COVID-19 Update: How We are Serving and Protecting Our Clients.

jesus-rodriguez-NcWNzEAD7Fs-unsplash-300x200
Although fewer teens are actually getting their driver’s licenses these days, a majority of 16- and 17-year-olds are still on the road. This age cohort is responsible for a larger percentage of car accidents than other groups as well, due to inexperience and the proliferation of smartphone applications that lead to distracted driving temptations. As a result, many people injured in car accidents are put in awkward situations when a minor is the at-fault driver and they are forced to file a lawsuit against the driver. What happens then?

Georgia Has Parental Responsibility Laws

The Georgia Code places liability on the parents or guardians of a minor who commits a tort against another person. A car accident that results in injury typically qualifies as a tort, which is the violation of a private legal right (other than breach of contract). 

2stateofgeorgiaseal
You may remember I wrote recently about the Georgia Supreme Court’s opinion in Nuckles v. State, 853 S.E.2d 81 (December 2020) in which the Supreme Court made it crystal clear that a loved one has the absolute right to place a hidden camera in a loved one’s room in an assisted living facility or long-term care home and that video from such a camera is admissible in court. And, of course, it should be. The resident or patient is considered an “occupier” of that property, i.e., his or her room, and may videotape what occurs on his “property.” Nuckles is a well-reasoned, common sense opinion authored by Judge Carla Wong McMillian and concurred in by all the other members of the Georgia Supreme Court, except Justice Warren who simply didn’t participate in the opinion for some reason.

That you should be able to videotape what treatment your loved one is getting in a long-term care home, and then when that videotape shows abuse by a caregiver, that you should be able to admit such videotape into evidence at trial does not seem to be a partisan or political position at all, does it?  Don’t both Republicans and Democrats alike want the very best care for their aging loved ones and don’t Republicans and Democrats alike want to hold someone who would abuse their loved one accountable? That only makes sense, doesn’t it?

Well, not so fast. Enter the Republican-controlled Georgia House of Representatives and the Republican-controlled Georgia Senate with the help of the nursing home lobby. The Georgia Legislature decides it’s not such a good idea to be able to hold abusers accountable through hidden camera videotape, taken in the resident’s own room (their “castle” so to speak) and file a bill to undo Nuckles.  This march to overturn Nuckles legislatively only two months later  started with HB 605.  This bill actually provided for criminal prosecution of anyone who set up a “nanny cam” in their loved one’s long-term care room. So imagine this:  your parent suffers from dementia and lives in an assisted living home. You suspect he is being abused both physically and emotionally by the staff, so you set up a hidden camera to see how they treat him while you are not present. Sure enough, your “nannycam” video shows a staff member slapping your parent. You want to bring criminal charges against the person for abusing your parent.  But HB 605 would have actually authorized criminal charges against you! That bill passed the House. So on to the Senate. It was placed on the calendar to be voted on on the last night of the General Assembly session. There, Senator Jen Jordan, and several other open-minded Senators, successfully amended the bill to eliminate the criminal prosecution provision in the scenario I laid out above. So the Senate passed that bill as amended. Now back to the House, during the final hours on the final day of the 2021 session.  But once the piece in the bill making it illegal to have hidden cameras was no longer in the bill, the bill lost its only reason to exist in the first place! No need to pass a bill that essentially says nothing. The folks behind this bill wanted a law against hidden cameras because they can be used to hold these homes and “caregivers” liable for harming their residents.  The House refuses to agree (by the narrowest of margins) to the Senate Substitute and so no law passes. The vote on this was 88 against and 77 in favor, so only an 11 vote margin. This law now is still out there to be picked up again by the Legislature when they begin their 2022 General Assembly Session.

RFC-300x200
The person who suffers physical harm in a personal injury case is not the only one who suffers. Someone has to pick up the slack around the house when it comes to chores. Someone else’s day-to-day life is upended when he or she has to shuttle to doctor’s appointments constantly. So, is there a way for loved ones of personal injury victims to recover damages, too? Yes, there is, and it’s referred to as “loss of consortium.”

