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Georgia Aviation Law

Posted By Joette Melendez, Tuesday, February 11, 2020

 

Those afraid of flying are often comforted by the knowledge that air travel is statistically much safer than traveling by car. While there is some truth to this statement, when aviation accidents do happen, the results are often far more devastating to the passengers aboard. People involved in plane crashes are far likelier to suffer from fatal injuries compared to victims of car accidents.

 

If you have been injured in an aviation accident, you face a variety of overwhelming obstacles. Physical injuries, medical expenses, loss of a loved one, and lost wages can all add to the devastation of the initial accident. After a plane crash, contact a lawyer right away. You may be able to pursue a claim for financial compensation and hold the parties that caused your injuries legally responsible for their negligence.

 

Common Causes of Aviation Accidents 

 

While aircraft manufacturers, airlines, mechanics, crews, and individuals who operate planes work to make sure that flying is a safe experience, not every flight goes as intended. Though accidents can be caused by a variety of factors, the following are common causes of airplane crashes:

 

Human error – This can include a pilot’s error during the flight or while taxiing on the runway. Additionally, crew members servicing the plane during preflight preparation could miss important maintenance cues.

Defective Equipment – About 20% of aviation accidents are caused by mechanical failure of some kind. Many parts of airplanes are dependent on other systems to work properly. For this reason, a mechanical issue with one plane system can have a domino effect on the plane’s functionality – and safety – as a whole.

 FAA Violations – The Federal Aviation Administration puts regulations in place to hold airlines and plane owners to suitable safety standards. Violations of these regulations could mean that a plane isn’t safe to travel, doesn’t have the correct registration, is flying in unsafe areas, or other issues that place passengers in danger.

Design Issues – If a plane was poorly designed, it may have inherent flaws that put its passengers at risk.

 Weather Conditions – When traveling by plane, the weather can be a serious threat to a plane’s safe travel. While crews and air traffic control plan as best as possible, irregular weather can put additional strain on the structural integrity of planes. These are just a few common causes of airplane accidents. If you have been injured in an aviation accident caused by these or other incidents, you should reach out to an attorney right away.

 

Who Can Be Held Responsible for a Plane Crash? 

 

Establishing responsibility for an accident is an important step in recovering financial compensation. The distinct factors of each case will determine who is ultimately held liable.

 

Aviation issues are often more complex than other injury cases because airlines and carriers are governed by different laws at the state and federal level. The following are examples of parties that may be held accountable for accidents: 

 

• Airlines – Many major airlines are classified by law as “common carriers.” Compared to private or chartered airlines, common carriers face the strictest rules and regulations since they transport anyone who is able to purchase a ticket. The FAA is responsible for regulating common carriers. When filing a claim against an airline, it’s best to have the help of a lawyer well-versed in FAA regulations.

 

• Owner or Operator – The owner of a plane or another type of aircraft is held to a high legal standard when people are injured in or around their property. Even if the owner of the plane was not operating it at the time of the accident, if the pilot injured others because of reckless or negligent behavior, the owner of the plane could be held accountable under the concept of vicarious liability or negligent entrustment, for example.

 

• Manufacturer – The manufacturer responsible for the design, planning, and assembly of the plane could be held accountable for the accident. It must be proven, however, that a manufacturing issue, defective part, or defective design was ultimately the cause. Under strict liability in Georgia, negligence does not need to be proven if there was a malfunctioning or dangerous part caused by manufacturing. The responsibility for an aviation accident can fall to numerous parties. It is possible to hold multiple parties accountable for your injuries.

 

Investigating Aviation Accidents 

 

The National Transportation Safety Board (NTSB) is an independent government agency that plays an important role in investigating both commercial and civilian aviation accidents. In some instances, the FAA will step in for investigations, but the NTSB is typically the first line for investigating the events surrounding an aviation incident.

 

A lawyer can also play an important role in investigating an accident. Looking into the chain of events that led to an accident can reveal what the ultimate cause was, as well as identify the liable parties. A full and thorough investigation will help your lawyer understand what exactly happened the day you were injured so that they can better represent your case.

 

To fully investigate a plane accident, many sources and documents must be considered, like FAA documentation, manufacturing and aircraft design, flight logs, aircraft maintenance information, employment information, statements from any involved crew, victims, and witnesses, and more.

