Personal Injury FAQs – Part 2

In handling Georgia wrongful death cases in which the victim had very little conscious survival time, we often have to address the question whether to make a claim for pain and suffering before death.

In Georgia, wrongful death cases may include two separate claims.

First is the wrongful death claim for “full value of the life” which belongs to family members designated by O.C.G.A. § 51-4-2 – spouse, children or parents. Recovery for the “full value of the life” includes both economic and intangible components and is not subject to claim of the decedent’s creditors and medical providers.

Second is a “survival action” authorized by O.C.G.A. § 9-2-41 and brought by the administrator or executor of the decedent’s estate for pain and suffering, medical expense and funeral expenses. Any recovery under this claim is subject to claims of creditors.

In many of the cases we see, particularly truck crashes, the decedent loses consciousness rather quickly and survival time is short. However, if a credible claim for pain and suffering can be made, it can add substantial value to a jury verdict.

Moreover, the estate’s claim may be a necessary piece of the puzzle in order to make a claim for punitive damages based upon months or years of the corporation’s independent negligence in hiring, training and supervising employees extending far beyond the momentary negligence of an employee, e.g., a truck driver, who should never have been entrusted with an 80,000 pound tractor trailer in the first place.

This is especially important when a corporation admits ordinary negligence on the part of the employee and admits that the employee was in course and scope of employment. Some judges apparently do not understand or care how often the root cause of a tragic crash lies in management practices that turn a blind eye to safety. Such judges have created precedents exclude evidence of mismanagement leading to the crash in that scenario.

But if there is a claim for punitive damages for the company’s patterns and practices that show conscious disregard for safety, evidence of unsafe management practice may be admissible. Because punitive damages are not recoverable in wrongful death cases in Georgia, the survival action gains greater importance. Thus, the pain and suffering claim that might in other circumstances be superfluous becomes a key element in bringing corporate misconduct to light and obtaining full justice.

1. Mental Pain and Suffering in Before and During a Fatal Crash
In Georgia, a jury may infer consciousness of impending death, and thus mental pain and suffering, from evidence immediately prior to impact or following her injury. Department of Transp. v. Dupree, 256 Ga.App. 668, 570 S.E.2d 1(2002).

During a crash, even if the survival time before death was extremely brief, jurors may reasonably infer that the victim experienced both severe physical pain and fear of impending death in those moments. That alone can be sufficient to support a genuine issue of material fact for jury determination.

In Walker v. Daniels, 200 Ga.App. 150, 156 (3), 407 S.E.2d 70 76 (1991), the defense contended that the decedent could not have had any consciousness between injury and death due to a blunt impact to his neck in the diving area of a university swimming pool. However, there was evidence from which a jury could have determined that he either was or not conscious when he inhaled water that was the immediate cause of drowning. Thus, the court held, “Under this evidence, questions concerning the decedent’s pain and suffering were for the jury to decide.”

2. Physician’s Testimony About Presuming Pain Despite Apparent Absence of Consciousness
Treating physicians may testify that they treat for pain even when a patient appears unconscious, and are careful talking about a comatose patient because so many patients wake up and report hearing conversations while everyone though they were comatose. Such medical testimony can be crucial in supporting a claim for pain and suffering despite a patient’s unresponsiveness.

The Reference Manual on Scientific Testimony recognizes that “treating physicians are generally permitted to testify” and “treating physicians’ testimony is often given greater weight than testimony from physicians who have not examined the patient.” Reference Manual on Scientific Testimony 449, n. 41(2d Ed.).

“A physician may be asked to testify about the physical condition of a plaintiff, diagnosis, treatment, causes of the plaintiff’s condition, or prognosis.” Id. at 439. The methodology and data that treating physicians reasonably consider good grounds for opinions or inferences in medical practice are sufficiently reliable to form the basis of a qualified medical expert’s testimony in court. Whether a patient under his direct care experienced pain before her death is quintessentially a matter within the scope of a treating physician’s testimony.

It is well established in case law that the opinion, diagnosis, and medical evidence of treating physicians should be accorded substantial weight unless “good cause” is shown for not doing so. Treating physicians can generally “express an opinion as to ‘the cause of any medical condition presented in a patient, the diagnosis, the prognosis and the extent of the disability, if any, caused by the injury.”

In a case we handled recently, the attending physician who supervised the victim’s care from her arrival in the emergency room until her death gave expert testimony that in the hospital she was moaning, breathing on her own, and that he believed she experienced pain during her hospitalization until the time of death.

We contended that expert medical testimony was sufficient to establish a genuine issue of material fact for jury determination, and to require denial of summary judgment. The affidavit from Defendants’ specially retained medical expert did no more than set up an opposing argument to present to the jury.

