Why do we have so many deadly car wrecks here in Atlanta? And what can we do to cut back on them? I practice law here in Atlanta, and I represent people who need an Atlanta car accident lawyer. I have met with families who have been devastated because they lost someone they loved very dearly in a car crash, and I have seen people with serious injuries struggling to rebuild their physical health and deal with the crushing financial and emotional consequences of a serious personal injury from an auto collision. I have been blogging about the car accidents that happened in 2008 and 2009 (the latest data available) in order to see whether we can see trends that would help us cut back on these crashes.

Today I will be talking about the deadly car crashes that happened in the city of Atlanta in November 2008. That month five people died in car accidents. Atlanta police attributed one of those five fatal car wrecks to a drunken driver.

On November 2, 2008, an Atlanta driver died when he crashed his car on I-285 at Langford Pkwy. / SR-166. The accident happened at 1:27 a.m.

Then, some two weeks later, a three-car crash occurred just after midnight, at 12:41 a.m. The car crash, which happened at the intersection of Moreland Ave. /SR-42 and Constitution Rd. here in Atlanta, left one person dead.

On November 25, 2008, a pedestrian was hit and killed at the corner of Northside Dr. / SR-3 and Western Ave. Two different vehicles wound up involved in the accident, which took place at 7:26 p.m. Atlanta police said that the wreck was caused by a DUI / drunken driver.

November 26, 2008, was an exceptionally bad day for fatal car wrecks here in Atlanta. Two deadly crashes occurred, the first at 11:50 a.m. In that first wreck, one person was killed in a two-car collision on I-285 between the Martin Luther King Jr. Dr. exit and the Cascade Rd. exit. That evening, a pedestrian was struck and killed at the intersection of Peachtree St. and Harris St. The accident happened at 10:44 p.m.

I am pulling this data from the FARS database. FARS stands for "Fatality Analysis Reporting System." FARS is maintained by a federal agency, the National Highway and Traffic Safety Administration. By law, all 50 states and also U.S. territories are supposed to provide fatal car crash data to NHTSA for inclusion in FARS. The idea behind the system is to allow people to spot trends and particular dangers in the roadway and street system as a whole, or in a particular area. Obviously my searches dealt with Atlanta.

One surprising thing about November - and December - 2008 was that so many pedestrians lost their lives in those two months. I was expecting to see that fewer pedestrians were killed in the colder, winter months, because fewer people are out walking. Nonetheless, five pedestrians were killed in those two months -- two in November, and three more in December.

I have been blogging about a legal topic called "spoliation", which is the willful destruction or withholding of evidence. As a Georgia personal injury lawyer, I sometimes have to deal with situations where the defendant has destroyed evidence that I need in order to present my client's case.

Here in Georgia, the courts take the issue very seriously, as does the Georgia state legislature. We have a state statute that allows the jury to presume that if a party does not produce evidence that it could or should have, then it must be that the evidence would have hurt that party's case.

Yesterday I talked about how the presumption works, and I gave the example of a trucking accident lawsuit where the trucking company destroyed the log books and truck inspection reports that could have been critical evidence about the negligence of a trucking company that led to a truck crashing into a car. The presumption is so strong that: "[i]t is irrelevant which party has the burden to produce evidence, because the public policy favors producing evidence from which the fact finder can determine where the truth lies." Jones v. Krystal Company, 231 Ga. App. 102, 498 S.E.2d 565 (1998) (citations omitted).

Today I am going to write about why the courts and the legislature take the issue so seriously. Courts and the legislature are sensitive to spoliation because it seems particularly unfair to let one party profit by destroying evidence. For example, in Horton v. Eaton, 452 S.E.2d 541, 215 Ga. App. 803 (1994), the emergency room X-ray requisition form had "mysteriously disappeared" from the defendant doctor's files. The form was all-important to the Georgia medical malpractice lawsuit: if it said that the patient had neck pain, then by his own expert's admission the doctor would be held to a higher standard; if the form merely stated what type of accident the plaintiff had had, the doctor would be held to a lower standard. Despite the fact that the form was missing, the trial court allowed the defendant doctor to testify about what, in his experience, the forms typically said (i.e., that the forms typically only contained a description of the type of accident). The court concluded that allowing the doctor's testimony was error:

By allowing such guess-work testimony, the trial court permitted Dr. Eaton to benefit from his omission of record and memory by blocking the Hortons' efforts to get at the true contents of the X-ray requisition form while giving him the benefit of an unimpeachable version of the contents of the X-ray requisition order, i.e., a version which happens to favor Dr. Eaton's claim that he employed the requisite standard of care in diagnosing Mr. Horton's X-rays.

Id. The question, then, is one of fairness. If one party fails to produce negative evidence, then the result is always that the party benefits - and it simply isn't fair for that to happen. (Of course, the presumption can be rebutted - in a later post I will discuss how a party can show that the destruction of evidence was not willful and should not be held against him.)

In Chapman v. Auto Owners Insurance, 469 S.E.2d 783, 220 Ga. App. 539 (1996), the expert for one side had gotten to see the evidence before it was destroyed. The court would not let the expert testify, concluding that it would be especially unfair to allow an expert to place himself "in the position of being the only expert with first-hand knowledge of the physical evidence on which expert opinions as to . . . causation may be grounded." Id., quoting Nally v. Volkswagen of America, 405 Mass. 191, 539 N.E.2d 1017 (Mass. 1989).

