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En todo el país, los errores en el surtido de medicamentos recetados producen lesiones y, a veces, matan a cientos de personas todos los años. A medida que las farmacias tienen más trabajo, aumenta la probabilidad de que cometan un error. En 1998, Georgia tomó medidas para combatir este problema. La Asamblea Legislativa de Georgia fortaleció leyes y reglamentaciones sobre el comportamiento de las farmacias. Estas leyes aplican a todos los lugares de Georgia, como Rome, Dalton, Condado de Cobb (Cobb County), Condado de Fulton (Fulton County), Condado de Gwinnett (Gwinnett County), Condado de Floyd (Floyd County), Calhoun o Condado de Dekalb (Dekalb County). No obstante, muchas personas en todo Georgia siguen recibiendo medicamentos equivocados debido a errores de las farmacias. Una vez que usted o alguno de sus seres queridos haya sido víctima del error de una farmacia, surge la pregunta: ¿cómo maximizo el resarcimiento por las lesiones que he sufrido? La respuesta no es tan fácil como puede pensar.

En Georgia, cada farmacéutico tiene la obligación de garantizar que cada medicamento recetado que sea entregado a usted sea el correcto. Esto significa que el farmacéutico debe revisar la receta (salvo algunas excepciones menores). El farmacéutico también es responsable de todas las decisiones sobre su receta que requieran un “criterio profesional”. Por ejemplo, si usted preguntara sobre un cambio reciente en el color del medicamento o sobre cómo su medicamento puede interactuar con otro medicamento que ya está tomando en ese momento, el farmacéutico -no el asistente técnico- es responsable de responder a esas preguntas.

Más aún, muchos médicos le recetan un medicamento que parece escrito en otro idioma. No obstante, que una receta se vea ilegible no es excusa para que le den un medicamento equivocado. Por ley, el farmacéutico está obligado a llamar al médico que le haya emitido la receta ¡para verificar cuál es el medicamento recetado!

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contract.jpgAlmost everyone in our country is affected by contract agreements. And people and businesses break those agreements all the time. That’s reality. And when someone or a business fails to perform as he or she promised, in accordance with a contract, clients seem to always ask: can I recover more money as punishment for the reproachable manner in which our contract was breached? The answer, in Georgia: maybe.

The Georgia code expressly states “[u]nless otherwise provided by law, exemplary damages shall never be allowed in cases arising on contracts.” O.C.G.A. § 13-6-10. (Exemplary damages are commonly referred to as punitive damages, a penalty [punishment] imposed against the wrong-doer to deter future, similar conduct.)

As you can read, the Georgia code disfavors punitive damages for breach of contract actions, and the Georgia courts have agreed. But, there exists avenues other than stating your claim as a breach of contract, in order to maximize your recovery if punitive damages seem warranted. You may be able to claim that the person who breached your contract committed a civil tort against you.

A civil tort is an unlawful violation of a private right other than a breach of contract, generally. That means the wrong-doer must breach an independent duty created by statute or common law that, importantly, was owed to you. And that breach of duty must be the actual or proximate cause of your injury (damages). So if a person or business committed a civil tort against you arising out of a contract, then, punitive damages may be possible, under Georgia’s civil tort statute, O.C.G.A. § 51-12-5.1.

For example, if a a person keeps a car without paying rental fees owed to you by contract, Georgia courts have reasoned that the civil tort of conversion may be claimed against that wrong-doer (and punitive damages possible), since he or she is unlawfully in possession of your property, after defaulting on payment. Or, maybe fraud or deceit was committed against you in the context of a contract agreement. Or, maybe a third party (stranger to the contract) interfered with your contractual rights and thus caused your contract to be terminated.

The above-mentioned civil claims are complex, but nevertheless they are tort claims, and while they may arise out of a contract dispute, these type of claims carry with them an independent cause of action that “may” entitle you to punitive damages. Ultimately, the substance of your claim–as “truly” being a tort claim rather than being a breach of contract claim in disguise–will determine if punitive damages are on the table, in Georgia.

