Articles Tagged with wrongful death

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What is the price of a life lost? Could you put a price tag on your own life or that of a family member, killed at the hands of a negligent defendant? How much would you want people to say your life would have been worth?

These are the questions that juries must face when evaluating “damages” to award in wrongful death cases. Plaintiffs’ attorneys must ask the jurors to award money to a family who has lost its loved one due to the negligence of someone else. It’s tough to ask and even tougher to answer, but when parents have lost their child because of someone’s negligence, there must be some sort of monetary justice for the family.

So how much is a life worth? The Georgia Code provides: “The amount of the recovery shall be the full value of the life of the decedent.” O.C.G.A. § 51-4-5. But what determines that full value of life? The judge may instruct the jury: “You should consider the gross sum that the deceased would have earned to the end of life had the deceased not been killed… in determining the amount of the full value of the life of the deceased. The full value of the life of the deceased is not limited to the amount of money that could have or would have been earned had the deceased not been killed.”

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Many of you readers know I have often blogged, tweeted and spoken in public about suicide and what we as someone’s friends, family or colleagues can do to recognize a real suicidal threat and what we can do to get help to someone before he or she attempts to take his or her own life.  We know so much more about suicide today than we did just 20 years ago.  I would venture to say that what we thought about suicide and it’s causes 100 years ago would border on naivete, akin to treating leukemia with leeches.  For example, today we know that means restrictions, preventing access of the means or instruments to kill oneself, dramatically lowers the suicide rate, where 100 years ago we simply concluded if someone is suicidal it could not possibly be prevented. In a recent Harvard School of Public Health study, it was shown that if someone who is suicidal is simply prevented from having access to the means to commit suicide one time, 90% of those who had wanted to kill themselves but did not have access to the means or instrument (guns, drugs, rope) to kill themselves did not attempt suicide again.  Cyberbullying has become a leading cause of teen suicides. Social media has been at the root of numerous teenage suicides, especially where embarrassing photos or videos are posted online, which then go viral and are be seen by hundreds of classmates before the next day of school. This type of cyberbullying, using compromising or embarrassing images, has become so prevalent in our schools that many states are enacting legislation to criminalize it. This fact alone suggests suicide following cyberbullying is predictable.

Probably one of the most well-known and saddest cases of cyberbulling was the case of Tyler Clementi, an 18 year old freshman at Rutgers University, who jumped off the George Washington bridge into the Hudson River, killing himself. Tyler’s roommate had secretly filmed him having a private, sexual encounter with another male in Tyler’s dorm room. The roommate then live-streamed the intimate encounter on the internet. Would anyone doubt that Tyler would have been suicidal following a livestreaming of his most private, intimate moment in his own room? Studies have shown that cyberbullying, especially when it involves intimate photographs or videos, leads to an increased risk of depression and suicidal ideation.  Thus, it has become foreseeable and even highly likely that a young person may want to commit suicide after experiencing sexual or intimate cyberbullying.   Who could blame them?

Which brings me to City of Richmond Hill v. Maia, S16G1337, Supreme Court of Georgia, May 30, 2017.  You may remember I have written about this tragic case before, in my June 9, 2016 blogpost “Who Is Legally Responsible for a Suicide?”  I was writing about the decision by the Georgia Court of Appeals at that time.  To remind of you of the horrible facts in Maia, this is what I wrote then:

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As many of you know, I often watch oral arguments in the Georgia Supreme Court via its livestreaming capability on its website.   I encourage you to watch, as well. If you are reading my blog it means you must be interested in Georgia law, and what better way to gain some insight than to watch arguments before the State’s highest court? Having available online the live streaming of oral arguments really is a public service to Georgia citizens and a nod to open and transparent government from the Judicial Branch of Georgia government.

I wanted to let you know that tomorrow, February 7, 2016, an interesting and very sad case will be argued before the Georgia Supreme Court, City of Richmond, GA v. Maia.  I blogged about the Maia case when it was before the Georgia Court of Appeals.  My blog then asked “Who is legally responsible for suicide?”  Suicide and suicide prevention has been an interest of mine since one of my dear friends committed suicide in 2012, when I was President of the State Bar of Georgia. His suicide led me to form the State Bar’s Suicide Prevention Campaign “How To Save a Life.”  The issue of who is to blame for suicide is squarely before the Georgia Supreme Court now.  The City of Richmond argues you can never blame a third party for someone’s suicide because suicide is also an independent, intervening act.  This is based on years of rather old Georgia case law.  But we know now, after suicide prevention has become more of the public conversation and as open discussion about suicide is helping to remove the stigma associated with suicide, that sometimes it seems suicide can often be traced directly back to bullying of the victim by third parties.  It will be an interesting case to watch. My good friend Carl Varnedoe will be arguing for the Plaintiff and my good friend Pat O’Connor will be arguing for the City of Richmond.  Below is the Supreme Court’s case summary. I’ll keep you posted, as promised.

