Georgia Trial Lawyer Blog

The Georgia Supreme Court upheld two controversial laws on Monday which may signal a change in the direction of the Court. The Court first ruled that gross negligence in medical malpractice suits against ER doctors is not an unconstitutional standard. It also ruled that criminal defendants convicted of non-sex crimes can be forced to register as sex offenders.

Legal analyst and Atlanta trial lawyer Page Pate shared his analysis of both opinions and what they mean for the future of the Court.

The first case involved a piece of tort reform legislation which requires a patient injured by an emergency room doctor to show that the doctor committed gross negligence. Gross negligence is defined as failing to exercise the slightest degree of care. State legislators claim to have instituted the heightened standard in an effort to make malpractice insurance more affordable. The Court’s 4-3 majority reasoned that such a rationale was a legitimate reason.

Pate explained that under the former Court there most likely would have been a different result: “I think Justice Sears was always concerned about leveling the playing field for litigants, especially plaintiffs who had been injured by medical malpractice actions.” According to Pate, the Court may have changed course with addition of Justice Nahmias: “This opinion now gives [doctors] greater protection, at least in the emergency room context, than prior Georgia cases ever did.”

The second controversial ruling upheld a state law which requires individuals convicted of falsely imprisoning or kidnapping a minor to register as a sex offender. A criminal defendant convicted of false imprisonment challenged the law arguing that it was cruel and unusual punishment. The Court ruled that registration is merely a “regulatory” provision and therefore not punishment.

Pate told WABE listeners that he believes the Court got it wrong. Pate explained that, “not only do you have to notify the local sheriff of where you live and what you’re doing, but it also creates restrictions: where you can live, where you can work, with whom you can associate. So it is very much a type of punishment that is in addition to whatever sentence a person may receive.” The law has been widely criticized by many including some Georgia sheriffs who say that the law takes resources away from monitoring offenders who actually committed sex crimes.

Pate also told WABE listeners that in the past the Court has been “focused on precedent and trying to reach the right result in many cases. . . a court that really seems to not hesitate if they need to strike down a piece of legislation that is unconstitutional or was not enacted in a way which benefits all Georgians.” As for the current Court, Pate believes that there has been a marked change: “I’m not sure if that’s because of political pressures that the judges may have faced or the addition of this newest justice, Justice Nahmias. But I do think that the kind of liberal-conservative labels that people use to talk about United States Supreme Court Justices may now start to apply with our state Supreme Court justices.” Pate went on to say that, “we may start to get to the point where we can define the court one way or the other or at least in voting blocks one way or the other.”

A Bibb County jury has determined that a nurse negligently administered pain medication which resulted in the death of a Warner Robins patient. The jury returned a $1 million verdict in favor of the patient’s family after deliberating for four hours.

The Macon Telegraph has the story.

The patient, Mearlene Hall, had a surgically implanted pump designed to administer pain medication. The pump had been implanted after she suffered serious back injuries. In May of 2006, a nurse from Option Care of Middle Georgia was refilling the pump with pain medication when Mearlene complained of a tingling sensation in her fingers. Despite Mearlene’s complaints, the nurse continued the procedure. Mearlene eventually went unconscious and slipped into a coma. She died 25 days later.

The family’s personal injury lawyer, Tim Hall of Macon, was able to convince the jury that the nurse was negligent for continuing the procedure after Mearlene began to complain. Hall presented evidence that tingling of the fingers is a sign of a pain medication overdose. He also showed the jury that the pump was working properly.

Aside from the $1 million verdict, prejudgment interest was also awarded in the amount of $278,321.

For years, our personal injury attorneys have been helping injured patients and their families recover damages from negligent health care providers. In many of these cases, a nurse or physician does not recognize or simply overlooks obvious warning signs. Patients who have been negligently injured can recover damages for medical bills as well as pain and suffering. If a death results, a patient may be able to recover for wrongful death which is the full value of the patient’s life. As in this case, damages can be significant.

Cobb County police arrested Paul Patrick Serdula, a nurse anesthetist, last week for unlawful surveillance after a patient found video surveillance equipment in a Marietta dentist office bathroom. Authorities then re-arrested Serdula on Monday night for aggravated sexual battery and aggravated child molestation after evidence revealed that he may have made sexual contact with a sedated juvenile. Police now fear that there may be as many as 100 other victims who were inappropriately touched while sedated.

The Atlanta Journal Constitution has the story.

After Serdula was arrested for unlawful surveillance, police searched his Forest Peak Court home where they discovered hundreds of videotapes and additional electronic monitoring devices. Authorities are currently reviewing the tapes in an effort to determine if they show any criminal acts or possible victims. Police have been speaking with potential victims and are so far aware of at least 20. That number could possibly grow to around 100 before the investigation is concluded.

Serdula, 47, was a contract nurse who did not work for any single medical or dental office. Police say it is possible that he worked at numerous medical offices throughout Cobb County. Cobb police encourage anyone who has been recently sedated to contact their doctor’s office to determine if the anesthesia was administered by Serdula. If Serdula was involved, patients are urged to contact Cobb police.

