small-car-1412565-300x212
As technology continues to advance further towards the widespread use of autonomous vehicles, companies that manufacture automobiles and the autonomous driving programs will have to evaluate how to best mitigate the inherent risks involved in the creation and use of autonomous vehicles. Although eliminating human control will likely reduce the rate of accidents because of error in judgment or intoxication, the rate of injuries due to design or manufacturing defects will likely increase. Thus, the frequency of injuries and deaths will decrease, but the frequency of suits against various parties for defects will increase, as human error will no longer be a shield to liability for those manufacturers of the parts or programs for the vehicles.

In instances involving the software used to direct and control the vehicles, the programmers that design the autonomous driving systems which detect hazards or initiate maneuvers to avoid collisions will likely be the first group against whom suit will be brought following a non-human error accident. However, the manufacturers of the automobile parts could as Tesla, also face liability as downstream manufacturers or sellers of the automobiles that utilize the programs. The manufacturer or designer that will ultimately be liable will likely depend upon the nature of the accident at issue, but the nature or cause of the accident will likely not be unearthed until thorough and complex discovery is conducted. So, the sellers and manufacturers of the automobiles, as well as the programmers of the software and the designers of the control systems will all be parties to any lawsuit arising from a manufacturing or design defect claim.

Moreover, companies will also need to comply with whatever regulations the country, state or city in which it wishes to operate have enacted. But, this could prove difficult, as different states will likely enact different regulations tailored to most effectively serve the interests of its residents; Nebraska, for example will likely enact different regulations for its flat and straight roads and interstates than the winding mountainous roads of Tennessee or Colorado. Such regulations could differ as to licensing requirements for the operators of the vehicles, as well as specific programming mandates that dictate the degree of control operators must exercise at periodic intervals during the operation of the vehicle. Because of the potential difficulty that varying regulations across numerous jurisdictions would pose to the distribution of autonomous vehicles into society, the manufacturers will likely lobby Congress for a nationwide regulatory scheme to preempt any local or state regulations. While a nationwide regulatory scheme would be beneficial as to helping manufacturers minimalize expenditures, it would detrimentally curb innovation and novelty in the autonomous vehicle industry.

dog-1407430
Yet another dog attack in Georgia last week (August 1) resulted in the death of a 20-month old baby in Athens, and the subsequent arrest of the grandmother, Sandra Adams, and dog owner on several felony charges. The grandmother was allegedly in the backyard with the child when the two pit bulls came out of the back door and knocked the grandmother to the ground before mauling the small child. According to reports from the Georgia Bureau of Investigation, Adams had been cited on multiple occasions about maintaining “disorderly animals.” Although more facts would be necessary for making any determination regarding Adams’ criminal culpability for the incident, her previous citations for maintaining disorderly animals would likely be sufficient to subject her to civil liability.

In Georgia, a dog owner is liable for harm caused by the animal where the owner had knowledge of the animal’s propensity for violence. Such knowledge can be demonstrated by a variety of incidents, including the existence of a previous attack or even an unprovoked, attempted attack. For more information on updated Georgia law and dog attacks, please visit my blog.

While the specific circumstances surrounding the citations for maintaining disorderly animals remains unclear, it is unlikely that the citations were issued absent some event involving a third party complaining about the animals’ behavior. Assuming that the citations involved some demonstration of violent behavior, in the eyes of the law Adams would have notice of the animals’ propensity for violence sufficient to give rise to civil liability for the animals’ actions.  Additionally, because Adams was acting in the capacity of a babysitter when the child was attacked, she owed a heightened duty of care to protect the child from harm. This heightened duty of care would increase the parents’ likelihood of prevailing against the babysitter in a civil action. However, the familial relationship between the child and the babysitter-grandmother makes it difficult to hypothesize whether the parents will seek to sue the grandmother in civil court, especially considering the fact that the grandmother is facing criminal charges for 2nd degree murder and involuntary manslaughter.

