Category: Wrongful Death

Wrongful Death

Children’s Medicaid Reimbursement

As personal injury lawyers, our primary duty to our clients is to maximize each client’s net recovery. So, while it’s great to get a significant settlement on behalf of a child, such a settlement is much smaller when a large portion must be repaid to a health insurance company or Medicaid. At Gomez & Golomb, we work hard dealing with and extinguishing any Children’s Medicaid Reimbursement claims not allowed under Georgia law.

An example is when a minor is injured. PeachCare/Medicaid often pays the medical bills and claims a lien against future settlements in these situations. After careful review, we interpret Georgia and federal law to hold that PeachCare has no right to reimbursement for any settlement with a minor. We, therefore, fight these reimbursement claims tooth and nail.

In Georgia, an injured child only has a claim for pain and suffering. Southern Guaranty Ins. Co. v. Sinclair, 228 Ga. App. 386 (1997) discusses this concept. In that case, the Court held that a minor has no claim for medical expenses because that obligation rests with the child’s parents. This reasoning makes sense because until a minor child reaches the age of 18, they cannot be bound under contract. Therefore, in a Children’s Medicaid Reimbursement situation, a child cannot be liable for medical expenses nor claim reimbursement of medical expenses.

The United States Supreme Court held that Medicaid/PeachCare can only reach settlement monies paid to reimburse medical bills following an injury. Thus, PeachCare/Medicaid can claim a lien against that part of an injured person’s recovery only for money received for medical expenses. Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268; 126 S. Ct. 1752 (2006).

Reading Sinclair and Ahlborn together, Medicaid/PeachCare cannot claim a lien against a minor child’s settlement proceeds. To shield a settlement from Peachcare/Medicaid, we structure the settlement between the wrongdoing party and the minor child. The settlement clarifies it only covers pain and suffering.

If you have a question about these issues, please call Gomez & Golomb LLC at 404-382-9994. 

Valuing the Wrongful Death of a Child?

The death of a child is considered the single worst trauma a person can go through. The stress is so great that loved ones often suffer broken-heart syndrome, which presents like a heart attack. The wrongful death of a child makes coping (and healing) that much more unimaginable.

Gomez & Golomb counsels grieving families concerning their legal rights regarding wrongful death claims. We are compassionate, honest, and genuinely care about our clients’ well-being. We are not just here to get paid, but want to make a positive difference in people’s lives.

This post addresses how the Georgia court system values the wrongful death of a child. Of course, this is not something the family wants to think about. But, in the years that follow the child’s death, recovering enough money to help the family makes ends meet is essential.

In Georgia, the person or entity who caused the child’s death must compensate the deceased child’s family for “the full value of the life.” OCGA § 51-4-2(a). Importantly, the “full value of the life” is determined from the perspective of the child who died. Placing a monetary value on such pain, suffering, and loss is difficult, but Georgia has guidelines to help a jury assign a monetary value.  

The family is entitled to recover the full value of the deceased child without deducting for any of the deceased’s personal expenses had she lived. OCGA §§ 51-4-1(1), 51-4-4, 19-7-1(c). “[U]nder Georgia’s wrongful death statute, damages are measured from the decedent’s point of view.” Brock v. Wedincamp, 253 Ga. App. 275, 280 (2002).

The full value of a wrongful death of a child is comprised of two categories of damages:

(1) those items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value, and

(2) lost intangible items whose value cannot be precisely quantified, such as a parent’s society, advice, example and counsel as determined by the enlightened conscience of the jury.

Concerning the wrongful death of a child, the value of a child’s life is established by the enlightened conscience of an impartial jury as applied to the evidence in the case. This includes testimony as to such child’s age, life expectancy, precocity, health, mental and physical development, family circumstances, and from the experience and knowledge of human affairs on the part of the jury. Dep’t of Human Res. v. Johnson, 264 Ga. App. 730, 738 (2003).

We are here to help with any questions regarding the wrongful death of a child. Please call us at 404-382-9994.

Wrongful Death in Georgia – Who Makes the Claim

If your loved one has recently passed, we offer our sincere condolences. Losing a loved one is tragic, but at some point, the living must go on living. This means educating yourself regarding your family’s legal rights in order to make a full recovery on behalf of your loved one.

If your loved one’s death was caused by the negligence of another, who is entitled to make a claim? A claim may include include funeral expenses, medical expenses, pain and suffering before your loved one’s death, and the value of your loved one’s life that has been cut short?

To understand who can make a claim, we must first understand that Georgia law allows two different claims following a wrongful death: one is just referred to as a “wrongful death claim”, and the other is referred to as an “estate claim” or “survival claim”. The same person can bring both claims, but this isn’t necessarily the case.

Wrongful Death Claim

Under Georgia law, this claim belongs to the loved one’s spouse and children. See OCGA § 51-4-2. If the loved one had no spouse or children during their life, the loved one’s parents are entitled to make the claim. See OCGA § 19-7-1. Finally, if no spouse, children, or parents are alive, the court can appoint an administrator or executor to make the claim. See OCGA § 51-4-5. Relatives such as a sibling, uncle, aunt, or grandparent have no right to prosecute the wrongful death case.

