Atlanta Injury Lawyer Blog

Finds Compatible Donors Across The Country
Read Comments (1)Recommend Print Article Email Article Larger Smaller Updated 1/12/2010 6:21:02 PM
Marc Pickard

Giovanni Santos was out of options.
The nine year old Buford, Georgia boy had already received a kidney from his grandmother... which was now failing.
And though his mother and father qualified as donors, cruel circumstances prevented Giovanni from getting kidneys from them.
All looked bleak, until the Santos family was told about a new donor program that could save Giovanni's life.

Giovanni Santos was going to Children's Healthcare at Egleston, one more time.
His last trip there ended in disappointment.

"We felt like we were doing all the right things" said Giovanni's father Peterson, "but at that point we felt like there wasn't any...any other resolution available at that time. And all of our cards were played."

His kidneys failing, Giovanni's prospects were dismal.

"He had antibodies against about ninety nine percent of the population" explained Dr. Chris Larsen, director of Emory hospital's transplant center. "So we were looking at a really difficult situation to find him a donor."

But doctor Larsen was aware of a new program that could find potential kidney donors anywhere in America.

"We worked with a center in Texas" Dr. Larsen said, "who had the same situation but their donor was actually a match for Giovanni. And Michelle turned out to be a match for their recipient."

Giovanni's mother Michelle donated her kidney to a recipient in Texas. Someone in that family donated a kidney to Giovanni.

Michelle has recovered from her surgery.
She remembers the first time she saw her son, last week, after both their operations.

"it was just a great moment" recalled Michelle Santos, "because I knew I was going to see a healthy little boy."

Throughout the day, hospital staff came by to make sure that Giovanni could go home.

"We're just ecstatic" said Peterson Santos. "We're very pleased and happy. And it's a great way for us to start two thousand ten."

Giovanni is anxious to go home for more than the obvious reasons...there's his dialysis machine.

"I'm going to ask my dad if I can get a hammer" a mischievous Giovanni said. "I'm going to get a hammer and (smash it) ...because I'm tired of that."

Because of this special...and new...donor program... As many as two thousand people, who might otherwise be waiting for a kidney, could now get one.

"Someone driving in to see their doctor in Texas" Dr. Larsen said, "the last thing in their mind is that they're going to be able to be helped by a family in Atlanta to share their kidney. And likewise, they're going to be able to help a young child."

Giovanni Santos will still have to make regular visits to children's healthcare of Atlanta...and will take medication for years to come.
But he can spend more time with his friends...and soon he'll play soccer again.

Giovanni is going home...with a health kidney...two days before his tenth birthday.

He was asked how important it was going to be, to be at his birthday with a healthy kidney.
"A lot" he said. "I finally got my kidney. And this is a good birthday gift."

But before his birthday...Giovanni has some business to attend to...something about a dialysis machine.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

Some of you may remember a blog post I wrote several months ago about Giovanni Santos, a young man here in Georgia who desperately needed a new kidney. Giovanni has been undergoing dialysis every day to keep him alive until a donor kidney turned up for him. Well, today is the day. Through the remarkable "paired donor" program, Giovanni will receive a kidney from a non-relative somewhere in Texas who matches Giovanni and simultaneously, the family in Texas will receive a kidney from Michelle Santos, Giovanni's mom, whose kidney didn't match her son's but did match the person who needs a new kidney in Texas. Amazing, isn't it? Please keep the Santos Family and their surgeons in your prayers so that all goes well and keep the Texas Family in your prayers, also. Below is an article published by 11Alive.com on the surgeries occuring today in two states.

You can learn more about the paired donation program at the Paired Donation Alliance. In 2009 People Magazine honored 20 individuals as the People Most Unselfish Heroes of the Year who created the longest kidney donation chain ever. Another amazing story!!

He's Finally Going To Get The Healthy Kidney He Desperately Needs
Read Comments (4)Recommend Print Article Email Article Larger Smaller Updated 1/4/2010 8:23:11 PM
Marc Pickard

Usually, when we follow the story of a child needing an organ transplant it has a happy ending.
But when we told you about nine year old Giovanni (joe-vahn-ee) Santos last summer the news wasn't good.
Born with failing kidneys...transplanted with one of his grandmother's ...Giovanni (joe-vahn-ee) endured a series of hardships that left him without any functioning kidneys.
We heard from Giovanni's mother today.

With no healthy kidneys...Giovanni Santos doesn't get to take many trips.
But he is taking one today.

It has been a struggle for Giovanni since the summer...when efforts to have his mother and then his father donate their kidneys failed.
He has been on home dialysis.

"Dialysis has taken a toll on him" related Giovanni's mother Michelle. "It unfortunately is not working as well as they had hoped."

They have asked the rest of their family...and their friends to test to be donors.

"There was no match to be found" Michelle Santos said.

Then, through Emory hospital, they learned of something called the "pair donor" program.

"You would give your kidney to another family.....it's anonymous" said Michelle Santos. "And they would donate to your family member."

Yesterday, the Santos got a phone call.

"So we got the call yesterday from our doctor" an excited Michelle said, "that we have a match. And we are going to transplant."

Tomorrow, Michelle Santos will have a kidney removed and sent to a recipient in Texas...and that same family in Texas will send a kidney to Giovanni at children's healthcare at Egleston.

"What does that mean to you? Giovanni was asked. "I mean...that's mostly the biggest present. Biggest. Taller than this house" he answered. "better than anything you got for Christmas?" "Yes."

Giovanni (joe-vahn-ee) Santos will celebrate his tenth birthday at Children's Healthcare of Atlanta while recuperating from his kidney transplant.
He told us that's fine...because getting a new kidney will be the best birthday present he could ever get.

It will also give Giovanni a life no longer tied to a dialysis machine...more time with friends.

"I get to play with my friends more often. Get a sleep-over. Cause I hate when I have to leave. I.........hate...........it" Giovanni said. "But I can stay longer". "And play?" He was asked. "Yeah" "And have fun?" "Yeah" "And be with your friends?" "Yes."