Tuesday, February 7, 2017 10:00 A.M. Session

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Today, a DeKalb County jury returned a verdict against two nurses who are employees of DeKalb Medical Center in the amount of $3.012 Million.  The case is  Edwards v. Nicome, et al., 11A36121. filed in the DeKalb County State Court.  The case  centered around the May 2009 death of Shari Edwards, age 31, who died of heart failure three days after being admitted to DeKalb Medical for preeclampsia and ultimately giving birth to her daughter.  A third defendant, a physician, was not held liable by the jury.  Congratulations go out to Plaintiff’s attorneys Bill Atkins, Rod Edmund and Keith Lindsay for what was obviously a valiant fight for justice in a three week trial.  The case was defended by a trial attorney who I have tried a case against before, Tim Bendin.  Bendin and his law firm often represents DeKalb Medical Center in personal injury cases.  Because the nurses who were found to be at fault are employees of DeKalb Medical Center, DeKalb Medical Center is responsible for the verdict.

The plaintiffs, the parents of the deceased Ms. Edwards, argued their daughter died because of peripartum cardiomyopathy, or heart failure, and the failure of her healthcare team, including Defendant physician Nicome and nurses Cox and Huber-Smith, to detect or treat her deteriorating condition.  The evidence showed Edwards’ blood pressure problems had initially been treated, but in the hours before her death her condition became more precarious with low oxygen levels and blood-gas levels joining her complaints that she was short of breath. Despite this, Edmond said medical records showed staff did not take Edwards’ vital signs for three hours before she went into the cardiac arrest that proved fatal.  The defense, however, argued Edwards’ condition was stable in the hours before her cardiac arrest, and her healthcare team treated her appropriately throughout her stay, including ordering tests and intervention where necessary.  Bendin, the nurses’s attorney, seemingly attempted to cast blame on the attending physician, arguing they were just trying to follow doctor’s orders. This simply didn’t work. No word on whether DeKalb Medical Center will appeal the verdict. They have 30 days from the entry of judgment to do so.

I have often had defense attorneys tell me that doctors and hospitals win 95% of their trials in Georgia. If that is true, to say the odds were against this family and this team of trial lawyers would be an understatement. And $3 Million for the value of the life of a 31 year old  could never be characterized of being a “runaway” verdict by any of those who think the Georgia Civil Justice System is out of whack and needs reform.  In my opinion, $3 Million for the full value of the life of this mother is probably even slightly conservative.  This verdict was a unanimous verdict by 12 DeKalb County citizens who all saw the evidence of negligence the same way, demanding justice in favor of the deceased patient’s family. There is nothing about it that could be labeled “runaway.”

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Two interesting but diametrically opposed cases came out last month dealing with deaths of prisoners in Georgia jails.  One came out in favor of the prisoner who was killed. The other came out in favor of the police department.  Why?  I thought it would be interesting to take a look and compare the two.

Jail deaths occur rather frequently. As I discuss “jail deaths” in this blog I am excluding death by natural causes, e.g., disease or old age and I am excluding for now wrongful death of an inmate caused by inadequate medical care in prison (which  also is very frequent). I am referring to jail death proximately caused by another person, whether that other person is another inmate or a custodial officer. The nationwide average of jail deaths is 983.  The annual average of jail deaths in Georgia is 46.  Some of these deaths account for an increased fervor across the nation for criminal justice reform.

But how do the courts treat wrongful jail deaths?  Two Georgia cases show a large disparity in court treatment even in the face of what are clearly egregious facts.  It is notoriously difficult to sue successfully a prison warden or any state deputies, sheriffs or police officers for their conduct related to the death of an inmate. These suits are frequently brought but infrequently won. Why?  Because the burden of proof for the family or estate administrator who would bring a wrongful death suit on behalf of a prisoner killed while incarcerated is astronomically high. So high it is seldom met.  A plaintiff in a prisoner death case must allege violation of the prisoner’s 8th Amendment Constitutional rights, which is the Amendment that prevents the government from enacting cruel and unusual punishment on a prisoner. Beyond just restraining prison officials from inflicting “cruel and unusual punishments” upon inmates, the 8th Amendment also imposes duties on these officials to take reasonable measures to guarantee the safety of the inmates.  But plaintiffs must show the prison officials acted with “deliberate indifference” to the prisoner’s constitutional rights, which is a pretty high mark to meet. It is just slightly shy of intentional conduct. “Deliberate indifference” in the context of a failure to prevent harm has a subjective and an objective component, i.e., the plaintiff must prove the prison official actually knew an inmate faced a substantial risk of harm and that the defendant disregarded that known risk by failing to respond to it in an objectively reasonable manner.