There were no reported Georgia decision directly on point. However, decisions by courts in other jurisdictions with laws consistent with Georgia law are helpful. In Kretek v. Board of Commissioners of Luna County, 2014 WL 11621697 D. New Mexico, decided Feb. 26, 2014), testimony of the treating physician was equivocal about the nature and degree of suffering the patient may have experience while comatose prior to death. Thus, the court denied a motion in limine to exclude the physician’s testimony on this issue.

Thus, if the potential for financial recovery far exceeds any medical liens or creditor claims, it may be worthwhile to raise a claim for pain and suffering even if the decedent’s survival time was brief. Other times, if the potential for recovery is more limited and creditors’ potential claims are substantial, it may not be worth it.

There are many categories of personal injury practice. Those who handle a vast number of little cases and process them through a mill may look for simple cases that can be quickly flipped for settlement. Lawyers who concentrate on larger, more complex cases may have different criteria.

A few of the factors a personal injury attorney may look for in deciding whether to accept a case include:

• Facts of how the injury occurred. If there is no liability, there is no recovery.
• Information about the party at fault in order to begin determining what liability insurance may be available.
• Was the injured taken by ambulance? Treated in the hospital emergency department?
• Were there fractures?
• Has there been surgery, or has surgery been recommended?
• If a head injury, was their loss of consciousness? Treatment for traumatic brain injury?
• If a back or neck injury, were there fracture? Pain, numbness or tingling down the arms or legs?
• If a burn injury, was the person treated in a regional burn unit? What percent of the body surface was burned? Was there hydrotherapy? Skin grafts?
• Have you had prior accidents, injuries, medical conditions or disabilities?
• If a death case, does the person calling have the right to control the case? In Georgia, the right to recover for wrongful death belongs to the surviving spouse and children, and if none, then the parents. If there is not a surviving spouse, child or parent, the representative of the deceased person’s estate may bring the claim on behalf of other heirs at law such as siblings, grandparents, cousins, etc.

In addition, the attorney needs the following information:

• Full name and contact information of the injured person. If a minor, then that information for a parent. If a death case, then that information for the spouse, child, or other person entitled to file a wrongful death case.
• Details of the incident, including date, location, and incident report if any.
• Health insurance information to figure out how treatment can be paid for and what, if anything, must be paid back at the end of the case.
• To determine what Uninsured / Underinsured Insurance may be available in an auto accident case, the lawyer needs information about auto insurance on all vehicles in the injured person’s household and, if the injured person was in someone else’s vehicle at the time of the incident, insurance information on that vehicle as well.
• Contact information on a close relative or friend who would always know where to find the injured person if they move or change phone numbers.

A recent decision of the Georgia Supreme Court on what is required to get a food poisoning case to a jury brought that grim saga back to mind.

In Patterson v. Kevon, 2018 WL 3965745, the Georgia Supreme Court unanimously ruled on August 20, 2018 that circumstantial evidence was sufficient to allow a jury trial on a suit against a caterer for alleged food poisoning of guests. In doing so, the Supreme Court overturned a line of Court of Appeals authority that classified food poisoning cases as “a unique species of negligence cases” imposing a heavier burden upon the plaintiff to show proximate cause than that generally required of nonmovants on summary judgment.

Briefly summarized, the Pattersons became ill after eating food at a wedding rehearsal dinner prepared, catered, and served by Big Kev’s Barbeque. They sued for negligence, violation of the Georgia Food Act (OCGA § 26-2-20 et seq.), and products liability, alleging that the food at the dinner was defective, pathogen-contaminated, undercooked, and negligently prepared.

The caterer moved for summary judgment, showing that the Pattersons also consumed items prepared by others at the rehearsal dinner, such as dessert or alcohol, as well as improperly stored leftovers from the rehearsal dinner and food at the wedding reception the following day. In addition, the caterer showed that the Pattersons ate other meals, including fast food, and drove to Florida before Mr. Patterson began to feel ill, three days after the rehearsal dinner, and that Mrs. Patterson did not begin to feel ill until several days later. In addition, the caterer asserted that the owners of the event venue, their employees, and other guests who consumed the food did not become ill.

On the other hand, the Pattersons presented evidence that several people became ill with similar symptoms after eating the caterer’s food at the rehearsal dinner. Both Mr. Patterson and a guest at the rehearsal dinner who thecaterer’s meal but did not consume food at the wedding reception, both tested positive for salmonella. Three other guests testified that they became ill at around the same time after eating at the rehearsal dinner. Four other people who became ill, including Mrs. Patterson, did not eat at the wedding reception, and other guests who became ill testified that they did not consume dessert, drinks, or leftovers. As many as 16 to 20 people became ill after the dinner.

The trial court granted summary judgment and the Court of Appeals affirmed 5-4, holding:

Suits alleging illness from food poisoning that are based entirely on circumstantial evidence are a unique species of negligence cases, and our prior decisions have required plaintiffs in this context to bring forth evidence demonstrating that the only reasonable hypothesis for why they became ill was due to acts or omissions of the defendant, to the exclusion of all other reasonable theories. This special element prevents a plaintiff from recovering solely on the basis of speculation and conjecture and requires plaintiffs to engage in a rigorous examination of all reasonable theories of contamination. This standard also shields defendants from what, in some cases, may amount to fallacious post hoc, ergo propter hoc arguments that advance the plaintiff’s theory of contamination. In so doing, this rule reserves to the jury only those cases in which evidence brought forth by the plaintiff establishes a clear and direct link between the defendant’s food and the plaintiff’s injuries.

Two vigorous dissents, by Judges Doyle and McFadden, detailed the Pattersons’ evidence and pointed out that the standard established by the majority was more appropriate for the burden of proof at trial rather than on motion for summary judgment.

The Supreme Court in an opinion authored by Justice Michael Boggs unanimously rejected any requirement to exclude every other reasonable hypothesis, noting that the Court of Appeals majority opinion conflated summary judgments cases with decisions on appeals after jury verdicts. These cases are highly fact specific. In most cases, either for plaintiffs or defendants, have turned upon the availability or unavailability of expert testimony evidence about presence or absence of pathogens. In this case, the caterer failed to counter the plaintiffs’ evidence of proximate cause.

This decision removes an anomaly the consideration of summary judgement motions on food poisoning cases in Georgia. However, the plaintiff still must prove causation. As a practical matter, “jury proof” still requires a preponderance of evidence that excludes other reasonable hypotheses of cause. In evaluating a claim of food poisoning, I want lab tests to prove what pathogen caused an illness, probability that it was related to the food consumed, evidence that people who ate the same food got sick and companions who did not eat the same food did not get sick, and some way to minimize other explanations of illness.

In a food poisoning case that I handled years ago, three coworkers at a bank went to dinner together. Two had fried chicken while the third ate something else. Two fell ill with similar symptoms. One of them was hospitalized and tests of stool samples showed the presence of Campylobacter which is common in uncooked poultry. Consumption of undercooked poultry can easily cause gastric infection within 2 to 5 days.

My client recovered from the acute gastric illness and we settled her case for what we felt was a good amount. But we stayed in touch over the subsequent years. Long-term complications of Campylobacter food poisoning infections are rare. But this lady developed complex long-term problems with internal organs which led to her death about 25 years after her food poisoning. No doctors could directly relate her lethal illness to the food poisoning, but as I took my turn tossing a shovel of dirt into her grave, I wondered if a supper of undercooked chicken contributed to her death a so many years later. If I handle food poisoning cases in the future, I will be sure to explore with physicians and experts the risks of long-term health consequences long after the initial acute illness has resolved.

Representing victims of catastrophic truck and auto crashes in Georgia, we encounter clients with legitimate claims of Post-Traumatic Stress Disorder (PTSD). For example, we recently had a client who was the sole survivor of a crash in which everyone else around him suffered a gruesome death at the scene. He was somehow, miraculously, thrown clear and had physical injuries that allowed him to return to work within a couple of months. Though the wrongful death claims were naturally larger, his PTSD and minor head injury claim was far from inconsequential.

Wars, of course, produce many PTSD cases affecting veterans. My father clearly had undiagnosed and untreated PTSD from his combat experiences in World War II. PTSD has gotten a lot more frank attention among veterans of Vietnam, Iraq and Afghanistan wars.

PTSD is officially recognized as a mental health condition that some people develop after experiencing or witnessing a life-threatening event. The diagnostic criteria are outlined in the Diagnostic and Statistical Manual of Mental Disorders, currently in the Fifth Edition, known as the DSM-5©. In 2013, the American Psychiatric Association revised the PTSD diagnostic criteria and included PTSD in a new category Trauma- and Stressor-Related Conditions. The diagnostic criterion for all of the conditions included in this new classification require exposure to a traumatic or stressful event.