Getting a kidney means a lot to Giovanni.
And it means a lot to his friends.
They want him to stay longer too.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

The news of another train collision was frightening and unwelcome. This time in Washington, D.C., on the Metro commuter trains.One train rear-ended another on the same track which, obviously, is not supposed to happen and you can bet doesn't happen absent someone's negligence or carelessness. The crash resulted in the loss of nine lives and injuries to 80 other passengers.
How do you miss a full size commuter train on the track ahead of you?

Could the answer be the train operator was texting while driving? It's too early to tell, but if it turns out it's because the at-fault train operator was texting while driving, I won't be shocked and I'll say you heard it here first. When I first heard of this horrible tragedy, I immediately thought of the MARTA train operator here in Atlanta who was caught texting while he was supposed to have been operating the train. But a diligent MARTA passenger caught him red-handed.

In the D. C. crash, investigators already expect "operator error" because there is simply no explanation for why the operator didn't throw on the train's emergency brake to try to stop it from plowing into the train ahead of it, yet the emergency brake appears not to have been used. I certainly hope the investigators obtain that operator's cell phone records immediately, which would indisputably show whether the operator was either on the cell phone or texting at the time of the crash. This is the procedure I follow in nearly all of my motor vehicle accident cases here in Atlanta, Georgia. My money's on texting. It has become a rampant problem, especially for operators of common carriers, e.g., buses or trains. Let's watch the reports carefully to see if there arises any evidence of texting while operating the train.

Which begs the question: What is MARTA's policy on train operators using their cell phones while supposedly operating a train? Do they even have one? Why haven't MARTA officials reassured the Atlanta, Georgia riding public that their trains are safe? The silence is deafening.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

Have you seen this video? http://www.11alive.com/video/default.aspx?playerId=newsmaker&maven_playlistId=1f23dc40ee67898d157716d17d3efded65dbd23b&maven_referrer=mrss&maven_referralPlaylistId=1f23dc40ee67898d157716d17d3efded65dbd23b&maven_referralObject=1138688802 It is of a MARTA train operator texting on his cell phone while the train is running down the rail. The operator is texting on his cell phone while he is supposed to be driving a train carrying hundreds of Georgians just trying to get to their jobs safely. Unbelievable!

Congratulations goes to Everyday Georgia Citizen Matthew Jones, who uses the MARTA subway train system to get to work and relies on the train operators to get him to work, and then back home, safely every day. Matthew spotted the train operator texting while the train was in operation on the tracks and took the smoking gun photo. Amazingly, the GM of MARTA says maybe the only thing that will happen to this train operator is a suspension. A slap on the hand! What will it take to insist on passenger safety? A train wreck while a MARTA operator is texting? Will that do the trick? We already know how deadly it can be for a train operator to be texting while he is operating a train, as evidenced by deadly train wrecks in Boston and in California (which I previously blogged about). Don't we want to spare Georgia citizens that horror?

We should all be vigilant like Matthew Jones. When we see a MARTA bus driver or MARTA train operator operating his bus or his train in unsafe manner, we must report that to MARTA. MARTA buses are identified by a bus number on the outside. The next time you see a MARTA bus operator run a red light, or other similar dangerous behavior, call MARTA with that bus number and report what you saw. The same should be done if you observe a MARTA train operator texting while driving, or asleep at the switch. Maybe MARTA won't do anything to the employee after just one complaint, but I would hope after more than one complaint the employee would get more than a mere slap on the hand. The more we do this, the safer our public transporatation will, hopefully, become. Be vigilant, Georgians!

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

Just like the Peanut Corporation of America in Blakely, Georgia, the Imperial Sugar Refinery in Savannah, Georgia knew of the dangers its plant exposed its employees and Georgia citizens to and did absolutely nothing. In an article today in the Atlanta Journal and Constitution, it is obvious the sugar corporation deliberately exposed its employees to the very real chance of death by ignoring an expert consultant's report warning the corporation's executives of the danger. Which brings to mind the question: What is wrong with Corporate America? Has corporate greed become so all important that dollars over safety is a corporation's creed now? Or is it that the past administration of the last eight years has permitted Corporate America to thumb its nose at corporate responsibility for the sake of unregulated profit such that even when human life hangs in the balance, the Almighty Corporation gets by with murder?

It is clear that in the case of the Savannah Sugar Refinery, the fourteen employees who died in the explosion and the dozens of other Georgians injured in it were asked to sacrifice too much for corporate greed. These Georgians are left with nothing but inadequate workers' compensation claims now as the Imperial Sugar Refinery is protected from the rough justice of twelve jurors in the Georgia Civil Justice System by the "exclusive remedy" of the workers' compensation system. And that is a crime.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

A new law has gone into effect for commercial pools that requires these pools all to have drains with anti-entrapment devices. Without these devices, a swimmer, usually a small child, can become entrapped by the sheer force of the drain suction. Some children have even been eviscerated by the strong suction in pool drains. This new law is designed to insure no other entrapments occur. Pools must be compliant with the new law as of December 18, 2008, so now all commercial pools should have these non-entrapment devices installed on their drains. Below is more information from the Consumer Product Safety Commission. If you regularly use a commercial pool, e.g., a country club pool, a county park pool or homeowner's association pool, now is the time, before summer, to verify with the Board of Directors that your pool has the proper drain and is compliance with this new law. We want to make sure all Georgia swimmers are safe this summer!

