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In a recent case, the Supreme Court of Georgia decided that a wrongful death lawsuit can be limited by a previous personal injury settlement. The case is an important decision for Georgia personal injury and wrongful death plaintiffs.

car accidentThe Facts of the Case

A woman was in a car accident that left her in a permanent coma. Her husband filed a personal injury lawsuit on her behalf against Toyota, alleging that her Toyota vehicle had a defective seatbelt latch and door-locking mechanism. The case went to trial, but before the jury returned a verdict, the plaintiff and Toyota entered into a “high-low” settlement agreement.

The agreement provided that if the jury found in favor of Toyota, the plaintiff would still recover a certain amount of money. However, if the jury found in favor of the plaintiff, Toyota would only be liable up to a certain amount of money. Thus, the agreement guaranteed the plaintiff a recovery, but a limited one.

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Following the procedural rules is important in any claim, but this is particularly the case in a Georgia medical malpractice claim, as failing to follow the procedural requirements can result in dismissal of a claim right from the start. Understanding the exceptions is just as important, as one recent case showed.

Expert ConsultationIn that case, a woman filed a medical malpractice claim against a doctor and his practice. The defendants argued the case should be dismissed because the woman failed to file an expert affidavit with the complaint, and the defendants claimed she also failed to retain an attorney more than 90 days before the expiration of the statute of limitations.

The plaintiff had alleged she was injured during a cervical node excision performed on August 1, 2014. The plaintiff filed the medical malpractice claim on August 1, 2016. She did not file an expert affidavit, but attached the affidavit of her attorney who testified that the woman had retained him on July 29, 2016. He testified that because the statute of limitations would expire within ten days of the filing, an expert affidavit could not be prepared in time. The woman amended her complaint on September 13, 2016, attaching the expert affidavit as required.

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Recently, a state appellate court issued a written opinion in a Georgia medical malpractice case requiring the court to determine if a jury’s zero-dollar award for the plaintiff’s pain-and-suffering claim was adequate as a matter of law. Finding that the award was “clearly inadequate,” the court reversed the award. However, since the case involved allegations that the plaintiff was also partially at fault, the court ordered a new trial on both the issues of damages as well as liability.

Doctor's DeskThe Facts of the Case

The plaintiff, who had a history of high blood pressure, woke up one evening with the worst headache she had ever experienced. Later, the plaintiff stated to experience diarrhea and vomiting. After a couple of days, the symptoms had not subsided, and, thinking she had a bad case of food poisoning, the plaintiff went to the emergency room at the defendant hospital.

While at the hospital, the plaintiff explained her symptoms, including her excruciating headache. However, the intake nurse only documented the plaintiff’s gastrointestinal-related symptoms in her chart. Thus, after a short stay at the hospital, the plaintiff was discharged and told to make an appointment with a primary care doctor.

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Recently, a state appellate court issued a written opinion in a Georgia car accident case involving the question of whether the plaintiff’s insurance company was responsible for his injuries, based on the policy’s uninsured motorist clause. Ultimately, the court determined that the accident was not within the scope of the plaintiff’s insurance policy because the vehicle involved in the accident was furnished for the plaintiff’s everyday use.

Logging TruckThe Facts of the Case

The plaintiff, an employee of a logging company, was provided with a logging truck to help carry out his duties. The truck was owned by his employer, but the evidence suggested that the plaintiff was able to keep the truck overnight at his own residence once he was done working for the day.

One day, the two tires on the truck blew out. The plaintiff pulled over and called his employer, who arrived to assist in changing the tires. However, while the two were changing the tires, one of the tires blew out, injuring the plaintiff.

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Earlier this month, a state appellate court issued an opinion in a Georgia car accident case involving a dispute between the plaintiff and an insurance company. The question the court was tasked with answering was whether the plaintiff adequately complied with the requirements of the insurance policy, such that the insurance company was obliged to cover her accident claim.

Time's UpThe Facts of the Case

The plaintiff was involved in a car accident in August 2015. A week or two after the accident, the plaintiff sought medical care for her injuries. However, the plaintiff continued to suffer significantly, which prevented her from working. The plaintiff soon afterward filed a personal injury lawsuit against the other driver; however, notice of the lawsuit was not provided to the insurance company until April 2016.

At the time of the accident, the vehicle the plaintiff was driving was owned and insured by her ex-husband. That insurance policy contained language that, in order to obtain coverage, a claimant needed to notify the insurance company immediately of any accident. The insurance company sought dismissal of the case against it on the basis that the plaintiff failed to provide immediate notice after the accident.