(You must always be mindful that punitive damages, in Georgia, can be difficult to recover because the conduct in question must be more than merely negligent conduct or even grossly negligent. Generally, the conduct must be intentional or willful, or demonstrate a complete want of care that would lead an ordinary person to presume that the wrong-doer had a conscious disregard for the consequences of his or her action[s].)

You definitely need a good lawyer when dealing with breach of contract issues because whether or not punitive damages are possible, a good lawyer still must evaluate issues such as liquidated damages provisions (O.C.G.A. § 13-6-7); mitigation of damages (O.C.G.A. § 13-6-5); recovery of lost profits; and recovery of actual, remote, or consequential damages, amongst many other considerations.

Every case is different. So your recovery will depend on a good lawyer who can apply the unique facts of your case to the multiple facets of Georgia law.
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disability.jpgUnder federal law, the Americans With Disabilities Act places strict limits on collecting and using an employee’s medical information. Employers should never require a job applicant to take a medical exams or answer medical questions before the employer makes a job offer. However, employers may condition a job offer on the satisfactory result of a post-offer medical exam or inquiry if it is a prerequisite for all new employees in the same job description.

If this post-offer medical exam or inquiry reveals that the person had a disability and the person is consequently not hired, the reason the person was rejected must be related to their job and necessary for the business. Additionally, the employer must also show no reasonable accommodation was available that would have enabled this person to perform the essential job functions, or that if the employer had provided an accommodation it would have posed an undue hardship.

Finally, information from all medical exams and inquiries must be collected and maintained on separate forms, in separate medical files, and must be carefully handled as a confidential medical record. Nonetheless, supervisors and managers may be informed about the necessary restrictions and accommodations required for the employee’s job duties, and safety staff may be informed if the person’s disability could require emergency treatment. There are also exceptions dealing with state workers’ compensation offices, insurance companies, and government investigations.
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nursing home.jpgIdeally, long-term health care facilities such as nursing homes will provide your loved one with long-term assisted living that respects their dignity. Georgia law recognizes three types of long-term health care facilities: personal care homes; skilled nursing facilities; and intermediate care homes. Some are privately owned, while others are state-owned. Some receive Medicare/Medicaid funding. And some care for the elderly or children or those who suffer from severe mental and physical challenges. Unfortunately, as the above-mentioned incident illustrates, regardless of who owns the home, or what type of long-term health facility it is, many times your loved one is mistreated (institutionally abused), a reality that really enrages and hurts both the abused person and those who love and care about him or her.

Recognizing an area of needed involvement, the Georgia legislature enacted a bill of rights for residents of long-term health care facilities (O.C.G.A. § 31-8-100). These rights include the right to receive care and treatment, and services, adequate and appropriate for your loved one’s condition; the right to choose amongst different forms of treatment; the right to refuse treamenent; the right to request a different doctor; the right to participate in the care and treatment plan developed for you or your loved one; the right to privacy; and the right to only be restrained in extremely limited circumstances, amongst others.

The object and purpose of Georgia’s patient bill of rights is to ensure respect for the dignity and self determination of each person living in a long-term health care facility. Additionally, because the legislature recognized the special circumstances in which these vulnerable people find themselves, and their potential to be abused and neglected, Georgia law allows you or a legal guardian to sue for damages for any violation of the Bill of Rights. Also, you should know that you may bring a suit, without exhausting administrative remedies.

Institutional abuse comes in many forms. Be on the look out for signs of mistreatment such as an unexplained or unexpected death of a patient; a serious injury such as broken bones; unexplained sores, welts and bruises; infections; unusual weight loss or weight gain; extreme dehydration; choking/gagging; and illnesses such as chronic aspiration/aspiration pneumonia (the elderly are particularly susceptible to this); and poor personal hygiene. A good lawyer will understand not only how to spot abuse but also how to uncover abuse through records request, testimony and other avenues.