Virginia Graeme Baker Pool and Spa Safety Act
June 18, 2008 Staff Interpretation of Section 1404:
“Federal Swimming Pool and Spa Drain Cover Standard”*
On December 19, 2007, the President signed into law the Virginia Graeme Baker Pool
and Spa Safety Act, named after the daughter of Nancy Baker and the granddaughter of
former Secretary of State James Baker. Graeme Baker died in a tragic incident in June
2002 after the suction from a spa drain entrapped her under the water. This Act was first
introduced by Rep. Debbie Wasserman-Schultz (FL) and was supported by the Baker
family and Safe Kids Worldwide.
There is an annual average of 283 drowning deaths (2003-2005) and 2,700 emergency
room-treated submersion injuries (2005-2007) involving children younger than 5 in pools
and spas. In addition, from 1997-2007, there were 74 reported incidents associated with
suction entrapment, including 9 deaths and 63 injuries. The new law is aimed at reducing
these deaths and injuries by making pools safer, securing the environment around them,
and educating consumers and industry on pool safety.
The Act specifies that on or after December 19, 2008, swimming pool and spa drain
covers available for purchase in the United States must meet specific performance
requirements. Additionally, public swimming pools, wading pools, spas and hot tubs
must meet requirements for installation of compliant drain covers. New drain covers
which meet the current standard are now beginning to make their way into the
marketplace. Additionally, in certain instances, public pools and spas must have
additional devices or systems designed to prevent suction entrapment.
U.S. Consumer Product Safety Commission (CPSC) staff has prepared this guidance
document that spells out the technical requirements of Section 1404 of the Act, along
with CPSC staff’s answers to certain enforcement and legal issues. This document takes
into account comments provided to CPSC during an open comment period in March
2008. Comments were provided by a member of the U.S. House of Representatives, state
government officials, pool industry representatives, safety equipment manufacturers and
representatives, consumer safety organizations, and others.
CPSC staff urges all public pool and spa owners/operators, state and local health and
safety officials, and those in the pool and spa industry to carefully review this document
as they work toward complying with Section 1404 of the Act prior to December 19,
2008.
Contact CPSC at info@cpsc.gov or 301.504.7908 if you need further assistance.
* This document, which was prepared by CPSC staff, has not been reviewed or
approved by and may not necessarily represent the views of the Commission.
ENGINEERING/MECHANICAL REQUIREMENTS
Note: italicized language is taken directly from the Pool & Spa Safety Act.
Drain Covers: …each public pool and spa in the United States shall be equipped with
anti-entrapment devices or systems that comply with the ASME/ANSI A112.19.8
performance standard, or any successor standard…
Staff interpretation: All public pools and spas must have ASME/ANSI
A112.19.81 compliant Drain Covers on or after December 19, 2008. The basic
requirements of the ASME/ANSI standard are:
• Cover material must be tested for structural integrity
• Cover must be tested for body entrapment and hair entrapment/entanglement
• Cover must display a flow value in gallons per minute (gpm) that indicates the
maximum flow rate for which the cover has been approved
Main Drain: The term “main drain” means a submerged suction outlet typically located
at the bottom of a pool or spa to conduct water to a recirculating pump.
Single Main Drain: …each public pool and spa in the United States with a single main
drain other than an unblockable drain…
Staff interpretation: A main drain is a term usually referring to a plumbing fitting
installed on the suction side of the pump in pools, spas and hot tubs (a suction
outlet). Sometimes referred to as the drain, it is normally located in the deepest
part of the pool, spa or hot tub. It does not literally drain the pool, spa or hot tub
as a sink drain would, but rather connects to the pump to allow water to be drawn
from the pool, spa or hot tub for circulation and filtration.
Staff interpretation: The term “single main drain” means a submerged suction
outlet, with or without a skimmer, connected to a dedicated pool pump. A pool
may have more than one single main drain if it has multiple suction outlets that
are each connected to a dedicated pump. A group of suction outlets connected
together is considered a single main drain if the centers of the outlets are located
within three feet of one another.
Staff interpretation: Pools and spas with multiple main drains are not subject to
the requirements of Section 1404(c)(1)(A)(ii).
Staff interpretation: Multiple main drains consist of, at minimum, two fully
submerged suction outlets per pump, with drain cover centers at least 3 feet apart.
While no maximum separation is noted, the connections between the outlets and
the pump are important for proper operation and should be certified by a design
professional and inspected by a licensed inspector to ensure hydraulic balance
between outlets and the main suction line to the pump.
1 The current approved version of this standard is A112.19.8-2007. There is an Addendum moving forward
through the ASME/ANSI ballot process to correct errors in the test method for UV light exposure. The
prior version of this standard is 1987 (reaffirmed in 1996) and addresses only hair entrapment.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

Governor Perdue is again trying to eliminate the rights of all Georgians to seek legal redress when they have been injured by another person's negligence or carelessness. Please do your part to tell the Governor "No Thanks and No Way."

Enacting ‘Victim Pays’ would be like taking away David’s Slingshot
SB 108 would allow intimidation and fear to rule our court of law

Atlanta, GA—SB 108, a component of Governor Perdue’s so-called “tort reform” package, seeks to enact a ‘Victim Pays’ provision in Georgia law. Current law dictates that each party in a lawsuit pays its own attorney fees unless specific authority is granted by statute or contract allowing for the assessment of those fees against the other party. This provision is known as the ‘American Rule.’ This uniquely American method distinguishes our Civil Justice System from that of much of Europe which still operates under ‘The English Rule.’
The American Civil Justice System was based on the premise that individuals and small businesses, regardless of their financial means, have the right to seek justice for wrongdoing in a court of law that views each party as completely equal. As our Civil Justice System has matured, the American Rule has been championed as a unique equalizer — it does not discourage a person of little-to-no means from pursuing a meritorious claim — whereas ‘Victim Pays’ acts as a deterrent to individuals harmed through no fault of their own by the negligence of others.
“Governor Perdue has used the term ‘Loser Pays’ to label this provision. Yet nothing could be further from the truth” said Fred Orr, President of the Georgia Trial Lawyers Association. “This provision only affects one party in the suit — the plaintiff. If a large corporate defendant loses a claim, they will never have to pay for the victim’s legal fees under this bill, despite how baseless their defenses were.”

“SB 108 as it is written will harm middle class Georgians and small businesses the most,” said Atlanta attorney Darren Penn. “The very rich can afford legal fees and poor plaintiffs, as a practical matter, will not have to pay either. But, your traditional ‘mom and pop’ businesses and regular middle class Georgians could be bankrupted by the steep fees corporate defense attorneys charge.”