doctor-1530310-300x226
A recent decision handed down by the South Carolina Supreme Court in Patton v. Rock Hill Gynecological & Obstetrical Associates, P.A., et. al.,  expanded the parties whom may bring a claim for a child’s medical expenses. The holding applied a broadened interpretation of Rule 17(a) of the South Carolina Rules of Civil Procedure, which provides, “Every action shall be prosecuted in the name of the real party in interest.” By definition, a real party in interest is “the party who, by the substantive law, has the right to be enforced. It is the ownership of the right sought to be enforced which qualifies one as a real party in interest.” Bank of Am., N.A. v. Draper, 405 S.C. 214 (Ct. App. 2013). Other commentaries regarding the equivalent Federal Rule provides that “the action should be brought in the name of the party who possesses the substantive right being asserted” and “the ‘real party in interest’ . . . is defined as the person holding the substantive right to be enforced, and not necessarily the person who will ultimately benefit from the recovery.” Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1541 (3d Ed. 2010). Georgia has a similar provision, O.C.G.A. § 9-11-17, which provides “if an infant or incompetent person does not have a duly appointed representative, he may bring an action by his next friend or by a guardian ad litem.”

In Patton, the mother filed a medical malpractice lawsuit in November, 2009 only in her capacity as Alexia’s “next friend” and sought damages for her daughter’s injuries and past and future medical expenses arising from her obstetrician’s improper management of the resolution of shoulder dystocia. The primary issue reviewed by the South Carolina Supreme Court revolved around the fact that Patton brought the claim only in her representative capacity-and not in her own capacity. The defendants argued that Patton could have recovered damages for the minor’s medical expenses if she sued in her own capacity, but not in her capacity as the minor’s representative, pursuant to Rule 17(a) of the South Carolina Rules of Civil Procedure. The Supreme Court analyzed whether Patton was a real party in interest categorically by each type of medical expenses, and held that Patton would be a real party in interest in her individual capacity if she had an obligation to pay each type of medical expenses. The Court held that the first category, those incurred at the time of trial, were recoverable by Patton because she was a real party in interest, as she was obligated to pay them in her individual capacity. Patton was also a real party in interest as to the second type of medical expenses, those covered by Medicaid. Because the Medicaid expenses had no third-party payor, and were actually paid by the parent, a representative had no obligation for reimbursement, and thus the parent is the only real party in interest.

However, the most crucial aspect of the South Carolina Supreme Court’s ruling rested upon the language of Rule 17(a) which holds that it is improper to immediately dismiss a lawsuit simply because it was not brought in the name of the real party in interest. O.C.G.A. § 9-11-17 has identical language, which also prohibits the immediate dismissal of an action on the ground that it is not prosecuted “in the name of the real party in interest until a reasonable time has been allowed, after objection, for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.”

map-of-wisconsin-state-in-usa-picture-id476870676-300x200
Numerous states, including Wisconsin and Georgia, have enacted statutes that limit the amount of non-economic damages a plaintiff can recover in a medical malpractice action. In addition to economic damages, juries can award plaintiffs damages for emotional injuries, like loss of consortium or loss of companionship, but in states that have passed legislation capping the amount of recovery, the decision is essentially removed from the jurors’ hands and placed in the hands of legislators. Lawmakers generally defend damages caps on the grounds that it contains the cost of healthcare by discouraging “defensive medicine.” However, the recent ruling out of the Wisconsin 1st District Court of Appeals found that the cap violated the Equal Protection Clause of the Constitution, as the cap allowed for full awards for less injured patients, but resulted in reduced awards for the catastrophically injured.

Conversely, doctors and insurers will be inherently opposed to the ruling, as without a cap on non-economic damages their liability, and thus costs of seeking protection from that liability in the form of medical malpractice insurance, will rise. In deciding whether to enact recovery limits, the state legislatures must balance the interests of keeping the cost of healthcare low with allowing plaintiffs to fully recover for harm caused by the negligence of doctors. One important consideration is to whom should the burden of offsetting the costs of those mistakes fall; the party making the mistakes, or the victims? Where recovery limits are imposed, the doctors are not forced to bear the full risk of their own negligence, as they are protected by statute, no matter how egregious their errors or omissions may be. It seems natural that the doctors, who stand to benefit from the transaction if successful, should then bear the risk of complete liability for any harms caused during that transaction, whether emotional or otherwise. The rationale that the recovery limits somehow keep the costs of healthcare low are speculative at best, as even though states have maintained recovery limits health insurance premiums have risen. Admittedly, increases in healthcare prices are more directly tied to the controversial Affordable Care Act, but without a significant and legitimate showing that recovery limits somehow benefit the public, how can the state legislatures continue justify the caps? If caps do not keep the prices of healthcare down, the insurance providers and doctors are benefitting at the expense of injured plaintiffs.