Another reason you need a good lawyer to deal with nursing home abuse is the fact that there are so many laws and causes of action which apply to this situation. For example, and as stated, most long-term health care facilities receive federal and state funding, so Medicare/Medicaid regulations will apply. However, although Georgia law provides a private cause of action, many applicable federal laws such as 42 U.S.C. § 1395 do not. But the fact that a federal law does not provide a private cause of action does not mean that the standards established by those regulations cannot be used to demonstrate that a long-term heath care facility violated a standard of care it owed to your loved one.

Furthermore, you may have several different causes of action (legal claims) against the long-term health care facility. For example, you may have a professional negligence claim. This typically involves negligent conduct of a nurse or medical care provider. When a medical provider is responsible for injuring you or a loved one, hospital’s may be liable for those inujuries under the doctrine of respondeat superior, which means the employer of the negligent nurse/physician/medical provider is held liable. This type of claim is classified as a medical malpractice claim; that means that a host of procedural and substantive issues are involved. If your lawyer fails to follow “particular” procedural rules, your claim could be thrown out of court, forever.

Or, you may have an ordinary negligence claim, which typically does not involve an expert opinion or the tricky rules associated with professional negligence (malpractice) claims. Or, you may have a premises liability claim or a breach of contract claim or a class action claim. As you can read, a good lawyer is necessary to properly apply the facts of your case to all the applicable Georgia and federal laws and regulations, to ascertain which claim(s) you may have, and of those claims, which ones provide you with the best opportunity to maximize your recovery.

Ultimately, the outcome of you case will depend on many variables.
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doctors.jpg “I was injured by a doctor and I need to find a lawyer” or “I was injured by the hospital and I need to find a lawyer,” are now scenarios where you have the constitutional right to seek fair and full recovery for pain and suffering.

Today was a wonderful day for the citizens of Georgia. The Georgia Supreme Court abolished the $350,000 cap that the Georgia legislature placed on medical malpractice cases. The Supreme Court ruled in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, that the law, which limited the amount of money a patient injured by a doctor or hospital’s negligence could recover, was unconstitutional.

Prior to the Georgia Supreme Court ruling, it didn’t matter if the doctor had cut off the wrong arm and leg of a patient, or even killed you due to medical negligence—$350,000 was the most you could recover for your pain and suffering. While someone with minor injuries (a minor misdiagnosis for example) wasn’t severely affected by this cap, this law hurt those who were severely injured the most. The Georgia Supreme Court case ruled on today provides a good example of the devastating affect the cap had on gravely injured people.

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Judge.jpgIn Georgia, and everywhere, as too many employers know, employees solicit (attempt to steal) clients from their former employer. There exist obvious and significant financial and professional incentives for employers to prevent this from happening. The answer is a well drafted non solicitation agreement, amongst other safeguards. The problem is that many non solicitation agreements are poorly drafted, because whoever drafted the agreement failed to take into account applicable, and stringent, Georgia laws. In the world of non compete/solicitation agreements, Georgia law is notorious for being extremely unfavorable to employers. And although the Georgia legislature passed employer-friendly legislation (HB 173) in this area, and Governor Sonny Perdue signed that legislation into law, voters must still amend the Georgia Constitution so that the legislature has the power to make HB 173 actual law. That may be difficult.

Regardless, Georgia courts, currently, strictly construe non solicitation agreements. That means: if any potion of your non compete/non solicitation agreement is held to be invalid, the entire agreement is void.

We have written about non compete and non solicitation agreements before on this blog. Today, we are writing this entry to give you a few considerations when reviewing or attempting to draft your own non solicitation clause, although we highly recommend that you seek a good lawyer who has experience in this area to help you with drafting these types of agreements; the stakes are too high to rely on a poorly drafted agreement made by someone who is not familiar with Georgia law.

Some considerations:

The law: “Georgia law is clear that unless the non-solicit covenant pertains to those clients with whom the employee had a business relationship during the term of the agreement, the non solicit covenant must contain a territorial restriction.” Trujillo v. Great Southern Equipment Sales, LLC, citing Advance Technology Consultants v RoadTrac, 250 Ga. App 317.