Besides creating real fear and intimidation for Georgians who wish to file suit, SB 108 fails to do much else that isn’t already covered by Georgia law. Besides having sanctions against “frivolous” lawsuits in both state and federal courts already in place, our current ‘American Rule’ operates under a contingency fee system — a natural deterrent against claims with little-to-no merit. Under the contingency fee system, the plaintiff’s lawyer carefully reviews a potential case to decide if he or she will take the case. The attorney fronts the entire cost of pursuing the case out of his or her own pocket — receiving no payment from the client. Both the client and the attorney only get paid if they win in court. In the business world, such expenditures are called ‘research and development.” Just as no business is going to spend money researching and developing a product they know to be worthless, no wise attorney would risk their money and their practice by pursuing a “frivolous” claim in court. The personal financial risk would be too high. SB 108 does nothing to improve that situation and is not needed.

“SB 108 is a procedural “gotcha” that will discourage attempts to resolve technical deficiencies in legitimate claims and will encourage gamesmanship and manipulation of the legal system by corporate defendants, rather than facilitating appropriate resolution of disputes between parties,” stated Penn. “Enacting SB 108 is like taking away David’s slingshot. The party with more money, more power and more control will have the ability to scare David into not taking a shot at all, even when David has a righteous cause.”

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

A South Carolina jury recently returned a verdict for a woman who was wrongfully accused by Target of attempting to pay for an item of merchandise with an allegedly counterfeit $100 bill. Target violated its own procedures by sending out email with surveillance photos of the plaintiff attached. After suspecting the plaintiff was trying to use a counterfeit bill, Target then took it upon itself to notify 31 other businesses about her, telling them to keep an eye out for the plaintiff in their stores. The Secret Service then visited the plaintiff and determined her $100 bill was legitimate! The stress of the investigation and the false accusations made against her reputation caused the plaintiff to lose 40 pounds.

Do American corporations simply have no common sense any more?

Cantrell v. Target Corp., U.S.D.C. (S.C.), October 22, 2008

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

We have just recently observed the one year anniversary of the tragic bridge collapse in Minneapolis, Minnesota that killed thirteen people on August 2, 2007. Our hearts and prayers remain with those families as they continue to heal from that horrible accident. The National Transportation and Safety Board (NTSB) ruled that the collapse occurred because the bridge design was inadequate. The new bridge currently being built in its place across the Mississippi River costs $235 Million and is to finished by December 24, 2008. You may remember that this Minnesota tragedy exposed the Georgia Department of Transportation's failure to inspect Georgia bridges adequately and I blogged on that back in August 2007. The Minnesota bridge collapse anniversary was a good excuse to reexamine where Georgia is regarding the safety of its bridges.

Unfortunately, the answer is not good news. A recent review from the Georgia Department of Audits and Accounts found about 9 percent of the state's bridges were classified as structurally deficient in 2007. According to TRIP, a national transportation research group, however, twenty percent of Georgia's bridges are structurally deficient or obsolete. What is going on? Is the Georgia DOT doing anything differently to discover dangerous bridges in Georgia? Or must Georgia citizens wait until a tragedy hits the citizens of this State, as it did the helpless citizens of Minnesota, before our bridges are made safe? Who is looking out for Georgians' safety on bridges in Georgia?

GDOT spokeswoman Crystal Buchanan says "You should go over a bridge and you shouldn't worry about that bridge falling down." Do you trust her with your life??

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

A very sad article appears in the Atlanta Journal and Constitution today about the unnecessary and tragic death of a North Georgia youth at an alternative school. The child hanged himself after being left for hours alone in a "seclusion" room. My friend Wyc Orr represents the mother and father of the child and they are in good hands.

The school's actions really are indefensible with obviously tragic results. This school had put the child in the "seclusion" room 19 times in his final two months there. The school's own policy required the teachers not to leave a student in the room for more than 25 minutes, but this poor child was left alone for over seven hours. And in an unbelievable act of stupidity, a teacher gave this child some string to hold up his pants and then left him alone for hours on end, during a time when this child was having a difficult time emotionally. The mother states had they just called her she would have come and picked him up. So one has to wonder "if only...."

Why didn't the school call the mom? Why did the school callously leave the student alone for seven hours? Why did the teacher give the child the rope with which to hang himself? What is going on here?

All I can say is my heart and prayers go out to the family and I pray the jury delivers the justice so richly deserved in this case. I will keep you posted.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

Once again, in typical corporate fashion, the Ruby Tuesday restaurant in Lovejoy, Georgia, has denied any responsibility for its role in serving a customer a meal that, literally, killed him. The customer, who was allergic to crab meat, ordered Chicken Fresco, but, instead, was served Chicken Oscar, which has crab meat on it. Within thirty minutes of eating his meal, this poor customer died.

Now the Ruby Tuesday restaurant denies any culpability and says they served the customer what he ordered. Now let's stop for a moment and think about that. An adult who knows he is deadly allergic to crab meat orders a dish with crab meat on it. How likely is that to have happened? No chance! It is idiotic for the Ruby Tuesday corporation even to insinuate it, much less blame their own customer who KNEW he was allergic to crab meat.

What is wrong with corporate America today in refusing to accept responsibility for its wrongdoing? It is absurd to blame their own customer, and yet here they are doing that to avoid admitting their own tragic conduct. This is the prevailing sentiment in corporate America today. Even a death in their own restaurant after eating their own food doesn't make them admit fault! I certainly hope this family is able to get some justice for this death with Ruby Tuesday. It, apparently, is going to take the Georgia Civil Justice System to make Ruby Tuesday take ownership of killing its customer. How absurd!

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

Today is Day 37 (out of 40) of the Georgia Legislature and it can be a dangerous time for Georgia citizens' rights during these last four days. A prime example is what occurred last Friday when an amendment was attached to a bill at the last moment that would adversely affect Georgia citizens' rights who wish to bring a products liability case against certain manufacturers. This products liability amendment was attached to, of all things, a bill that seeks to change the words "seat belt" to "life belt" in the Georgia Code. Fortunately, the Georgia Trial Lawyers Association was ready to defend Georgia citizens' rights and not let the Civil Justice Dismantlers get away with it. For an inside look at this, below is the "Political Insider's" take from The Atlanta Journal and Constitution this morning.

