases, the injured party (usually the Plaintiff) only needs to prove that the negligent acted “caused” their damages (and of course, what those damages are).

The lesson here is quite simple. Distracted driving exposes drivers to significant financial burdens so don’t do it.

Be Safe: Focus on the Road When Driving

Driving isn’t a time to lose focus. Every day, most Americans drive and it is easy to get complacent. Distracted driving not only jeopardizes lives but it also results in substantial financial burdens. By staying focused on the road, we can mitigate the risks of driving and promote safer driving practices for everyone.

If you’d like more information, or if you’ve been injured by a distracted driver, feel free to contact the personal injury lawyers at Williams Elleby Howard & Easter at (833) 534-2542 in Kennesaw, Cobb County, Georgia today.

Animal Bite Injuries

A dog with sharp teeth aggressively barking.

WHAT IS GEORGIA’S DOG BITE LAW?

In Georgia, there is a statute regarding injuries caused by animals, including dogs. This is found in O.C.G.A. § 51-2-7. According to the 2024 version of this statute, a negligent owner of a violent dog that causes unprovoked harm can be held liable for damages. Specifically, the statute states:

A person who owns or keeps a vicious or dangers animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leach by an ordinance of a city, county or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.

Dogs can be loyal and loving members of the family. But with ownership comes responsibility, and the potential for liability from a dog bite or attack if you are not careful. According to an article written by Peter Tuckel and William Milczarski that was published in 2020, dog bites are a common cause of emergency room visits in the United States each year.

Dog bites, as you could imagine, can cause serious injuries and even death. When dangerous or vicious dogs cause harm, or when dog owners negligently permit dogs to attack others, dog bite victims may be entitled to compensation for the damages and injuries they suffer.

Whether a dog bite claim will be successful depends on a number of factors and are what we like to call “fact specific.” If you have suffered an injury as a result of a dog bite or dog attack, it is important to understand the law and to be aware of your rights. Of course, it is always best to consult with an attorney as soon as possible.

Four elements dog bite victims must prove to win their claim in Georgia:

  1. Vicious propensity. A dog that has a history of aggressive behavior towards people, or has been involved in past incidences of biting, may be considered “vicious or dangerous” under the statute. This element is automatically met if a dog was required by law to be at heel or leashed and was instead running free. S&S Towing & Recovery, Ltd. v. Charnota, 309 Ga. 117 (2020). Most cities and counties have ordinances requiring dogs to be on a leash. For example, in Cobb County, Georgia, dogs must be on a leash not exceeding six feet in length when away from their home. In addition, you can prove vicious propensity if you can gather evidence of prior bites or attacks. This can be done by sending an open records request to your local animal control agency for any and all complaints or incident reports regarding animals at a specific address.
  2. Careless management. Letting a dog off-leash in public or otherwise allowing it to roam free around others could meet this element. If a dog is on its owner’s property, careless management could occur if an owner knows the dog is aggressive to guests yet fails to contain or control it. Careless management could also occur if the owner does not have control of the dog while on leash and knew, or should have known, the dog could lunge or attack. If you undertake to restrain a dog, and do so in a negligent manner, you can be liable for that dog attacking or biting someone else. Myers v. Ogden, 343 Ga. App. 771 (2017).
  3. Unprovoked attack. To meet this element, a dog bite victim must not have provoked the dog into attacking. Unlike other types of torts, the doctrine of comparative negligence will not apply in this circumstance. If a person provokes a dog into attacking by antagonizing it, a dog bite claim will be completely defeated. Teasing, kicking, yelling, throwing objects, and other antagonizing behavior toward a dog that results in an attack or bite will not be recoverable.
  4. Attack causes injuries. As with any personal injury claim, a dog bit victim must prove that any injuries sustained were caused by the dog bite or the attack. This can include an actual bite from the animal, or an attack where the bog chases someone off leash causing that person to fall and become injured. In the second scenario there would be no “bite” but the attack and behavior of letting a dog run off a leash led to the injuries.

The Statute of Limitations for Bringing Dog Bite Claims

Under Georgia law, you have two years from the date of the incident to bring a claim for a dog bite or attack. The two-year period begins the moment that the victim knows that they have been injured by a dog bite. In certain circumstances this two-year period can be “tolled” or delayed, for instance when a victim is unable to bring a lawsuit because of their injury or because the defendant prevented them from doing so. When bringing a claim, the injured party is almost always bringing the claim against the dog owner’s homeowner’s insurance policy. If the dog owner does not own a home, or live in a home where coverage applies, we would look to renters’ insurance to cover any potential claim.

I have handled many dog bite cases in my career, and everyone is different. As an example, a prior client was bitten on the leg by a dog while running on a sidewalk. Not only was the dog off leash and roaming the neighborhood, after an investigation, we discovered that the owner in question had many prior offenses with dogs escaping their property. This was enough to make an allegation for punitive damages. In another case, my client was bitten by a dog at a park while the dog was on a leash. However, the owner knew the dog would lung and bit and failed to properly control their dog which resulting in a serious bite to the face. Finally, in another example, a client was attacked by a god while playing in a neighbor’s yard when the adult supervising the children carelessly let the dog out of the house. The adult was aware the dog was aggressive and had been barking excessively prior to being let outside. As soon as the dog escaped from the house, they attacked our client’s child and drug her into the bushes. In each of these examples, we were able to seek justice on behalf of our clients and secure favorable settlements.

Contact Williams Elleby Howard & Easter Today for More Information

The dog bite personal injury attorneys at Williams Elleby Howard & Easter, are dedicated to vigorously representing personal injury victims throughout Georgia. If you have been bitten or attacked by a dog, the injury attorneys at Williams Elleby Howard & Easter can help you understand your rights and get you the compensation you deserve. Call Williams Elleby Howard & Easter, to schedule a consultation today at (833) 534-2542.