We will discuss this in further detail in another blog. However, generally, a wrongful death claim includes recovery for the value of your loved one’s life had he or she not died prematurely.

Estate/Survival Claim

The administrator of your loved one’s estate is the party entitled to make claims for funeral, medical, and other necessary expenses and any claim for pain and suffering before death. OCGA § 51-4-5.

If you have any questions about who can make a wrongful death claim on behalf of your loved one, please call us. We have provided a very general overview, but many details and complications come up when applying these rules in real life.

Georgia Crime Victims Assistance

If you are a crime victim, in addition to suing the person who committed the crime, Georgia offers up to $25,000 in crime victim assistance. This compensation program covers such things as medical bills, funeral expenses, mental health counseling, and loss of income or support. This is a significant program. For example, in 2018, Georgia awarded almost $20 million to 14,246 crime victims in Georgia’s 159 counties.

The Georgia legislature explained the basis for program:

. . . many innocent persons suffer personal physical injury, serious mental or emotional trauma, severe financial hardship, or death as a result of criminal acts or attempted criminal acts. The General Assembly finds and determines that there is a need for assistance for such victims of crimes. Accordingly, it is the General Assembly’s intent that under certain circumstances, aid, care, and assistance be provided by the state for such victims of crimes. O.C.G.A. § 17-15-1.

To get compensation, you must file an application with the Georgia Crime Victims Compensation Program. To qualify, you must be physically injured or witness a violent crime OR suffer serious mental trauma as a result of being threatened or present during a violent crime OR trying to help a crime victim OR you are a parent of someone killed or injured as a result of violent crime OR depended on someone for financial support who was killed during a violent crime OR having been paying bills related to the crime.

The most common crimes eligible for compensation are child molestation, rape, domestic violence, homicide, hit-and-run, serious injury by vehicle, DUI crashes, assault/battery, and robbery.

Please be aware that you must meet some initial guidelines: you must have reported the crime within 72 hours and must file an applications with the Georgia Crime Victims Compensation Program within three years of the crime. These are the general rules but there are exceptions for minors and unusual circumstances.

If you qualify, you will be entitled to recover to $25,000 per victim per incident. The $25,000 includes medical expenses up to $15,000, funeral expenses up to $6,000, counseling expenses up to $3,000, lost wages expenses up to $10,000, and loss of support expenses up to $10,000.

If you are the victim of a crime, please contact Gomez & Golomb 404-382-9994. We offer a free consultation to review and explain your options to get compensated for your injuries.

Medical Malpractice Affidavits: Causation

A recent appellate case provides a cautionary tale for persons making a claim for injuries due to medical malpractice. Edokpolor v. Grady (A16A1031, decided 9/14/2018) is a recent medical malpractice case that was thrown out of court because the injured party’s expert affidavit was deficient.

In Georgia, negligence claims against professionals such as doctors, lawyers, and engineers require  an expert affidavit verifying the wrongdoing. This affidavit is a mandatory requirement in all malpractice claims in Georgia.

For example, in a malpractice claim against a doctor, the affidavit must be from another doctor who practices the same type of medicine and the affidavit must state that culpable doctor’s treatment of the injured patient fell below the standard of care for similar doctors; importantly, the affidavit must also explain how the alleged negligence caused the injury to the patient.

In Edikpolor, the patient reported to Grady Memorial Hospital with cardiac disease and other issues. After spending 30 days in the hospital, the doctors determined the patient needed a colonoscopy. To prepare for the examination, the doctors ordered that bowel preparation medicine be administered to the patient via a feeding tube. Contrary to these instructions, the nurses administered the medication by mouth. The patient allegedly choked on the medication, which caused fluid to enter her lungs, and she died several weeks later as a result.

The patient’s family sued the hospital, which included a malpractice affidavit from another doctor. The affidavit stated that the nurses were negligent in not following the doctor’s order to use a feeding tube, and that the negligence was the cause of the patient’s death.

The problem in this case is that the affidavit was ruled inadequate because it didn’t explain how and why feeding fluid by mouth is more risky than feeding through a tube. On the other hand, the hospital introduced a contradictory expert affidavit, which stated that choking could occur whether taken by mouth or feeding tube because  what happens is the liquid ends up in the stomach and is then regurgitated into the throat; it is at this point when the liquid is inhaled into the lungs. In other words, administering the fluid by mouth was not necessarily the cause of the injuries.

This case shows that “[a] plaintiff must show that the purported violation or deviation [by the medical professional] is the proximate cause of the injuries sustained. He must prove that the injuries complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. There can be no recovery where there is no showing to any reasonable degree of medical certainty that the injuries could have been avoided.”

It’s easy to be critical after the fact, but the case underscores that not only must you show negligence, but you must be able to show with relative certainty that the negligence caused the injuries.