In Trujillo (the above-mentioned case) the employer illegally expanded the class of prohibitve clients by stating, within the non solicitation clause, that

“the non-solicitation restriction set forth in this Section 2 is specifically limited to Customers of Employer with whom Employee had contact… or about whom Employee had a confidential or proprietary information becasue of his/her position with Employer.”

As you can read, the employer started off great, by restricting the scope of the clause to clients that the employee truly had contact with. But then the non solicitation clause went awry of strict Georgia law, by stating that the employee could not solicit clients that he or she had gained confidential or proprietary information about, by merely working for the employer. While you may think that’s a reasonable restriction, Georgia courts do not.

The Trujillo court reasoned that the language pertaining to confidential and proprietary information did not constitute a valid confidentiality provision or a “reiteration” of the confidentiality clause found in Trujillo’s contract. Rather that language, in the Court’s opinion, constituted an impermissible attempt by the employer to broaden the class of customers (clients) whom Trujillo could not solicit. As a result, the court stated–and this is what really hurts employers– “because the non-solicitation clause was unenforceable, the non competition clause included in the agreement was likewise unenforceable.” That’s a result that you as an employer do not want.

What lessons can be learned? First, get a good lawyer that knows Georgia law in the area of non compete non solicitation agreements. Second, regardless if you’re an attorney or not, don’t try to be “slick” when drafting these agreements. The Trujillo court made it clear: just because you do not use the red-flag term all clients does not mean that you can avoid the harsh and scrutinizing results of Georgia law. Moreover, understand fully that if you decide to use broad language such as all clients, strongly consider placing a geographical limitation within the non solicitation clause.

Additionally, understand that non solicitation agreements do not mean that a client cannot solicit your employee– this area of law is tricky and involves other complex legal issues.

Ultimately, when you attempt to use a non solicitation agreement against an employee to protect your business interest, your success will depend on the facts of your case as applied to Georgia law. You need a good lawyer.
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Dog Bite Rock.jpgRecently, a pit bull attacked a pregnant woman who lives in Cobb County, Georgia. The pit bull initially attacked the woman’s dog but then attacked her. Luckily, the courageous woman kicked the dog and then grabbed its neck to protect her unborn child. We hope that both the mother and child are okay.

Everyday dogs attack people and leave their victims with serious injuries ranging from serious head trauma, facial lacerations, permanent disfigurement, broken bones, severe scarring, and sometimes death. In Georgia, as with everywhere, many times the victims are young children and the elderly. And as a person that has experienced several dog attacks, I also understand how psychologically traumatizing (long term) a dog attack can be. You/your loved one deserve to be compensated for the injuries and damages caused by dog bites, and vicious dog attacks.

We have written about dog attacks before on this blog. In that article we focused on the nuances of Georgia law that may prohibit you from maximizing your recovery, if you do not choose your lawyer wisely. In this article however we want to focus on what you should do immediately after being bitten by a dog, to help protect you and others, and to maximize your recovery for the injuries caused by dog bites, and vicious dog attacks. Whether you live in Dekalb County, Cobb County, Fulton County, Floyd County or Whitfield County, as long as you live in Georgia, you need to consider taking the following steps after being attacked (bitten):

1. Immediately seek emergency medical attention for your injuries;

2. Identify the owner of the dog that bit you and get his or her name, address, home telephone number, and social security number (if possible);

3. Take photographs of your injuries and preserve any torn clothing;

4. Detail, in writing, what happened to you (if you are in a condition to do so), being as specific as possible;

5. Do not talk to any insurance adjuster!

6. Contact a good dog-bite lawyer; and
7. Immediately contact your county’s animal control authority. Here is a list of a few:

a. Fulton County Animal Control, click here
b. Dekalb County Animal Control, click here
c. Cobb County Animal Control, click here
d. Gwinnett County Animal Control, click here
e. Whitfield County (Dalton, GA) Animal Control, click here
f. Floyd County (Rome, GA) Animal Control, click here

Your animal control authority can do a few things to help you. First, if a dog bites anyone, it must be quarantined to see if it shows signs of rabies or being vicious. Second, animal control can determine if a citation can be issued against the owner and then, animal control can issue a citation or ensure that a citation is issued against the owner of the dog that bit you. Reading our other article will demonstrate the importance of the citation with respect to a violation of local leash laws and your ability to maximize recovery for your injuries.