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The tragic news from Disney World in Orlando, Florida this week of a toddler being carried away and killed by an alligator in a lagoon on Disney property has sent waves of terror in every parent whose child has ever waded into any water other than a swimming pool.  My family made many trips to Disney World when my children were young and water is everywhere around the property. It is my understanding that at this particular lagoon at The Grand Floridian Hotel there were “No Swimming” signs posted near the water.  Yet the photos I have seen show chaise lounge chairs on a sandy beach in front of the lagoon.  The beach was, apparently, man made by Disney for the enjoyment of their guests and Disney put the chaise lounge chairs on the beach looking directly to the lagoon. What is the message being sent by Disney?  Come sit in these lounge chairs and enjoy the beach and the water?  Doesn’t the placement of the chairs there and the placement of the sand there act as an invitation to wade in the water?

Disney is now, apparently, placing warning signs there now, along the lines of “Beware of Alligators.” Is this too little, too late?  What is the duty Disney owed to its paying guests to warn them of alligators or to make sure they could not be harmed by alligators while their paying guests are staying at their hotels?

This incident brought to mind a similar tragedy that occurred not too long ago in Georgia, when a senior citizen was, ostensibly, grabbed by an alligator, carried away and killed while she was staying with her children at their home which was on a golf course.  This case was litigated and, ultimately, decided by the Supreme Court of Georgia. The case is Landings Association v. Williams and was decided in 2012. The relevant facts, as discussed in the Court’s opinion are as follows:  Williams, the victim,  was house-sitting for her daughter and son-in-law at The Landings, a planned residential development with a golf course located on Skidaway Island off the Georgia coast. Before The Landings was developed, the land within and surrounding its boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop the property, The Landings entities installed a lagoon system which allowed enough drainage to create an area suitable for a residential development. After the project was completed in the 1970s, the indigenous alligators subsequently began to move in and out of The Landings through its lagoon systems.

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Many of you know that as President of the State Bar of Georgia I began a statewide effort to reduce suicides among attorneys, which was occurring at an alarming rate. I created the State Bar’s “How To Save a Life” program and we set about educating our members about the warning signs of suicide, what to say and what not to say to a colleague or friend who you suspect may be contemplating suicide and the steps to take to help prevent suicide.  In the process, I learned a lot myself and suicide prevention has become a movement I hold dear, although I had certainly never even given it a second thought before I was faced with it in our membership as President of the State Bar. As a result of this learning process for me, I read just about everything I can on suicide.

Which brings me to the subject of this post: who is legally responsible for the suicide of someone else?  The recent Georgia Court of Appeals opinion in Mayor and City Council of The City of Richmond Hill v. Maia, No. A15A2334 (Ga. Ct. App. March 20, 2016), which may very well be one of the saddest cases I have ever read, answers that question in the context of city police officer and suicide victim and held the victim’s suicide was a reasonably forseeable consequence of the police officer’s negligent conduct where the police officer had a specific duty not to disclose the suicide victim’s confidential information.  The appellate court held that issue was one for the jury to decide and the case was remanded to the trial court for a trial. It is my understanding, however, that the City of Richmond has appealed to the Georgia Supreme Court and the case is on the Supreme Court’s July docket. 

The facts of City of Richmond Hill are heartbreaking and very difficult to read and even imagine.  A young high school teenager attempted suicide by cutting her neck and stabbing herself.  Her mother placed her in a mental health hospital after the attempt.  The child stayed there for 9 days and then returned to her school.  As such things are with teenagers, the child’s suicide attempt became the talk of the school. According to her boyfriend’s testimony in the case “everybody knew after a couple of days what happened.” The City of Richmond Hill police department investigated the suicide attempt and as part of their official police investigation took photographs of the child’s injuries from the suicide attempt.  In what appears to be a horrific irony, one of the investigating police officers had a child who attended the same high school as the victim. The police officer became concerned  that his child did not appreciate the seriousness of the suicide attempt and so, in clear violation of the police department’s written policy entitled “Duty to Refrain from Disclosing any Information Relating to Police Activities,” showed the photographs of the victim to his daughter by accessing them through the police department’s computers. The police officer swore that he did not give them to his daughter or print them, but within days his daughter was showing these photographs of the victim on her cell phone to other students in the high school.

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My car has a push button starter:  am I at risk? The short answer is yes.  Not only are YOU are risk but anyone who lives in your house if you have an attached garage in which you park your car is at risk, too, for carbon monoxide poisoning and perhaps even death. Does your push button starter look anything like the one above? I was driving a rental car on business in another state recently and it had one of these push button starters. I had never used one before, but I had certainly heard of their inherent dangers. The problem is a design flaw. You may think you have turned off the ignition, after all, you have the keyless fob in your pocket with you.  But often the engine is so quiet while in park you don’t realize it is still running. If you park your car in an attached garage, dangerous carbon monoxide gas can easily enter your home and kill you and anyone in your home while you sleep, without your ever waking up to realize there is a fatal hazard in your home.