Today's Atlanta personal injury law blog entry will be about "spoliation". (And yes, I don't blame you one bit if you think I just spelled that wrong. The first time that I saw that word in a draft of a brief I went through correcting it everywhere. For an explanation of how I came to understand that the word is spelled correctly, and why it is spelled that way, please see my last blog entry I did on spoliation.

Spoliation is the destruction of evidence. Obviously courts and juries cannot make good, sound decisions if they have no evidence before them. For that reason, the law penalizes parties who destroy evidence.

In Georgia, we have a spoliation statute:

"If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted."

O.C.G.A. § 24-4-22. In layman's terms, if a party had evidence that the party claims is missing or that the party simply won't provide, then the Court and the jury are going to assume that the reason the party is not bringing the evidence is that it would have hurt that party's case. The party that destroyed the evidence can bring in proof that will change the jury's mind, but until he does, the Court and the jury are going to assume the evidence was bad for that party.

The presumption can apply in any type of case. For example, the statute was applied in a suit over enforcement of a bank note in Cavin v. Brown, 246 Ga. App. 40, 538 S.E.2d 802 (2000). In Cavin, the defendant produced only "minuscule and illegible scraps" of a bank note, which he claimed he had torn up to spite the plaintiff. The court found that a presumption arose that "the evidence would have been harmful, or that the claim against him was well-founded."

The presumption also has been applied in trucking accident cases, where a large tractor-trailer has collided with a car. For example, in a tractor-trailer accident case, the logbooks are extremely important because they can show that the driver was driving for more hours than the legal limit. The truck inspection reports can show that the truck had not been serviced or repaired properly. Without the logbooks and truck inspection reports, the jury is missing critical information that would help it to make a good decision in the case. In J. B. Hunt Transport v. Bentley, 427 S.E.2d 499, 207 Ga. App. 250 (1992), the trucking company had destroyed logbook and truck inspection reports, after it had begun its investigation into a trucking accident. The Georgia Court of Appeals ruled that the jury reasonably could presume that the missing documents showed the driver was forced to drive with insufficient rest and that the truck was not in a safe condition to be driven on the highways. The Court ruled that based on those facts, as well as some other facts in the case, the jury reasonably could find that the trucking company had shown a conscious indifference to the safety of people on the roads, and could award punitive damages.

As an Atlanta truck accident lawyer and car accident lawyer, it certainly surprises me how often big companies will hide or destroy information like log books or truck inspection reports. Without the spoliation presumption, one party could make sure that the other could never get justice, simply by destroying evidence.

On January 20, 2012, a Gwinnett County jury awarded a $2.3 million verdict against Kroger in Gwinnett County. See 1/26/12 Atlanta Journal-Constitution article. The case was important because it involved a legal issue called "spoliation."

Mr. Craig Walters had slipped on crushed fruit near the deli, and suffered a spinal cord injury. Mr. Walters was seriously injured, and he had to have rods and screws placed in his back.

The case was tried by a good friend of mine, Lloyd Bell. Like me, Lloyd is an Atlanta personal injury lawyer.

Mr. Walters' case was not tried in the usual way. As it turned out, the judge found that Kroger had had a video of the fall, which it had destroyed. Based on the destruction of evidence, the judge determined in advance of trial that Kroger was negligent, and sanctioned Kroger by refusing to let it argue that the fall was Mr. Walters' fault. The only issue at trial was how badly Mr. Walters had been hurt.

A few years ago, I wrote an article for the Georgia Bar Journal, "Spoliation of Evidence", on the destruction of evidence, and I wanted to talk about "spoliation" in my next few blog entries.

First, of course, you need to know what spoliation is. Spoliation "is the destruction or the significant and meaningful alteration of evidence." Sharpnack v. Hoffinger Industries Inc., 231 Ga. App. 829, 499 S.E.2d 363 (1998).

I want to address up front the point that bugged me no end when I first began to learn about spoliation. Shouldn't it be spoiliation? I was driven crazy by the fact that absolutely everyone was spelling the word wrong! Didn't anyone else notice that an "i" was missing?! Even the courts didn't seem to know how to spell the term!

As it turns out, the words "spoil" and "spoliation" both come from the same Latin root word, but the spelling of the root word is not what I thought it would be. The root of both words is the Latin word spoliare, which means "to plunder." While we have added an "i" to the word "spoil", the original Latin word did not have an "i" between "the "o" and the "l".
In legal terminology, "[s]poliation' is a word of evil connotations, and the dictionaries make it synonymous with pillaging, plundering, and robbing." Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 109 F.2d 299 (5th Cir. 1940). In evidentiary terms, the idea is that one party robbed the other party of victory by destroying the evidence that would have helped the second party win the case.

For good reason, the law frowns on litigants who destroy - or "spoliate" evidence. The law has provided, "omnia praesumuntur contra spoliatorem," or "all things are presumed against a despoiler or wrongdoer." Georgia case law has made the same presumption. "Spoliation of evidence raises a presumption against the spoliator." Bennett v. Associated Food Stores, 118 Ga. App. 711, 716 (2), 165 S.E.2d 581 (1968); Martin v. Reed, 409 S.E.2d 874, 200 Ga. App. 775 (1991).

