Evidence

July 27, 2020

How to Get a Doctor’s Testimony before the Jury in a Recent Georgia Car Accident Case

by Christopher Simon

In a Georgia car accident case, the injured person usually needs to have medical testimony from the treating doctors to help the jury understand the gravity of the injury. To spare Doctors from having to close their practice and spend half a day in Court, the Georgia legislature created the Medical Narrative statute. It basically says that if the letter is on letterhead from the Doctor and is signed and clearly lays out the nature of the medical problem and what caused it, that letter can be shown to the jury as evidence. The defense can always choose to pay to depose the Doctor and cross examine but otherwise it usually comes in. Defense lawyers will often challenge the admissibility of the letter on several bases and this appellate case is an example of that.

Earlier this year, a state appellate court issued a written opinion in a Georgia car accident case discussing whether the trial court’s ruling to strike portions of the plaintiff’s treating physician’s narrative about medical care was correct. Ultimately, the court concluded that the medical provider’s narrative was not “too inconclusive, speculative, and vague,” finding it admissible.

The Facts of the Case

Back in 2016, both the plaintiff and defendant were involved in a multi-vehicle collision. The plaintiff initiated a personal injury claim against the defendant, and the defendant acknowledged he was responsible for the accident. However, the defendant claimed that he was not liable for the plaintiff’s injuries.

At trial, the plaintiff presented a narrative from her treating physician. The narrative outlined the care provided to the plaintiff, as well as an estimate of the cost of necessary future medical care. The defendant objected to the admission of the narrative, arguing, among other things, that it was “too inconclusive, speculative, and vague” concerning the future cost of medical care. The trial court agreed with the defendant, striking those portions of the narrative.

June 5, 2020

postedDuty to Preserve a Car After and Accident in Georgia

by Christopher Simon

Spoliation is a hot button issue in Georgia and defense attorneys have begun sending out spoliation letters is basic car wreck cases insisting the Plaintiff keep the damaged car after an auto accident. Lawyers for the Plaintiff have a tough decision to make. It’s no problem where the Defendant’s own insurance deals with the totaled care because they take possession. The problem arises where the Plaintiff’s own insurance company takes charge of the repairs or salvage. The vehicle is not really under the Plaintiff’s control in that situation and can lead to it going to the crusher without the Plaintiff’s knowledge. In the case we discuss below, the problem is highlighted and the trial court issued the severe sanction of throwing the wrongful death case out of court as a sanction for allowing the car to be destroyed by the wrecker yard. Fortunately, the Court of Appeals reversed the decision and observed that in these facts, the destruction was just negligent and did not deserve the ultimate sanction of having the case thrown out.

The state appellate court issued an opinion in a Georgia car accident case discussing the spoliation doctrine, which can be used by a party to impose sanctions on an opposing party who destroys or fails to preserve relevant evidence in an upcoming trial. The court ultimately determined that although the plaintiff was under a duty to preserve the evidence at issue, because a third party destroyed it without the plaintiff’s knowledge or consent, the lower court was improper to dismiss the plaintiff’s case.

The Facts of the Case

According to the court’s opinion, the plaintiff’s wife was killed in a car accident when she encountered standing water on the highway. Evidently, the woman lost control of the car as it hydroplaned and crashed into another vehicle. It was later discovered that the storm drain that was designed to remove water from the highway was clogged with debris. The plaintiff brought a personal injury lawsuit against the city in charge of maintaining that area of the road.

Evidently, the plaintiff’s vehicle was towed to a scrap yard following the accident. In a letter to the plaintiff, the scrap yard required the plaintiff to pay a storage fee; otherwise, the plaintiff’s vehicle would be destroyed and sold for scrap. The plaintiff retained an attorney, who sent a letter to the scrap yard, introducing himself as the plaintiff’s attorney, and requesting that all future communication be sent to him. The attorney also instructed the scrap yard that the vehicle must be preserved for trial, and that there could be severe sanctions if it was destroyed.

January 15, 2016

Georgia Court of Appeals Reverses in Elevator Injury Case

by Christopher Simon

Elevators are among the tremendously useful inventions of the modern era. Indeed, buildings would have never reached even half of the astronomical heights they have attained in the elevator’s absence. Along with being a modern necessity, however, elevators can be incredibly dangerous when not properly maintained. Although a shoddy cable breaking is the most worrisome concern, even more minor failures in elevator upkeep can lead to injury. Indeed, the smaller risks posed by poor elevator maintenance were at the center of a recent decision from the Georgia Court of Appeals, Hill v. Cole CC Kennesaw GA, LLC.

Hill arose from a trip and fall accident at a building where the plaintiff was employed. On the day of the accident, an elevator repair technician employed by Kone, Inc. performed preventative maintenance work on the elevator at issue as well as three others located in the building. At around 5 p.m., after purportedly completing this maintenance work, the technician left. However, about five hours later, the employee entered the elevator with a coworker. The trip was uneventful except that when the elevator reached the desired floor, the base of the elevator did not line up with the edge of the floor. Unaware of the mis-leveling issue, the plaintiff tripped while exiting and hit her head against a metal pole located inside the elevator. The plaintiff’s coworker pressed another button and was returned to the lobby, where she sought assistance for the plaintiff. After this string of events, which included the plaintiff’s journey to the emergency room, a different building occupant noticed the leveling problem and reported the issue to management.