“Consortium” is a Latin word that translates to “having a partner.” This can manifest in so many ways — through loss of intimacy, physical affection, and friendship, to name three.  Loss of consortium, however, encompasses much more than physical intimacy. Not having someone around to do yard work, prepare meals, or perform those menial tasks can quickly add up to stress for the healthy spouse. That’s another important note: only spouses are eligible for loss of consortium damages in Georgia. Unmarried partners may not access this legal avenue. Additionally, spouses must request loss of consortium damages within four years of the other spouse’s injury.

Loss of Consortium Damages are Difficult to Calculate

spycam_109920366_spycam-300x169https://www.atlantainjurylawyerblog.com/files/2021/02/spycaminclock61w802O9XL._AC_SL1500_-300x197.jpg
Videocameras are everywhere today. They have become a normal, integral part of our lives. Many of us carry a videocamera with us everyday, everywhere we go, on the cellphone we carry with us.  We have “apps” on those cell phones that have as their soul purpose the easy viewing and sharing of videos.  We can text videos to one another. It seems to be our instinct now that when we see something interesting, we immediately pull out our cell phone and start videotaping. Some people have made a lot of money selling those videotapes to advertisement companies to use in commercials.  If you just “Google” “rat dragging pizza” you will find one such video that became so popular the person who filmed the video of the rat dragging the pizza sold the video and made alot of money from it.  There is no question that many instances of police brutality and excessive force would never have even come to light if it were not for a videotape of it. The murder of Ahmaud Arbery is one such case. Ahmaud’s killers may very well have gotten away with their crime without any accountability in the criminal justice system had there been no video of the shooting.  Many states are now making it mandatory that all officers wear “bodycams” that record an arrest or interaction with a citizen. In our prisons, correctional officers wear bodycams and even have numerous “use of force” cameras stashed away throughout a prison floor that the officers can quickly grab to film any interaction with an inmate. Some of us wear “Go Pros” on our bodies while we are engaging in some activity we believe is particularly athletic, so we can brag to our friends later “Look what I did!”  Many of us have Ring videocameras on our front doors so we can see who is at our door when the doorbell rings or see when a package has been delivered. I even have a client who used a Ring videocamera in their daughter’s bedroom to record her nocturnal seizures.  We have babycams that capture what infants do in their cribs when they are really supposed to be sleeping. Videocameras are in our elevators, in our parking garages and in our convenience stores. We have a “Furbo” which is a dog videocamera that records when our dog is barking or moving around or just sleeping. It even allows us to throw him a treat remotely from my cellphone from wherever I may be. I have to admit that “Furbo” still blows me away.

So it comes as no surprise that families who have loved ones living in nursing homes or long-term care homes would think it a good idea to place a camera in the room of their loved one to keep an eye on him or her while the family can not be there in person. Many families are, sometimes, rightfully worried that their loved one may be experiencing abuse at the hands of some of the employees of the nursing home. We are all familiar with cases where that has happened. Last year in a highly publicized case in Cobb County, Georgia an employee of an assisted living facility was tried for murder for the death of a 91 year old resident who died in 2017. The employee was found guilty of elder abuse but not of murder.

This begs the question:  Is it legal to place a camera in your loved one’s room in an assisted care facility? Maybe you are thinking only a lawyer would even think about that. It seems so clear and obvious that yes, of course, you can place a camera in your loved one’s room.  That’s the smart and loving thing to do. Who would possibly question that?

trialcourtjury          jurycourtroomdrawing-e1538434219610
I hope many of you read my last blog post “Whoever Wants To Serve on a Civil Jury Trial During a Pandemic Raise Your Hand.”    I received some wonderful comments about it, which led me to want to add a bit more to my thoughts on the subject and, hence, this is Part Two of that blog post.  I want to add to the list of why it would not be a good thing to start back up civil jury trials right now when only a small percentage of the Georgia population has been vaccinated. That reason is that Covid-19, without dispute, has disproportionately affected African Americans and people of color (BIPOC) than other citizens. Even the CDC admits this.  The CDC states:

“There is increasing evidence that some racial and ethnic minority groups are being disproportionately affected by COVID-19. [2], [3], [4], [5], [6] Inequities in the social determinants of health, such as poverty and healthcare access, affecting these groups are interrelated and influence a wide range of health and quality-of-life outcomes and risks.[1] To achieve health equity, barriers must be removed so that everyone has a fair opportunity to be as healthy as possible.”

And yesterday (February 16, 2021) Georgia tied its highest reported daily deaths of 180 from Covid-19, so that hospitalizations may be going down but the death rate is not.

pexels-karolina-grabowska-4506214-300x200
If you’ve ever scrolled through network TV in the middle of a weekday, you’ve probably come across one or many commercials for personal injury law firms. One of the phrases these advertisements throw around are “pain and suffering.” This isn’t just a snappy expression designed to get your attention; in Georgia, pain and suffering is actually a legal item of damages. In other words, you might be awarded money to compensate you for your pain and suffering after a serious personal injury. 

Economic vs. Non-Economic Damages

After you submit a personal injury claim or file a lawsuit, the other party will begin determining a proper payout (assuming it is determined that you deserve compensation in the first place). The first order of business is calculating your economic damages. These are expenses that have a particular dollar amount attached to them. Common economic damages are lost wages, doctor bills, pharmacy bills, and general medical costs. 

juryboxdrawing
We are now one year into the Covid-19 Pandemic. And I can’t even believe I just wrote that sentence.  One entire year. I confess that when we first went into lockdown back in March 2020 (remember that?) I foolishly thought maybe the entire thing would be over in a month or two. Boy, was I wrong! I have been able to adjust to virtual everything to keep my cases moving. Zoom depositions, Zoom hearings, Zoom mediations, Zoom podcast taping (See You In Court), Zoom everything but a Zoom jury trial. And that’s where I draw the line. The Chief Justice of the Georgia Supreme Court just extended (for the 11th time)  the suspension of jury trials (both civil and criminal) for another month by Declaration of Statewide Judicial Emergency. Many judges and lawyers haven been working to find a way forward to get out jury trials started back. The consensus is that backlogged criminal trials will be first in line, followed by civil jury trials. One of my friends and fellow trial lawyers makes a good point: why should criminal trials go ahead of civil trials as long as the accused person is out on bond awaiting trial? Justice for our civil case clients if just as important as Justice for crime victims and society. But I haven’t really heard anyone explain to me yet why criminal trials will go first once we get jury trials back up and running. Today I was in a meeting with a judge who said she didn’t think civil jury trials would be back until 2022.  That would be two whole years without civil jury trials. Fortunately, in many of my cases I have been able to move the ball forward, resolving numerous cases through Zoom mediations and some through just good old-fashioned settlement negotiations. But for those cases I cannot resolve, the only hope for resolution is a jury trial.

In that same conversation with a Fulton State Court judge, she mentioned there may come some point that parties will be ordered to conduct a trial before everyone is vaccinated and while we are still required to wear a mask and social distance. I haven’t seen that yet and, hopefully, won’t be faced with that, but, for now, if I am ordered by a trial judge to do so I would have to object. There are numerous reasons why that have convinced me it is not in my clients’ best interests to move forward with their one and only jury trial in their one and only case until the Pandemic is completely over, finished and done with. For good. I have been asked about this not only by other lawyers, but also by numerous non-lawyer friends (yes, I have some of those) as well. It seems to be an interesting conversation starter.