Buckle up your life belts. We’re in for a bumpy finish
Sunday, March 30, 2008, 04:00 PM

The Atlanta Journal-Constitution

We have entered the dangerous, final days of the Legislature’s winter session — a season of desperation in which innocent bills are forced into sudden, shotgun marriages with amendments they’ve never met.

Legislative dogs are wedded to feline decrees-to-be that streak through the Capitol. Often, the unions are conducted in such secrecy that even professional spectators remain ignorant — until, after several months’ gestation, the unpleasant results begin crawling around.

Lawmakers have until Friday, when the Legislature is to adjourn, for such last-minute mischief. Supervision is lax. Gov. Sonny Perdue is far away on a Chinese trade mission, struggling through the hell of chopsticks and endless toasts with sorghum-based paint-thinner.

But most of the funny stuff happens out of the schoolmaster’s line of vision anyway — unless the schoolmaster decides to join in.

An example of the shenanigans to come snuck up last week. The locale was a meeting of the House Motor Vehicles Committee, a small collection of part-time legislators whose life experiences have included real estate, law enforcement, personnel management, business and the pharmaceutical industry.

The topic at hand was S.B. 412, the epitome of do-good legislation.

Its sponsor, state Sen. Emanuel Jones (D-Decatur) wants every reference to “seat belts” in the Georgia code changed to “life belts.” He wants “air bags” to become “life bags.”

Jones hatched the five-paragraph idea with Adam Goldfein, the fellow at V103 radio who specializes in advice for car buyers. “Parents explaining to their children to buckle up their life belts really has meaning,” Jones, a car dealer, told the committee.

S.B. 412 has already passed the Senate, and now must run the House gauntlet. But several days ago, Jones was informed that his bill had grown a sixth, 113-word paragraph. “House leaders told me it had been added — they don’t ask permission,” the senator said later.

Jones was philosophical. If the addition could speed House passage of his bill, he was for it. If it proved a barnacle that would slow it down, he was against it.

Now, about that sixth paragraph. Printing it would only put you to sleep. But it contained phrases like “the proximate cause” and “industry-wide liability” and “public nuisance.” All terms were covered on that bar exam you took.

But even a layman could see this was another shot fired in one of the state Capitol’s never ending wars, over who should be permitted to sue whom. This one had to do with product liability.

State Rep. Tom Rice of Norcross, the committee chairman, embraced the addition. “I’d favor anything that would reduce the opportunity for what I call nuisance suits,” he said.

But Matt Dollar of Cobb County, the vice chairman, was more suspicious. He didn’t know what had been promised to whom, but nobody had told him. And he wondered why the paragraph had magically appeared in front of a motor vehicles committee, instead of a lawyer-laden House Judiciary Committee.

Who’s your client? Dollar asked the attorneys from Powell Goldstein, the firm that authored the paragraph.

The Public Nuisance Fairness Coalition.

Who’s that?

The attorneys couldn’t say. The members were Fortune 500 firms whose names — because of attorney-client privilege — couldn’t be disclosed right then and there. The lawmakers could be told eventually, but the lawyers would have to get permission first. One attorney let slip that a chemical company was involved.

“We’re not talking just about air bags, are we?” asked state Rep. Alan Powell of Hartwell.

The committee summoned Bill Clark, a representative of the Georgia Trial Lawyers Association, the group that does battle against business in the lawsuit war. He’d only learned of the sixth paragraph a few hours ago. He didn’t know what the language did — or didn’t do.

“I’ll concede it may be little or no change. It may be a very significant change in Georgia law,” he said. Clark advised removing the language first, and investigating the implications over the weekend.

But he was countered by Joel Williams of Powell Goldstein, who assured the part-time lawmakers that they were capable of understanding the implications of those 113 words. “You have the ability, you have the brain power,” Williams assured them.

Flattery didn’t work. On Dollar’s motion, the sixth paragraph was stripped out, and the bill was put on hold.

“There’s a rat in there somewhere,” muttered committee member and pharmacist Bobby Parham of Milledgeville as he exited the hearing. “There’s a rat in that one.”

Welcome to the final hours of the 2008 Georgia General Assembly, a period in which a law degree isn’t nearly as important as a sharp nose for vermin.

Permalink | Comments (3) | Post your comment

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

Finally, scientific proof that car accident victims aren't crazy, they really are in pain. If only their doctors would listen to them and take them seriously when they say, even a full year after the car wreck, they are still in pain. A recent study published on Monday in the medical journal Archives of Surgery showed a year after the injury, 63 percent of car wreck victims reported that they still experienced pain related to the injury, with most having pain in more than one region of the body. On average, the patients assessed their pain at 5.5 on a 10-point scale -- a level at which they would be expected to have moderate to severe interference with daily activities. The overall conclusion of the study: physicians need to offer better treatment for their patients.

As a plaintiff's personal injury attorney here in Atlanta, Georgia, whose practice consists largely of helping people who have been severely injured in car wrecks or trucking wrecks, I have heard this from my clients consistently over the last twenty years. Yet, they often can't seem to get the right treatment from their doctors, or even appropriate referrals to other physicians who might be able to help with alternative treatments. I have always suspected the physicians, strapped for time due to health insurers' controlling their practices, just aren't listening to their patients' complaints. This study seems to confirm exactly what I have thought, and validates the complaints of many of my clients. Doctors simply need to do a better job listening to their patients.

The physician who led the study admitted as much. "I was surprised that the pain was as common and as severe as they reported it to be," said Dr. Frederick Rivara of the University of Washington in Seattle, who led the study. "The implications are that we need to do a much better job of identifying pain in these patients, treating it adequately and treating it early," Rivara added in a telephone interview.