As stated, contact a lawyer immediately, tell the lawyer about the incident, and get feedback. Typically dog bites cases involve homeowner’s insurance coverage and you will need a good lawyer to deal with this process because the insurance companies’ goal is to pay you as little as possible for your injuries. That means the company will attempt to convince you to settle your case before you understand the full extent of both your injuries and your legal options.

You also need a good lawyer to protect you from your own health insurance company. Many times your health insurance company will seek reimbursement for medical expenses it paid on your behalf. A good lawyer will know how to shield you as much as possible from this situation. Other issues may involve worker’s compensation and federal assistance. The best option is to find an attorney who has effectively handled dog-bite cases.

Your compensation will ultimately depend on the facts of your case as they apply to Georgia law, and the extent of your injuries, especially long term. You need a lawyer who will maximize your negotiating position and demonstrate a conviction to take your case to trial, to ensure that you receive the compensation you deserve.
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Hospital.jpgThis article, briefly, deals with an important issue in the context of injuries suffered at a hospital due to medical negligence. The question is simple: is your case a medical malpractice case or a case of ordinary negligence on behalf of the hospital? The answer may be extremely complex and requires a keen attorney in this field. The distinction is significant because it will determine whether a significant portion of your compensation, for your injuries, will be restricted to a medical malpractice “cap.” In Georgia, there exist a “cap” on recovery in medical malpractice cases. The Georgia Legislature unfortunately implemented “tort reform” legislation which harmed patients by placing a $350,000 cap (ceiling) on non economic damages (injuries) that anyone receives due to medical malpractice. That means, in Georgia, if you are a victim of medical malpractice, the compensation that you receive for your pain and suffering that cannot be proven by recorded data such as medical bills, rehabilitation, loss wages, and so forth, will be severely limited.

Currently, medical malpractice “caps” are being challenged. But until this cap is overruled or modified, you will need an attorney who can, if possible, manuever around the medical malpractice claim (cap), to give you a stronger chance at higher compensation for your injuries.

In Georgia, “simply because an alleged injury occurs in a hospital setting, a suit to recovery for that injury is not necessarily a medical malpractice action.” For example, if a hospital employee commits a negligent act that injures you, the fact that the employee such as a registered nurse has expert medical credentials does not, by itself, mean that your case is a medical malpractice case and thus subject to the above-mentioned $350,000 cap. One of the determining factors is whether the negligent act required expert medical “judgment.” It’s complicated but one thing is for sure: the unique facts of your situation, as applied to Georgia law, must be scrutinized by a knowledgeable attorney to determine whether your case may be a case of ordinary negligence, instead of medical malpractice. For example, was your injury caused by the failure of a hospital employee to carry out a physician’s instructions or some other administrative or clerical act? Or perhaps the hospital had policies and procedures that were not complied with or failed to implement polices and procedures that comply with established law. Or perhaps the medical equipment that caused your injury was inadequate: in Georgia, hospitals have a duty to provide equipment reasonable suited for its intended uses.

Basically, all the above-mentioned issues fundamentally challenge the adequacy of the services and facilites provided to you rather than challenge the expert medical judgment of a hospital employee. As stated, this area of Georgia law can be very tricky. Your lawyer must understand these distinctions, and more, to effectively represent you.

