Georgia Legislature to Consider Bill That Would Allow Evidence of Seatbelt Use at Trial

In Georgia, front seat passengers are required to use a seatbelt under most circumstances. O.C.G.A. §§ 40-8-76.1(b) and (c). Even so, under current Georgia law, when an individual is injured during an automobile accident, the fact that he was not wearing a seatbelt is not admissible to show that he caused or contributed to his own injuries. O.C.G.A. § 40-8-76.1(d). From the defense perspective, the law creates an “unfair” burden on the driver responsible for the accident by not allowing him to show the jury that the plaintiff may have made his injuries worse by choosing not to wear a seatbelt, even though it is required by law.

Consider the following example:

John and Jessica, both healthy individuals in their mid 20’s, are riding in the front seat of John’s Toyota Camry. John is wearing his seatbelt and Jessica is not. John slows down to stop at a red light. Unfortunately, Erica, the driver of the vehicle behind John, does not see that the light has turned red and hits John’s car square in the rear while driving about 45 mph. John walks away from the accident with muscle soreness and a couple of cuts and bruises. On the other hand, Jessica was thrown forward out of her seat and hit her head very hard on the front windshield. Jessica has serious injuries, including two fractured vertebra in her neck, a broken wrist and a deep facial laceration. John and Jessica both go to the emergency room by ambulance. John is released the same day and ends up with about $2,500 in medical expenses. Due to her serious injuries, Jessica remains in the hospital for approximately three weeks. During this time, she undergoes neck surgery, wrist surgery and plastic surgery to repair the cut on her face. Jessica also requires several weeks of physical therapy for her neck and wrist and will continue to experience pain for many years to come. Jessica will also be at a higher risk for getting arthritis in the future. Jessica’s medical expenses total $250,000 – one hundred times the amount of John’s medical bills.

What if Jessica had been wearing her seatbelt? Would her head have struck the windshield? Would she have broken her neck? Would she have required surgery? Would she have incurred $250,000 in medical bills? Or, would her injuries have been similar to John’s injuries? These are all questions the jury would not be able to consider under current Georgia law. The jury would not hear any evidence that Jessica was not wearing her seatbelt, even though Jessica’s decision likely contributed to the extent of her injuries.

In the upcoming legislative session, the House of Representatives will consider two bills that would modify the current seatbelt statute; HB 504 and HB 532. Each bill allows a party to introduce evidence of an individual’s failure to use a seatbelt if the court finds that (1) the defense was pled before the entry of a pre-trial order, and (2) the front seat passenger is at least 14 years of age. There are a few minor differences in the bills, however. HB 532 requires expert testimony to establish that failure to use a seatbelt contributed to the individual’s injuries, while HB 502 allows the court to make such a finding without the introduction of expert testimony. Additionally, while both bills provide for a reduction of damages to the extent that the failure to wear a seatbelt contributed to the individual’s injury, HB 532 allows the injured individual to recover all of the damages attributable to other parties even if the individual is 50% or more responsible for his own injuries. Typically, this type of claim would be barred by Georgia’s apportionment statute, O.C.G.A. § 51-12-33.

Needless to say, if either HB 504 or HB 532 are signed into law, it would be a great victory for the defense bar. Even so, it is likely that the new law would apply only to accidents that occur after the law’s effective date; therefore, it will take some time for the law to have a real effect on litigation matters.

Emergency Medical Services and The Applicable Standard of Care

In July, 2013, the Georgia Supreme Court heard oral arguments in Johnson v. Omondi. 318 Ga. App. 787 (2012). Johnson is a medical malpractice case where plaintiffs, the parents of a hospital patient, sued multiple defendants when the patient died after receiving care in the emergency room. The patient had knee surgery and presented to the emergency room eight days later complaining of chest pain. The doctors performed many tests and the patient was sent home after the pain resolved. Two weeks later, the symptoms resurfaced and the patient returned to the emergency room. He later died from a bilateral pulmonary embolism. The trial court granted summary judgment to the doctor on the plaintiffs’ professional negligence claim and plaintiffs appealed.

The Court of Appeals applied a “gross negligence” standard, given that the doctor was providing emergency care at the time of the patient’s death and affirmed the grant of summary judgment to the doctor based on the fact that Plaintiffs could not prove “by clear and convincing evidence that [the doctor] failed to exercise even slight care in treating [the patient].” The Georgia Supreme Court granted certiorari to determine whether “the Court of Appeals err[ed] in its application of the gross negligence standard for emergency room malpractice under OCGA § 51-1-29.5(c).” The Supreme Court is expected to make a decision by the end of the year. The Court’s ruling could narrow the circumstances under which a medical professional is considered to be providing emergency medical services, in which case, the “gross negligence” standard of care may apply in fewer cases in the future. This will be detrimental to healthcare providers, as it would hold them to a higher standard of care in situations that are arguably emergent.