Practice Areas
At Owens & Mulherin, we handle injury claims resulting from automobile and/or tractor-trailer collisions, medical malpractice, hospital negligence, unsafe products, automobile accidents, tractor-trailer wrecks, slip and falls, nursing home negligence, on-the-job accidents and other types of accidents. If we are unable to assist you with your particular problem, we will make every effort to find someone who can help you.
Please click on the areas of practices below to get a brief overview of that area of Georgia Law. Please note that these brief summaries are informational only. As with any information you obtain on this website, they are not intended to be legal advice to any individual. You should always consult an attorney directly for individual advice regarding your specific situation.
MEDICAL MALPRACTICE
SLIP AND FALL/ PREMISES LIABILITY
TRACTOR-TRAILER ACCIDENTS
GEORGIA AUTOMOBILE INSURANCE LAW
UNINSURED MOTORIST COVERAGE
MEDICAL PAYMENTS COVERAGE
WORKERS’ COMPENSATION/JOB INJURIES
DANGEROUS/DEFECTIVE PRODUCTS
HOW WE CAN HELPSUMMARY OF GEORGIA PERSONAL INJURY LAW
MEDIcAL MALPRACTICE
A health care provider commits negligence when its care or treatment falls below the standard of care exercised and employed by the health care profession generally under like circumstances and similar conditions. In order to prosecute such a case in Georgia, the complaint must generally contain an affidavit of an expert stating the facts which justify a claim of negligence. When the action is prosecuted in court, an expert in that field of health care must testify that the health care provider’s treatment or care fell below the generally accepted standard of care for that health care profession. Further, expert testimony must be presented that the injury or claim for damages was caused by that health care provider’s negligence. In order to prosecute such a claim, the lawyer representing the injured party or his family must locate an expert witness best suited for your case.
There is generally a two-year statute of limitations running from the date of injury or death, and a five-year statute of “ultimate repose and abrogation”. This means that a medical malpractice case must be brought within two years of the date of the injury occurs or manifests itself, or the date of death, but in no event later than five years after the negligent incident occurred. These limits also apply to minors, except the statute of limitations will never run prior to the minor’s 7th birthday and a statute of repose will never run until the child’s 10th birthday.
There are exceptions to these rules. It is important that your attorneys understand your case and search out any exceptions to the statute of limitations which may be applicable to your case.
SLIP AND FALL/PREMISES LIABILITY
Under Georgia law, an owner or occupier of land (such as the owner of a building, a store operator, a large retail store) has the duty to keep its premises and approaches reasonably safe for their customers and others who come onto their property. When someone has been hurt on another’s property, such as slipping and falling in a store, in order for the injured party to win, they must show that the storeowner had superior knowledge of the defect or condition which caused the injured party to hurt themselves. If the property owner or store operator can show that the injured party either knew or should have known of the defective condition, then the injured party cannot win.
In order to prevail on your claim, your lawyer needs to thoroughly investigate what prior knowledge the storeowner or operator had of the condition which caused your injury. This often includes investigations into prior falls and prior injuries at that location. It also includes an investigation into the policies and procedures of the store and investigating and locating problem areas in their store. Many falls are caused by defective sidewalks, handicap ramps, or improper painting of walkways. Your lawyers also need to know the applicable building codes, proper construction and maintenance techniques. We have handled many of these cases and our attorneys have the knowledge and experience to perform such investigations.
TRACTOR-TRAILER ACCIDENTS
Large tractor-trailers are a frequent sight on our roads, but the dangers posed by these large trucks have not diminished. Truck drivers are pressed to deliver loads in a timely manner and drive long hours. As a result driver fatigue often causes accidents. Improper maintenance often compounds the problem. Large tractor-trailers also present problems for other drivers in seeing the trucks. It is therefore important that the tractor-trailers comply with the federal law on reflective devices on the tractor-trailers. The lawyer representing a person injured in a tractor-trailer accident must have experience in fatal accident investigations, forensic analysis of accident scenes, thorough familiarity with federal regulations governing trucks and truck drivers, as well as extensive experience in understanding and presenting an injured party’s medical condition. It is important that the attorneys have the experience necessary to retain and work with experienced forensic engineers who can reconstruct an accident scene and determine how an accident was caused and what could have prevented it. It is also necessary that the attorneys have the experience and knowledge to effectively present this information to the insurance company and the jury. This involves use of the latest in computer animation, computer modeling, and video and film presentations. Our attorneys have effectively used these media to present our clients’ cases. For example, we have designed and built six by eight foot models of neighborhoods, complete with houses, trees and bystanders, to illustrate how an accident happened. We have also “recreated” an accident in a movie studio using the latest in lighting technology to illustrate how our client was excusably unable to see a tractor-trailer due to blinding sunlight.
Federal regulations limit the number of hours a truck driver may drive and the number of hours he may be “on duty.” Logbooks are required to be kept recording these hours of service. However, these logbooks are not required to be kept indefinitely and must be protected from being destroyed after an accident. It is imperative after an accident that an attorney demand the log books be kept secure by the trucking company.
Once the logbooks are obtained the attorney will need to reconstruct the truck driver’s activities. It is not uncommon to find the truck drivers reporting they have driven fewer hours than they actually have. This underreporting is often found when checking the mileage driven. For example, in one case the driver logged a 400-mile trip in only 5 hours, meaning he must have averaged 80 miles per hour in speed.
GEORGIA AUTOMOBILE INSURANCE LAW
Current Georgia law requires every driver to have at least $25,000.00 of liability insurance coverage. The policy of automobile liability insurance is a contract between the insurance company to pay for the liability of its insured. The insurer is obligated to provide liability coverage if liability arises out of bodily injury or property damage resulting from an accident.
In order to determine if there is liability insurance coverage, it must be determined whether the vehicle was a covered vehicle under the liability policy and whether the person driving the vehicle was an insured under the policy. In the standard liability insurance policy, the persons insured with respect to the use of the vehicle listed in the policy includes not only the persons named in the insurance policy, but also that named insured’s spouse if they are a resident of the same household, any resident relative at the named person’s household, a resident and any other person using the insured automobile with express or implied permission of the named person or his spouse.
The typical liability policy also provides liability coverage to the named insureds under the policy while they are using an automobile that is not an insured vehicle under the terms of the policy. These are called non-owned vehicles. For example, if your neighbor is given permission by you to drive your vehicle to the store and has an accident, liability coverage would be provided under both your policy and your neighbor’s policy.
Of course, there are many exceptions to coverage. The role of your attorney in an automobile accident case is to investigate all possible sources of coverage and place all insurance carriers on notice of the claim.
UNINSURED MOTORIST COVERAGE
Uninsured motorist coverage is required to be offered to every driver in Georgia. This coverage provides you protection when the party causing your accident either does not have insurance or does not have as much insurance as your uninsured motorist coverage. For example, if the at fault party has only $25,000.00 in liability coverage, and you have $100,000.00 in uninsured motorist coverage, you would be entitled to $100,000.00 in total protection. It is often possible to “stack” uninsured motorist coverage. This means that if there is more than one automobile insurance policy providing you uninsured motorist coverage you may combine the limits of coverage and recover under both policies. This often occurs when you are a passenger in someone else’s automobile. If your driver has uninsured motorist coverage and you also have uninsured motorist coverage, you will be able to add or combine both coverages for your benefit.
Our attorneys have been involved in cases where five or more uninsured motorist policies will stack, or be added together, to provide maximum benefits available. It is important in your case that all sources of uninsured motorist coverage be investigated. Like liability insurance, the uninsured motorist carrier must be placed on notice of the accident as soon as possible. Late notice may void coverage.
Uninsured motorist coverage provides benefits to the named insured in the policy and all residents of the same household, the spouse of any such named insured, and relatives of either, while in a motor vehicle or otherwise; any person who uses, with the express or implied consent of the named insured, the motor vehicle to which the policy applies; a guest in such motor vehicle to which the policy applies; or the personal representatives of any of the above.
Uninsured motorist coverage benefits are available when an accident arises out of the “use of the insured motor vehicle.” It also provides coverage when the named insured is a pedestrian and is struck by another vehicle.
MEDICAL PAYMENTS COVERAGE
Medical payments coverage includes any coverage in which an insurer agrees to reimburse the insured and others for reasonable and necessary medical expenses incurred as a result of bodily injury or death caused by motor vehicle accident, without regard to the insured’s liability for the accident. Coverage is made available to the named insured, the resident spouse, and any resident relative while occupying the covered vehicle, and to any other person legally occupying a covered motor vehicle. Expenses must be incurred for services rendered within a set period of time from the date of the accident.
When an accident occurs, medical payments coverage, if available, has primary responsibility for paying your medical bills. This means that your medical payments coverage pays your bills before your group health insurance or other health insurance has responsibility.
It is important to coordinate your benefits between any available medical payments coverage and any available group health insurance. When benefits are coordinated this often will satisfy any deductible requirements you may have under your health coverage.
WORKERS’ COMPENSATION/JOB INJURIES
Under Georgia law, if you sustain a bodily injury that arises out of and is in the course of your employment, you are entitled to certain statutory wage and medical benefits. An injury arises out of your employment when it results from a risk which is reasonably related to the employment. Of course, as with any case, there are exceptions and you need to consult carefully with an attorney to determine whether your injury is covered by workers’ compensation laws.
If your job injury is covered under workers’ compensation laws, there are two general categories of benefits available to you. These are wage/income benefits and reimbursement for medical expenses arising out of your job injury. Please note, however, that an injured worker does not become eligible for wage/income benefits immediately upon being injured. The injury in question must cause you to miss at least seven days of work before you are eligible for income benefits. However, if the injury is serious enough to keep you out of work for at least 21 consecutive days, then income benefits for the first seven days will then be allowed retroactively. Income benefits due to an injured worker are based on the amount of the worker’s average weekly wage up to a statutory cap. Generally, a worker who is disabled from a job injury is entitled to receive two-thirds of his or her average weekly wage up to a cap. Currently, the cap is $425.00 a week. No matter how much your average weekly wage is, benefits for total disability cannot exceed the current cap of $425.00 a week. As long as an injured worker is unable to do any work because of an injury, he or she is entitled to total disability income benefits.
If an injured worker is able to perform some type of light duty work but is not able to earn as much as he or she did prior to the injury, then benefits are payable for what is known as temporary partial disability. These benefits are calculated based on two-thirds of the difference between the average weekly wage before the injury and the reduced earnings after the injury. Again, however, there is cap on this amount. The cap is currently $268.00 a week. Thus, if you are injured but able to perform light duty work for a limited number of hours a week, you will be paid the wages for that work plus benefits based on the above calculation. However, the benefits currently cannot exceed $268.00 a week.
If an injury on the job results in death to the worker, the benefits are payable to the employee’s dependents. Generally, the income benefits equal two-thirds of the worker’s average weekly wage not to exceed $400.00 during the time of the dependency. However, where a spouse is the sole dependent at the end of one year after the date of the death, the total amount payable is limited to $125,000.00.
Workers who sustain on-the-job injuries covered by the Workers’ Compensation Act are entitled to reimbursement from the employer for any medical expenses which result from the injury and which are reasonable and necessary to cure the condition, give relief for the condition or to restore the worker to suitable employment. Under Georgia workers' compensation laws, there is no limit on the amount of medical expenses payable in a worker's compensation claim. As long as there are medical expenses, the employer must pay them. The employer is required to post a list of physicians available to treat the injured worker. The injured worker must select a physician from the panel to treat his or her job injury. If the injured employee seeks treatment from a non-authorized physician, then there is generally no requirement that the employer or its insurer pay for the treatment.
Georgia law requires that an injured worker notify his or her employer of an injury on the job either immediately or as soon thereafter as is practicable. Failure to notify an employer of a job injury within 30 days could result in a denial of benefits under workers’ compensation laws. Further, if an employer denies that an injury reported by a worker is job related and refuses to pay any wage or medical benefits, the worker generally has one year from the date of the injury to file a claim with the Workers’ Compensation Board. Thus, if an employer denies that an injury is work related and the employee fails to file a claim with the Workers’ Compensation Board within one year of the injury, the worker’s claim is generally barred forever.
DANGEROUS/DEFECTIVE PRODUCTS
Product liability is the area of law dealing with a physical injury to the user of a product as a result of the product being defectively designed or manufactured. A design defect means that the initial design of the product was unsafe and caused the injury. A manufacturing defect means that the product was designed properly but a mistake was made when putting that product together on the assembly line.
Examples of product liability include car gas tanks which were designed with metal bolts which would be driven into the gas tank upon relatively slight motor vehicle accidents. This would result in the gas tank rupturing, spraying gas through the back seat, and then igniting the gas in a ball of flames. Machines in factories which are designed to stamp out plastic or metal parts should have two hand controls so that the workers’ hands have to be on the controls for the machine to close. Electronic eyes, guards which keep body parts out of machinery, barrier guards which keep people too far from the machinery to get in harm’s way, etc., are common methods of keeping factory workers from being injured. When the manufacturer leaves off these controls or makes these safety devices easily removable without disabling the equipment, a factory worker will eventually be caught in the machinery.
Other examples include the failure to completely weld the two halves of a car body together so that, when a wreck occurs, the car body is ripped in half and the back seat passenger is dumped on the pavement, and aerosol cans with repellants which are so flammable that the container can explode when dropped a few feet onto a sharp object.
Product liability law is generally controlled by state law except in certain areas controlled by (pre-empted by) federal law. In the early 1990s Georgia law went from a consumer expectation test to a risk–benefit analysis. Under the current analysis, the issue is whether, at the time the product was made, it could have been made safer (What was state-of-the art at that time?). If so, what was the alternative design? What would it cost? Would it have prevented the injury you suffered? Would the cost of the safer design outweigh the benefit for consumers? If the benefit of the safer design outweighs the cost, if any, to the consumer, then you have a products liability case against the manufacturer of the product.
Usually there is no product liability case against the seller of a product if the seller sold the product as received from the manufacturer. However, a seller can be responsible if the seller makes representations about the safety of the product to you or the seller participates in the design, manufacture, or labeling of the product.
As with most personal injury cases, the injured person must file suit within two years of the date of the injury. However, products liability also has a ten-year statute of repose, which means that you cannot sue if the product that hurt you is more than ten years old. There is an exception to this rule for a failure to warn. Warning is an ongoing duty of the manufacturer, regardless of the age of a product. If the manufacturer learns of the defect after manufacturing the product, the manufacturer should send a warning to the consumer to prevent harm. You have probably seen such after-market warnings in recall notices for automobiles where the manufacturer offers to fix or replace the product. These have saved countless lives in the United States.
Product liability cases are typically very expensive. At a bare minimum, a product design expert has to show that a better alternative design existed. A human factors expert may be necessary to show how human beings interact with the product and why the warnings or controls failed and were improperly designed. If the individual was severely injured by the product, a life care planner would need to design a life care plan showing the future medical needs of the individual, as well as changes necessary to modify their home and vehicle so they can use it with their physical restrictions. An economist would be hired to determine the cost of the life care plan and reduce it to its present value. Doctors are necessary to testify in regard to injuries and future medical needs. Thus, products liability is a very expensive and expert intensive area of the law.
HOW WE CAN HELP
When you contact us, an attorney will be assigned to talk with you about your matter. If it is a matter that we can help you with, we conduct an initial investigation into the legal, factual, and medical issues involving your claim. Our investigation includes not only legal research and factual investigation but extensive medical investigation as well. For instance, we research the latest medical journals and medical studies with regard to your condition or claim. We also interview witnesses and obtain experts, if necessary. We talk with your doctors. We learn about you.
If your case involves one of medical malpractice, nursing home negligence, or some other claim against a health care provider, we conduct a thorough review of your medical records and if our investigation reveals that further review is warranted, we retain the leading professionals in the field to review your matter.
If your claim involves an automobile accident, we conduct an initial investigation and contact all the insurance companies. We also coordinate benefits between your insurance coverage and the automobile insurance coverage in order to maximize the benefits available to you. We work with the insurance company to get your claim settled quickly, fairly, and reasonably. If we cannot, then we will file suit on your behalf.
Presentation of your claim and the prosecution of your case in court if that becomes necessary, requires dedicated attorneys and access to the latest technology and expertise available.