Monthly Archives: November 2011

Child Injury Claims – Georgia Statutes of Limitation

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A statute of limitation is a deadline for filing suit. It is the maximum time an injured person has after an injury to file a law suit. If the deadline has passed and no suit was filed, no legal action is permitted.

Under some circumstances, however, the statute of limitation is suspended or “tolled.” Tolling means that an injured person is given more time before the statute of limitation expires or “runs out.”

To illustrate how tolling works, think of an hourglass. It is as if on the day of injury, the law turns the hourglass and the sand begins to flow. When the sand stops flowing, your time to file suit is up. Tolling suspends time, so to speak, it pushes back the time when the law turns the hourglass.

The law speaks of tolling in terms of legal disability. The rationale for tolling a statute of limitation in a particular instance is that the law deems that a particular class of claimants labor under a disability of some sort and therefore should not be held to the same standards as those who suffer from no disability.

One such disability is being a minor. The statute of limitation is generally tolled on a minor’s claim during the period of that child’s disability (during the period the child is legally considered a child, which means until the child turns 18). Once the child’s disability is removed (by turning 18), the hourglass is turned over and the statute of limitation sands begins to flow.

To give a for instance – in Georgia persons who do not labor under a legal disability (most adults come to mind) and who are injured in an automobile accident are given 2 years in which to either settle their claim or file a lawsuit. After the two year statute of limitation expires, they lose all their legal rights with regard to the injury claim arising from that automobile accident. Yet a child who is injured in that same accident would be given until their 20th birthday to settle or sue. The two year statute of limitation does not begin to run until they reach their 18th birthday.

But there are exceptions that complicate things. Children who are the victims of sexual abuse are given until their 23rd birthday to settle or sue. And children who are the victims of medical malpractice are handled altogether differently. For malpractice occurring before the child’s fifth birthday, the child’s suit must be filed by the seventh birthday. For acts of medical malpractice occurring after the fifth birthday, the limitation period is two years from the date of the malpractice.

To make matters even more complicated, Georgia law views any medical or necessary expenses arising from an injury to a child as belonging to the parents of that child, not the child itself. So the parents must bring a claim for medical expenses and that claim must be filed within four years of the date of injury, except when the claim arises from medical malpractice the claim must be filed within two years.

Simple, huh? And in case you’ve been following all this, here is another wrinkle. There is a recent decision from the Georgia Court of Appeals where the Court confused the rules concerning which statute of limitation applies to the parent’s claim for medical expenses  and applied the medical malpractice two year limitation in cases that do not arise from medical malpractice.  Because the Courts have not yet corrected this mistake, suits for a parent’s claim for a child’s medical expenses should be filed within two years of the date of injury, even when no medical malpractice was involved.

There also are ante litem notice requirements. Ante litem notices are required anytime you have a claim against a governmental entity, such as Cities, Counties, States, or the federal government. Ante litem notices act like statutes of limitation. If you fail to notify the right department in the proper manner,  you and your child’s claim will be forever barred. Some of these deadlines are breathtakingly short, as short as six months from the date of injury.

If your head is not swimming by this point, it should be. Determining which statute of limitation applies to which part of what claims is not for the layperson. We lawyers have to check and double check it ourselves.

If you have any questions about these important issues, the time to call is immediately. Statutes of limitations are unforgiving. Let me help you make certain you do not miss a deadline. You can contact me here, here, or here.

Injury to Fetus During Automobile Accident – Reforming Georgia Law

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When a pregnant mother is involved in an automobile collision and her unborn child is injured or killed, do the parents have a claim for the harm caused to their unborn baby? And if so, is the claim viable no matter how early in the pregnancy the injury to the fetus occurs?

The answer to the first question in the State of Georgia is “It depends.” The answer to the second question is currently “No.” but I would argue that the answer should be “Yes.” and Georgia law should be reformed. If I’ve thoroughly confused you with those answers, read on for a fuller explanation!

In the State of Georgia, under Porter v. Lassiter, 91 Ga. App. 712 (1955) and its progeny the central issue has been framed in terms of the legal fiction of “quickening.” An unborn child that has quickened and then is injured or killed has legal rights. An unborn child that has not reached that stage of development has none.