The incident stemming from the aggravated sexual battery and aggravated child molestation charges is believed to have occurred on July 29. Police have also charged Serdula with aggravated sodomy for acts that allegedly occurred on September 16. If Serdula is convicted of these sex crimes, he would face significant jail time. Aggravated child molestation, aggravated sexual battery and aggravated sodomy all carry a sentence of 25 years to life.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon, Madison and Savannah. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

Cobb County police believe that a Marietta, Georgia nurse anesthetist may have inappropriately touched hundreds of patients while they were sedated. The allegations arose after a patient found video surveillance equipment in the women’s bathroom of a Cobb dentist office.

The Atlanta Journal Constitution has the story.

Police say a patient spotted the recording device and immediately called 911. Authorities were then able to link the device to Paul Patrick Serdula. Upon searching Serdula’s home, police found hundreds of videotapes and additional recording devices. The tapes reveal Serdula committing serious crimes including sexual battery on patients under anesthesia. Police do not yet know the full extent of Serdula’s exploits, but they believe that there could be hundreds of victims.

Serdula, 47, is a contracted nurse anesthetist that may have worked for numerous medical clinics and facilities. Cobb police are asking anyone who may have been recently put under anesthesia to contact their doctor’s office to see if Serdula administered the anesthesia. If so, those patients are urged to call the Cobb County police.

Serdula is currently in jail without bond charged with unlawful surveillance and eavesdropping; however, new charges are likely as police continue to explore the tapes found at his home. Under Georgia law, a conviction for unlawful surveillance can carry a sentence of one to five years and a 10,000 fine.

These criminal charges may also lead to civil suits against the nurse and the medical facilities where he was employed. A good victims’ rights attorney will help a victim track down and pursue the attacker and all responsible parties in effort to hold them responsible. In some cases, a sex crime victim can recover significant damages. Liability on the part of the medical facilities will largely depend on their knowledge of the nurse’s criminal activity.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon, Madison and Savannah. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

The Georgia Supreme Court heard arguments this week about whether to uphold a Georgia law which requires a plaintiff to establish gross negligence in order to prove medical malpractice in emergency rooms.

The Atlanta Journal Constitution has the story.

Georgia recently passed a wave of "tort reform" laws aimed at making it harder to sue doctors. One such law raised the level of culpability that an injured emergency room patient must prove to hold a doctor liable from negligence to gross negligence. Gross negligence is extremely difficult to prove. It has been described as being the conscious and voluntary disregard of the need to use reasonable care which is likely to cause foreseeable grave injury. For ordinary negligence, a plaintiff only has to prove that a doctor failed to exercise ordinary care.

On Tuesday, the Georgia Supreme Court heard both sides make their cases. Atlanta attorney Michael Terry argued that the law was made for medical corporations and insurance companies that had lobbied the state legislature for special benefits. He also argued that the law virtually eliminates all ER medical malpractice claims and gives hospitals an inequitable advantage. One of the attorneys for the other side, Wade Copeland, argued that the Legislature wanted to attract and keep the best doctors, and that this legislation accomplishes that goal.

The Court should issue its decision within a few months.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

Gwen Dalley thought she was taking antibiotics she received from a Loganville CVS pharmacy. After being hospitalized for suffering nausea, headaches, and blurred vision, she discovered that she was really taking an antidepressant improperly dispensed to her by the pharmacy. Her story appears to be a growing trend in Georgia and around the country.

The Atlanta Journal Constitution has the story.

Dalley’s attorney, Trent Speckhals, settled her case confidentially with CVS, and Dalley has also filed a complaint with the Georgia Board of Pharmacy. In another case, an Atlanta woman thought she was taking the allergy drug Allegra when she was actually taking the psychiatric drug Nefazodone. That case also settled.

It is unknown how many consumers are given the wrong prescription drug every year, but studies estimate that around 3 percent of prescriptions dispensed by pharmacies may have harmful errors. In Georgia, it is also unclear how many complaints are filed with the Georgia Board of Pharmacy, since the process is kept secret unless the board votes to publicly reprimand the pharmacist or pharmacy. Furthermore, most reprimands are private letters of concern that never see the public light. When the board does publicly reprimand a pharmacist, it is typically for substance abuse or dispensing narcotics without a valid prescription. However, there have been about 50 public reprimands since 2006 for mistakes in dispensing medication. In those cases, the pharmacist was usually fined $500 by the board.

The most common reason for mistakes is believed to be fatigue. Pharmacists often have to fill hundreds of prescriptions a day. This means that pharmacists often shift the work to their technicians and may not always check the technician’s work as is required. Sadly, the problem is only expected to grow as Georgians use more and more prescription drugs.

This story highlights the unfortunate reality that many pharmacies are not held accountable for prescription errors which cause serious complications such as heart attacks, strokes, disability and even death. Prescription errors can occur when the wrong dosage is given or when a patient receives the incorrect drug.

