Articles Posted in Case Summaries

When an injury occurs in Georgia, determining the best course of legal action is key to the successful recovery of damages.  A recent case from the Eleventh Circuit United States Court of Appeals highlights the choice of legal theory and how it is presented at trial can result in an unfavorable outcome.  In Thews v. Wal-mart Stores, Inc. (No. 13-11455) the appellate court addressed the questions of whether the injured woman presented a theory of general negligence at trial, and whether the Federal District Court erred in issuing a Judgment as a Matter of Law (JMOL) against the injured.  To make these determinations, the federal court applied Florida substantive law. Upon review, the Court ultimately upheld the JMOL against the injured woman and agreed that the legal theory of general negligence was not presented at trial.

shopping cartsThe woman suffered a catastrophic injury after she fell in the shopping cart vestibule at Wal-Mart.  The injured woman suffered serious spinal injuries which required surgery to place two titanium rods and eight screws into her spine.  When the woman fell in the vestibule, a Wal-Mart employee was pushing carts into the vestibule, but the Court of Appeals pointed to a lack of available evidence which would connect the moving stack of carts with the woman’s injuries.  To recover monetary damages in any civil action, the plaintiff must show that the alleged at-fault party owed the injured a duty, and that the failure to uphold this duty resulted in the injuries suffered by the plaintiff.  In this case, the woman alleged that Wal-Mart failed in its duty to her by failing to properly train its employees, improperly designing and maintaining the shopping cart vestibule area, and failing to warn customers that the shopping cart might be pushed toward them.  The Court of Appeals pointed out that the Complaint did not allege vicarious liability against Wal-Mart for negligence of its employees in mishandling shopping carts.

In personal injury actions, employers can be held responsible for the actions of their employees performed while they were working.  The Court of Appeals pointed out that the injured’s complaint didn’t point to the employee’s actions as the cause of the woman’s injuries.  Had the complaint included this allegation, the jury may have been able to consider whether the employee negligently performed his duties while pushing the carts, and that as his employer Wal-Mart was also responsible and ultimately liable for the woman’s injuries.  Instead, the injured’s case at trial focused on safety rules and Wal-Mart’s duty to make sure they are followed so that patrons can take a cart and remain uninjured.  There injured’s case did not focus on the negligence of the employees or Wal-Mart’s liability as an employer.  The Court of Appeals noted that in pursuit of the allegations in the complaint, the jury was not provided with any evidence or testimony that would reveal the  industry standard of care for shopping cart vestibules.  Based on this absence of evidence to uphold the legal theory presented, the Court of Appeals upheld the JMOL against the injured. Continue reading

The state Supreme Court affirmed a Court of Appeals decision to overturn a summary judgment in favor of the hospital.  (See Abdel-Samed et al v. Dailey et al.)  The injured patient came to the hospital after he shot paint thinner into his finger with a high pressure paint sprayer.  The injured was seen in the emergency room and referred to a hand surgeon for immediate surgery.  The patient was told that the on-call orthopedic surgeon did not like to be bothered throughout the evening, so surgery would have to wait until the morning.  The injured patient was then transferred to a different hand doctor, who analyzed him and agreed with the determination that immediate hand surgery was necessary.  However, the injured was still told that he would have to wait until the next morning, and was placed in a small storage room for the remainder of the evening.

blue hand artThe tip of the injured’s middle finger was amputated and he brought suit against the consulting doctors for failing to transfer him to a hand surgeon.  Conflicting evidence from both the injured and the doctors left a question of whether hospitals were called for available hand surgeons.  One record showed that a hospital with an accessible hand surgeon was not called, while the doctor believed the hospital was checked and no one was available.  The consulting doctors sought summary judgment, arguing that the higher burden placed by state statute OCGA § 51- 1-29.5.  This statute raises the burden of proof from preponderance, or more likely than not, to clear and convincing evidence that the doctors were grossly negligent and did not use the even a slight amount of diligence in their care of the injured.

The lower court granted summary judgment, agreeing with the doctors that there was no way the injured could meet the level of proof.  The state Court of Appeals, however, agreed with the injured’s argument that it was a question for the jury if the actions by the doctors were negligent or grossly negligent.  The State Supreme court affirmed the Court of Appeal decision to overturn the award of summary judgment and looked at facts that could be considered grossly negligent by a jury, particularly the available testimony that could show a jury that no efforts were made by one of the consulting doctors between 2:00 A.M. and 7:33 A.M.    Continue reading

Last month the state Court of Appeals reversed a lower court’s decision to dismiss the injured party’s case in AMBROSE v. SAINT JOSEPH’S HOSPITAL OF ATLANTA, INC. The injured party underwent spinal surgery for a ruptured lumbar disk. While performing the surgery, the doctor operated with an OPMI Pentero surgical microscope that was provided by the hospital. The microscope is a complex system that both lights and records in addition to magnify, and provides the hospital with much information. The lighting component shines an ultraviolet light on the operated portion of the patient’s body. During this surgery, the microscope emitted light that was too strong, which caused burns on the injured patient’s body. The injured party has a scar and on-going pain that affected his modeling career and the ability to fully perform his duties at his job at hospice.

disco lasersThe lower court hinged its decision to dismiss on the hospital’s argument that that the injured party failed to include an expert affidavit under Georgia statute, OCGA § 9–11–9.1, which requires the injured party to include with the complaint an expert’s affidavit that supports the allegation of malpractice. The injured party appealed, countering that his suit was based in ordinary negligence, not professional malpractice, and did not fall under the types of cases for which OCGA § 9–11–9.1 was intended. The Court of Appeals agreed with the injured that the allegations set forth were one of ordinary negligence, and did not necessarily fall as one of medical malpractice. The Court of Appeals looked at previous case law, and discussed in their opinion what constitutes ordinary negligence and professional negligence. In the opinion, the Court asserted that a civil action alleges professional negligence when the injury-causing act was one that required the exercise of professional judgment and skill.

The injured patient in this case alleged that the hospital provided the unsafe microscope, failed to update the applicable software used by the microscope’s system, and failed to warn the surgeon performing the surgery of the applicable risks. Previous cases that involved hospital equipment were considered by the Court of Appeals, and those cases ultimately determined that those allegations were one of simple negligence and not professional negligence. One example provided in the decision was Lamb v. Candler Gen. Hosp., where the alleged act of negligence was the failure to replace disposable parts in instruments used in eye surgery. Continue reading