When a party tilts the field, justice cannot be rendered. As an Atlanta lawyer, regardless of the type of cases I handle, I understand and applaud the law's attempt to even the playing field.

As a personal injury lawyer in Atlanta, Georgia, I often need to get business records into evidence. For example, in a Georgia car accident case, I might need to get the car accident report into evidence. In a case where someone was hurt in a trucking accident in Georgia, I might need to submit the truck's log books into evidence. In a Georgia product liability case, I might need to submit the manufacturer's production records in evidence. In any type of personal injury lawsuit, I will want to submit my client's medical records and bills into evidence to show the damages my client suffered and the cost of the medical care they received as a result of their injuries.

In each of these instances, I am trying to get a company (or municipality's) business records into evidence. These types of records are important evidence in any Georgia personal injury case, and the courts obviously need and want to receive these types of documents into evidence. At the same time, these records come from large corporations or governmental entities. When I need to get my personal injury client's tax records into evidence, that is an easy process. I put my client on the stand and say, "What are these documents?" "These are my tax returns." But how do you put a corporation on the stand, or a hospital, or a city? And if no one comes to court and says "these are documents from our company, and they are authentic", then how does the court know the documents are real and should be admitted?

Georgia law has worked out a special provision to allow business records to be admitted at trial. A document is admissible as a "business record" if:

(1) The document is a writing or record. The document can be in the form of an entry in a book, but it does not have to be.

(2) The document was "made as a memorandum or record of any act, transaction, occurrence, or event."

(3) The document "was made in the regular course of business."

(4) "It was the regular course of such business to make the memorandum or record."

(5) The record was made "at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter."

O.C.G.A. § 24-3-14.

Georgia law has a special provision for admitting records of cities (municipal corporations). City records and minutes of the city's meetings are admissible "when certified under seal by the clerks or keepers of such records." O.C.G.A. § 24-7-21. The rule is quite practical. If every time an Atlanta lawyer handling car accident cases needed to get a municipal code provision into evidence, the lawyer had to haul in the City records keeper, the records keeper would not have time to keep the records.

Georgia law also has a code section that addresses records from the Department of Public Safety or the Department of Driver Services, "or comparable agencies in other states." As with the municipal records, the court can admit those records so long as they are certified. Again, the provision prevents a situation where a city employee must become so involved in authenticating records that he or she has no time to do the regular job.

The Georgia Code has another special provision that applies to medical narratives, O.C.G.A. § 24-3-18.

I am an Atlanta, Georgia personal injury blogger, and I am on my third and final post on the law of res gestae in Georgia. See O.C.G.A. § 24-3-3. The law of res gestae is ancient here in Georgia. I am a pretty experienced Atlanta, Georgia personal injury lawyer, and certainly it has been around for the entire 25 years I have been practicing law, and for decades before that. When our new evidence code takes effect, it will be a thing of the past. The traditional law is being replaced by a rule that is very similar to the one the federal courts use.

For those of you who are just starting with the blog, res gestae statements are statements that are hearsay, because the person who originally made the statement is not able to testify, generally because they have died or cannot be located. In the context of a car accident lawsuit, for example, a police officer might be permitted to testify about what a bystander said about who caused the wreck. The police officer's testimony is hearsay, since the bystander is not in the courtroom to be cross-examined. Hearsay, of course, is not normally admissible. However, the courts have made an exception for statements that "are contemporaneous, voluntary and made at a time which indicates the lack of deliberation and deception." Gaines v. State, 232 Ga. 727, 730, 208 S.E.2d 798, 801 (Ga. 1974). The idea behind the rule is that people who volunteer statements in the heat of the moment are not very likely to be making them up. The statements are considered to have the "indicia of truthfulness," and are admitted into evidence at trial, not just in Georgia personal injury lawsuits, but in all types of lawsuits.

Courts even have admitted res gestae statements when the statements supposedly were made by the defendant's own (unidentified) employees, and, if believed, would amount to a damaging admission by the defendant. For example, in K-Mart Corp. v. Morris, 251 Ga. App. 753, 555 S.E.2d 106 (Ga. Ct. App. 2001), the Plaintiff had fallen at a K-Mart. Before she left for the hospital, her husband asked an employee what had happened. The employee responded: "Accidents will happen. Someone has pushed the door the wrong way going out and until it's reset it will continue to operate that way and the reset was never made prior to her entering the door." Id., 251 Ga. App. at 754, 555 S.E.2d at 108. The plaintiffs were unable to identify the employee, although the husband testified to his gender, race, height, and weight. Id. K-Mart argued that: "statements by unidentified employees in premises liability cases never fall within the res gestae." Id. The Court rejected the argument, and admitted the testimony as part of the res gestae. Id.

Similarly, in Tenney v. Mobil Oil Corp., 133 Ga. App. 631, 211 S.E.2d 901 (Ga. Ct. App. 1974), "an employee, immediately after the occurrence, stated that there had been trouble with the spring holding the door in place." Id., 133 Ga. App. at 632, 211 S.E.2d at 901. The Court found that the statement "was admissible as a part of the res gestae. It did not absolutely bind the defendant, but, being admissible, it would sustain an inference that service station attendants knew something was wrong with the door when left in a 'partly down' position." Id.