The attorneys from the case have already publicly stated that they will ask the Wisconsin Supreme Court to hear the case, and depending on the Court’s ruling, it could become nationally significant in the near future. If the Wisconsin Supreme Court bases its finding under an interpretation of the United States Constitution, the United States Supreme Court will then be able to review the case. However, if the Wisconsin Supreme Court declines to make an interpretation based on the United States Constitution or Federal Law, the United States Supreme Court will likely abstain, as it does not generally review lower-court rulings based upon adequate and independent state grounds.


marijuana-plant-1462950A recent study conducted by the Highway Loss Data Institute is raising red flags about the legalization of marijuana for recreational use and its correlation to an increase in the number of vehicle collisions reported to insurance companies in Colorado, Oregon and Washington. The study compared the collision rates of Colorado, Oregon and Washington both before and after each state passed the legalization initiatives with the rates from Nebraska, Utah and Wyoming, where marijuana is still illegal. According to the Institute, since marijuana was legalized, claims are up 6.2 percent in Washington, 4.5 percent in Oregon and 16 percent in Colorado. The increase in reported collision rates appears to correlate to the lapse of time since the legalization, with Oregon being the most recent to legalize marijuana and having the smallest increase out of the three states, and Colorado being the first to legalize marijuana and having the greatest increase.

Critics of the study question the validity of the findings, as population densities in Nebraska, Utah and Wyoming have significantly less dense population centers than Colorado, Oregon and Washington. However, according to researchers, the study accounted for factors such as the number of vehicles on the road, the driver demographics, employment status and weather. Certainly such variations will affect the outcome of a study to some degree, but the significant increase in reported traffic collisions should not be minimized. While the Highway Loss Data Institute cautioned that the study did not look at highway fatality rates nor did it allege that the increase was directly caused by drivers who were high, the findings did indicate a greater crash risk to all drivers on the road.

To be sure, some of the increased percentage could be linked to an increased willingness of high-drivers to report traffic collisions due to the decreased risk of criminal culpability. While driving high is still unlawful, modern technology currently provides no means of determining the degree of influence a marijuana user may be under in a manner similar to that of a breathalyzer test for blood alcohol concentration. Thus, if the driver believes he can conceal the fact that he is under the influence of marijuana and he in possession of the substance, he will be far more willing to contact local law enforcement officials to report a collision than if he were in a jurisdiction that still outlaws pot. More significantly, as more and more states pass initiatives legalizing marijuana for recreational use, the rate of marijuana consumption will inevitably climb and the rate of high drivers will follow suit. After all, high drivers have a significantly greater chance of getting away with driving under the influence than drunk drivers due to the absence of any on-scene testing mechanism.

1314902_medical_doctor
The 11th Circuit Court of Appeals, whose opinions are binding on Federal and State Courts in Alabama, Florida, and Georgia, recently affirmed the holding of the United States District Court for the Northern District of Alabama to the extent that plaintiffs failed to establish that participation in a clinical study caused any injuries due to the negligence of the defendants (the physician who designed and conducted the study, Internal Review Board who approved the study, and Masimo Corporation, who manufactured the equipment used in the study). Thus, the Court of Appeals found the plaintiff’s claims for negligence, negligence per se, breach of duty, and products liability claims were properly dismissed. However, although the Federal District Court also dismissed the plaintiff’s claim alleging lack of informed consent, the Appellate Court certified to the Alabama Supreme Court to determine whether a plaintiff who claims that he did not give informed consent to medical treatment provided as part of a clinical study must first show that he was injured as a result of that treatment.

The guardians of the plaintiff infants were required to execute informed consent documents to enroll the premature infants in a study designed to analyze the effects of differing oxygen saturation levels on premature infants. During the study, the infants were randomly divided into two groups whom would be subjected to varying levels of oxygen saturation. The group subjected to higher levels of oxygen saturation faced an increased risk of developing retinopathy, which can lead to blindness, while the group subjected to lower levels of oxygen saturation faced an increased risk of neuro-developmental impairment or other neurological issues. Both test groups subsequently suffered from the ailments; however, because both retinopathy and neuro-developmental impairment are consistent with injuries associated with extremely low birth-weight infants, the plaintiffs were unable to show that it was their participation in the study, and not their premature births and low birth-weight, that caused their injuries.