Georgia law does not give a definite time in a pregnancy when quickening occurs, but decisions have stated that quickening generally occurs sometime between the tenth week and the fourth month of pregnancy. See Brinkley v. State, 253 Ga. at 542; Biegun v. State, 208 Ga. 618, 627 (7) (58 SE2d 149) (1950). The Courts have held that the relevant question is whether the baby has reached the stage where the mother can feel fetal movement. See. Citron et al. v. Ghaffari et al (246 Ga. App. 826) (542 SE2d 555) (2000)

Georgia is unique in its adherence to the legal fiction of “quickening.” The majority of jurisdictions that recognize a cause of action for wrongful death of a fetus limit such actions to claims arising after the fetus is viable. A viable fetus is “capable of independent existence outside his or her mother’s womb, . . . even if only in an incubator.” Black’s Law Dictionary, p. 1566 (6th ed. 1990). Viability thus presumably occurs later than quickening. Only a few states recognize a cause of action for wrongful death at any point in a pregnancy.

I believe Georgia law should recognize a cause of action for wrongful death or injury to an unborn child at any point in a pregnancy when the death or injury flows from the negligence of a person other than a family member. The Georgia legislature has already provided a basis for such a change when in 1991 it passed into law a Feticide by Vehicle law that applies to the earliest stages of pregnancy. For purposes of criminal prosecutions under O.C.G.A. § 40-6-393.1(a), an “unborn child” is defined as a member of the species homo sapiens at any stage of development who is carried in the womb.

The existence of a Georgia Fetal Protection Act (sometimes referred to as a PreBorn Victims Act or Unborn Victims Act) defining Fetal Homicide in a manner that includes babies at all stages of development in the womb has other important ramifications that could assist a family in securing fair and adequate compensation for an injury to their baby. It has to do with how much insurance coverage may be available to compensate the family of an injured unborn child.

Many insurance policies provide a set amount of coverage for each person that was injured. So, within the overall limits of the policy, each additional injured person increases the pool of funds available for compensation. The recognition by the State of Georgia that an unborn child is “a member of the species homo sapiens” should be interpreted by the Courts to mean that for purposes of determining insurance coverage, unborn children are treated as separate and distinct persons, thereby increasing the pool of funds available to compensate child victims and their families.

Just to be clear, however, the current state of the law in Georgia is that in order to recover for injuries to an unborn child, it must be shown that at the time of the injury/death the child had reached a stage in its development where the mother could feel fetal movement. This has been recognized to occur somewhere between the 10th week and 4th month of pregnancy. That is a wide window – the key to proving quickening is to have some documentation (commonly a medical record) that the mother had been feeling fetal movement prior to the injury or the testimony of a doctor that the baby had reached the stage of development where the mother could have felt movement.

03/13/2012 UPDATE: Be sure to check out my more recent reflections on this topic and some good news from the State of Alabama.

 

IKEA Recalls Children’s Tents Over Potential of Laceration & Puncture Child Injury

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Swedish furniture store IKEA recently announced it has recalled a children’s folding tent it sold in August and September of 2011. The steel wire frame of the BUSA children’s folding tent is defective and can break, producing sharp wire ends that can protrude through the tent fabric and injure a child. The wire ends are a laceration and puncture hazard.

IKEA sold about 58,000 of the tents in the United States and Canada during the months of August and September. The brand names IKEA and BUSA and the model number (90192009) are printed on a label sewn into an interior seam in the tent.

According to IKEA, three incidents have occurred with this tent already, one involving an injury.

Here is what the tent looks like –

If you or your child have been injured by this defective toy, please call me to discuss your legal rights.

Dangerous Toys – Magnets That Can Be Swallowed by Children – Product Liability & Child Care Provider Liability

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The Consumer Product Safety Commission is again warning parents and caregivers about the the danger of child injuries caused by magnets in toys.

When a child swallows one magnet the health consequences may be negligible, but swallowing two or more can be fatal. This PSA explains why –

Since 2008 a federal safety standard prohibits magnets and magnet components that are loose and of a size that could be swallowed to be in toys for children under 14 years of age.

There have been product liability lawsuits filed against the manufacturers of toys that sell products containing magnets that can fall out and end up swallowed by a child.

In 2008 Rose Art Industries settled a lawsuit over its “Magnetix” toy after magnets from it caused personal injuries to a 4-year-old boy. The child had swallowed magnets from the toy that lodged in his intestines. The magnets damaged the boys digestive system and he now suffers from persistent constipation, diarrhea and abdominal pain and must eat a special diet.

Also in 2008, MEGA Brands recalled 1.3 million MagnaMan Magnetic Toy Figures because the toys had small magnets that can come off and be swallowed by children.

The most recent warning from the Consumer Product Safety Commission alerts caregivers to the dangers posed by so-called “desktoys” – toys designed for adults to keep on a desk top. Two such toys are Nanospheres and Buckyballs. When caregivers ignore labels which warn to keep these toys away from children, tragedy can strike. Toddlers can pick them up from tables, sofas, and the floor and swallow them. Severe injuries can result.