 

Compensation After Aviation Accidents 

 

Victims of aviation accidents may be eligible to recover compensation for a variety of economic and non-economic losses. Some common kinds of compensation are:

 

Medical expenses, past and future 

 

Lost wages, lost profits, and damage to earning potential

Property damage

Rehabilitative expenses

Pain and suffering

Emotional pain Loss of consortium

Punitive damages

 

Those who have lost a loved one because of an aviation accident can pursue a wrongful death claim. In addition to seeking compensation for the financial support that a deceased loved one once provided, wrongful death claims can help families recover financial resources for burial costs and any medical attention administered before death. In Georgia, surviving family members have up to two years to pursue a wrongful death claim. 

 

Aircraft Accident Claims 

 

While there is a rigorous process for investigating and recording each commercial flight accident, it has long since been suspected that accidents regarding private planes happen more often than people think. 

 

Because they are not subjected to regulations and scrutiny in the same way that commercial flights are, private plane accidents go underreported and unnoticed by the large majority of people. In addition to private plane accidents, the aviation attorney may also consider the following accident claims:

 

• Commercial flights – These public flights are under a large amount of scrutiny and investigation in the event of an accident.

 

• Airport accidents – Accidents in the terminal and on the jet bridge due to defective equipment, collisions, or slick surfaces are often to blame for injuries.

 

• In-flight accidents – Accidents that occur during the course of a flight, like an unsecured overhead bin or severe turbulence, are often the cause of injury for passengers.

 

• Corporate and charter flights – These can include smaller planes or even large business jets. These flights are typically commissioned for travel by individuals or companies for a smaller number of passengers.

 

• Helicopters – The services of a helicopter may be hired for public or private business needs, military use, or medical care. Helicopters are susceptible to accidents due to the structure of their rotor system.

 

• Hang gliders – Structures like hang gliders don’t provide operators with the external protection that a plane or helicopter may. For this reason, when there are accidents, the risk to operators are substantially increased.

 

As long as your aviation accident was caused by someone else’s negligence, you may be entitled to hold that party financially responsible for your resulting expenses. 

 

 

This content was written by Attorney Alan Cleveland (Adamson & Cleveland, LLC), a LRIS panel member since 2004. Thank you, Attorney Alan Cleveland, for your continuous support to the LRIS program and the community of Atlanta.

 

***If you or someone you know is faced with Aviation Law issues, please call Atlanta Bar Association's Lawyer Referral & Information Service at 404-521-0777. ***

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Divorce & Family Law

Posted By Joette Melendez, Monday, December 9, 2019

Contempt and Enforcement

 

The ending of a family relationship can have severe emotional impacts on the entire family. Getting a divorce is often a confusing and stressful process. Families differ from one another and the circumstances under which they find themselves getting a divorce also vary. There is no hard and fast rule for settlement of such family issues. If you are thinking about divorce or separation, it is always best to ensure that you are fully informed of your different legal options and related issues that you will have to consider throughout the divorce/separation process. Outcomes can vary depending upon the situation you are in.

 

After your divorce is finalized, you may require an additional legal counsel to enforce an order. For example, you may not be receiving the spousal support or child support that you were awarded and are entitled to receive. When a party fails to comply with the Court’s order, the Court can hold the non-compliant party in contempt upon request of the wronged party.

 

The most common contempt issues in family cases include failure to execute the settlement agreement, to pay child support or spousal support, to reimburse children’s expenses, or to honor the parenting plan.

 

To be found in contempt, the court must find that that the non-complaint party both did not follow the order and also that the failure to follow the order was willful. For example, if the non-compliant party did not pay child support as ordered, but it was because he or she was in the hospital and unable to work, the court may find that the failure to pay support was not willful. In that case, the party would not be held in contempt.

 

If the non-compliant party is found in contempt, the court can order a number of remedies ranging from requiring compliance with the court’s order to incarceration until the party complies with the order. The non-compliant party can be ordered to pay the wronged party’s attorney’s fees.

 

If you need to enforce an order, our attorneys can help you file a contempt action and advise you on the remedies available to you. If you served with a contempt action, an attorney can help you minimize the risk of incarceration or other negative consequences.