Because the above case turns upon a material state law question, the 11th Circuit Court of Appeals certified the following question for determination of Alabama law to the Alabama Supreme Court: “Must a patient whose particular medical treatment is dictated by the parameters of a clinical study, and who has not received adequate warnings of the risks of that particular protocol, prove that an injury actually resulted from the medical treatment in order to succeed on a claim that his consent to the procedure was not informed?” Importantly, by refusing to rule on the issue and certifying the question to the Alabama Supreme Court, whatever conclusion drawn in Alabama will not be binding on Georgia or Florida, leaving the question unresolved for Florida and Georgia.

Generally, a statute of limitations limits the time period in which an injured party may file suit against the party whom allegedly caused their injuries. In medical malpractice actions, OCGA §9-3-71(a) states that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” More specifically, in medical malpractice cases arising from a misdiagnosis that resulted in a failure to properly treat a condition, the “injury” referred in the above statute occurs at the time of the misdiagnosis. However, the proposition that the statute of limitations period runs from the date of the misdiagnosis is only “generally true,” as Georgia courts recognize an exception where misdiagnosis results in the development of a new and different injury than that which existed at the time of the misdiagnosis. In cases where the “new injury exception” applies, the limitation period begins to run from the date the symptoms attributable to the new injury first manifest.stock-photo-57229086-surgeons-operating-patient-in-surgery-room

This exception to the misdiagnosis exception to the medical malpractice statute of limitations was recently reaffirmed in a Georgia Appellate Court decision involving a 53 year-old male, Mr. Fender, who was admitted to the hospital after he woke up with disorientation, a headache, dizziness, extremely high blood pressure, and blurred vision. While at the hospital he underwent a carotid ultrasound, which is a diagnostic imaging tool used to evaluate carotid arteries for narrowing, or stenosis caused by plaque. His ultrasound was performed by a sonographer employed by the hospital and the results were then sent to Dr. Spell, an on-call radiologist, who interpreted the results as showing no significant stenosis (narrowing of the ventricle). Mr. and Mrs. Fender were told that the results of the ultrasound were “normal” and he was subsequently discharged from the hospital on May 19, 2009 with instructions to follow up with his primary care physician and an ophthalmologist.

Mr. Fender followed up with the primary care physician and ophthalmologist as recommended, and his primary care physician informed him that Mr. Fender had suffered a transient ischemic attack, which causes temporary systems that can resemble the symptoms of a stroke, but no additional ultrasounds were performed. Then, on April 7, 2010, Mr. Fender suddenly collapsed at his home and was unable to move or to speak, and he was unable to recognize his family. At the hospital, Mr. Fender was diagnosed with having suffered “a massive stroke,” and ultrasound imaging showed a complete obstruction of his carotid artery in the same location as the plaque shown in the May 2009, ultrasound.

georgia-state-capital-1-1514015
When an individual seeks compensation from a county for injuries or harm suffered arising from some county action or on a premises controlled by a county, the plaintiff must fulfill greater procedural requirements than are required in a civil action against another individual. One of these such requirements is presentment, or that “all claims against counties must be presented within 12 months after they accrue or become payable” or such claims will be barred by the statute. (OCGA § 36-11-1). The statute operates as a statute of limitations, restricting the time period in which a plaintiff will be entitled to seek compensation through a civil action against a county. Thus, in the context a physical injury, an injured plaintiff must provide the county with notice of any alleged claims within the proscribed one-year period.

In January 2012, Joe Leonard, Jr. allegedly sustained injuries while riding as a passenger aboard a Whitfield County Transit Services bus, and subsequently hired a lawyer to assist him in recovering from the county for the harms caused on the county-owned transit system. In June 2012, Mr. Leonard’s lawyer sent a letter to Robert Smalley, a private attorney and County Attorney for Whitfield County, in an attempt to fulfill the presentment requirements set forth in OCGA § 36-11-1, as Mr. Leonard asked in that letter that Mr. Smalley accept the letter as presentment of Mr. Leonard’s claims against the county. Then, in January 2014, Mr. Leonard filed a lawsuit against the County, and the County filed for Summary Judgment (a motion seeking dismissal of the claim) on the grounds that Mr. Leonard never properly presented the claim, and that his recovery was thus barred. The trial court granted the County’s motion, which was affirmed by the Court of Appeals, relying upon the precedent established in Coweta County v. Cooper, which holds that presentment may be made to the county attorney, but only if the county attorney is employed “in-house.”  Generally speaking, an in-house attorney would be an employee of the county.

In a win for plaintiffs, the Supreme Court overturned the Court of Appeals decision, based in part upon the purpose and object of the presentment statute. The Supreme Court asserted that the primary purpose of the statute was to provide the county officials with timely notice of all demands against the county. Numerous precedent established that presentment could be made to some officers of the county, as well as to the members of the governing authority itself, so the Court found it inconsistent with the purpose of the statute to prevent the county attorney from also being a party to whom presentment could be made. The Court of Appeals’ attempt to draw a distinction between in-house and outside attorneys was rejected by the Supreme Court, holding that the precedent relied upon by the Court of Appeals was inapplicable to a county attorney.

car-1-1176193-300x225

Automotive and technology companies that are involved in the research and development of autonomous vehicle programs will have to also weigh the legal implications involved in the manufacturing or design of such vehicles. However, analyzing potential liability will largely be based on speculation, as legal doctrine related specifically to autonomous vehicles is non-existent.

A potential foundational case could be filed on behalf of a man killed in a crash last year while using the semi-autonomous driving system on his Tesla, although the attorney for the family indicated that no decisions have been rendered at this time. The driver was killed when the Tesla, allegedly traveling at 74 miles per hour in a 65 mile per hour zone, collided with a truck. According to a report published by the National Transportation Safety Board, the collision occurred while the vehicle was in “Autopilot” and throughout the trip the system repeatedly gave the drive warnings that said “Hands Required Not Detected,” which indicates that the driver’s hands were not on the steering column, despite the system directing the driver to do so. Additionally, the report noted that during a 37-minute period of the trip when the driver was required to have his hands on the wheel, he did so for only 25 seconds.

The use of autonomous or semi-autonomous vehicles will likely increase as new technologies are developed, as will the frequency of accidents involving those vehicles. The litigation of those claims will raise novel questions about the admissibility and reliability of evidence pulled from the computer systems of the autonomous vehicles, as well as how to monitor and detect the actions of the drivers. As was the case involving Volvo, automobile companies have the means of manipulating reports generated by vehicles, and the accuracy of data generated by those programs should be heavily scrutinized.

georgia-state-capital-1-1514015
Following Governor Nathan Deal’s veto of a 2016 bill that, if signed, would have authorized prospective suits challenging the constitutionally of states or local laws, the Georgia Supreme Court affirmed a trial court ruling that in effect bars the sort of suits the 2016 bill would have authorized. Generally, state governments, departments, agencies and officers acting in their official capacity are protected from prospective legal action by the doctrine of sovereign immunity. However, when state officials act under an unconstitutional statute, they can be held individually liable, even for acts done in their official capacity. The rationale underlying this theory of personal liability for state officials is as follows: an act or statute that is unconstitutional confers no lawful authority upon an officer; so an official act performed pursuant to an unconstitutional statute is the equivalent of an official act performed in the absence of a statute altogether.  Thus, where a state official performs an official function, even where he may believe he is acting pursuant to a lawfully enacted statute, he may nonetheless be held liable for those acts if the statute turns out to be unconstitutional.

Interestingly, the opinion thoroughly examines the doctrine of sovereign immunity, but concludes with the assertion that a plaintiff need only bring suit against state officials in their individual capacity, rather than their official capacities. But, even where state officials have been found individually liable for monetary damages, “the legislature should, and doubtless will, reimburse the defendant . . .” Through this opinion, the Georgia Supreme Court re-affirms a somewhat bizarre legal fiction; while the state cannot be named as a party to a constitutional challenge, it will likely still be on the hook for the monetary damages imposed on state officials for actions taken in the course of the performance of their official duties.

The opinion denied injunctive relief to several physicians who challenged, under the State Constitution, an abortion statute requiring physicians who perform abortions to file a report of the procedure with the Department of Public Health, and a clause that imposes criminal penalties to violations of other statutory requirements. So, in the case of these physicians, they need only re-file against the state officials within the Department of Public Health in their individual capacity, and allege state constitutional violations. Then, if the court finds that the statute was in fact unconstitutional, the plaintiff-physicians would be awarded either prospective or retrospective relief, depending on the nature of the action. Importantly, the opinion does not wholly eliminate individual citizens’ ability to challenge state action on a constitutional basis; it simply modifies the avenue through which such challenges must travel.