January 5, 2016

Georgia Court of Appeal Reverses in MARTA Negligence Case

by Christopher Simon

Under Georgia law, a defendant’s admission of liability may be presented as evidence in a negligence case. Admissions of liability can have considerable influence on juries, so determinations regarding which evidence may properly be considered an admission are often hotly contested. Although trial courts have considerable discretion in making such evidentiary determinations, their rulings, given the potential impact, are not immune from appellate review. Indeed, in a recent decision, Agic v. Metro. Atlanta Rapid Transit Auth., the Georgia Court of Appeals recently reversed a trial court for improperly excluding evidence of a MARTA bus driver’s admission of liability for an auto accident.

As noted above, Agic arose from a motor vehicle accident involving a MARTA bus and two other vehicles. The plaintiff in this case was a passenger in an SUV being operated by another person. The driver of the bus hit a different vehicle while attempting to change lanes on North Druid Hills Road. The collision caused the other vehicle to travel into incoming traffic, where it was struck by the SUV in which the plaintiff was traveling. After the collisions, the police told the bus driver he was free to go but then later requested that he return to the scene of the accident, where the bus driver was issued a traffic citation for improperly changing lanes. The bus driver paid the citation without appearing in traffic court, resulting in forfeiture of bond. In addition, MARTA conducted its own investigation of the crash, and the driver signed a report that acknowledged that the accident was “preventable.” The plaintiff sustained injuries as a result of the crash and brought suit against MARTA and the bus driver. Prior to trial, the defendants made a motion in limine, which sought to exclude any reference to the citation during trial. The trial court granted the motion. After the trial, the jury returned a verdict favorable to MARTA, and the plaintiff appealed the verdict.

December 7, 2015

Georgia Court of Appeals Determines Whether Jurors May Use the Sense of Touch in Assessing Evidence

by Christopher Simon

In a recent medical malpractice decision, the Georgia Court of Appeals addressed an intriguing issue concerning whether jurors may use the sense of touch in weighing evidence. The decision, Piedmont Newnan Hospital, Inc. v. RA-085 Barbour, arose from an alleged act of medical negligence that occurred during the course of medical testing at a Georgia hospital. During the trial, counsel for the plaintiff requested that the jury be allowed to touch the plaintiff’s hands in order to determine whether there was a perceptible difference in temperature, a fact important for assessing the testimony provided by the parties’ competing expert witnesses. The trial court granted the plaintiff’s request, permitting jurors who wished to touch the plaintiff’s hands to do so. Following the trial, which led to a favorable judgment for the plaintiff, the defendant appealed several issues, including the trial court’s ruling to let the jury utilize their sense of touch.

This events leading to this suit started on June 1, 2011, when the plaintiff visited the defendant hospital, complaining of chest pain and labored breathing. The plaintiff underwent a battery of diagnostic tests, in particular a nuclear stress test, which compares blood flow to the heart at periods of rest and stress. The test requires a small amount of nuclear material to be injected into the patient’s bloodstream, so that it may serve as a tracer and aid in taking images of the heart. In this case, the tracer was administered using an IV catheter, which was originally placed in the patient’s left arm. During the stress portion of the test, and shortly after a second dose was administered, the plaintiff began to experience pain. A nurse terminated the test, believing that the nuclear material may have infiltrated the plaintiff’s arm. The plaintiff was discharged with instructions for dealing with his arm.

June 19, 2015

Georgia Court of Appeals Examines “Pronounced Results” Exception’s Effect on Expert Affidavit Rule

by Christopher Simon

Georgia law requires that a plaintiff in a medical malpractice action provide an expert affidavit that must generally set forth the defendant’s failure to comply with the applicable standard of care. See O.C.G.A. § 9-11-9.1(a). Failure to comply with this requirement renders one incapable of successfully advancing a medical negligence claim. However, there are cases when actual testimony from a medical expert is unnecessary to ultimately succeed on a malpractice claim. For instance, the “pronounced results” exceptions obviates the need for expert testimony when the injury is of such an obvious nature that a jury can appraise the failure to exercise care without the assistance of an expert on the subject. In a recent decision, Zarate-Martinez v. Echemendia, the Georgia Court of Appeals addressed the interesting question of whether the expert affidavit requirement is waived in cases when a pronounced results exception is viable.

The plaintiff in this case alleges that a physician negligently performed an out-patient open laporoscopic tubal ligation procedure on her. The plaintiff had gone home the same day of the surgery without incident but started to experience pain, nausea, and fever over the coming days. She eventually went to the emergency room, where it was discovered that a part of her lower intestine had been perforated. The perforation was repaired, and the plaintiff remained in the hospital for further treatment.

March 20, 2015

Georgia Court of Appeals Tackles Appeal in MARTA Wrongful Death Suit

by Christopher Simon

Public transportation is certainly a benefit, if not a necessity, for many in the Atlanta metropolitan area. However, travel on the rails or in buses, like driving in a car, is not free of risk. In a recent decision, Maloof v. Metropolitan Rapid Transit Authority, the Georgia Court of Appeals addressed whether it was appropriate to grant summary judgment in favor of MARTA in a negligence suit involving a disabled passenger traveling in a para-transit vehicle.

The accident at issue in the case occurred on April 13, 2005. On that day, the deceased, whose estate brought the instant lawsuit on her behalf, was traveling in a MARTA para-transit van. After the deceased boarded the bus, she backed her wheelchair into position, and the driver of the vehicle secured the wheelchair to the floor in four places and strapped a lap belt across the deceased’s waist. The deceased, however, declined to wear the shoulder harness. The deceased had traveled on para-transit buses before and had on all previous occasions declined to wear the shoulder harness. While making a wide right turn onto Piedmont Avenue, the para-transit van veered into an adjoining lane of traffic and, as a result, made impact with another vehicle. The contact was slight, but in an effort to avoid a more serious collision, the driver stopped abruptly, which caused the deceased to fall to the ground and break her leg. The deceased remained immobile for several months before passing away a little more than four months later.