Child care providers who fail to keep these types of toys away from children may be liable for any personal injuries that result. Day cares, schools, camps, and others should not allow these toys to be present on the premises. Child care providers have a legal duty to keep dangerous toys away from the children for whom they are responsible. School officials also have a duty to prevent tweens and teens from bringing toys containing magnets to school and sharing them with friends.

With tweens and teenagers, the danger may involve how the product is being used – some children have unintentionally inhaled and swallowed magnets when using them to mimic body piercings. These older children are placing two or more magnets on opposite sides of their ear lobes, tongue and nose – sometimes resulting in ingestion or inhalation of the magnets and injuries. School officials have a duty to be vigilant about preventing children from bringing such magnetic toys with them to school.

If your child has suffered injuries as a result of one of these toys and you feel the product manufacturer or a child care provider/school officials has been negligent, you should speak with an attorney about the possibility of bringing a legal claim.

Drivers Backing Over Children Most Common Form of Non-Traffic Injury

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In the United States approximately 50 children are backed over by vehicles every week. 48 require treatment at an Emergency Room and 2 die each week. These children are injured and die because adults (70% of the time parents or relatives) do not see them when backing up.

Drivers backing over children (Backovers) is the most common form of non-traffic fatalities for children under the age of 15. Drivers driving forward over children (Frontovers) is the 2nd most common form of non-traffic fatalities for children under the age of 15. (Source: Kids and Cars.org).

Backover and Frontover injuries occur because all vehicles have blind zones – the area behind (or in front of) a vehicle that the person sitting in the driver’s seat can not see. To help parents realize how big some vehicle’s blind zones can be, Consumer Reports has measured the blind zones of popular vehicle models and published the results for free.

This Kids and Cars PSA video does a great job of raising awareness of the danger to young children –

Since 70% of the time Backover and Frontover injuries/fatalities are caused by family or close relatives the incidence of these tragedies goes up around busy times of the year, like holidays. Most of these incidents occur in the child’s own driveway or in a parking lot. The typical age of victims is between 12-23 months (young toddlers).

Because so often these types of injuries and deaths involve an at-fault family member, it can be extremely emotional and difficult to know whether to consult with an attorney. Moreover, if a family decides to investigate their legal options, there are legal challenges inherent in this type of claim.

The long standing rule In Georgia is that there is intra-family tort immunity (which means that generally speaking you can not sue a close family member for negligence). The rationales behind this immunity include preservation of family harmony and protection against the possibility of collusive or friendly lawsuits.

Yet in recent decades Georgia Courts have held that intra-family tort immunity is no longer a blanket defense in injury cases. For example, the Georgia Supreme Court has held that there is not a valid rationale for applying the interspousal immunity doctrine to wrongful-death actions and has accordingly held that the application of that doctrine to wrongful-death actions is unconstitutional. Similarly, the Georgia Court of Appeals has concluded that the common-law doctrine of intra-family tort immunity does not operate as a bar to a claim brought be an ex-husband against the estate of his former wife seeking to recover for the wrongful-death of their daughter.

Another potential bar to recovery in a Backover or Frontover case is that the relevant policy of insurance may contain an exclusion to the liability coverage when the injured or killed party was a family member of the policyholder. It is imperative to have a lawyer review a copy of the policy and advise regarding the enforceability of such provisions (known as “family exclusion clauses”). They may be void as against the public policy of the State of Georgia.

Investigating coverage and possible sources of recovery for the family of a child injured in a Backover or Frontover case is complex. Hiring an attorney can provide much needed guidance and reassurance for parents who find themselves in these tragic circumstances.

Child Injury at Day Care – Using Georgia Licensing Standards for Day Care Centers to Prove Negligence

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When an injury to a child occurs at a day care center it is probable that State of Georgia licensing standards and Bright From The Start regulations have been violated.

Bright From The Start (also known as the Georgia Department of Early Care and Learning) is the agency charged with enforcing Georgia’s child safety, health and welfare laws in connection with child care learning centers.

When a child is hurt at a day care center and that injury was caused by a failure to adhere to Georgia licensing standards and/or regulations promulgated by the Georgia Department of Early Care and Learning, this violation of Georgia law or regulation may form the basis of a negligence per se (negligence as a matter of law or negligence “on its face”) claim.

An attorney that is familiar with the laws and regulations that pertain to child care learning centers can determine if any such violations existed and led to the harm caused your child.

There are numerous safety-related subjects addressed in the regulations and the applicability of different aspects of the regulations varies depending on whether a day care center is categorized as a “family day care home,” “group day care home,” day care center” or some other designation. It is important to determine the legal designation of what kind of child care learning center your child was attending before researching which regulations apply.

Some of the definitions that determine what category a center falls into are found here:

O.C.G.A. Section 20-1A-2

One reason it is imperative to have an attorney review your situation by consulting the Georgia licensing standards and related regulations is that there are MANY detailed rules and regulations with which child care learning centers must comply. Since many specific requirements exist, and your claim may be much stronger if we can demonstrate the center violated one or more of them, we want to carefully evaluate the center’s compliance. If we can establish non-compliance we can also establish that IF the center had been compliant your child’s injury would have been preventable.

To give one example of the kind of detailed rules centers must follow, you might take a look at what is required regarding infant sleeping safety requirements in Section 290-2-3-.19 of the Bright From The Start Rules and Regulations for owners and operators of Family Day Care Homes.

290-2-3-.19 Infant-Sleeping Safety Requirements.

In order to reduce the risk of Sudden Infant Death Syndrome (SIDS), staff shall put an
infant to sleep on the infant’s back unless the home has been provided a physician’s
written statement authorizing another sleep position for that particular infant. The infant
shall be placed for sleeping on a firm, tight-fitting mattress in a sturdy and safe crib. If
the crib has side bars, the bars will be no more than two and three eighths inches (2 3
/8") apart. Any crib used for sleeping shall have a tight-fitting bottom crib sheet with no
pillows, quilts, comforters, bumper pads, sheepskins, stuffed toys, or other soft items in
the crib. If a blanket is required for the comfort of the infant, the infant’s feet shall be
placed at the foot of the crib and the infant shall be covered with the blanket only to chest
level with the blanket tucked firmly under the crib mattress. The infant’s sleeping area
shall be maintained within a temperature range of sixty-five (65) to eighty-five (85)
degrees depending upon the season. When an infant can easily turn over onto his or her
stomach, staff shall continue to put the infant to sleep initially on the infant’s back but
allow the infant to roll over onto his or her stomach as the infant prefers. Positioning
devices that restrict an infant’s movement in the crib shall not be used unless a
physician’s written statement authorizing its use is provided for that particular infant.

Traumatic Head Injuries in Infants, Young Children, and Teenagers Significantly Underdiagnosed

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Brain injuries often go undetected following a trauma such as an automobile accident, bike accident, or fall. Detection is crucial because an injury to the brain early in life can have long-term effects, including impairments to a child’s ability to control their emotions and inhibit inappropriate behavior. Children who have suffered traumatic brain injuries also can have trouble responding to subtle social cues and planning difficult tasks.

Traumatic brain injuries (often referred to as TBI or sometimes as Acquired Brain Injury) often go undetected because in many cases there is no visible wound and unless a brain bleed or other visible abnormality is seen on an MRI or CT scan, the injury may go unnoticed. TBIs in very young (0-4) children are commonly overlooked by doctors even though very young children are at a greater risk for head injuries than the general population. This may have to do with the difficulties inherent in gathering information about cognitive and emotional functioning from children so young.

Warning signs that your child may have suffered a traumatic brain injury include:

  • any loss of consciousness immediately after the head injury
  • a change in behavior immediately after the head injury, such as becoming angry/irritable, lethargic/sleepy, not remembering the injury or other things, or suffering from poor balance, etc.
  • vomiting after the head injury, especially if your child develops persistent vomiting, which is usually defined as vomiting more than three or four times
  • a seizure immediately after the injury or later that day
  • can not open eyes fully after the head injury
  • develops other symptoms after the head injury, such as a severe or worsening headache, stiff neck, or photophobia (sensitivity to light), etc.
  • personality changes

Many of the warning signs of a pediatric brain injury are subtle and may only be noticed by family and close friends of the child with whom the child spent significant time prior to the injury.

If you suspect that your child may have suffered a traumatic brain injury, ask your doctors to refer you to a pediatric neuropsychologist – they are the doctors best equipped to diagnose head injuries in children.

Also, consider hiring an attorney to gather the evidence you need in order to prove your child’s brain injury was caused by the trauma they suffered. Insurance companies routinely deny that these difficult to detect injuries were caused by the accident in question. You need a lawyer on your side if you want the insurance company to pay for past medical bills and the future costs of care for your injured child.

15 Passenger Van Rollover – Children Most at Risk of Injury

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15 passenger vans are among the most dangerous vehicles on the road. The problem, simply stated, is this: When these vans are fully loaded they become almost three times more likely to rollover in an emergency situation, such as a tire blowout.

Here is a trial exhibit computer animation that shows a common scenario –

15 passenger vans are more likely to rollover because their center of gravity is higher than many vehicles, especially when fully loaded. 15 passenger vans were originally designed to haul cargo, not people. They lack some basic safety features that are standard on other vehicles. For example, they often have weaker roofs and side windows – which puts riders at higher risk in a crash.

15 passenger vans are so dangerous that federal law prohibits their use for school related transport of students. The federal ban applies to 12 passenger vans also.

Federal regulators and auto safety experts have known for years that these vans are rolling deathtraps, yet they continue to be manufactured. These vehicles are inherently unstable by design, yet they continue to be produced.

Children are most at risk in a rollover of a 15 passenger van because these vehicles are commonly used by day care centers, churches, schools, and colleges. Each of the Big 3 auto makers manufacture a version of the 15 passenger van and it has been estimated there are over 500,000 on the roads today.

If your child has been injured or killed while riding in a 15 passenger van, you need to evaluate your legal options. You may have a product liability claim against one of the auto manufacturers. You may have a claim against the organization that choose to put this dangerous vehicle into service transporting children.

Georgia’s Special Civil Statute of Limitations for Victims of Childhood Sexual Abuse

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It is common for victim’s of childhood sexual abuse to bring claims against their abuser many years after the actual abuse stops. Problems can arise, however, if too long a period of time goes by with no lawsuit filed.

Each state has deadlines for filing a lawsuit. Different types of legal claims have different deadlines. Most personal injury claims are subject to a two (2) year deadline. In the State of Georgia, however, there is a special provision for victims of childhood sexual abuse. Victims are given five (5) years from the date they reach the age of majority (which is 18 in Georgia) to file a civil action (a lawsuit). Essentially, a victim has until their 23rd birthday.

Georgia’s special statute of limitations for victims of childhood sexual abuse is found at O.C.G.A. Section 9-3-33.1 and it defines “childhood sexual abuse” as meaning “any act committed by the defendant [the abuser] against the plaintiff [the victim] which act occurred when the plaintiff was under the age of 18 years”  and then the law lists specific illegal acts covered by the special statute of limitations. They include, but are not necessarily limited to, the following acts of abuse:

    • rape
    • sodomy and aggravated sodomy
    • statutory rape
    • child molestation and aggravated child molestation
    • enticing a child for indecent purposes
    • pandering
    • solicitation of sodomy
    • incest
    • sexual battery and aggravated sexual battery

A note on one of the offenses in this list. Sodomy is often thought by laypersons to refer exclusively to anal sex. Georgia law defines it to include both anal and oral sex. O.C.G.A. Section 16-6-2(a)(1) reads: “A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”

I note this because I do not want anyone to think that they are without legal remedy simply because oral sex is not listed in the statute.

If you or your child has been sexually abused by a priest, pastor, rabbi, clergy, coach, psychologist, or any other person, I hope you will call me. Due to the highly sensitive nature of this type of injury, you are welcome to call me directly on my personal line and you will not have to tell your story to any one other than me. Everything you tell me will be held in strictest confidence. My personal line is (678) 740-6928.

You are not alone –

Child Sexual Abuse – Penn State Scandal 2011 – Lawsuits Sure to Follow

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With sadness and disgust, I am reading the news reports about Jerry Sandusky, former assistant football coach at Penn State. How could head football coach Joe Paterno and top university officials fail to act after being made aware, on several occasions, that Sandusky was molesting young boys on campus?

So very sad. How many more boys suffered because those in authority failed to contact the police? How many lives forever scarred because sex crimes were covered up and ignored by those in authority?

It shocks the conscience to hear that a college or university was informed that child sexual abuse had taken place, perpetrated by an employee, and no one alerted the police or made any effort to determine the well-being of the abused child. We have grown used to hearing reports of sex scandals in the Roman Catholic Church and the Boy Scouts of America. Now we have another institution, college sports, losing the trust of Americans.

Institutions do a bad job of policing themselves. How do we hold top school officials accountable? Criminal charges alone are not enough. Our civil justice system is designed to work in harmony with the criminal justice system to mete out punishment to wrongdoers, make those who enable abusers pay for the harm they have done, and send a signal to other top school officials that they better get sex criminals off the campus and turned in to the police.

Most coaches, teachers, clergy members, scout leaders, camp counselors and others in positions of authority are not abusers in waiting and are seeking to improve children’s lives. Yet among the good lurk the bad. The Penn State scandal is sure to result in lawsuits that last for years to come. If your child has been sexually assaulted and you are ready to hold those responsible accountable via a lawsuit, let’s talk.