I hope the nation's physicians, especially those right here in Georgia, take notice of this study and change their practices. Their patients, and my clients, really are telling the truth when they say they are in pain.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

The Georgia General Assembly remains in session today, and with every day, some other Georgia citizen's rights are limited or even eliminated by that body. The latest example is the attempt by the Georgia Senate to extinguish a landowner's liabilty when that landowner operates, for profit, a business that could loosely be described as agricultural in nature. This would include lucrative dove and quail hunting plantations, as well as the pick-your-own strawberry and pumpkin patches that many of our school age children go to on school sponsored field trips. The Georgia Trial Lawyers Association has consistently opposed giving immunity to the landowner in that scenario, especially where the landowner has advertised to get you to come onto their land and then has charged you a fee for being there. I think any normal Georgia citizen would believe and expect that landowner to make sure his premises were safe for his customers in that setting. But the current bill, passed by the Georgia Senate last week, would allow that landowner to get off scott free from any responsibility for injuries his property, if not kept in good repair, may cause a paying business visitor.

The editorial board of the Atlanta Journal and Constitution has published an opinion against the bill in today's paper and I have copied it for you below. The bill now goes to the Georgia House to be voted on. Georgia citizens should call their respective State Representatives and ask they vote "no" on the so-called Agritourism Bill, Senate Bill 449. It is a cop-out for wealthy landowners and leaves ordinary Georgia citizens, like you and me, and our precious children, to hang out to dry. Whatever happened to taking responsibility for your actions? Under this bill, landowners could take your money and never worry about whether you're safe on their property. Outrageous.

OUR OPINIONS: No immunity for agritourism

By Maureen Downey
The Atlanta Journal-Constitution
Published on: 03/10/08
Senate passage of a bill giving agritourism broad immunity from civil liability demonstrates the power of special interests in Georgia.
Senate Bill 449, the Landowners Protection Act of 2008, exempts agritourism businesses —- petting zoos, pick-your-own orchards, hunting preserves, farm/vacation sites —- from the standards of liability that govern all other businesses.

Under current law, business owners can be held liable for injuries on their property if they fail to exercise reasonable care. Promoted by Gov. Sonny Perdue, SB 449 erases current liability standards and says that agritourism owners can only be held liable if they are wanton and willful —- a boon to the insurance policy writers who cover farms.
"This is a solution looking for a problem," said state Sen. David Adelman (D-Atlanta). "There hasn't been a single case that I know of where agritourism has been threatened by lawsuits. The current Georgia law with regard to farms and agritourism requires them to exercise ordinary care and take care of their facilities the way any other business does."
Republicans also worry about the impact of the bill. "If I knock on a farmer's door and ask if I can fish off his dock, I don't expect the dock to be in good repair," said Sen. Dan Weber (R-Dunwoody).
"But if I come with friends to fish as a result of advertising by that farmer, and pay, I expect that dock to be in good repair. If I am hunting and fishing free of charge, the farmer has immunity. If he charges me money and I get hurt as a result of his negligence, he should be liable."
Sen. Seth Harp (R-Midland) gave the example of a farm tour in which the farmer left a tractor running and someone jumped in and ran down other tourgoers.
"Today, there would be recovery against Farmer Brown for that accident," he said. "If you raise the standard to gross negligence, then you would have to prove that Farmer Brown willfully and wantonly neglected to turn the tractor off, which is a far higher standard."
Proponents argue that the bill will encourage agritourism in economically depressed areas of rural Georgia. But rural Georgia could also benefit from a Wal-Mart or Target. Why can't those chains —- or every mom and pop antique store, cafe or gift shop —- argue that they, too, should be handed a reprieve from the reasonable-care standard of legal liability?
The Senate is on a dangerous path with this bill, which will end up hurting Georgians. What happens to the family of five when the dad is paralyzed after falling out of a poorly secured tree stand in a commercial hunting preserve?
The bill's sponsor, Sen. Bill Heath (R-Bremen), argued in favor of personal responsibility, but never mentioned the responsibilities of the landowners who open their land to the public for profit.
-- Maureen Downey, for the editorial board

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

Congratulations to Patsy Bates of Los Angeles, California, who just was awarded a $9 Million arbitration award by an arbitration panel against HealthNet, her health insurance carrier, for it's illegal cancellation of her coverage at the beginning of her treatment for breast cancer. The award came a day after the Los Angeles city attorney sued Health Net, claiming it illegally canceled the coverage of about 1,600 patients. City Attorney Rocky Delgadillo also said the company illegally ran an incentive program in which it paid bonuses to an administrator for meeting targets of policy cancelations. Health Net acknowledged that such a program existed in 2002 and 2003 but was subsequently scrapped.

This is a clear example of the callousness, and sometimes outright illegality, of the way in which insurance carriers attempt to avoid payment of legitimate insurace claims. Only this time, HealthNet got caught. This was an unusual situation because, apparently, there was an arbitration clause in the health insurance policy that allowed for pain and suffering damages. Most issues regarding payment of claims by a health insurance carrier are preempted by ERISA, and the injured policyholder is unable to sue in court to assert his or her rights under the policy.

Can we presume insurance carriers right here in Georgia are doing the same thing, i.e., cancelling a policy to avoid paying out on a legitimate claim? Yes, probably, they are. The little guy who is injured must continue fight the denial decision, and often at a time in that person's life when he or she needs to be focusing on another fight, like one against breast cancer, as Ms. Bates did. Fortunately, we have Georgia trial lawyers, like me, ready to take on that fight!

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

I am proud to be a Past President of Georgia Trial Lawyers Association. It is made up of true trial lawyers who love representing the underdog against enormous odds. Our members are some of the finest lawyers in the State of Georgia and professionalism in all aspects of the practice of law is our hallmark.

The Atlanta Journal and Constitution has reported that following the Savannah Sugar Refinery blast last week, a lawyer from Texas took out a full page advertisement in the Savannah paper soliciting victims of the blast. There have also been reports that lawyers from a silk stocking law firm here in Atlanta, with an office in Augusta, has been soliciting victims who are currently being treated in the burn clinic in Augusta. This silk stocking (meaning big and expensive) firm typically defends very big corporations rather than representing individuals who have been harmed by the negligence of big corporations.

To be absolutely clear, the leadership of Georgia Trial Lawyers Association (GTLA) condemns such solicitation. These victims and their families need to be focusing on healing, not on such high pressure tactics as direct solicitation of victims immediately after the tragedy. Below is a statement from the President of Georgia Trial Lawyers Association, Joe Watkins, on behalf of Georgia Trial Lawyers Association, condemning the practice and rightfully putting focus on the needs of the victims and their families. Our thoughts and prayers are with them during this difficult time.