So why do I think it is not in my clients’ best interests to have a jury trial now during the Pandemic?  Without going into too much detail, here are just a few:

rfcgavel-224x300
Having spent several days at home for the Holidays, I was struck (and not in a good way) about how many commercials there are on TV for personal injury lawyers. It is NON-stop. And the same goes for social media, where plaintiff’s lawyer after plaintiff’s lawyer is shown in a video bragging about themselves. It’s sickening, and I don’t think these commercial appearances enhance our reputation at all.  Just the opposite. So I thought I would take a moment to list a few things that a person like you who has recently been injured due to someone else’s negligence should consider before hiring one.

  1. How many cases has the lawyer actually tried for a plaintiff in front of a jury?  I have seen some young lawyers bragging online about their one awesome verdict, which begs the question: How many cases have they actually tried?  Have they tried only one case and it came out well for the plaintiff?  Potential clients should ask this question. In 32 years of practicing law, I have tried over 75 jury trials to verdict, some lasting 2-3 weeks. This is critical information. Hopefully, as a plaintiff, this is the only case you will ever have in your life. If it were surgery, would you want a doctor who had performed only one surgery before yours?  Or would you want one who had done  100 of them?
  2. Is the lawyer on TV even licensed to practice law in Georgia? I am constantly amazed by the fact that some of the TV advertising lawyers are not even licensed to practice law in the State of Georgia. This means they haven’t studied and worked with the laws of our state and they certainly haven’t tried a case in a state court of Georgia. You have a right to know this and you can easily find this out by going to the website of the State Bar of Georgia at https://www.gabar.org/.  On the home page there is a search box titled “Member Directory.”  This is a resource available to the public and you can put a lawyer’s name in it and see whether they have a Georgia law license. You can also see where the lawyer went to law school and see what year he or she graduated from law school, which tells you how much real world experience the lawyer has. It also tells you whether there is any “discipline” on record for that particular lawyer, which means whether that lawyer was ever found to have violated the ethical or professional rules of conduct. This is crucial information everyone should have before hiring a plaintiff’s personal injury lawyer.

accident-3714897_1280-300x201
Between the push for citizens of the world to be more environmentally conscious and the limited options for recreation during the COVID-19 pandemic, cycling has almost never been more popular. Drivers of cars and trucks must pay extra close attention now to more bicycle riders than usual. After all, bicycles are considered vehicles in most contexts of Georgia law, so drivers are responsible for sharing the road with cyclists—and vice versa. 

Of course, an accident between a car and bicycle is completely different than an accident between two cars. Cyclists have much less infrastructural protection, for one, meaning that injuries sustained on a bicycle that collided with a car have a good chance of being catastrophic. As a result, many drivers who hit cyclists panic and quickly drive away from the scene. 

Uninsured/Underinsured Motorist Coverage

dan-gold-kARZuSYMfrA-unsplash-300x169
Gone are the days of standing perilously close to a busy city street and hailing a yellow taxi to take you to some other location uptown or downtown. Now, you can “hail” a cab from the comfort of your own home and convenience of your smartphone. The two most popular applications for ride-sharing services are Uber and Lyft, and each app handles millions of transactions each day. 

With so much traffic (vehicular and digital) flowing through these apps, auto accidents associated with the apps are bound to happen. In a typical fender-bender, the at-fault driver typically has to pay up through his or her insurance carrier—usually a fairly straightforward process. What happens, though, when a driver for one of these ride-sharing companies (classified as an independent contractor) is involved in a serious car wreck? The fallout is fairly complicated, but we lay out below what you should expect. 

What Happens if you are Injured by a Ride-Sharing Driver?

Awards
American Association for Justice Badge
Georgia Trend Legal Elite Badge
State Bar of Georgia Badge
Georgia Trial Lawyers Association Badge
ABOTA Badge
LCA Badge
Top 50 Women attorneys in Georgia Badge
Super Lawyers Badge
Civil Justice Badge
International Society of Barristers Badge
Top 25 National Women Trial Lawyers Badge
Contact Information