The DSM-5 criteria for PTSD, ICD-9 309.81 or ICD-10 F43.10, for adults, adolescents and children over 6 years old are as follows (the DSM-5 has separate criteria for children 6 years and younger) 2:

Criterion A (one required) - the person was exposed to death or actual serious injury in the following way(s):

• Directly experiencing the traumatic event
• Witnessing the event as it occurred to others
• Learning the traumatic event occurred to a relative or close friend
• Indirect exposure to aversive details of the trauma

Criterion B (one required) - the traumatic event is persistently re-experienced in the following way(s):

• Unwanted upsetting memories
• Nightmares
• Flashbacks
• Emotional distress after exposure to traumatic reminders
• Physical reactivity after exposure to traumatic reminders

Criterion C (one required) - avoidance of trauma-related stimuli after the trauma in the following way(s):

• Trauma-related thoughts or feelings
• Trauma-related reminders

Criterion D (two required) - negative thoughts or feelings that began or worsened after the trauma in the following ways:

• Inability to recall key features of the trauma
• Overly negative thoughts and assumptions about oneself or the world
• Exaggerated blame of self or others for causing the trauma
• Negative affect
• Decreased interest in activities
• Feeling isolated
• Difficulty experiencing positive affect

Criterion E (two required) - trauma-related arousal and reactivity that began or worsened after the trauma in the following ways:

• Irritability or aggression
• Risky or destructive behavior
• Hypervigilance
• Heightened startled reaction
• Difficulty concentrating
• Difficulty sleeping

Criterion F (required) - symptoms last for more than 1 month

Criterion G (required) - symptoms create distress or functional impairment

Criterion H (required) - symptoms are not due to medication, substance abuse or other illness

Symptoms of PTSD usually begin within the first three months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. The DSM-5 refers to this as “delayed expression” with the recognition that while some symptoms typically appear immediately, others are often delayed.

Often a person’s reaction to trauma initially meets criteria for Acute Stress Disorder immediately after experiencing a traumatic event, but Acute Stress Disorder is distinguished from PTSD because the symptoms are restricted to a duration of three days to one month. The duration of PTSD symptoms varies with complete recovery within three months occurring in approximately 50% of adults. I experienced a degree of this after I was hurt in an explosion. For several months, I averted my eyes whenever there was an explosion on TV or in a movie, and I was timid about lighting a gas grill. However, that reaction eventually faded.

However, some individuals remain symptomatic for more than 12 months and some for more than 50 years. There were times when an elderly neighbor stood in his driveway and openly wept about things he had experienced over sixty years earlier as a Marine on Peleliu and Iwo Jima.

Research indicates that PTSD is more prevalent in females and they experience PTSD for a longer duration on average than do males. PTSD is associated with high levels of social, occupational and physical disability as well as considerable economic costs and high levels of medical utilization.

Risk factors may increase a person’s chances of getting post-traumatic stress disorder (PTSD) compared to others who seem mentally unscarred by similar experiences. Some of those risk factors include experiences of:

• Long-lasting, never-ending trauma
• Intense, severe trauma
• Situations that put one at greater risk for harm, such as first responders or those in the military
• History of substance, alcohol, or drug abuse
• A loss earlier in childhood, such as abuse or neglect.
• History of other mental health concerns or mental illness
• Few friends or close family members they can rely on for emotional support
• A history of mental illness within their family

How is PTSD Involved After Motor Vehicle Collisions?
Most people who are hurt in routine road wrecks do not have PTSD. They may have some short term anxiety but nothing that rises to the level of PTSD. We have all had stressful conditions that we endured, sucked it up, and went on. When I was an insurance defense lawyer, I routinely sliced and diced psychologists who testified for exaggerated claims of PTSD that stretched beyond the diagnostic criteria.

However, there are vehicles crashes in which PTSD is a realistic issue. One study found that about 9% of motor vehicle crash survivors have symptoms of PTSD. Examples can include:

• A crash survivor who witnesses the death and sees the mangled corpse of a parent, spouse or child in the wreckage.
• A guy who was spun out of the line of impact when a tractor trailer ran over stopped traffic, so that he had minor physical injuries while everyone in the vehicle behind and in front of him was killed.
• A person trapped wide awake with the lifeless corpse of a family member until they are discovered, and as first responders labored to extract them.
• People who survived crashes in which they feared the immediate death of themselves or family members.

Any such experience in a car or truck crash is frightening, and it's very common to experience a number of symptoms associated with PTSD, including:

• Feelings of anxiety and increased heart rate when you're faced with reminders of the event.
• Hearing a horn honk or brakes screeching may automatically activate a fear response.
• Avoidance. Because of the anxiety that often follows an MVA, it's natural that you may want to avoid some situations or experience hesitation at times, such as driving on the highway.
• Nervousness when driving or riding as a passenger, startling easily in traffic.
• Being more watchful. You're more likely to scan your environment for potential sources of threats (for example, people driving too fast).

While we discourage over-emphasis on minor degrees of PTSD symptoms in auto and truck crash cases, we are alert to the need to have clients evaluated when appropriate.