Georgia Trial Lawyers Association
Protecting the Constitution’s Promise
For Justice for All

Media Release:

For Immediate Release For More Information Please Call:
February 14th, 2008 Rebecca Bukant (404) 376-3495

Georgia Trial Lawyers Condemn the
Practice of ‘Trolling for Victims’

Atlanta-The tragedy resulting from the Imperial Sugar Refinery has been made worse by the solicitation by unprincipled lawyers vying for the victims' cases. The news has reported that TV ads, print advertisements and even visits to the Augusta Burn Center by lawyers have occurred. Members and leadership of the Georgia Trial Lawyers Association are outraged by this reprehensible behavior.

"The Georgia Trial Lawyers Association unequivocally condemns these unconscionable acts by attorneys," said the President of the Georgia Trial Lawyers Association, Joe Watkins. "We are shocked that attorneys from Georgia and other states are attempting to solicit the families while they are mourning the loss of loved ones and praying at bedsides at the Augusta Burn Facility."

The State Bar of Georgia Rules prohibit attorneys from contacting victims immediately following a tragedy. “This is not the time for lawyers from Georgia or any other state to harass families and victims of a tragedy. To say that is in 'poor taste' is putting it mildly," said Watkins. "The families and survivors will decide if and when they will seek legal advice."

The Georgia Trial Lawyers Association, and its leadership, strongly believes that the Rules governing Georgia’s State Bar regarding such solicitation should be strengthened and the Association urges the State Bar to take appropriate action regarding this matter.

"Unfortunately, it is the unscrupulous behavior of a few attorneys, often from out of state, that reflects poorly on the image of all attorneys. That conduct is in no way a reflection of the principles, ethics and the integrity of the members of the Georgia Trial Lawyers Association,” said Watkins. “I speak for not only myself, but for our entire Association when I say that my thoughts and prayers are with the workers of the Imperial Sugar Refinery and their loved ones."

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

You may recall the tragic Comair airplane crash in Lexington, Kentucky in 2006. The plane crashed after taking off from the wrong runway, killing 49 of the 50 people aboard. A federal judge Tuesday unexpectedly moved up by four months a trial to determine fault in the crash of Comair Flight 5191. In a hearing in federal court, U.S. District Judge Karl Forester set an Aug. 4 trial date for 29 families who have sued Comair over the August 2006 fatal crash at Blue Grass Airport.

There is plenty of blame to go around. The plane took off on a runway that was far too short for the aircraft. There was a construction project going on at the airport at the time and the maps the pilots had were not up to date. The National Transportation Safety Board found that the probable cause of the crash was pilot error. Comair, meanwhile, has sued the Federal Aviation Administration and Blue Grass Airport. It is appealing a ruling that the airport is immune from lawsuits because it is a government entity.

Kentucky law has been harsh to the families of the victims. The judge has ruled that those who lost loved ones in the 2006 crash of a Comair plane aren't entitled under Kentucky law to sue the airline for loss of companionship. Kentucky is among four states that don't allow jury awards for loss of companionship by surviving spouses. There also is no state provision for companionship damages for adult children or their parents, although the state does allow children younger than 18 to sue for damages when a parent is wrongfully killed.

Comair requested a trial date in 2010. Delay is a typical tactic by defense lawyers. But, fortunately, with the judge's pushing the trial date up to August 2008, the families of the crash victims will see justice sooner.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

It is happening in almost every personal injury case these days, a wealthy health insurance carrier grabbing a personal injury plaintiff's settlement money under a roose called "subrogation." It is robbery and every Georgia Citizen and every American citizen should be outraged. I recently saw an article that highlighted this tactic by health insurance carriers in the context of the Minnesota Bridge Collapse, which you will remember occurred earlier this year. The typical situation is you have a badly injured personal injury plaintiff who settles his or her lawsuit, and then his or her health insurance carrier steps in, having done absolutely NOTHING to procure the settlement, and recoups all of the money it has paid medical care providers for medical treatment for the plaintiff. What is even more repulsive is that the health insurace carrier has actually sold its account payable to a collection agency who then often fraudulently claims it is still the health insurance company acting. This is happening even though the Plaintiff has diligently paid his or her health insurance premiums all along.

It is a complicated analysis, but, fortunately, Georgia has the "made whole" doctrine, which says the plaintiff must first have been made whole before any third party, like the health insurance carrier, can just waltz in and take away the plaintiff's settlement money unfairly. Fortunately, for Minnesota victims of the bridge collapse, Minnesota Lawmakers are trying to make up for bridge collapse survivors' financial losses and out-of-pocket expenses and are brainstorming with attorneys about how they can keep health plans from recovering money meant for victims. I would urge the Georgia Lawmakers to do the same thing. Enough if enough.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

Each year, 9,400 children are injured in lawn mower accidents, and 7 percent of those injuries involve amputations or torn nerves, according to the American Academy of Pediatrics. One-fifth of childhood amputations are caused by lawn mowers. Recently, an Ila, Georgia child lost her left leg below the knee and her right foot July 18, when her father accidentally ran over the child with a riding lawn mower. Unfortunately, this type of accident is becoming more prevalent in Georgia. Children's Healthcare System of Atlanta, which includes Egleston and Scottish Rite, is treating three children who lost limbs in lawn mower accidents, according to Colleen Coulter-O'Berry, who's worked in the system's amputee program for 25 years. Nationwide, the estimated number of children with lawnmower related injuries, according to the American Academy of Pediatrics is 560 injuries to children each year.

A tragedy, yes. But don't blame the parent. If the lawnmower had been equipped with a safety feature called the "no-mow-in-reverse" feature, this accident and thousands of others never would have happened. Trial lawyers across the United States are pursuing personal injury claims against the lawnmower manufacturers in product liability or product safety cases in an effort to make manufacturers equip their mowers with these safety devices. There have been mixed results, but one of the greatest accomplishments that some personal injury litigation can sometimes have is to force a manufacturer to make its product safe before selling it to the public, and I hope these lawnmower lawsuits will, ultimately, effect a change in that regard.