When statements made near the time of the incident appear reliable, courts are even more likely to admit them. In the Morris case, the court noted that the employee had been specific about how the door operated and why it swung outward when it should not have, and that the defendant not only "never disputed this fact," but in fact had provided similar facts about how the door operated. Kmart Corp. v. Morris, 251 Ga. App. at 755, 555 S.E.2d at 108.

In my last Atlanta, Georgia legal blog post, I talked about a very old and traditional law in Georgia that will come to an end when our new evidence statute takes effect. Res gestae is an exception to the hearsay rule. Under the hearsay rule, courts will not allow testimony about what someone who does not come to the court said. The courts believe that testimony would be better heard from the person who supposedly made the comment, and that unless that person is present, the testimony is not trustworthy enough for a court of law. Under the new evidence rules, Georgia will still have exceptions to the hearsay rule, but not res gestae.

Until those new rules take effect, however, res gestae remains the law in Georgia and affects those of us who are personal injury lawyers in Georgia, so I want to continue my discussion about that topic today. Res gestae statements are testimony about comments made by someone who is not available to testify in the courtroom - often because they have died, or because they cannot be found. Courts have concluded that if certain criteria are met, res gestae statements are reliable enough to be brought into the trial of a case, even if the person who made the statement is not available to testify.

As an Atlanta personal injury lawyer, I generally deal with res gestae in the context of a Georgia car accident lawsuit or a Georgia personal injury lawsuit. If a police officer gets to the scene of the car accident to find a dying pedestrian, and the person gasps out, "The red car came up on the sidewalk and hit me," the testimony may well come into evidence as part of the res gestae.

But res gestae applies in the criminal context as well. For example, in Jennings v. State, 292 Ga. App. 149, 664 S.E. 2d 149 (Ga. Ct. App. 2008), someone had called 911. When a police officer arrived at the scene a few minutes later, "an unidentified female who was upset approached [the police officer] outside the residence and informed him that 'something bad was happening [b]ecause she said she saw these men with these guns. . . . She had said that she saw these men going in the home; they had handguns; and they closed the door; and she couldn't see anything from there. She just knew something bad had to be happening with them having handguns.'" Id., 292 Ga. App. at 153-154, 664 S.E. 2d at 253. The Court of Appeals agreed that the statements of the unknown woman were part of the res gestae. See also Gaines v. State, 232 Ga. 727, 730 (Ga. 1974). In the Gaines case, an officer testified that immediately after he heard a shot, he "saw [the victim] lying on the ground [and] an unidentified woman shouted, "That's the one that shot him." The witness testified that the woman shouted loudly enough for the appellant to hear her, and that the appellant was the only one standing in the street, and fled even though the officer told him to stop and fired a warning shot. The Court concluded that these facts showed the statement met the res gestae requirements.

Under Georgia law, a suit for wrongful death is considered to be in a "statutory creation" that is "in derogation of the common law" and so courts "strictly construe" it.

Those words are fancy lawyer lingo, and I will give you the Georgia wrongful death lawyer translation.

The wrongful death law is a "statutory creation" because for a long time, Georgia law had no such thing as wrongful death lawsuits. Now, however (and "now" is a relative term that means any time after a really, really long time ago), the legislature has provided that if someone is killed wrongfully, the survivors can sue for the loss of life.

The wrongful death statute is "in derogation of the common law", which means it is "new" (again, new is a relative term that could mean "only" 100 years old or so).

Because the law is new, courts "strictly construe" the statute. Again, giving you a personal injury lawyer and wrongful death lawyer interpretation, that means that the courts will not read one single thing extra into the law; the statute will be read as is, even if it does not make sense in a particular context. And unfortunately, the statute does not always make sense. For example, in the early wrongful death statutes, the legislature did not include a provision that illegitimate children could be included in the recovery. Even if the decedent had been supporting his illegitimate child, the child could not recover for the loss of the earnings that had been sustaining him. Eventually the legislature added a provision that children born out of wedlock were considered "children". O.C.G.A. § 51-4-2(f). We will discuss another way that this statute does not make sense in my next blog entry.

The statutes that provide for a wrongful death lawsuit are complicated. Under the law, the surviving spouse has the right to bring the wrongful death suit. O.C.G.A. § 51-4-2(a). So long as the spouse is alive, the children of the decedent cannot sue. If the spouse is not alive, the children can sue to recover for his wrongful death. If the decedent does not have a living spouse or child, his estate can sue for his wrongful death.

If the decedent only had one or two children, then the wife and each child split the money evenly. However, if the decedent had more than two children, the surviving spouse is entitled to a minimum of 1/3 of the recovery from the wrongful death lawsuit. O.C.G.A. § 51-4-2(d).

Although only the spouse has the right to bring the lawsuit, that fact does not change the allotment between the children and the spouse. If the spouse brings the lawsuit and receives money as a result, the spouse holds the money she received in trust for the child or children. O.C.G.A. § 51-4-2(c).

Many people consider a wrongful death lawsuit to be just a part of a Georgia personal injury lawsuit. They see that the serious injuries led to the death, and they assume the cases are the same.

