Atlanta Injury Lawyer Blog

In my February 25, 2012 post, Georgia Law on Jurisdiction: What is Jurisdiction?, I talked about what jurisdiction means, and why it is important. I have been practicing law for 25 years, and have seen jurisdictional issues come up repeatedly and in all sorts of cases, ranging from Decatur medical malpractice cases to Alpharetta car accident cases.

When someone argues to the judge that jurisdiction is improper, how does the court decide whether or not it should have jurisdiction over the defendant (i.e., the right to exercise legal power over the defendant)? In Shellenberger v. Tanner, 227 S.E.2d 266, 138 Ga. App. 399 (1976), the Georgia Court of Appeals set out three factors for a court to consider as it makes the decision about whether to exercise jurisdiction over an out-of-state defendant. In the Shellenberger case, the plaintiff sued for damages in a Coffee County damages lawsuit, alleging that the prior owner of an airplane had negligently repaired and maintained the airplane, and then put the aircraft into the stream of commerce to enter Georgia.

The first factor the Shellenberger court told trial courts to consider is that: "[t]he nonresident must purposefully avail himself of the privilege of doing some act or consummating some transaction with or in the forum." The court was clear that the defendant does not have to be physically within the forum (meaning the place where the court is located); for example, a defendant might subject itself to jurisdiction by mailing items into Georgia. "A single event may be a sufficient basis if its effects within the forum are substantial enough to qualify under Rule 3. In fact, the court noted that "[t]he clear and discernible trend of recent authority" is that a single act in the forum state, coupled with "impact within the territory of the forum" was sufficient to satisfy the 'minimum contacts' test." Shellenberger v. Tanner, 227 S.E.2d 266, 138 Ga. App. 399 [18] (1976). See also McGee v. International Life Ins. Co., 355 U.S. 220 (78 S. Ct. 199, 2 L. Ed. 2d 223).

The second fact the court should consider is whether the plaintiff's lawsuit "arises out of, or results from, the activity or activities of the defendant within the forum." Id.
If factors (1) and (2) are true, then the non-resident does have minimum contacts with Georgia. At that point "[t]he Georgia long-arm statute confers personal jurisdiction over nonresidents to the maximum extent permitted by due process." HTL Sp. Z O.O. v. Nissho Corporation, 245 Ga.App. 625, 538 S.E.2d 525 [11] (2000). Then, the court has to determine whether it would offend due process for the court to accept jurisdiction over the non-resident:

(3) If (and only if) the requirements of Rules 1 and 2 are established, a "minimum contact" between the nonresident and the forum exists; the assumption of jurisdiction must be found to be consonant with the due process notions of "fair play" and "substantial Justice." In other words, the exercise of jurisdiction based upon the "minimum contact" must be "reasonable."

Shellenberger v. Tanner, 227 S.E.2d 266, 138 Ga. App. 399 (1976).

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.

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.