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All Georgia motorists are required to maintain a certain level of auto insurance in order to legally drive. The purpose of this requirement is to ensure that anyone who causes a Georgia car accident is able to cover at least some of the the costs of medical and other expenses expenses for the accident victims. However, determining whether a person, vehicle, or accident is covered under an insurance policy is not always as straightforward as policyholders believe.

Horse-Drawn CarriageA recent case brought this difficulty to light after a plaintiff who was injured in an accident involving a horse-drawn carriage sought coverage for his medical expenses. Ultimately, the court’s opinion held that, although the accident victim’s uninsured motorist (UIM) policy was not implicated in the accident, the carriage driver’s policy may cover the plaintiff’s injuries.

The Facts of the Case

The plaintiff was injured while a passenger on a horse-drawn carriage. At the time, the carriage had just finished participating in a Christmas parade. The driver of the carriage maintained a liability policy with the defendant insurance company. The plaintiff also maintained an unrelated policy with the defendant insurance company. The plaintiff’s policy contained an uninsured motorist provision covering the plaintiff in the event that an at-fault driver was uninsured.

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Earlier this year, a state appellate court issued a written opinion in a Georgia premises liability lawsuit requiring the court to determine whether the defendant landowner was immune from liability under Georgia’s recreational-use statute. Ultimately, the court determined that the recreational-use statute did provide immunity to the landowner, and the plaintiff’s case was dismissed.

Four-WheelerThe Facts of the Case

The plaintiff was the surviving spouse of a man who died while riding a four-wheeler on the defendant’s property. The deceased was a member of a hunting club that was set up by a friend. The friend had arranged to lease some of the defendant’s land solely for the purposes of hunting. The lease contemplated that others would be accompanying the decedent’s friend, but no one else was granted explicit permission to use the land in the lease.

On the day of the accident, the plaintiff’s husband was riding a four-wheeler, scouting out a good location to hunt. During his scouting expedition, the man ran over an old well and fell inside, where he sadly died.

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Recently, the Court of Appeals of Georgia issued a written opinion in an important Georgia premises liability case discussing the applicability of the state’s Recreational Property Act (RPA) to a slip-and-fall case arising out of an accident occurring at a free concert put on by a local university. The court ultimately determined that the RPA did not shield the university from liability because, although entry to the concert was free, the university may have been furthering its economic interests in putting on the concert.

Stadium SeatingThe RPA

Georgia’s Recreational Property Act grants immunity to landowners who open their land for recreational purposes to the general public. In order to qualify for this immunity, a landowner must not charge a fee or receive an economic benefit for the use of their land. The stated purpose of the statute is to encourage landowners to open up their land to the public without fear of incurring financial liability should an accident occur.

The Facts of the Case

A woman was attending a free “Second Sunday” concert at a local park that was put on by a university. The park was owned by the local government, but the university had permission to use the park for the concert event. There were vendors at the concert who sold food, drink, and merchandise, but none of them paid the university. However, in a grant proposal, the university did note that its “community economic development resources” could potentially be monetized, resulting in “potential for additional revenue streams for the university.”

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As a general matter, Georgia medical malpractice lawsuits must be filed within two years from the date the claim arises. In most cases, a patient will be aware of a doctor’s negligence in the immediate aftermath of a surgery or procedure. In this situation, the claim is said to arise on the day the surgery or procedure is performed.

Dentist's ChairIn other situations, however, a plaintiff may not realize that they have been a victim of medical malpractice until a later date. This may be because they did not suffer any symptoms until months or years later or because after the error, they were treated by the same physician and did not discover the error until they received a second opinion. In some rare cases, the treating physician actively covers up their alleged negligence through fraud. In each of these cases, the statute of limitations can be extended.

A recent case decided by the Court of Appeals of Georgia illustrates how a plaintiff’s late-filed claim against a dentist was excused based on the dentist’s fraud in covering up his own potential negligence.

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In personal injury cases, before a case reaches trial, the parties engage in the discovery process. Discovery is the stage of litigation at which the parties exchange requested information that is relevant to the case or may lead to the discovery of other relevant evidence.

Defective TireThe rules of discovery require that parties make certain evidence available for the opposing side, even if that evidence is not favorable to the party that possesses the evidence. Along those lines, the rules prohibit the destruction of discoverable evidence. A recent Georgia personal injury case takes a look at when a plaintiff’s obligation to preserve evidence arises.

The Facts of the Case

The plaintiff was the surviving spouse of a man who was involved in a serious car accident after the tread on one of his vehicle’s tires separated. After the accident, the plaintiff’s husband was taken to the hospital, where he remained unresponsive for several days.

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