In fact, however, under Georgia law a wrongful death lawsuit is distinct from the personal case:

[A]n individual's claim for wrongful death and an estate's claim for the decedent's pain and suffering are distinct causes of action. . . . The plaintiff in his individual capacity and in his capacity as administrator are legally different persons. Stiltjes v. Ridco Exterminating Co., 197 Ga. App. 852, 853 (399 S.E.2d 708) (1990), aff'd 261 Ga. 697 (409 S.E.2d 847) (1991).

Smith v. Mem'l Medical Ctr., 208 Ga. App. 26, 27-28 (Ga. Ct. App. 1993). See also Forrester v. Southern R. Co., 268 F. Supp. 194, 196-197 (N.D. Ga. 1967) ("As a general rule, a statutory action for wrongful death in Georgia has been considered a separate cause of action. For example, a statutory action for the wrongful death of an individual has been held to be distinct from a common law action for pain and suffering.").

I have been writing a series of blog entries about the workers' compensation subrogation lien in Georgia law. As a Georgia personal injury lawyer, I often represent clients who have been injured on the job - perhaps in a car wreck while they were driving for work, or by a defective product that they were using to do their work.

When a worker is injured at work, the employer (or its workers' compensation insurance company) is supposed to pay the worker's medical bills, expenses, and lost wages. The employer has to pay this amount without arguing about whether the injury was someone else's fault - the tradeoff being that the employer pays far, far less than it would have to pay if the employee could sue the employer. Meanwhile, the client may come to me because he has a claim against the driver who hit their company vehicle, or against the manufacturer for product liability.

After the client recovers (gets money) from the other driver, or from the manufacturer, the employer or its workers' compensation carrier wants its money back. It wants my client to hand over the money he just got from the person who hit him in the auto accident, or from the manufacturer who made the product that was defective.

I have been doing a series about the employer's claim to get its money back - which is called a subrogation lien - and the restrictions that Georgia law puts on the employer's right to a lien.

Yesterday I discussed the fact that the employer or the insurance company cannot be paid back until my client has been fully compensated. Many times my client has not been - and cannot be -- fully compensated, and so under Georgia law the employer or the insurance company does not have a right to get its money back. See O.C.G.A. § 34-9-11.1.

When can the employer gets its money back? Georgia law applies one critical rule: the employer cannot get paid back until my client has been fully compensated. If my client still has not been fully reimbursed (because, for example, there was not enough insurance), then he does not have to reimburse the employer.

Example 1: The insurance company cannot get compensation until all of my client's medical expenses have been covered.

An insurance company cannot be paid until the injured person had recovered all of the money he needs to pay his medical expenses. Many, many times the medical expenses far exceed what the workers' compensation carrier has paid. When that happens, the client has huge bills left unpaid. In that case, the insurance company cannot recover until my client's medical bills are fully paid. See Hartford Ins. Co. v. Fed. Express Corp., 253 Ga. App. 520, 522-523 (Ga. Ct. App. 2002) (insurer had not shown that plaintiff was fully compensated where "there was no specific payment made for medical expenses, merely a lump sum settlement").

Rule 2: The employer or insurance carrier cannot collect on its lien for wage payments until my plaintiff has been fully compensated for her lost wages.

Courts are especially strict as they scrutinize whether a claimant has been paid all of his lost wages. While workers' compensation policies are supposed to cover all of an employee's medical bills, they pay only about 2/3 of the wages an employee was making at the time he was injured. As a result, the Court of Appeals has held:

"Where, for example, the employee's weekly wages exceeded the amount of the workers' compensation weekly benefit actually received, the employer would not be allowed to recover the weekly benefits paid unless and until such time as the employee has been compensated for the difference between the workers' compensation weekly benefit actually received and the employee's normal weekly wage."

N. Bros. Co. v. Thomas, 236 Ga. App. 839, 841-842 (Ga. Ct. App. 1999) (emphasis added). See also Hammond v. Lee, 244 Ga. App. 865, 867-868 (Ga. Ct. App. 2000) (plaintiff was not fully compensated where lien jury had returned small lost wages verdict, and insurer had only paid benefits of about two thirds of the employee's regular earnings; the two payments combined did not fully compensate the plaintiff).

This blog is being written by Atlanta, Georgia, personal injury attorney Lee Wallace.

I am a Georgia attorney who represents people in personal injury lawsuits. Often these clients have been hurt on the job, perhaps in a car accident while the employee was driving for his job, or by a defective product that the employee had to use for work. Because the injury occurred at work, the employer has paid some medical bills or compensated the employee for lost wages he incurred while he was out of work. After the personal injury case concludes, the employer wants my client to reimburse it for the money it paid out on the employee's behalf.

I am in a series on the employer's (or its workers compensation insurance company's) claim for reimbursement, which is called a subrogation lien. Yesterday I explained that Georgia law does allow the employer to have a lien - but in order to make sure the employee is fairly compensated, the law puts restrictions on that subrogation lien. Today I will be talking about how the law restricts the employer's right to get its money back.

Restriction One: Full and Fair Compensation.

The first and most important restriction is that the employer cannot be reimbursed until the employee has received full and fair compensation for the injury. This restriction makes sense because of how the workers' compensation program works. The purpose of the workers' compensation statute is to make sure that workers do not end up out-of-pocket because they are hurt at work. Under the workers' compensation statute, the employer pays a relatively small amount -- much less than it would have to pay if the worker sued. As a counterbalance, the employee is supposed to receive quick compensation for all of his or her medical bills and expenses, without a lot of argument and hassle, and without argument over who was at fault for the worker's injuries. (Whether that actually happens is a topic for another day.)

The law specifically says that the employer or its insurance company can get its payments back only after the injured employee is "fully and fairly compensated": "the employer's or insurer's recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury." O.C.G.A. § 34-9-11.1.

Full and fair compensation includes both economic damages (like lost wages and medical bills), and also noneconomic damages (like pain and suffering.

The first rule, then, is that the employee gets compensated first. Until the employee has been compensated, nobody else - including the employer or its worker's compensation insurance carrier - gets reimbursed.

Tomorrow I will talk more about this restriction, and also explain a couple of additional restrictions that the law puts on the employer's right to get reimbursed for what it paid in workers' compensation for an employee who was injured on the job.

As a Georgia personal injury lawyer, I find that many of my clients have been hurt on the job, and the employer (usually through a workers' compensation insurance company) has paid some of their medical bills. My clients are often surprised when I tell them that at the end of their personal injury case, the employer or the workers' compensation insurance carrier will be standing there with its hand out, demanding that the clients hand over the money they just got. The employer will demand that my personal injury client repay all the medical bills and lost wages that the employer had paid in the first place.

The employer or insurance company's statutory claim for repayment is called a lien, or a subrogation lien. I am starting a series on the subrogation lien that workers' compensation carriers have when they have paid a client's medical bills.

I often represent personal injury clients who were hurt by someone's negligence, and the injury happened to occur while the client was working. For example, I represent car accident victims, and one of my car accident wreck clients was hurt when someone ran into the daycare van she was driving. In fact, I have had several clients who were hurt while they were driving a company vehicle - be it bus, van or car -- for work purposes. In my role as a product liability lawyer, I represented a delivery driver who was badly burned while she was driving a Dodge van that her company had rented for her to use. The Dodge van was hit from the rear, and exploded into flames. Its gas tank had been located in the very rear of the vehicle, and had no metal frame rail to protect it in a collision. In another of the cases I handled as a product liability attorney, my client had lost his hand when it was pulled into a defective carpet manufacturing machine while he was working at a carpet manufacturing plant. Another client had a product liability case because his leg was shattered when it was pulled into a defective carpet tufting machine at work.

All of these clients had one thing in common: they were hurt on the job and the employer or its workers' compensation insurance company had paid some of their medical bills. When my clients filed suit, the employers and insurance carriers claimed that if my clients recovered anything for their injuries, the clients needed to pay them back for every penny they had paid for the employee's medical care, lost wages, or other compensation.

Georgia law does provide that an employee should not be paid twice for the injury; if a third party was responsible for the employee's medical bills, then the workers' compensation carrier does not have to pay the employee a second time for the exact time for the exact same medical bills. The Georgia Code gives a workers' compensation insurance company the right to intervene in a case, and to demand repayment of the amounts it paid for the injured worker. O.C.G.A. § 34-9-11.1.

But the underlying purpose of the workers' compensation statute is to make sure that the employee is fully cared for: "The statute was enacted to allow an employer to recover the amount of workers' compensation benefits paid out, but a primary legislative concern was that the injured employee first be made whole." N. Bros. Co. v. Thomas, 236 Ga. App. 839, 841 (Ga. Ct. App. 1999). The purpose of the statute, then, is to make sure that when workers are hurt physically on the job, they do not end up getting hurt financially as well.

To accomplish that purpose, the Georgia code restricts the circumstances when an employer (or its insurance company) can demand that the employee pay back all the money the employer paid out. In my next posts, I will discuss those limitations.

In Georgia, and indeed throughout the United States, we take jury duty seriously. An employer is not allowed to fire you because you served on a jury, even one that lasted a long time (like many grand juries do, for example). Your boss also cannot threaten your job, discipline you, or penalize you simply because you did what the law required you to do - show up for jury duty.

As a Georgia personal injury attorney practicing here in Atlanta, but handling cases throughout the State of Georgia, I know how important jurors are to our legal system. In Georgia, we have a statute that states:

"It shall be unlawful for any employer or the agent of such employer to discharge, discipline, or otherwise penalize an employee because the employee is absent from his or her employment for the purpose of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order or process which requires the attendance of the employee at the judicial proceeding. It shall be unlawful for any employer or the agent of such employer to threaten to take or communicate an intention of taking any action declared to be unlawful by this subsection."

O.C.G.A. § 34-1-3.

If your employer does fire you, the same statute says that you are entitled to damages:

"Any employer or agent of such employer who violates subsection (a) of this Code section shall be liable to the injured employee for all actual damages thereby suffered by the employee and for reasonable attorney's fees incurred by the employee in asserting a successful claim under this Code section."

O.C.G.A. 34-1-3(b).