 

Alternate Dispute Resolution

 

Alternate Dispute Resolution (ADR) refers to a number of processes that help parties resolve their issues without a trial or without involving the Court at all. The most common ADR processes include mediation, arbitration, collaborative family law, parental coordination, and neutral evaluation. ADR is generally a less-formal approach which is kept confidential and is often less stressful than traditional methods involving lengthy Court proceedings. Other potential advantages include speeding up the settlement process and saving money spent on attorney’s fees.

 

The types of ADR that our clients engage in most frequently are:

 

• Mediation: This is a process by which a neutral, third-party is appointed by the parties in order to assist in resolving a dispute. In mediation, the parties have the ability to resolve their own disputes resulting in creative solutions, more satisfaction, lasting fruitful outcomes, and improved relationships. The mediator will help draft an agreement that can be incorporated into a final order.

 

• Arbitration: In arbitration, a neutral person called an arbitrator listens to evidence and arguments from both sides and then makes a decision. In “binding arbitration,” the parties agree to accept the decision of the arbitrator. In “non-binding arbitration,” the parties can request a trial if they do not feel satisfied with the arbitrator’s decision.

 

• Collaborative Family Law: In this approach, a couple seeks to end their marriage in a cooperative manner without involving the Court. At the same time, each party has an attorney, a financial professional, and/or a coach offering them proper guidance and support. However, if one of the spouses decides to go to court, then both parties must hire new attorneys. This condition motivates people to continue working under this approach.

 

• Neutral Evaluation: In this process, a neutral person evaluates both parties’ arguments on the basis of each side’s weak and strong points. The evaluator may also provide settlement assistance and case planning guidance with the two parties’ consent.

 

• Parental Coordination: This approach involves an experienced legal professional who assists high-conflict parents with carrying out their parenting plan. The parenting coordinator makes final decisions within the scope of their contract or the Court’s scope. This method is helpful for parents to resolve their issues in a timely manner and promote a meaningful relationship with their children.

 

This content was written by the LRIS Vice-Chair, JoAnna Smith, an attorney in Atlanta, Georgia. 

 

***If you or someone you know is faced with Family Law issues, please call Atlanta Bar Association's Lawyer Referral & Information Service at 404-521-0777. ***

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Establishing Parenting Time for Unmarried Fathers

Posted By Joette Melendez, Monday, November 25, 2019

 

It is a common misconception in Georgia that when a father signs the birth certificate, that he has legal rights to his child. The fact is that when a father has a child born out of wedlock in Georgia, the father is legally obligated to pay child support for the upbringing of the child but has no rights to see the child or even access to the child’s medical or educational information. He is only the biological father, not the legal father.  

 

A father can legitimate his child in one of two ways. 

 

First, the father can legitimate the child by filing an action with the court requesting the child be legitimated and can also include a request for parenting time up to and including a request for primary custody. Generally, this action is filed in the Superior Court of the county in which the mother resides. Through this court filed legitimation action, the court can grant the father’s request for legitimation, grant the father his legal custody rights and set out an enforceable parenting time schedule for the father and child. It is critical for father to file a Petition for Legitimation as soon as possible because in some instances a court can deny a legitimation petition. If the biological father delays making any effort to develop a relationship with the child or support the child financially, a court may find that he abandoned his “opportunity and interest” in legitimation.

 

The second method is for the father to marry the mother. Of course, this is not an option for every father or even in the best interest of the child in some cases. 

 

Effective July 1, 2016, the Administrative Acknowledgement of Legitimation has been repealed. Parents of a child born out of wedlock can no longer legitimate the child at the time of the child’s birth at the hospital by signing a form. 

 

The legitimation process can be complex, especially if the mother is not willing to agree to the terms that the father is seeking.

 

This content was written by one of our panel members, Yolvondra Martin Brown, an attorney in Atlanta, Georgia.

 

***If you or someone you know is faced with Custody issues, please call Atlanta Bar Association's Lawyer Referral & Information Service at 404-521-0777. ***

 

 

The LRIS program is extending a special gratitude to the LRIS panel attorneys who participate in the Atlanta Bar Association Modest Means Program. Your continued support and aid to the community of Atlanta have made a positive impact to those individuals who reach out to the LRIS for affordable legal representation. Thank you!

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First Meeting of Creditors

Posted By Joette Melendez, Monday, October 7, 2019

About First Meeting of Creditors

Under the Bankruptcy Code, the United States Trustee must convene and preside at a meeting of creditors, which is often referred to as the Section 341 meeting. This must occur within a reasonable time after the order for relief in a case. However, the court may order the United States trustee not to convene a meeting of creditors or equity security holders if the debtor has filed a plan for which the debtor solicited acceptances prepetition.

 

Debtor’s duties at and after the meeting of creditors

The debtor is required to attend the meeting and submit to examination under oath. The purpose of the meeting is to give creditors and the trustee an opportunity to examine the debtor regarding the debtor’s acts and property, and to address any other matter that may affect the debtor’s right to a discharge or the administration of the bankruptcy estate. An individual chapter 7 debtor shall not retain possession of personal property in which a creditor has a purchase-money security interest unless the debtor, within 45 days after the first meeting of creditors under section 341(a), either enters into a reaffirmation agreement on the creditor’s claim or redeems the property. If the debtor fails to so act, the automatic stay with respect to such property is terminated, the property is no longer property of the estate, and the creditor can take whatever action with respect to the property is permitted by applicable nonbankruptcy law. However, the court, on motion of the trustee, may find that the property is of consequential value or benefit to the estate and order delivery of the property to the trustee.

 

Chapter 7 Creditors’ Committees

An important purpose of the Section 341 meeting in a Chapter 7 case is the election of a creditors’ committee. A creditors’ committee may consult with the trustee or the United States Trustee in connection with the administration of the estate, make recommendations to the trustee or United States Trustee respecting the performance of the trustee’s duties, and submit questions to the court or the United States Trustee concerning the administration of the estate. Only creditors with undisputed general unsecured claims can join Chapter 7 creditors’ committees. 

 

Chapter 11 Creditors’ Committees 

In Chapter 11 cases, creditors’ committees play a prominent role in many cases and the members are selected by the United States Trustee. The committee functions as the representative of creditors who hold allowable, unsecured, nonpriority claims. Governmental entities are generally excluded from participation on Chapter 11 creditors’ committees. 

 

This content was written by one of our panel members, Shonterria Martin Stokes, an attorney in Atlanta, Georgia.

 

***If you or someone you know is faced with Bankruptcy issues, please call Atlanta Bar Association's Lawyer Referral & Information Service at 404-521-0777.***

 

 

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Care for Elderly Family Members – Guardians or Conservators

Posted By Joette Melendez, Thursday, August 15, 2019

Guardians and conservators are charged with caring for elderly family members who have become incapacitated. As a guardian or conservator, your job is to manage your loved one’s resources and protect them from exploitation. Both roles carry important responsibilities that you need to know, ideally before you agree to take them on.

 

The Difference Between Guardianship And Conservatorship 

 

In many cases, you can become both a guardian and conservator for a loved one. However, these roles are distinctly different:

 

  • A guardian protects the personal interests of another person who is incapable of caring for their own interests. Common responsibilities include arranging suitable housing, making health care appointments and facilitating doctor visits, and generally providing for the ward’s personal needs.
  • A conservator supervises an individual’s financial affairs. This could include everything from paying their bills to making financial investments on their behalf using approved funds for this purpose.

Choosing Someone You Can Trust 

 

As you can see, the court places a significant amount of trust on the guardian or conservator to do the right thing and not abuse their position. For that reason, it’s important to choose a guardian or conservator you trust now, before circumstances force the court to appoint one for you. You can include your wishes in your estate planning documents. By planning ahead before incapacity, you may be able to prevent a guardianship or conservatorship hearing from ever occurring and having your affairs managed by a pre-selected person you chose through proper estate planning.

 

Becoming a Guardian 

 

Selecting a guardian or conservator can be a complicated process, where emotions often run high. To become a guardian or conservator, you must file a petition with the local probate court where your loved one currently resides. The proposed ward (the person for whom guardianship is sought) will be informed of the petition and given the opportunity to hire his or her own lawyer. He or she will also undergo a mental evaluation by a doctor, psychologist or licensed clinical social worker.

 

Then, a hearing will be scheduled to review and finalize the petition. The court must approve someone who will best serve the interests of the proposed ward. In general, it follows this order of preference when choosing a guardian:

 

  • The person chosen by the ward, in writing, when he or she was of sound mind
  • The spouse of the proposed ward, an adult child or parent (in the case of minor guardianship) of the proposed ward
  • A previously appointed guardian in Georgia or another state
  • A capable volunteer the court finds suitable to the task
  • A county guardian, who is a public official appointed by the county to stand in as guardian, if no other suitable candidate is found

This process usually takes about a month, though it may be sped up if you have reason to believe your loved one is in real danger by filing an emergency guardianship. A temporary guardian can possibly be appointed within a week if necessary to protect your loved one. 

 

An Often Overlooked Issue In Guardianship Petitions 

 

Many people do not realize that as a conservator in Georgia, you must have a bond of insurance in addition to a willing heart. The bond serves to protect the financial interests of the proposed ward in case the conservator breaches his or her fiduciary duty with respect to the ward’s assets.

 

What If We Don’t Agree On Guardianship? 

 

Petitioning for guardianship of another person can be difficult for the entire family, especially if relatives do not agree on who should be appointed guardian or conservator. What starts out as a wish to protect mom from financial predators can become a fight over control of mom’s money.

 

This content was written by one of our panel members, Robert Turner, an attorney in

Atlanta, Georgia.

 

***If you or someone you know is faced with Probate issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

 

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Debt Resolution vs. Bankruptcy

Posted By Joette Melendez, Thursday, August 15, 2019

Both debt resolution and bankruptcy are strategies that can help you pay off credit card debt, meaning both strategies can stop harassing phone calls and threats from creditors. However, there is a difference between the two! Each strategy provides different risks and protections. The following are a few examples: 

 

Debt Resolution

Debt resolution is when you attempt to negotiate a resolution of your debt for a lower amount than what you owe. As a general rule, people who pursue debt settlement can’t afford to pay off all their debts at once and cannot afford to make monthly minimum payments, which allows interest to accrue. A settlement allows debtors to stop the debt amount from increasing and resolves the debt without paying the full amount up-front. This typically saves debtors hundreds if not thousands of dollars while simultaneously improving their credit scores, although Debt Resolution does not guarantee results. Once a settlement is paid, the account is resolved. There is no negative impact on your credit report. However, creditors are not required to enter into a settlement agreement. They can pursue any legal action to collect the debt.

 

Bankruptcy

Bankruptcy, on the other hand, provides legal protection. Through Bankruptcy, you can either reorganize your debt to enable you to pay it off or get rid of the debt completely. Bankruptcy requires you to file a petition with your local federal court, which you certify under oath. Bankruptcy also requires you to pay attorney fees and costs associated with filing in court.

 

a) Chapter 13 Bankruptcy

Chapter 13 Bankruptcy is a debt repayment plan. Under Chapter 13, debts such as student loans, property taxes and spousal support obligations are made through a repayment schedule that lasts between 3-5 years. Debts, such as credit card debt, are terminated, completed or reorganized. Once you file for bankruptcy protection, creditors are no longer able to contact you directly or charge interest or late fees on your debt. 

 

b) Chapter 7 Bankruptcy

Chapter 7 Bankruptcy is the liquidation chapter. It covers debtors who have unsecured debts that exceed their income. Typically, unsecured debts are accumulated after divorce, illness and job loss. A popular myth about Chapter 7 Bankruptcy is that you will automatically lose your stuff. This is not true! During your free consultation, we will analyze and determine if your property is exempt. Filing for either form of bankruptcy will provide immediate protection from repossessions, court proceedings and wage garnishments. Filing bankruptcy may impact your credit report for up to 10 years after filing.

 

Don’t risk attempting to file your petition alone in an attempt to save money. You face a high risk of having your petition rejected if you are unsure how to navigate the Bankruptcy Code.

 

This content was written by one of our panel members, Willie “Buddy” Huntley III, an attorney in Atlanta, Georgia.

 

***If you or someone you know is faced with Bankruptcy issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***


 

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POINTERS ON HOW TO NAVIGATE THROUGH GEORGIA’S MAGISTRATE COURT

Posted By Joette Melendez, Tuesday, November 6, 2018

Magistrate Court, also known as Small Claims Court, allows parties to litigate claims where the amount in controversy is less than $15,000.00. In addition, non-lawyers are allowed to represent not only themselves but their company. This difference is critical because, in State and Superior Courts in Georgia, companies must be represented by attorneys. While resolving a case in Magistrate Court can save time and money, it is important to understand exactly how the process works before choosing to litigate there. 

 

You have to choose the correct county in which to sue the Defendant. Make sure you sue him/her in the county where he/she resides. If the Defendant is a company, sue it in the county where its principal office is located. Go to the secretary of state website for this information: www.sos.ga.gov. Once you know what county to sue in, you can either go on line and find the complaint form to fill out or you can get the paper form to fill out at the Magistrate Court. Many courts now allow you to simply fill out your complaint on line. You will have to serve the papers on the registered agent of the company. If the registered agent cannot be found or is no longer at the address on the Secretary of State, there are provisions that allow you to serve the Secretary of State on behalf of the company you are suing. 

 

Once the Defendant is served with the complaint, he/she will have 30 days to file an answer. If an answer is filed, the Court will set the matter down for a hearing. On the date of court, most judges will make the parties discuss settlement. You are not required to settle, but you have to at least discuss settlement in good faith.

 

If you actually have a trial, understand that while the rules of evidence are relaxed in Magistrate Court, you still have to prove your case, and hearsay evidence will still not be admitted. That means that if you are seeking to recover damages, it will not be admissible to simply show the court estimates or tell the Judge that someone told you that it will cost a certain amount of money to fix it. In order to recover damages, you have to either show that you paid a bill, and then provide proof of payment, or you have to bring to court the person who provided the estimate. If you want to be sure a witness shows up in court, you should serve him/her with a subpoena before the trial.

 

All cases (except defaults) can be appealed simply based on the fact that a litigant does not like the result. When that happens, the case is transferred to either the State or Superior Court in the same county, and it starts all over again. Whatever happened in the Magistrate Court does not matter as the case is adjudicated “de Novo” – a Latin phrase meaning “from the new” or in laymen’s’ terms, the entire case is heard from the start. 

 

Leaving court with a judgment does not ensure that you collect what you have been awarded. The court does not “make anybody pay,” and it is up to you to collect your judgment.

 

If you obtain a judgment and the other side does not appeal, you can try to recover your judgment by way of a garnishment. A garnishment is a separate legal action where you serve either the Defendant’s bank or employer and either take money in the bank account, or intercept wages that are due to the Defendant. If you do not know where the Defendant works or banks, you can send post judgment discovery to the Defendant and he/she is required to answer. There are forms for this post judgment discovery in the clerk’s office. 

 

While a non-lawyer can certainly successfully navigate through Magistrate Court, knowing in advance what to expect will make the sailing much smoother.

 

 

This content was written by one of our panel members, David Merbaum, an attorney in Alpharetta, Georgia.

 

***If you or someone you know is faced with Magistrate issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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YOUR RIGHTS UNDER THE HIPAA

Posted By Joette Melendez, Friday, April 6, 2018

Often mistakenly abbreviated as HIPPA, rather HIPAA stands for “Health Insurance Portability and Accountability Act of 1996.” It is a set of federal rules designed in part to protect the privacy of a person’s health care information by providing notice and an opportunity for consent to the person whose health information is sought. Congress passed this law to regulate “covered entities” namely, (1) health plans, such as health insurance companies, (2) health care clearinghouses, such as billing companies and third party administrators; and (3) health care providers, such as hospitals and doctors, from disclosing patients’ private health records. Georgia, as do most states, has similar laws protecting the confidentiality and privacy of patient health information. For instance, licensed Georgia hospitals must have a medical records service that is responsible for the administration of medical records. Ga. Code Ann., 290-9-7-18 

 

The goal set out by the HIPAA regulation is to secure a person’s “protected health information” (PHI) in the medical record or designated record set that can be used to identify an individual and that was created, used, or disclosed in the course of providing a healthcare service such as a diagnosis or treatment. PHI is information, including demographic information, which relates to:

 

The individual’s past, present, or future physical or mental health or condition;

 

The provision of health care to the individual, or

 

The past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe can be used to identify the individual. Protected health information includes many common identifiers (e.g., name, address, birth date, Social Security Number) when they can be associated with the health information listed above.

 

Section 164.514(a) of the HIPAA Privacy Rule, permits the removal of personal identifiable information from medical records so that a covered entity would have no reasonable basis to believe it can be used to identify an individual. The Safe Harbor provision (Section 164.514(b) is the most practicable way a covered entity can apply the “de-identification” standard. This is accomplished by removing personal identifiers from an individual’s records such as: names; geographic subdivisions smaller than a state; telephone numbers; vehicle identifiers and serial numbers, including license plate numbers; fax numbers; email addresses; medical record numbers; biometric identifiers, including finger and voice prints; and full-face photos, “etc.” Records disclosed following these guidelines are not protected under the Privacy Rule. 

 

With the advent of HIPAA patients now have the right to: receive Notice of Privacy Practices (NPP); access and copy medical billing records; request an amendment of PHI or other records; an accounting for some disclosures; request restrictions on use and disclosure of their PHI; request the use of alternate channels of communication of PHI (e.g. use a different telephone number, different address, etc.); and report violations to state and/or federal authorities.

 

Although HIPAA now imposes universal standards on covered entities to protect a patient’s privacy, it does not explicitly create an individual right of action for patients affected by the privacy violation. An individual do not gain a right of action to bring its own complaint against the responsible violating party, but must file a complaint with the Department of Health and Human Services or the appropriate state authority such as a State Attorney General’s office. Usually if the federal or state agency decides to pursue a victim’s complaint, it may impose fines against the covered entity and force them to implement a set of standards to avoid future pitfalls of violating HIPAA. However, for the individual who may now be subject to mental anguish, lost opportunities, or other damages due to violation of their HIPAA rights the law stops short at providing an individual redress to claim damages. However, some attorneys have found ways to institute private rights of action for clients whose HIPAA rights were violated. These rights are brought forth under state tort laws where it can be shown the covered entity was negligent in disclosing a patient’s private information and must be held liable for damages. HIPAA now provides a ‘bright-line” standard test for examining a covered entity’s negligence in disclosing a person’s PHI. State privacy laws, professional malpractice, and negligence are grounds given legal causes of action to an individual whose HIPAA rights are violated. HIPAA law provides an attorney the framework to bring these causes of action. In a 2013 judgment Walgreens was ordered to pay $1.44 million as a result of a pharmacist violating a patient’s medical records. HIPAA was not used as the basis of the lawsuit but was use as the applicable standard to show how the pharmacist and Walgreens committed negligence in disclosing health care information without a person’s consent. 

 

This content was written by one of our panel members, Dorey N. Cole, an attorney in Atlanta, Georgia.

 

***If you or someone you know is faced with HIPAA issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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What is Legal Malpractice?

Posted By Joette Melendez, Friday, March 2, 2018

Most people have heard or read about “medical malpractice” claims, which arise from the negligence of a doctor, nurse, or other health care professional. But what if the professional whose conduct has fallen below the applicable standard of care is a lawyer?

 

Clients hire attorneys to represent their interests. As a client’s representative, an attorney is not bound to use extraordinary efforts on behalf of their client, but all lawyers should be competent and must exercise ordinary care, skill, and diligence in the performance of tasks which they undertake. Because of the fiduciary relationship between an attorney and client, lawyers are obligated to show their clients the utmost good faith and loyalty and act solely for the benefit of the clients they represent. Joel v. Chastain, 254 Ga. App. 592 (2002). (81)

 

Does the client have a remedy if the lawyer does not do the job he or she was hired to perform? The answer is “yes,” with some well-grounded qualifications, including: 

 

* The elements of a cause of action for legal malpractice are: a) employment of defendant; b) defendant's failure to exercise ordinary care, skill and diligence; and c) defendant's negligence was the proximate cause of plaintiff's damage. Duke Galish, LLC v. Arnall Golden Gregory, LLP, 288 Ga. App. 75 (2007). 

 

* Neither contractual formalities nor payment of a fee are required to establish an attorney-client relationship. Guillebeau v Jenkins, 182 Ga. App. 225 (1987). 

 

* An act of negligence alone does not create a cause of action for legal malpractice. The plaintiff in a legal malpractice lawsuit must show that but for the lawyer’s act or omission, the client would have obtained a better result. Rogers v Norvell, 174 Ga. App. 453 (1985). 

 

* Attorneys are not insurers of the results of their efforts on behalf of clients. They will not be held to have breached the applicable standard of care except in cases of willful or negligent failure to apply well known and accepted legal principles and procedures, either because they are ignorant of them, or because they have failed to act reasonably to protect the client’s interests. Littleton v. Stone, 231 Ga. App. 150 (1998). 

 

* Where further litigation of the underlying claim may lead to a favorable result at the time the allegedly negligent attorney is terminated, the plaintiff may be precluded from proving his malpractice case if he settles the underlying claim. Jim Tidwell Ford, Inc. v. Bashuk, 335 Ga. App. 668 (2016).

 

* A legal malpractice plaintiff generally must produce opinion testimony of an expert witness in order to prevail. O.C.G.A. § 9-11-9.1.

 

* If the lawyer has committed a violation of the ethical duties set forth in the Georgia Rules of Professional Conduct, the client can file a grievance with the State Bar’s Office of General Counsel. The purpose of a disciplinary proceeding is not to seek financial compensation for the client but, rather, help regulate the legal profession and protect the public.

 

This content was written by one of our panel members, Warren Hinds, an attorney in Roswell, Georgia.

 

***If you or someone you know is faced with tort issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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"When a Love One is Gone, What's Next?"

Posted By Joette Melendez, Wednesday, February 14, 2018

There is no exact way to prepare for the unexpected death of someone you love and care for. The period surrounding the loss of a loved one is one of the most stressful periods that one may face. Take time to grieve. I cannot stress this enough, ensuring that your mental and physical wellbeing are intact; it’s essential to getting through this phase. Trying to figure out what steps must be taken next in handling your affairs will be difficult. Preparing for a passing beforehand makes it easier to focus on the important tasks ahead. Here is a checklist of some of the more important considerations:

 

 Notify immediate family.

 Collecting mail and important utility bills

 Locating important items such as keys, insurance policies, claims forms, addresses for magazine subscriptions, etc.

 Planning the wake, funeral, and/or memorial services

 Organizing food for family and friends after the services

 Obtaining the Death Certificate

 Notifying their employer

 Notifying the Office of Social Security

 Notifying their Guardian or their Power of Attorney

 

There are a few things that you can put in place right now that will aid in this transitional period. As morbid as it sounds, planning your funeral ahead of time is one way to ease the stress of your loved ones when you’re gone. You can start contacting funeral homes and start making arrangements for your burial and final preparations. Most funeral homes are happy to answer questions and give you options on different services.  

 

If you lost a significant other or a partner, you may already have certain mechanisms in place that alleviate certain issues. You may have had a joint bank account with the decedent and now you are listed as a "surviving owner." In this case, you would need to provide a death certificate to the bank to take ownership. Similarly, if you held joint interest in property that included “the right of survivorship", then ownership of that property will automatically pass to you as the survivor. 

 

Your loved one may have been preparing for a situation like this and has an estate plan in place. If there is a Will, the law requires that it be filed with the Probate Court in the County where the decedent lived. The Clerk will provide the executor or executrix of the Will with the necessary paperwork. If there is no Will, you may have to go through some formal administration process in the same Probate Court. Any remaining assets and properties can be disbursed through the administration of the estate. Once a probate process is initiated, don’t forget to notify all creditors that your loved one may have had. Remember it’s the estate not YOU that is liable for any debts.

 

As hard as it may be, as soon as possible start sorting and disposing of your loved one’s personal items and clothing. Taking too long to go through this process, may seriously delay the ending of the grieving process, acting as a very painful and constant reminder of the person's death. Only a few items should be retained as mementos. However, remember that no items should be moved, sold, given away or otherwise disposed of if they have been identified in the person's Will as items to be distributed as a part of the estate. Only the legal beneficiary of those items is entitled to make the decision as to their disposal.

 

Losing a loved one is hard, seek help when necessary to ensure that your mind, body, and soul will be ready to face this new chapter in your life. (A Checklist of What To Do When A Loved One Dies, Georgia Department of Human Resources, Division of Aging Services)

 

This content was written by one of our panel members, Aisha Success, an attorney in Decatur, Georgia.

 

***If you or someone you know is faced with probate issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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