An easy solution would be for lawnmower manufacturers to fix their riding lawnmowers by including the "no-mow-in-reverse" safety feature. Then hundreds of Georgia kids would be spared a devastating injury such as losing a leg or a foot and then having to go through life disabled. I and other trial lawyers will continue to pursue these cases until these manufacturers listen and, hopefully, we'll save a few Georgia children in the process.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

The recent horrible tragedy of the bridge collapse in Minneapolis, Minnesota raises the question, and rightly so, of whether Georgia bridges are unsafe, also.
Unfortunately, the answer is probably "yes." The Georgia Department of Transportation takes responsibility for inspecting roadway bridges throughout the state. It has a grading system of ranking the safety of Georgia bridges from 1-100, 1 being the least safe (or possibly dangerous) and 100 being the most safe. It might surprise many Georgia citizens to learn that 18 local bridges rated less than 10 on a 100-point scale were not closed and were listed as open in the federal database. Something is obviously wrong here. Many Georgia bridges are, apparently, unsafe, and yet remain open to use. This may have to do with a faulty rating system used by the Georgia DOT. Each bridge is rated on a 100-point scale. Those determined to be 50 or below are considered "structurally deficient."

More than 1,100 roadway bridges in Georgia are in such bad shape that they need renovation or rebuilding, state and federal records show. Another 1,800 Georgia bridges are considered functionally obsolete: They aren't designed to meet new standards. Nearly 500 of the problem bridges are in metro Atlanta. But while one in five Georgia bridges are considered by the government to be structurally deficient or functionally obsolete, the state Department of Transportation says no roads now open to traffic are unsafe for the vehicles that travel them. How can this be? Can Georgia citizens rely on what the Georgia DOT is telling us about the safety of our bridges? Or does Georgia have to experience something as utterly horrible and tragic as the Minneapolis bridge collapse before we get the Georgia DOT's attention that something needs to be done to make Georgia bridges safe? And I don't mean "safer": I mean simply "safe." Remember, this is the same Georgia DOT who immediately proclaimed nothing was wrong with its left-hand exit from I-75 at Northside Drive after the bus carrying the Bluffton, Ohio baseball team accidently drove up this exit and crashed off the overhead pass when the driver at last realized it was not the continuation of the bus lane on I-75.

Georgia citizens deserve better. I hope that the Georgia Legislature will act during the next General Assembly in 2008 to require the Georgia DOT to revamp their bridge "inspection" procedures and to require better maintenance of our Georgia bridges. The loss of one precious life in Georgia is too steep a price to pay to allow the Georgia DOT to remain careless and clueless about the situation. After the bridge collapse in Minneapolis, Minnesota State Legislators immediately called for better inspection procedures of all bridges. Our Georgia Legislator should do likewise.

.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

I am not at all surprised to see that the fallout from the discovery that many Chinese manufactured toys are hazardous to children's health continues. I am sure many of these hazardous toys have made their way to Georgia and Atlanta. Every day now it seems as if we learn of new toys from China that should not be bought for children because they pose a health threat to the children who would play with them. The latest such dangerous toys: sets of Essentials for Kids jewelry, 800 Mag Stix magnetic building sets and 68,000 Shape Sorting Toy Castles. These toys have now all been recalled by the U.S. Consumer Product Safety Commission. You can find a list of recalled toys by going to http://www.cpsc.gov.
I think it is probably a good idea to check on the USCPS's list of recalled toys periodically, especially before buying for a birthday or Christmas. My friend and fellow Georgia Trial Lawyer, Don Keenan, also makes a point of including a list of dangerous toys on the Keenan Kids Foundation website, http://www.keenanskidsfoundation.com. Some of these toys were even manufactured right here in the United States. It is senseless that the practice of allowing foreign manufactured toys that can kill children continues. It is only a matter of time before one of these hazardous toys kills a precious child right here in Georgia.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark:

I have just returned from a wonderful beach vacation over the Fourth of July Holiday, during which my two children swam every day in various swimming pools, and I am saddened and shocked to find out that another preventable swimming pool tragedy occurred during what was meant to be a fun summer week. This time the tragedy occurred in Minneapolis at a pool that we now know had some sort of defective drain in it. A six year old girl was eviscerated by the swimming pool drain while doing what normal six year olds are supposed to do in the summer...have fun swimming in a pool. As a mother of two, this news has hit me especially hard. I was under the impression that following several other lawsuits over such defective swimming pool drains and a U.S. Consumer Product Safety Commission warning in a 2005 report, Guidelines for Entrapment Hazards: Making Pools and Spas Safer, that every commercial pool in the United States had taken the necessary steps to make their pools safe. Also, that many pool owners, at least those in North Carolina, retrofitted their pools to make them safer after Presidential Candidate John Edwards successfully brought a lawsuit against a pool owner and drain manufacturer in an almost identical case in which his clients' child was disemboweled by a defective pool drain. But, unfortunately, such was not the case, to this little six year old's (and her parents') horror. You can read more of the facts of this preventable tragedy here. Either the pool drain's cover was carelessly off, or the pool had not been retrofitted with other drains to prevent too much suction power from being on this one drain. Either way, the owner of the pool was careless in allowing children to swim in a pool with a defective drain. Because of this carelessness, a young girl's life is forever changed, to the point where she may have to be fed intravenously for the rest of her life.
Pool owners who fail to make their pools safe and pool drain manufacturers who fail to make safe swimming pool drains must be held accountable for their carelessness in our Civil Justice System. It will be the only justice this little girl will ever realize. Although such blatant corporate negligence really should be a crime. And this should never happen to another family ever again. I urge you to find out about the safety of the pool(s) in which your children are now swimming. Ask whether the pool has been retrofitted as suggested by the Consumer Product Safety Commission. Ask how often the owners check to insure all drains are covered. I am going to do so regarding the pools my children swim in. Demand that safety action be taken to correct any such dangerous situation as having a missing pool drain cover. The little Minneapolis six year old will be in my prayers.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Personal Injury

Bookmark: