Georgia Injury Lawyer Blog

The Boston Globe recently published a series on the overuse of antipsychotic medications in nursing homes. Those of us who represent victims of abuse and neglect in nursing homes refer to this as a form of "chemical restraint." Many nursing homes use antipsychotic drugs to control combative behavior and agitation in nursing home residents who have not been diagnosed with a condition for which such drugs are recommended.

The Boston Globe's investigation yielded a number of findings including:

(1) In 21% of U.S. nursing homes for the year 2010, at least one-fourth of the residents received antipsychotic medications despite the fact that they did not have illnesses or conditions for which such medications are prescribed.

(2) The use of antipsychotic medications was linked to staffing levels within the nursing homes. The facilities that used antipsychotic drugs for conditions not recommended by physicians had lower staffing levels than facilities who did not rely heavily on the use of antipsychotic medications.

(3) The use of antipsychotic medications by nursing homes tended to correlate with facilities whose residents were deemed by the nurses and staff to have behavioral problems, such as being verbally or physically abusive to staff, resisting care, or wandering.

Antipsychotic drugs are typically used to treat some of the most severe mental illnesses, such as schizophrenia. They are powerful sedatives with potentially harmful side effects. The U.S. Food & Drug Administration (FDA) has issued so-called "black box warnings" about the dangers of giving antipsychotic medications to patients with dementia or Alzheimer's disease. These drugs can increase the risk of infections and cardiovascular complications in elderly individuals. Additionally, they can cause a sudden drop in blood pressure, dizziness, and blurred vision, any of which can lead to falls and serious, fall-related injuries.

Antipsychotic drugs are overprescribed in nursing homes because the nurses and staff either don't have the time to deal with a resident's behavioral problem, or they don't take the time to investigate the underlying cause of a resident's combative behavior. A resident with Alzheimer's or dementia, for example, can become confused, frightened or anxious simply because of a change in their environment. By redirecting these residents to an area or environment that is more familiar or comforting to them, the anxiety or combative behavior can often be lessened or eliminated. However, it can take longer to redirect the resident than it takes to administer a sedative or antipsychotic drug that will knock the resident out for hours at a time.

Efforts are underway to encourage nursing homes to care for residents with Alzheimer's or dementia without resorting to the use of antipsychotic medications. Nursing homes are encouraged to have lots of activities and try various types of interventions rather than using the quick fix of prescribing an antipsychotic. Federal regulations that govern nursing homes provide inspectors the authority to issue citations, known as "deficiencies," if nursing homes are found to have engaged in "unnecessary medication use." Additionally, federal regulations require nursing homes to try to gradually reduce the resident's dose of antipsychotic drugs at least once a year, but facilities sometimes neglect to do so.

If you believe that a loved one in a nursing home is being given unnecessary antipsychotic medications or is being overmedicated, you should ask for a list of all medications that are being administered to the resident and the doses. A simple internet search or a review of sources commonly found in public libraries, such as the Physician's Desk Reference, will provide you with the information you need regarding the medication, including what it is used for, the recommended dose, and potential side-effects. If you believe that the administration of antipsychotic drugs is causing or contributing to a decline in the resident's condition, report your concerns to the nursing home administrator and ask to speak with the nursing home's medical director.

Many of our readers may recall that DePuy Orthopaedics, a subsidiary of Johnson & Johnson, voluntarily recalled two models of its hip replacement products in August of 2010 because of high failure rates. Since the recall of the DePuy ASR devices, approximately 5,000 lawsuits have been filed against DePuy Orthopaedics on behalf of individuals who were surgically implanted with the recalled DePuy ASR hips. Many of these individuals have had to undergo further surgery to have the recalled products removed and replaced.

These metal-on-metal hip prostheses began to grow in popularity in the early 2000s. Manufacturers claimed they have greater advantages and fewer limitations than the typical polyethylene-on-metal hip implants. One of DePuy's biggest selling points was that the metal-on-metal devices had superior wear properties, meaning that they would last longer than the conventional devices and thus, have to be replaced less often. This led to greater use of the metal-on-metal devices, especially in younger individuals who were undergoing hip replacements. It has been estimated that as many as 500,000 individuals worldwide have all-metal hip prostheses. The DePuy ASR metal-on-metal devices were surgically implanted in 93,000 people worldwide between 2003 and 2010.

Studies have shown a significant number of metal-on-metal hip prostheses have failed due to accelerated wear of the articular surface (the metal ball and metal socket). Imagine rubbing two pieces of metal together for anywhere from 16 to 24 hours a day. Eventually, the metal surface begins to wear and debris is released. Likewise, accelerated wear of the metal ball and socket in an all-metal hip prosthesis causes metal debris to be released into the body's soft tissue surrounding the hip joint. Eventually, the metal debris works its way into the bloodstream. Many of the individuals who were surgically implanted with the DePuy ASR hip replacement devices were found to have elevated levels of cobalt, chromium and other metals in their bloodstream, a condition known as metallosis.

Hundreds of thousands of patients may have been exposed to toxic chromium and cobalt particles as their metal-on-metal hip implants wear, according to a joint investigation by the British Medical Journal and BBC Newsnight. The all-metal implants, including the DePuy ASR and one model of the DePuy Pinnacle product, Smith & Nephew's Birmingham hip and Zimmer's Durom hip, release particles of their chromium-cobalt alloy as the metal ball and socket wear against each other, causing tissue and bone death and possibly exposing patients to an increased risk of developing some forms of cancer. There is still uncertainty about just how much metal in the bloodstream constitutes a health threat. It is increasingly apparent, however, that many patients with metal-on-metal hip implants showed blood levels of ions higher than normal. As a result of the heightened awareness of the potential adverse effects of increased levels of cobalt and chromium in the bloodstream, physicians and scientists around the world are conducting ongoing investigations to learn more about the long-term consequences of defective metal-on-metal hip replacement devices.

The FDA has decided to gather and review all available information about currently marketed metal-on-metal hip replacement systems, including information related to adverse events that may be associated with increased levels of cobalt and chromium in the bloodstream. In May of 2011, the FDA issued a statement and wrote to 21 manufacturers, informing them that it was invoking a rule requiring post-marketing studies in cases where a hip implant's failure could have serious consequences. Among other things, companies would be expected to take blood samples from patients to measure metal ion levels.

Symptoms of hip implant failure can include pain, inflammation or swelling in the area of the hip implant, a clicking or grinding sound coming from the hip area, and difficulty walking. Any person who has had a hip replacement should contact his or her surgeon to determine whether they received a metal-on-metal hip replacement device. If your orthopedic surgeon does not have this information, you should be able to obtain the information from the hospital where the surgery was performed. You can contact the medical records department at the hospital where the surgery was performed, give them the approximate date of surgery, and request a copy of your "implant log" or "sticker log." This is the record in your hospital medical chart that shows the manufacturer and model of the device that was surgically implanted in you.

Hospital acquired infections (HAI), also known as "healthcare-associated infections" or "nosocomial" infections, are infections that patients get while undergoing medical treatment in healthcare facilities. They are infections that are not present and without evidence of incubation at the time the patient is admitted to a healthcare facility. Most infections that become clinically evident after 48 hours of a patient's hospitalization are considered hospital acquired. These infections occur in all types of medical facilities, including hospitals, outpatient surgical and care centers, and long-term care facilities, such as nursing homes and rehabilitation centers.

For example, consider the case of a patient who is admitted to the hospital to undergo orthopedic surgery, such as a hip or knee replacement. The surgery is successful from an orthopedic standpoint. However, while recovering in the hospital, the patient develops a life-threatening Staph infection. Or, consider the case of a patient who undergoes successful surgery to remove a benign growth from her body, only to develop an infection caused by a contaminated surgical instrument. In both cases, the surgeries were considered a success, but the outcomes were dramatically and negatively impacted by the hospital acquired infections. In its February 22, 2012 broadcast, the Today show on NBC featured a story entitled TODAY Investigates: Dirty surgical instruments a problem in the OR, reporting on other, real-life victims of hospital acquired infections.

Hospital acquired infections are among the leading causes of preventable deaths in the United States.1 HAIs cause more deaths in the U.S. each year than automobile accidents, fires and drownings combined. Such infections lead to extended hospital stays and result in substantially increased medical costs. The U.S. Centers for Disease Control and Prevention (CDC) published a study in 2009 which concluded that the medical costs to the U.S. of hospital acquired infections ranges from $28 billion to $34 billion annually.2 Considering the extraordinary costs of HAIs to the public and the government, one would hope that a greater emphasis would be placed on preventing such infections.

Among the more common pathogens that can cause healthcare-associated infections are:

• Methicillin-resistant Staphylococcus Aureus (MRSA or "Staph"),
• Vancomycin-resistant Enterotoccus (VRE),
• Clostridium difficile (C-diff),
• Escherichia coli (E-coli),
• Acinetobacter species, and
• Enterobacter aerogenes.

The majority of healthcare-associated infections occur in the hospital setting. In 2002, the Chicago Tribune published its report of an undercover investigation entitled "Tribune Investigation: Unhealthy Hospitals."3 The investigation found that for the year 2000, almost three-fourths of life-threatening HAIs were preventable, as they resulted from unsanitary facilities, unsterile instruments and unwashed hands. Placing a greater emphasis on hand-washing, proper skin preparation, and proper sterilization of medical devices have helped reduce hospital acquired infections. Still, new and different infections are manifesting themselves at an alarming rate in hospitals throughout the U.S. The CDC has estimated that approximately 1.7 million hospital-acquired infections cause or contribute to the cause of death in 99,000 patients each year.4

The pathogenic organisms capable of causing infections can survive for prolonged periods on hospital surfaces and medical equipment. The hands and gloves of nurses and other healthcare providers can acquire these pathogens upon contact with contaminated hospital surfaces. They can then transfer these organisms to patients they touch subsequently and to other surfaces in the hospital. Accordingly, there needs to be a greater emphasis on the importance of properly cleaning and disinfecting hospital surfaces and medical equipment. Unfortunately, this important component of infection prevention does not get as much attention as other components, such as hand washing. What good is a sterile operating room environment if one of the instruments to be used during surgery is contaminated?

For many years, healthcare facilities have characterized nosocomial infections as "known risks" or "unavoidable complications" of lifesaving care. Dr. Barry M. Farr, one of the leading infection-control experts in the United States, takes issue with these misleading characterizations of preventable infections. "The number of people needlessly killed by hospital infections is unbelievable, but the public doesn't know anything about it," said Dr. Farr. "For years, we've just been quietly bundling the bodies of patients off to the morgue while infection rates get higher and higher."5 While various efforts are underway to implement and improve infection prevention programs, Georgia hospitals and surgical centers can and must do a better job of preventing healthcare-associated infections.

________________________________________

1. Klevens, RM, Edwards JR, Richards, CL Jr., et al. "Estimating Health Care-Associated Infections in U.S. Hospitals, 2002. Public Health Rep. 2007 Mar-Apr; 122(2):160-6.
2. Scott, R.D. II. The Direct Medical Costs of Healthcare-Associated Infections in U.S. Hospitals and the Benefits of Prevention. U.S. Centers for Disease Control and Prevention. March 2009.
3. Berrens, M. "Tribune Investigation: Unhealthy Hospitals." Chicago Tribune July 21, 2002.
4. Pollack, Andrew. "Rising Threat of Infections Unfazed by Antibiotics." New York Times February 26, 2010.
5. Berrens, M. "Tribune Investigation: Unhealthy Hospitals." Chicago Tribune July 21, 2002.

As our population continues to age, most of us will eventually face the prospect of placing a loved one into institutional care. Traditionally that has meant a nursing home. In the last ten to fifteen years, however, the growth of the assisted living industry has created an alternative to nursing home placement. So which is right for you and your family?

First, I would like to point out that, at least officially, Georgia does not license "assisted living facilities". Georgia law, and the applicable regulations, use the term "personal care home" instead. While the terms are, for all practical purposes, synonymous, I mention the difference so anyone wishing to perform research on this issue will have the most accurate search terms possible.

A nursing home is a skilled nursing facility that is licensed to provide nursing care to its residents. They can administer medications, provide nursing assessments and order interventions to prevent injury. Nursing homes can provide physical, occupational and speech therapy. They can care for residents with feeding tubes and they can provide wound care. None of these services can be provided by an assisted living facility.

Nursing homes receive payments from both Medicare and Medicaid and are, therefore, heavily regulated at both the federal and state level. Nursing homes provide a higher level of care than assisted living facilities. Federal regulations mandate minimum nursing hours in nursing homes, which means the residents receive more hands on care.

Assisted living facilities, on the other hand, receive payment either from long term care insurance or private pay. A handful of states do allow Medicaid reimbursement for assisted living in certain situations. That is the exception and not the rule. There are no rules or regulations for assisted living at the federal level. Most states do regulate assisted living facilities in one way or another. Some states provide comprehensive regulations. Others, like Georgia, provide regulations that typically create more questions than they answer. To confuse the matter further, assisted living facilities typically offer several different levels of care. In contrast to nursing homes, assisted living facilities cannot provide "nursing care".

The big advantage to assisted living is that it provides residents with far greater independence. The importance of preserving the resident's dignity cannot be overstated. For the most part, residents of assisted living facilities continue to live life on their terms. If needed, the assisted living facility can remind the resident to take their medications, prepare and serve meals, provide assistance with activities of daily living (dressing, bathing,etc.) and provide "watchful oversight".

What does all of this mean? In short, the sicker the resident, the more likely they need the skilled nursing care, which only a nursing home can provide. This is especially true when dealing with residents who have dementia or Alzheimer's disease. While assisted living facilities can admit and care for residents with either disease, the further the disease progresses, the more likely it is that the assisted living facility cannot meet the residents needs. Assisted living facilities have significantly less staff than nursing homes. High nurse to resident staffing is perhaps the single most important factor in providing exceptional memory care.

Residents with memory impairment simply need more direct care. Memory patients tend to wander and higher staffing levels are required to provide adequate supervision. They also require more assistance with activities of daily living. Patients with memory deficits often forget to eat. Repeated prompting by the staff is typically required to ensure adequate nutrition. Assisted living facilities simply do not have sufficient staff to provide the hands on care more advanced memory patients need.

Also, a major factor in determining whether a resident is appropriate for assisted living is whether the resident can ambulate. No matter what anyone at an assisted living facility tells you, bed bound residents are simply not appropriate for assisted living. As experienced elder care attorneys, we've seen assisted living facilities try to retain bed bound residents by having a home health agency come in and provide nursing care. Residents who are bed bound require 24 hour nursing care and are not appropriate for assisted living. A home health agency will not see the resident for more than an hour a day. For the remaining 23 hours, the resident's care falls directly on the shoulders of the assisted living staff. They simply do not have adequate staffing or training to take care of this type of resident.

Moreover, bed bound residents are usually at high risk for developing bed sores. Nursing homes typically have better access to pressure relieving devices which are designed to prevent bed sores. Medicare will pay for many of these devices and assisted living facilities cannot bill Medicare directly, so the resident is more likely to receive necessary pressure relieving devices in a nursing home.

In making the decision between an assisted living facility and a nursing home, the primary consideration is the physical status of the resident. To this end, Georgia law requires a physician's certification that the resident's needs can be met by the assisted living facility. The problem we've discovered is that many physicians are not sufficiently familiar with the personal care home regulations to make that determination. To ensure the physician is sufficiently familiar with the admission regulations, I'd suggest printing a copy of the regulations relating to admission and meeting with the physician prior to admission.

If the resident doesn't meet the requirements for admission to an assisted living facility, you will face the daunting task of finding a nursing home. The most important piece of advice I can offer is to personally visit each and every nursing home under consideration. While performing research on the web is important, there is no substitute for seeing the facility first hand. We've also found that locally owned nursing homes provide better care than national chains. Other tips for choosing a nursing home can be found at our Nursing Home Resource Center. Finally, you can compare the quality of care provided at any nursing home by visiting Nursing Home Compare.

One final point: if you're loved one is admitted to assisted living, the family must remain vigilant. The resident will continue to age and any chronic process will continue to progress. At some point, the resident's condition will reach a point where assisted living can no longer meet the resident's needs. While the assisted living facility is required to transfer residents who are not appropriate, the truth is they have a very real conflict of interest. The facility is receiving a large amount of money from the resident or the resident's family. While you would like to trust the facility to "do the right thing", it's difficult for the people making the decision to be 100% objective, particularly when they stand to suffer financially. Some facilities even offer cash bonuses to their administrators based on the number of residents in the facility! The end result is that the resident's family must remain proactive in making sure the resident is appropriate for assisted living.

Choosing between assisted living and skilled nursing care can be overwhelming. However, the resources provided in this article should help you make an informed decision. If you have any questions regarding the process, please feel free to contact us.
Additional Resource(s):

The Younger Lawyers Division of the State Bar of Georgia has prepared a pamphlet to assist in selecting a personal care home. It can be downloaded here.State Bar of Georgia - Personal Care Homes

You can view detailed information on all personal care homes, including inspection reports, in Georgia at this site, which is maintained by the State of Georgia.

A Georgia judge struck a trucking company's defense in a lawsuit after it was discovered that the trucking company had destroyed evidence. In the case captioned Alegria v. Howard and AAA Cooper Transportation, Inc., pending in the Superior Court of DeKalb County, Georgia, Judge Courtney L. Johnson ruled that AAA Cooper Transportation had denied the existence of evidence from a so-called black box recording device on one of its tractor trailers that was involved in a wreck, and that the company destroyed the recording device. Among other things, black box recording devices can show whether a truck driver was speeding when a crash occurred and whether the truck had problems with braking.

The legal term for the destruction of evidence is "spoliation." It constitutes an obstruction of justice. The issue of spoliation comes up often in cases involving collisions with tractor trailers or trains. Typically, experienced trucking accident attorneys will send what is known as a spoliation letter to the company that owns or has control over the tractor trailer or train involved in a collision, instructing them to preserve evidence that is crucial to the case. Such evidence includes data or printouts from on-board recording devices and the recording devices themselves. In the lawsuit in question, Mr. Alegria's attorneys had sent a spoliation letter to the trucking company's risk manager thirteen days after the wreck. Judge Johnson ruled that the trucking company destroyed the black box recording device despite having received the spoliation letter.

The lawsuit arose when one of AAA Cooper Transportation's tractor trailers collided with a pick-up truck that had spun out on a rain soaked road and was sitting in the middle of the highway. The driver of the pick-up alleged that he saw the tractor trailer coming, but could not get his door open in time to exit the pick-up truck. He rolled down his window and waived his arms frantically at the driver of the tractor trailer before the tractor trailer crashed into the driver side of his pick-up truck. As a result of the collision, the driver of the pickup truck, Mr. Alegria, suffered an amputation of his leg and a separated shoulder. Mr. Alegria then sued the trucking company, alleging that its driver was negligent in driving too fast for the existing conditions and in failing to avoid the collision.

After investigation, it was determined that AAA Cooper Transportation began repairs to its tractor within days of the collision when it anticipated or should have anticipated that litigation would require that the truck's condition be preserved. The trucking company claimed that its truck did not have a black box. Mr. Alegria's lawyers disputed the claim by presenting the testimony of an expert witness, who had done accident reconstruction work for AAA Cooper Transportation previously. That expert witness testified that the type of truck involved in the collision had monitoring equipment, such as a black box recording device, and that it was the trucking company's practice to routinely download information from that device.

There was also an issue in the case regarding the existence of the tractor trailer driver's logs, which are records showing how many hours the driver has been on duty and driven during a particular time period. Initially, the trucking company took the position that its driver's logs had been destroyed. The company then changed its response, stating that the logs had been "inadvertently destroyed." Subsequently, the trucking company produced the driver's logs, stating that they had been "misplaced" but subsequently discovered. In view of the trucking company's multiple, contradictory responses, the judge determined that the trucking company and its responses lacked credibility.

When disputes arise over evidentiary issues in a lawsuit, such as the alleged destruction of evidence, the trial court has the discretion to punish the offending party or wrongdoer. The sanctions or punishment can range from ordering the wrongdoer to pay the other side's attorney's fees and court costs related to bringing the matter before the court to the most severe penalty, striking the wrongdoer's answer in the lawsuit. In support of her decision to issue the most severe penalty against the trucking company, Judge Johnson wrote, "The court does not believe that a company of such substantial size and means, in tandem with its learned counsel, could inadvertently make so many mistakes." Judge Johnson concluded that the trucking company destroyed evidence "to gain advantage over the plaintiff and prevent the plaintiff from procuring potentially damaging evidence regarding the issue of negligence." With its answer stricken, the trucking company is deemed at fault, and the only issue at trial will be the amount of damages to be awarded to Mr. Alegria. The trucking company stated that it intends to appeal the judge's decision.

Manufactured by Takeda Pharmaceutical Company Limited and co-marketed in the United States by Eli Lilly and Company, Actos is a medication that is prescribed with diet changes and exercise to help regulate blood sugars for patients suffering from Type II diabetes. Prescribed in a daily 15 mg, 30 mg or 45 mg dose, Actos helps the body to be more efficient in its production, breakdown and absorption of blood sugars. When a person has too much blood sugar, the blood may become toxic to the organs, which are unable to use the sugar as fuel. Actos helps the muscles use insulin to absorb the needed sugar and keeps the liver from overproducing sugar. The Food and Drug Administration (FDA) has issued a warning, however, that "use of the diabetes medication Actos (pioglitazone) for more than one year may be associated with an increased risk of bladder cancer." The FDA also stated that the Actos label and patient Medication Guide must be changed to reflect the potential risk of bladder cancer. This announcement in the U.S. followed a more aggressive approach taken in France and Germany, which have both suspended sales and prescriptions of Actos.

The bladder is located in the center of the lower area of your belly, and is the part of your body that holds and releases urine. Symptoms of bladder cancer can include abdominal pain, painful urination, blood in the urine, urinary frequency, incontinence, fatigue and weight loss. Because there are many other conditions and diseases that can cause similar symptoms, it is important to see a doctor in order to rule out other possible causes. After performing a physical examination, your doctor may order diagnostic tests, such as an abdominal CT scan and a cystoscopy, which is a way to examine the inside of the bladder with a camera. Depending upon what is observed, a bladder biopsy may also be performed during the cystoscopy procedure. Additional diagnostic tests may include a urinalysis and a pelvic CT scan. If these tests confirm that you have bladder cancer, additional tests will then be done to determine whether the cancer has metastasized or spread. These tests are done to stage the cancer, as staging determines future treatment.

Bladder cancer is often treated with what is known as immunotherapy. A vaccine, known as Bacille Calmette-Guerin (commonly known as BCG) is generally used during immunotherapy for bladder cancer. It is administered through a Foley catheter directly into the bladder in an effort to trigger your immune system to attack and kill the cancerous cells. Treatment may also include surgery to remove the cancerous tumor, surgery to remove part of the bladder, or surgery to remove the entire bladder. Chemotherapy is also part of the treatment, sometimes in conjunction with radiation. Painful and unpleasant side effects can accompany all of these treatments. Like many forms of cancer, how well a patient does depends on the initial stage of the cancer and the patient's response to treatment.

In addition to the association between Actos and bladder cancer, other exposures can increase your risk of developing bladder cancer. Cigarette smoking, chemical exposures at work, especially among dye workers, rubber workers and leather workers, have all been associated with an increased risk of developing bladder cancer. Ironically and unfortunately, chemotherapy and radiation may increase one's risk of developing bladder cancer.

The recalled drug attorneys at Suthers & Thompson are currently reviewing potential cases involving individuals who were diagnosed with bladder cancer after more than one year of use of Actos.

As reported by the Idaho Press Tribune, eighteen year old Taylor Sauer was killed on January 14, 2012 when she rear ended a slow moving semi-trailer. Just minutes before the collision, she posted on her Facebook page "I can't discuss this matter now. Driving and facebooking is not safe!" Idaho State Police recovered Taylor's phone and are trying to determine whether Taylor was distracted by the phone at the time of her accident.

As we discussed in our blog on December 28, 2011, "distracted driving" is a leading cause of automobile accidents, particularly in younger drivers. According to the Idaho Press, Ms. Sauer's automobile did not leave any skid marks. This would likely indicate she never saw the truck. While it has not been officially determined that Ms. Sauer was distracted by her phone, all indications are this was an accident that could have been avoided.

According to her uncle, Brad Warr, this was not the first time she had been involved with distracted driving. A news story on www.ksl.com quotes Mr. Warr as saying "Taylor had done that in the past and we know, as a family, that probably or may have contributed to the accident."

Uninsured Motorist coverage is probably the most misunderstood coverage available when it comes to automobile insurance policies. However, it is one of the more important types of coverage that you should carry. Uninsured Motorist (UM) or Underinsured Motorist (UIM) coverage protects you from financial losses caused by another person who either does not have automobile liability insurance or does not have enough insurance to cover your injuries and losses. UM or UIM coverage can pay for injuries to you and passengers in your automobile caused by an at-fault driver who is considered uninsured or underinsured. A hit-and-run driver is also considered uninsured when that driver causes personal injury to you.

You might assume that because most states require that drivers carry minimum limits of liability insurance coverage, most drivers have it. Think again. In a recent study by the Insurance Research Council (IRC) entitled "Uninsured Motorist, 2011 Edition," the IRC estimated that roughly 1 out of 7 drivers are uninsured despite laws requiring drivers to maintain liability insurance. The magnitude of uninsured drivers varies from state to state. In 2009, the State of Mississippi had the highest percentage of uninsured drivers, with an estimated 28% of its motorists carrying no liability insurance. The States of Maine and Massachusetts had the lowest percentage of uninsured motorists at 4%. The State of Georgia had an estimated 16% of uninsured motorists in 2009, and the State of South Carolina had an estimated 11%. As experienced Georgia auto accident attorneys, we have personally observed the consequences of motor vehicle accidents involving uninsured or underinsured drivers.

Consider the consequences of being injured in an automobile accident in which the at-fault driver has no insurance. As a result of your injuries, you incur substantial medical bills and you are unable to work for a long period. The at-fault driver has no liability insurance coverage against which you can make a claim. You would still have the option to sue the negligent driver for damages. However, if the at-fault driver does not have insurance, what are the chances of that driver having any money or assets from which you could recover in a lawsuit? It is an unfortunate fact of life that during tough economic times, many drivers do not have insurance or do not have enough insurance. However, if you carry UM and UIM coverage, you can recover money for your injuries and damages even if the at-fault driver cannot pay.

The purpose of UM or UIM coverage is to place the injured insured (you) in the same position as if the uninsured driver had liability insurance coverage. Stated differently, your insurance company "stands in the shoes" of the at-fault, uninsured driver up to the amount of UM or UIM coverage that you carry on your automobile insurance policy. Your UM or UIM coverage could pay your medical bills, lost wages, and compensate you for your pain and suffering. Even if you have health insurance coverage that would pay your medical bills, your health insurance coverage will not pay you for your lost wages or your pain and suffering. Additionally, UM and UIM coverage apply to you and any passengers in your car, and to you and other family members listed on your insurance policy when riding in cars owned by others.

"Underinsured Motorist" or UIM coverage applies when the at-fault driver does have liability insurance coverage but the amount of coverage is inadequate to make you whole. Consider the following example: You are injured in an automobile accident in which the other driver is legally responsible. You sustain multiple injuries for which you are hospitalized and you receive prolonged medical treatment. Because of your injuries, you are held out of work for 4 weeks. Your hospital and doctors' bills total $50,000 and you lost $10,000 in wages while you were unable to work. Thus, you have $60,000 in out-of-pocket losses, plus pain and suffering and/or permanent impairment. Unfortunately, the at-fault driver had only $25,000 in liability insurance coverage. If you do not have Underinsured Motorist coverage, you are out of luck, as your recovery will most likely be limited to the $25,000 of insurance coverage maintained by the at-fault driver. As noted above, the individual who maintains only minimum liability coverage is not likely to have money or assets from which you could recover.

Now, consider the above example with one, noteworthy change. In addition to the liability coverage that you carry on your automobiles, you also carry $100,000 in Underinsured Motorist coverage. You could recover the sum of $25,000 in coverage from the at-fault driver's insurance company and you could potentially recover up to $100,000 by making a claim against your own insurance company under your UIM coverage. A word of caution, however. Even if you have UM or UIM coverage, you should consult with an experienced car accident lawyer before you settle with the at-fault driver's insurance company. If you try to settle with the at-fault driver's insurance company by yourself and in doing so, sign a general release of all claims, you will not be able to file a UIM claim with your insurance company. In Georgia, there is a very specific form, known as a "limited release," which should be used when settling with an underinsured motorist in order to preserve your right to file a UIM claim against your own insurance company. A properly drafted limited release would enable you to release the insured tort-feasor (the at-fault driver) from all personal liability arising from the accident except to the extent other insurance coverage, such as your UIM coverage, is available.

The statistics are shocking. A recent study from the Virginia Tech Transportation Institute found that a person texting while driving was 23.2 times more likely to be involved in a crash or near crash event. According to the National Highway Traffic Safety Administration (NHTSA), 448,000 people were injured in motor vehicle crashes involving distracted driving. An additional 5,474 people were killed due to distracted driving. One recent study found that driving "impairments associated with using a cell phone while driving can be as profound as those associated with driving with a blood alcohol level of 0.08%", which just happens to be the legal limit in Georgia.

The continued rise in accidents related to drivers using handheld electronic devices recently prompted the National Transportation Safety Board (NTSB) to recommend a nationwide ban on the use of all portable electronic devices (PEDs) while driving. While the NTSB does not have the power to enforce regulations, their recommendation is certainly influential. Currently, nine states ban all handheld mobile phone use. Even in states that ban the handheld use of mobile phones, drivers are allowed to use hands-free technology to make calls. This includes wired headsets, bluetooth headsets and bluetooth speakers.

In Georgia, drivers under 18 cannot use a cell phone for any purpose while operating a vehicle. Moreover, Georgia has banned all drivers from texting while they are behind the wheel. This ban also includes using a portable electronic device to access the internet. All of the laws relating to cells phones in Georgia are primary, which means you can be stopped and ticketed for the violation, even without committing any other violation. Adults can still use both handheld and hands-free mobile phones to make voice calls. Despite the recent legislation by Georgia and many other states, accidents caused by portable electronic devices are on the rise.

So what's the answer? Will a nationwide ban on texting while driving make our roads more safe?

Like the NTSB, we don't have the power to make anyone do anything, but we've seen too many collisions caused by driver distraction to not at least try. We recommend leaving your cell phone off when you're driving. If what you have to say is really that important, at least use a hands-free alternative (unless you're under 18). One very good option is the FMV (For My Vehicle) On Star Mirror. The mirror allows you to pair your mobile phone to the bluetooth speaker in the mirror. You can make and receive calls using voice commands, which means your hands are on the wheel and your eyes are on the road. The mirror also provides turn by turn directions, alerts authorities in case you're in an accident and can't call 911 and allows police to track your vehicle in case it's stolen.

Like everything else "there's an app for that". Atlanta based "Mobile Tattletale Applications" offers an app that aims to prevent texting while driving and speeding. It's called "Mobile Tattletale" and is available for most major mobile operating systems. It uses the phone's built in GPS to disable the texting and e-mail apps while the phone is moving above a predefined speed. The app can also be programmed to notify the parent if the car exceeds a certain speed or if the user tries to disable the functionality of the app. While it is designed for teenagers, it can certainly be used by anyone.

As attorneys who represent victims involved in catastrophic automobile collisions, we've seen far too many people seriously injured as a result of cell phone use. Anytime someone suffers a significant injury in an automobile collision, it's a tragedy. Yet it's particularly sad when the injury is caused so needlessly. While the above recommendations might help prevent texting related collisions, the only way stop them completely is to put down the phone!

Fatigue and lack of sleep while driving an 18 wheel tractor-trailer rig can cause accidents and deaths on the highways. Under the existing rules that govern trucking companies, these companies can compel their drivers to drive up to 11 hours in a 21 hour time period. Drivers are allowed to drive up to 88 hours in an 8 day period. Whereas most people work a 40 hour week, current rules governing truck drivers allow them to cram more than 2 weeks of work (driving) in slightly over 1 week. This inevitably results in truck drivers driving for very long periods without adequate time off to rest. That, in turn, can lead to fatigue and other symptoms caused by sleep deprivation. 65% of truck drivers have reported feeling tired or drowsy while driving. Astonishingly, 48% of truck drivers have reported that they have fallen asleep while operating an 18 wheeler. The legal weight for an 18 wheeler is 80,000 (40 tons). By comparison, the average weight of an automobile is slightly over 5,000 pounds. One can imagine the devastation that can result when an 18 wheeler weighing 80,000 pounds and being driven by a sleepy driver collides with an automobile weighing 5,000 pounds.

Recently, the Federal Motor Carrier Safety Administration has proposed changing the rules by reducing the number of hours that truck drivers are allowed by law to drive in 1 day, the so-called Hours of Service rules. The agency is recommending that maximum driving time be reduced from 11 hours to 10 hours a day. Other recommendations involve giving drivers a 1 hour break during each day by limiting their actual duty time from 14 to 13 hours. Drivers are already required to get 8 hours rest each day. Opponents of the proposed rule changes argue that the new rules will further complicate the trucking industry and add additional regulatory costs to an already overburdened U.S. Government. Proponents of the proposed rule changes argue that they will improve safety for all drivers on our highways.

As Georgia truck accident lawyers who have represented injured victims of tractor-trailer/automobile collisions and their family members, we encourage Congress to do everything possible to stop trucking companies from forcing drivers to drive extremely long hours with few breaks. Instead, these companies should encourage drivers to obtain adequate rest and sleep so that their drivers will be alert and in control while operating tractor-trailer rigs on our highways.

The decision to place a loved one in a nursing home is a gut-wrenching, emotionally draining experience. Most likely, the decision has been forced on you by an unexpected serious illness or major injury. Unfortunately, the decision must usually be made in a matter of hours, not days. You are placing the fate of a loved one in the hands of a facility, you likely know very little about. To make matters worse, the process is often accompanied by regret and guilt. To alleviate the guilt, many people need to trust in the nursing home. Most nursing homes understand this and they emphasize their trustworthiness during the admission process and through their marketing.

During the admission process, the nursing home hits you with countless forms. More than one client has told me they feel it is easier to buy a house than to place someone in a nursing home. Given the emotions involved and the strong desire to trust the facility, it's no surprise most people will sign anything the nursing home puts in front of them without even reading it. The nursing home knows this and takes advantage of this trust.

Most nursing homes include an arbitration agreements as part of the admission process. Having placed their trust in the nursing home, the vast majority of people will sign the arbitration agreement without a second thought. Before your loved one is even through the front door, the nursing home has already violated your trust!

What is an arbitration agreement? Arbitration is a process where the parties to a dispute give up their constitutional right to a jury trial and agree to have the dispute settled by an arbitrator. If used appropriately in the right type of case, arbitration can be an effective method for resolving claims. Arbitration has traditionally been used to settle disputes between large companies or businesses. On the other hand, arbitration is simply not appropriate for cases involving serious personal injury or death.

The state of Georgia understands this and has passed a law prohibiting arbitration in nursing home cases unless the agreement to arbitrate is signed after the resident is injured and the person signing the agreement had a chance to obtain legal advice. The federal government, however, has substituted it's judgment in place of Georgia's and overruled Georgia by passing the Federal Arbitration Act ("FAA"), which pre-empts Georgia's law and allows arbitration in nursing home cases, even when the arbitration agreement is signed before the dispute arises!

It shouldn't surprise anyone to learn that the arbitration agreements forced on grieving families during the admission process heavily favors the nursing homes. As an initial matter, the arbitrator is typically selected by the nursing home. Usually, the arbitrator belongs to a group that has a long standing relationship with the nursing home industry. Moreover, the arbitration agreement often places substantial financial hurdles to pursue the claim. One agreement we encountered recently required a filing fee of over $5,000.00 before arbitration could be pursued. Fees like this are intended to prevent people from pursuing any claims against the nursing home. It's also not unusual to find agreements that place substantial limits on what an injured party can recover. For example, one recent arbitration agreement we reviewed placed a limit on the amount of money the arbitrator (who they selected) could award as compensation for any injury caused by the nursing home. Perhaps most importantly, arbitration severely limits the parties rights to conduct discovery. Discovery is the process where parties to litigation exchange information regarding the merits of the case. This also includes the right to take sworn testimony, called a deposition, from nursing home employees. By limiting the right to conduct discovery, arbitration effectively prevents an aggrieved family from learning what really happened to their loved one.

While the arbitration agreements are unfair on their face, the nursing homes aren't afraid to use unfair tactics to make sure the agreements are signed. First and foremost, nursing homes often tell families during the admission process that the agreements must be signed before they can admit the resident. According to Federal law, this is an outright lie. If the nursing home receives any money from Medicare (which virtually all nursing homes do), the facility cannot require an arbitration agreement be signed prior to admission. Nursing homes also tend to hide the arbitration agreement in the mountain of paperwork they require prior to admission. Usually, the agreement is signed without discussion. We have only had one case where the arbitration agreement was discussed before it was signed. In that case, our client asked the nursing home to explain the arbitration agreement to him. The nursing home told him "the arbitration agreement gives your mother protection in the unlikely event something were to happen to her while she is here". The statement by the nursing home was misleading at best.

Why does the nursing home care if an arbitration agreement is signed? It's simple, arbitration agreements help nursing homes avoid responsibility for their conduct. Without the threat of being sued over poor care, nursing homes lose one of their primary incentives for providing the best care possible. While most people would like to believe nursing homes are always going to do their absolute best, history has taught us otherwise. As large nursing home chains have purchased most of the locally owned nursing homes, the nursing home industry has focused less on patient care and more on profit. As a result, nursing home care has declined dramatically. As nursing home care continues to deteriorate, injured patients have attempted to hold the homes accountable the only way they can, by filing lawsuits. Instead of fixing the problem, poor care, the nursing home industry is attempting to take away the only way injured residents can stand up for themselves.

While some U.S. Congressmen are attempting to fix the problem of arbitration agreements in nursing homes by passing the "Arbitration Fairness Act", we are not confident this much needed law will pass anytime soon. The bottom line is that when you are faced with placing a loved one in a nursing home, you must read the admission agreement closely. As experienced nursing home attorneys, no matter what the nursing home tells you, you should NOT sign any document requiring you to waive your constitutionally protected right to a jury trial.

additional resources:

1. Arbitration At Wikipedia
2. Nursing Home Arbitration Horror Stories

Because of our experience in representing victims of abuse and neglect in Georgia and South Carolina nursing homes, we are often asked which facilities provide better care. Our response has been that locally owned and operated nursing homes seem to provide better care for their residents. Our opinion has been based primarily upon the fact that we receive fewer calls from families complaining about locally owned and operated nursing homes than we receive from families complaining about facilities which are owned and operated by large corporations. Our opinion about the difference in quality of care can be traced back to the late 1990s. Beginning around 1998, there was a movement by corporations to purchase locally owned and operated nursing homes (so-called "mom and pop facilities") in an effort to increase corporate profits. This resulted in the formation of several large nursing home chains that owned and operated approximately two thousand nursing homes across the United States. Around the same time, Congress reduced the level of benefits paid to nursing homes for some services, which cut into corporate profits. Rather than cutting back on administrative expenses and corporate perks, these large nursing home chains began to cut staff in an effort to boost profits. Consequently, we observed a corresponding decrease in the quality of care being rendered to nursing home residents.

Until recently, there were no significant studies to substantiate our opinion that locally owned and operating nursing homes provided better care than that provided by larger corporate chains. Now, an important study by the University of California San Francisco (UCSF) has confirmed what we observed and suspected all along. The largest for-profit chains provide worse care in their nursing homes than that which is provided by non-profit and government-owned nursing homes. The fact that reduced staffing was cited by the study as the reason for the decreased quality of care came as no surprise to those of us who have been fighting nursing homes on behalf of victims of abuse and neglect. According to the author of the report, Charlene Harrington, a Professor at the UCSF School of Nursing, the ten largest nursing home chains strategically attempt to boost profits by reducing labor costs (i.e. staffing).

There are Federal and State regulations which govern the provision of services in nursing homes. When facilities fail to follow these regulations, they are cited for deficiencies. The UCSF study found that the largest nursing home chains received citations for up to 41% more deficiencies than the best non-profit and government-owned facilities. The cited deficiencies included failure to prevent pressure sores, falls, weight loss, infections, and other conditions that can result in serious harm to nursing home residents. Regrettably, until these large nursing home chains stop putting profits ahead of people, the lower quality of care will likely continue.

Resources:

Harrington, C., "Low Staffing and Poor Quality of Care at Nation's For-Profit Nursing Homes." UCSF Today, November 29, 2011.