This design flaw is well known to car manufacturers. “We have documented at least 19 fatalities that are specifically attributed to keyless ignition vehicles since 2009 and 25 more close calls,” said Janette Fennell, founder and president of the safety group KidsAndCars.org. “As more keyless ignition vehicles are sold, we are going to see these predictable and preventable injuries and deaths increase.”

There is a simple solution:  an automatic shut-off system for the car if it has been running for a certain amount of time without moving, e.g., 30 minutes or so. This would prevent any carbon monoxide build up if you accidentally leave your car running in your garage. Some cars do have this safety feature, others do not. It is difficult at this point even to understand why not all such cars would include the automatic shut-off feature. There is currently a class action lawsuit filed against 10 automobile manufacturers who have not incorporated this simple fix of a deadly design defect. According to the suit, the automakers have long known about the risk keyless ignitions pose. In fact, the suit claims, that at least 27 complaints have been submitted to the National Highway Traffic Safety Administration since 2009.  There is evidence that these cars continue to run regardless of how far away the keyless fob is from the running car.

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The Georgia State Patrol and and various National Databanks, including the National Safety Council, have for years kept the morbid statistics of how many people die during any given Holiday weekend. I have blogged about this in the past and try to keep tabs on whether Georgia highways are getting safer. Here are 5 things to know about traffic safety from the 2015 Labor Day:

  1.  In Georgia this past weekend 14 people lost their lives in traffic incidents as reported by the Georgia State Patrol. Just for comparison’s sake, there were only two traffic fatalities in Connecticut. In Kentucky there were nine.
  2. The National Safety Council estimated there would be 395 traffic fatalities in the United States this Labor Day. Final National numbers are not yet in as some polls include any fatalities up to Tuesday morning.

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I have been thinking a lot about “justice” lately.  I have just finished a week long medical malpractice trial in DeKalb County in which I did not think justice was served for the family who lost their loved one (more on that in a minute) although I don’t criticize the jury in any way. That alone is probably a difficult concept for lay persons to accept, but it is the truth for trial lawyers.  I also can’t remember a time when the word “justice” has been thrown out more in the media, in social media, in sermons and in everyday conversations than it has in the last few weeks due to the events in Ferguson, MO.  That is extraordinary for the United States, a nation founded upon the very principles of justice. Try Googling “was justice served” and you’ll get a myriad (actually 1,920,000 ) of opinions regarding the Ferguson shooting, with about half of the articles responding in the affirmative and about half responding in the negative.  Maybe this rough split of 50/50 is proof in and of itself that the justice system usually gets it right.

I was also skimming through a book titled “Justice” recently which noted that most Americans don’t take any oath to support and uphold the Constitution or even the laws of the state in which they reside.  I find that interesting because I have done so several times, first when I was sworn in to practice law in the state courts of Georgia, then when I was sworn in the Georgia Court of Appeals, then when I was sworn in the Georgia Supreme Court,  then when I was sworn in in the United States District Court for the Northern District of Georgia, then when I was sworn in to the United States Supreme Court, and then as an officer of the State Bar of Georgia and then, most recently, when I took the office of President of the State Bar of Georgia. That’s a lot of swearing!!  But each time (at least 7, maybe more) I swore I would protect and defend the Constitution of the United States, the Constitution of the State of Georgia and the laws of the State of Georgia, “so help me God.”  I take that oath as seriously as any single person has ever taken it. Part of that sacred oath is to protect and defend our justice system, criminal and civil.  You will never hear me criticizing our justice system. There may be some things wrong with it, but it is still the greatest system ever devised by man for self-government.  As Winston Churchill said about Democracy:  “Democracy is the worst form of government except for all those others that have been tried.”

I say all of the above because after 27 years of practicing law in Georgia, I am on the verge of concluding that a victim of medical malpractice in this state cannot obtain justice.  Jurors here in Georgia will look for the smallest shred of doubt, will do almost anything, not to hold a physician liable for his negligence.   I can’t pinpoint one cause…there are probably many.  TV advertisers must shoulder a lot of the blame.  I am not a TV advertiser.  I am an actual trial lawyer.  When I stand in front of a jury to begin jury selection, those jurors are already suspicious of me because they know only of personal injury lawyers who advertise on TV with silly slogans or theme music, or has-been actors touting the lawyer’s legal acumen.  Although I have never advertised on TV or anywhere for that matter, I am lumped in with those who do because I am a personal injury lawyer. I am guilty by association.

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