You should also consider that the characterization of your law suit as a medical malpractice claim or as an ordinary negligence claim means a lot with respect to the procedural requirements that your attorney must navigate through, in order to avoid having your case thrown out of court. The law has made medical malpractice claims tough from the start. For example, by law, if you do file a medical malpractice claim and your attorney fails to attach an expert affidavit to your complaint, then, your complaint is voidable, not void. That means, if the defense team notices that your attorney failed to comply with the law, then they may move to have your case thrown out of court. If your case is thrown out, then you will most likely be forever barred from filing the same medical malpractice complaint. But there are exceptions, especially if the defense team failed to notice the missing affidavit upon answering your complaint. Again, the rules are tricky and tedious.
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Pharamcy.jpgThroughout the country, prescription misfills injure and sometimes kill hundreds of people, every year. As pharmacies become busier, the likelihood of pharmacy error increases. In 1998, Georgia took action to combat this problem. The Georgia Legislature strengthened laws and regulations regarding pharmacy conduct. Nevertheless, many people throughout Georgia continue to receive the wrong medication due to pharmacy error. Once you or a loved one has become a victim of pharmacy error, the question becomes: how do I maximize my recovery for the injuries I have suffered? The answer is not as simple as you may think.

In Georgia, each pharmacist has an obligation to ensure that every prescription given to you is accurate. That means that the pharmacist must review the prescription (with a few minor exceptions). The pharmacist is also responsible for all decisions regarding your prescription that require “professional judgment.” For example, if you were to ask about a recent change in the color of your medication or about how your medication may interact with a current medication you are taking, the pharmacist–not the technical assistant–is responsible for answering these questions.

Furthermore, many physicians write your prescription in what seems like another language. Regardless, the fact that a prescription seems illegible is not an excuse for giving the wrong medication. By law, the pharmacist must call the prescribing physician to verify what your prescription is!

But merely receiving the wrong medication will not solely determine your recovery. You must be injured, and your injury must be provable, because the extent of your injury (for example medical bills, rehabilitation, and loss wages) will play a signiifcant role in your recovery process. Unfortunately, your recovery will also depend on another important factor: Were you at fault? And if so, to what degree was your fault?

Our experience has demonstrated that maximizing a victims recovery in prescription-error cases inevitably involves what Georgia law refers to as comparative fault–the extent of your fault in taking the wrong medication. For example, a few questions in the minds of insurance adjusters and probably jurors may be: how long have you been taking the medication you were supposed to receive? If you have been taking a particular medication for, say, 5 years, and your medication is a small red pill, then, when the pharmacist made an error by giving you a big orange pill: why did you take it? Didn’t the color warn you of a potential problem? That sounds unfair and it is; you did not make the mistake. But the harsh reality is that Georgia law permits insurance companies and juries to take into consideration the extent of your so-called “fault,” when deciding what compensation will be given to you for your injuries.

Lastly, in order to maximize your recovery, you need a lawyer who understands punitive damages, which is an amount of money given to you, as a way of punishing the wrong doer (in this case, the pharmacy) to deter future, similiar conduct. Punitive damages are not easy to recover. In fact, to recover punitive damages in Georgia, proving mere negligence or even gross negligence is not enough. That means that merely giving you the wrong medication will not help maximize your recovery, at trial or during negotiations. In the context of pharmacy error, your lawyer will most likely have to prove a complete “want of care” on the part of the pharmacy. This is tough. But a lawyer with pharmacy-error experience and strong legal skills definitely increases your chances of maximizing your recovery. Ultimately, everything will depend on an in-depth understanding of how the facts and evidence of your case apply to Georgia law.
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bullying.jpgThis week, the Georgia House finally passed a controversial bullying bill, the purpose of which is to strengthen the state’s anti-bullying laws.

Rep. Mike Jacobs (R-Atlanta) wrote the bill. It originally did not pass, but on Tuesday made it through as an amendment to a measure dealing with school bus safety.

The amendment was approved 95 to 55, and the bill then cleared 119 to 45.
Rep. Carolyn Hughley (D-Columbus) said the bill was needed and timely.

The new bullying law would allow administrators to transfer a bully to another school and would also make it a crime for principals to knowingly not report bullying to authorities. The bill was initiated because of an incident involving an 11-year-old DeKalb County student who killed himself last year because of bullying and teasing.

For those who have children who suffer from bullying, it is important to document your concerns in writing and express them to the school principal, assistant principal, and school superintendent. If the school administrators fail to cooperate or comply with Georgia anti-bullying laws, consider contacting a good Georgia lawyer to assist you.
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