In other words, you have a "civil remedy for an employee who is discharged from work for being absent in order to attend a judicial proceeding pursuant to a subpoena." Reilly v. Alcan Aluminum Corp., 272 Ga. 279, 280, n.8 (Ga. 2000). See also Eckhardt v. Yerkes Reg'l Primate Ctr., 254 Ga. App. 38, 38-39 (Ga. Ct. App. 2002); O.C.G.A. § 34-1-3 (employer cannot discharge employee who is absent to attend judicial proceeding in response to court order); Mattox v. Yellow Freight Sys., 243 Ga. App. 894, 894-895 (Ga. Ct. App. 2000) (O.C.G.A. § 34-1-3 "grant[s] the employee a civil remedy for an employer violation"; "an employee may recover actual damages from an employer who penalizes the employee for attending a judicial proceeding in response to a court order.")

Georgia takes jury duty so seriously because our entire justice system depends on jurors showing up to resolve disputes between their fellow citizens. As parties impatiently await their day in court, lawyers spend years preparing cases and judges spend hours making decisions along the way. But the entire system would grind to a halt if jurors did not show up to hear the cases. The most stirring closing arguments, the most compelling testimony, and the most important evidence all amount to nothing if they are shown to an empty courtroom.

The vast majority of Georgia employers would never penalize an employee simply for obeying a jury summons. But just in case - the statute is there to protect employees who do the right thing by obeying the jury summons from the Court.

Personal injury clients who have been in a catastrophic car wreck, or been injured by a defective product, or who have medical malpractice cases, often are seriously injured and have enormous medical bills. As a personal injury lawyer and medical malpractice attorney, I spoke in my last blog post about potential liens that medical insurance companies may have. A lien is when someone paid money on your behalf, and if you get money, they are allowed to make you pay them some or all of it.

In Georgia, if a medical insurance company has paid your bills, they do not have a claim to get you to pay them back until you yourself have been fully compensated for the personal injuries you incurred in the car wreck, product liability case, pharmaceutical recall case, etc. Georgia only requires drivers to have a tiny, $25,000 insurance policy. For someone who gets a brain injury or a head injury, or a spinal cord injury, a broken bone, or a broken knee, etc., that paltry amount of insurance is nowhere near the cost of the medical bills, let alone the pain and suffering the plaintiff and his family went through. In that case, the medical insurance company may not be entitled to get paid back. I will write more about that issue in a future blog post.

On the other hand, Georgia law says that medical providers can have a lien against the amount a personal injury or medical malpractice plaintiff gets. Also, personal injury plaintiffs may have outstanding hospital liens.

Here's what the Georgia code section says:

"Any person, firm, hospital authority, or corporation operating a hospital, nursing home, or physician practice or providing traumatic burn care medical practice in this state shall have a lien for the reasonable charges for hospital, nursing home, physician practice, or traumatic burn care medical practice care and treatment of an injured person, which lien shall be upon any and all causes of action accruing to the person to whom the care was furnished or to the legal representative of such person on account of injuries giving rise to the causes of action and which necessitated the hospital, nursing home, physician practice, or provider of traumatic burn care medical practice care, subject, however, to any attorney's lien."

O.C.G.A. § 44-14-470(b).

Under Georgia law, medical providers argue that they are entitled to be paid even when the plaintiff is not getting fully paid. That argument is very questionable under Georgia law, but be that as it may, medical providers make that argument.

Here is why that is really, really unfair to plaintiffs who do not have medical insurance, Medicare, Medicaid, etc.

If you have insurance, you will see on you bill (and I am copying this from an actual example, I am not making it up), a written statement like this:

Amount billed $ 489.00
Amount paid $ 125.66

The two amounts are different because the hospital has an agreement with the medical insurance company that it will not charge more than $125.66 for that particular service.

What happens is pretty obvious: the hospital charges a ridiculous amount, so that by the time it negotiates with the insurance company, or Medicare or Medicaid (which pay even less), it will get enough to cover the medical care.

So what happens if you don't have insurance? The hospital charges you the maximum amount! It charges you the whole $489.00 - and then claims it has a lien that entitles it to 100% reimbursement from you if you get paid by the person who injured you!

Serious? Really serious.

Unfair? Really unfair.

Recently a personal injury client came in asking about a potential medical malpractice lawsuit against a Georgia hospital. As a medical malpractice lawyer in Georgia, I did not know whether she had a case or not, and I told her I needed to see the medical records in order to tell. She tried to get the records from the hospital, but the hospital informed her that it would cost $2000 to get the records - just to find out whether she even had a lawsuit!

I had a car wreck client who had had some testing done at a lab. The lab charged $25 for the records. I assumed that for that price I would get a sheaf of papers. But when I opened the envelope from the lab, it only had two pages of medical records. And to add insult to injury, the laboratory had copied the letters I had sent asking for the records and charged me $.75 per page to give me copies of my own letters -- as if my letters simply requesting a copy of the client's medical records were part of the client's records themselves!

In car accident or personal injury cases, the high cost of the records can seriously eat into the amount the client can collect from the insurance company. In medical malpractice cases, lawyers have trouble determining whether a case is even valid because the documents that would answer the question are so extraordinarily expensive.

In Georgia, however, the legislature has given hospital and doctors a legal right to charge that much:

"The party requesting the patient's records shall be responsible to the provider for the costs of copying and mailing the patient's record. A charge of up to $20.00 may be collected for search, retrieval, and other direct administrative costs related to compliance with the request under this chapter. A fee for certifying the medical records may also be charged not to exceed $7.50 for each record certified. The actual cost of postage incurred in mailing the requested records may also be charged. In addition, copying costs for a record which is in paper form shall not exceed $.75 per page for the first 20 pages of the patient's records which are copied; $.65 per page for pages 21 through 100; and $.50 for each page copied in excess of 100 pages. All of the fees allowed by this Code section may be adjusted annually in accordance with the medical component of the consumer price index."

O.C.G.A. § 31-33-3(a).

So, under Georgia law, the doctor can charge $20, right off the bat, even if he only has one page of records. Then the doctor or hospital can charge $.75 for every page for the next 20. And even though everyone knows you could go to Kinko's and get a copy for $.10, the charge never drops below $.50 a page.

That's crazy. If anything, making copies today is cheaper than it ever has been because most hospitals have their records on computer, ready to print out. The law in this area is not only unfair, but unrealistic and unnecessary. The Georgia legislature needs to rethink the law on charging for medical records.

As I said in my last blog, a party to a personal injury lawsuit can ask the judge to grant "summary judgment" in a case. This rule applies in courts all over Georgia, from Atlanta to Columbus to Macon, and pretty much everywhere else in the nation as well.

I represent plaintiffs in personal injury lawsuits, and I often explain to my clients that in a personal injury or car wreck case, the plaintiff bears the burden of proof. The plaintiff cannot win the lawsuit unless the plaintiff meets the burden of proof by proving all of the elements of negligence. If a defendant moves for summary judgment on the plaintiff's whole case, and the Court grants it, then the whole case is over for the plaintiff. The fraud case, the medical malpractice case, the car wreck case, whatever - is gone entirely. The plaintiff has lost, and the case is over.

Obviously summary judgment motions are very important, especially to a plaintiff. So what does your lawyer do when a summary judgment motion gets filed in your case?

In Georgia, the statute that governs summary judgment motions is O.C.G.A. § 9-11-56.

Motion and proceedings thereon. The motion shall be served at least 30 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law; but nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage.

O.C.G.A. § 9-11-56(c).

The fist step is that one party to the lawsuit - usually the defendant - files a motion asking the court to grant summary judgment. The defendant files a thick brief that explains to the court why the defendant thinks the court should grant summary judgment against the plaintiff.

Your lawyer writes his or her own brief responding to what the defendant has said. The brief has to offer real evidence that supports your claims.

This process is the same whether you have a premises liability case, a product liability case, a car accident case, or any other type of negligence or personal injury lawsuit.

When I am responding to a summary judgment motion filed against my client, I usually file several different types of evidence. I always cite to depositions that have been taken in the case. I like to quote right from the deposition. I also attach affidavits from my clients or from key witnesses who have not been deposed. In a medical malpractice case, I might file affidavits from doctors who are my expert witnesses. In a product liability case, I might file copies of government reports that say that the product is defective, or that show it has been recalled. In a car wreck case, I might attach the accident report. My goal is to marshal the evidence that supports my client's case.

I am an Atlanta, Georgia personal injury lawyer, and in a car wreck case I handled recently, the defendant insurance company argued that it had never received notice of the car accident. The evidence was crystal clear, though, that the insurance company knew all about the car accident.

The insurance company moved for something called "summary judgment". "Summary judgment" is a quick judgment, made by the judge, even before a trial gets started. The idea behind summary judgment is to avoid wasting a jury's time if there really is not a case. Courts only want a jury to spend time hearing any type of case - be it personal injury or negligence lawsuit, or a car accident lawsuit or truck accident lawsuit- if the case meets the minimum legal requirements to be a case.

As the attorney for the car accident victim, I showed the court the letter to the insurance company telling them about the wreck, and the testimony of the company that had owned the vehicle that they had called the insurance company and reported the accident. The judge denied the Defendant's motion for summary judgment on that issue. The case settled at that point, but if it had not then we still would have gone on to a trial before a jury, even though we had won the motion for summary judgment. In our case the motion had decided just one issue in the case: whether the insurance company had notice of the car wreck. It did not decide who caused the wreck or what the damages to my client were. A jury still would have needed to decide those issues.

Courts are not supposed to grant summary judgment motions routinely. In general, in our justice system we prefer to let the jury decide lawsuits. In Georgia, the standard for summary judgment is very high:

"In general, `negligence issues are susceptible to summary adjudication only in plain, palpable and indisputable cases; the evidence must be construed most favorably to the party opposing the motion, and he must be given the benefit of all favorable inferences and reasonable doubts. . . . Summary judgment may be granted only where, construing all inferences against the movant, it yet appears without dispute that the case can have but one outcome and that outcome must be in the movant's favor.'"

Godinho v. City of Tybee Island, 231 Ga.App. 377, 380, 499 S.E.2d 389 [21] (1998) (city failed to meet burden on its motion for summary judgment), quoting from Sykes v. Colony Regency Partners, 226 Ga. App. 804, 806, 487 S.E.2d 408 (1997). See also English v. City of Macon, 259 Ga.App. 766, 577 S.E.2d 837 [13] (2003).

"[Q]uestions of negligence, diligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them except in plain and indisputable cases." Jordan v. City of Rome, 417 S.E.2d 730, 203 Ga. App. 662 [23] (1992) (record presented factual disputes as to whether city and chief of police received notice, whether the notice was sufficient to alert them, and whether they then reacted appropriately).