If a person is injured because they got the wrong prescription drug from their pharmacy, a personal injury attorney may be able to help. In a case like this, the lawyer should conduct a thorough investigation by obtaining and reviewing medical records, researching pharmacy protocol, and retaining medical experts in an effort to hold a pharmacy or pharmacist accountable for any damages the patient sustained.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

In 2005, Georgia passed sweeping tort reform laws including capping non-economic damage awards in medical malpractice cases. The Supreme Court of Georgia will now address the issue of whether such a cap is constitutional.

The Atlanta Journal Constitution has the story.

Georgia capped non-economic damages, which includes pain and suffering, at $350,000 in medical malpractice cases. The imposition of caps in medical cases was largely due to the influence of healthcare and insurance companies. But that may soon change. In a case now pending before Georgia’s high court, a woman by the name of Betty Nestlehutt received a facelift which led to open wounds and permanent disfigurement weeks after her procedure. She sued Atlanta Oculoplastic Surgery for medical expenses and non-economic damages to recover for her injuries. The jury sided with her and awarded her $1.15 million including $900,000 for her pain and suffering.

That $900,000 award Betty received should have been reduced to $350,000, but Fulton State Court Judge Diane Bessen ruled that the cap was unconstitutional. Judge Bessen wrote that the $350,000 cap violates a plaintiff’s constitutional right to a trial by jury, separation of powers and equal protection.

A lawyer for the medical practice argued that the tort reform was passed in 2005 to prevent doctors from leaving the state due to high premiums. Nestlehutt’s lawyer argued that the law favors doctors who do the most harm while punishing patients. The Supreme Court of Georgia will now decide whether to uphold Judge Bessen’s ruling.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

A Henry County woman was awarded $1.05 million in a medical malpractice suit against a Fayetteville surgeon for a botched surgery.

The Atlanta Journal Constitution has the story.

Cynthia Bennett, who is a Henry County nurse, claimed that she almost died when her surgeon injured her bowel during surgery. Bennett and her attorney also argued that the surgeon failed to diagnose and properly treat the injury.

The jury verdict of $1.05 million was against the Fayetteville surgeon JuDonn Adams and New Millennium Obstetrics and Gynecology LLC. Bennett had originally filed the suit back in December 2003. One of Bennett's attorneys was Brandon Hornsby, an Atlanta trial lawyer.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

A Georgia boy whose penis was severed during a negligent circumcision has been awarded $1.8 million by a Fulton County jury. The boy’s mother was also awarded an additional $500,000. No punitive damages were awarded.

The Atlanta Journal Constitution has the story.

In 2004, a doctor at South Fulton Medical Center performed a circumcision while a pediatrician looked on. The mother of the child filed suit two years later arguing that the doctor removed an excessive amount of tissue. It was also alleged that the pediatrician did not respond when a nurse became alarmed over the amount of bleeding. Additional evidence was introduced which showed that the tip of the penis could have been reattached for eight hours after the procedure, but doctors failed to do so.

The jury found both the doctor who performed the circumcision and the pediatrician to be negligent; however, the hospital itself was not found liable. The jury’s award will go towards medical and psychiatric treatments for the boy and his family. The lawyers for the doctors may appeal the case.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims and people who have been defrauded by deceptive business practices or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

Georgia personal injury lawyers are encouraged by a recent decision of the state Supreme Court in a medical malpractice action.

In Moreland v. Austin, the Supreme Court of Georgia ruled that the Health Insurance Portability and Accountability Act (HIPAA) prevents a defendant’s attorney from informally interviewing a plaintiff’s prior treating physician in medical malpractice cases. The case which sparked this decision involved the wife of a deceased patient who filed suit against her husband’s physician. The plaintiff produced her husband’s written medical records including the records kept by three doctors that treated her husband prior to the defendant. The plaintiff’s attorneys then orally contacted the three prior treating physicians to gain insight into the cardiovascular condition and prognosis of the deceased. The plaintiff argued that oral communication with prior physicians was improper under federal law. The question became whether Georgia law or the federal law known as HIPPA should be used in deciding if this method of contact was proper.

The Court first determined that HIPAA trumps Georgia law, since HIPAA grants patients more control over the disclosure of their medical information. The Court then reasoned that HIPAA requires a patient’s express consent or court order before a prior treating physician can orally communicate medical information to a defendant’s attorney. The exception is if the patient is given reasonable notice and an opportunity to object to a defendant’s request to contact the prior treating physicians. The Court found that the plaintiff did not consent to the communications when she failed to object to the defendant’s request for medical documents. The reason is that those requests were for written documents and not the oral contact. Thus, the defendant’s attorneys had violated HIPAA. The Court went on to decide that the sanction for violating HIPAA is generally within the trial court’s discretion.

This is good news for patients and their right to privacy. Our firm represents people who have suffered serious injuries through medical malpractice and negligence. We hope this decision will help protect our clients and insure fairness in these difficult cases.