RSS Feed LinkedIn Instagram Twitter Facebook
FMG Law Blog Line

Archive for April, 2013

Attention All Georgia Probate Court Judges: Convicted Felons are Eligible for Weapons Carry License without a Pardon

Posted on: April 16th, 2013

By: Coleen Hosack

A Probate Court Judge in the State of Georgia must issue a Weapons Carry License to a convicted felon even if no pardon is produced, if the applicant can produce an Order of Restoration issued by the Georgia Board of Pardons and Paroles that removes disabilities imposed by State law and restores civil rights generally. This is notwithstanding the language contained in O.C.G.A. § 16-11-129(b)(2)(b) that provides no weapons carry license shall be issued to a convicted felon who has not been pardoned for such felony. On March 25, 2013, the Georgia Supreme Court affirmed a trial court’s order granting a writ of mandamus to Mr. Manual Perry, requiring Judge Pam Ferguson of the Clayton County Probate Court to issue a weapons carry license to him, despite that he was a convicted felon and had never been pardoned for the felony. (Georgia Supreme Court Opinion: Perry v. Ferguson)

The Georgia Supreme Court explains that the “statutory routes to relief” for a convicted felon to regain the right to possess firearms and obtain a license under Georgia law are not exclusively in Title 16, but are also contained in the constitutional grant of power to the Georgia Board of Pardons and Paroles to remove disabilities imposed by law. (Ga. Const. of 1976, Art. IV, Sec. II, Par. I.) The Board’s authority to remove disabilities imposed by State law cannot be restricted by statute because the Constitution expressly precludes the General Assembly from enacting laws “inconsistent with this Paragraph.” This explains why the Probate Court Judge can and should ignore the requirement for a pardon when an Order of Restoration is produced as part of the application.

Further, the Order of Restoration that will work to make the applicant eligible does not have to contain any qualifying language that expressly restores the applicant’s right to possess, transport or receive a firearm. Mr. Perry’s Order of Restoration was silent on this and yet, it still worked to implicitly restore the civil right to possess a firearm under Georgia law.

It also does not matter that the felony was for a violation of federal, as opposed to State law. In Mr. Perry’s case, he was convicted of violating federal moon shining laws. The disability created by O.C.G.A. § 16-11-129 is imposed vis-a-vis the conviction of any felony, which can then be removed by the Georgia Board of Pardons and Paroles through an Order of Restoration.

Probate Court Judges should be cognizant of subparagraph (j) of O.C.G.A. § 16-11-129 that will automatically entitle the applicant to recover reasonable attorney’s fees if the Judge makes the wrong decision and the applicant prevails in Court on a mandamus petition. The Supreme Court bench, at oral argument in the Perry v. Ferguson case, suggested that the attorney’s fees provision should incentivize the Probate Court Judge to decide in favor of the applicant on those “questionable cases” that come across a Probate Court’s purview. This seems to be inconsistent with the consensus that the weapons carry license application review is an objective, non-discretionary one. However, the practical reality is that the Perry v. Ferguson case is the missing link to let all Probate Court Judges know that even though the statute says a pardon is required to be eligible for a license, an Order of Restoration granted by the Georgia Board of Pardons and Paroles will also suffice in cases where the applicant is a convicted felon.

Electronic Records Increase Incidence of Overlooked Test Results

Posted on: April 12th, 2013

By: Mary Ellen Lighthiser

Many health care providers have begun to shift towards digitizing health care records in an effort to streamline their clerical duties and free up more time to spend with patients. While the use of electronic medical files has improved medical care in a number of ways, a recent study reported in Time Magazine suggests that a hidden peril of physicians’ increasing reliance on technology in tracking patient care is the tendency to overlook electronic test results. According to a survey of 2,590 primary care practitioners, “a third reported missing alerts about test results from a electronic health record notification system designed to inform them when a patient has abnormal test results.” This is due in part to the number of alerts received on a daily basis, which the vast majority of physicians found to be excessive. To avoid the potential for liability that may attend such an oversight, it is advised that a patient’s various health care providers coordinate a system for responding to alerts, that personnel be trained properly in using the systems, that electronic medical systems be designed with clear interfaces, and that patients be encouraged to remain proactive in seeking the results of any medical tests conducted.

Supreme Court Snuffs Warrantless Sniffs at the Stoop

Posted on: April 9th, 2013

By: Brian Dempsey

In a 5-4 decision, the Supreme Court recently decided that a narcotics detection canine’s sniff at the front door of a suspected marijuana grow house is a search requiring probable cause and a warrant. (Florida v. Jardines, Docket No. 11-564 (March 26, 2013)). For the majority, this case turned on the fact that the sniff occurred on private property. After all, just a few weeks prior, the Court had unanimously held that an exterior sniff of a vehicle on a public roadway is not a search which is subject to such restrictions under the Fourth Amendment.  (Florida v. Harris, Docket No. 11-817 (Feb. 19, 2013)).

Justice Antonin Scalia, writing for the majority, applied traditional principles of trespass law to conclude that the sniff amounted to a search under the Fourth Amendment. Scalia began by noting that the front porch where the officers deployed the canine was within the home’s “curtilage,” which encompasses the immediate surroundings of the home. As such, the front porch was to be treated as part of the home for purposes of the Fourth Amendment analysis. With that, Scalia reasoned, this was an “easy” case. When the government uses a physical intrusion to explore the details of the home (including its curtilage), a “search” has taken place.

Court of Appeals Breathes New Life into Joint and Several Liability in Georgia

Posted on: April 4th, 2013

By: Phil Savrin

For many years, the rule in Georgia was that tortfeasors could be liable jointly and severally for bodily injury or death, without apportionment unless the plaintiff was found to be some part at fault. If a plaintiff was not partly at fault, then he could collect the entire judgment from any one of the tortfeasors who would then have contribution claims among them for payment of equal shares. So, for example, a property owner who was only 1 percent at fault for an assault as compared to the assailant could nevertheless be responsible for 100 percent of a judgment.

The Georgia Legislature changed these rules measurably when it enacted the Tort Reform Act of 2005. As the name of the Act states, the statutes were intended to stem the tide of liabilities from being imposed on businesses who had become easy marks for lawsuits. In one part of the Act, the Legislature amended O.C.G.A. § 51-12-33 to require the trier of fact to apportion liability among joint tortfeasors whether or not the plaintiff was partly at fault. The statute was amended even further to allow a defendant to include culpable nonparties on the verdict form for purposes of apportionment by the jury. Consistent with these new rules, the Legislature amended O.C.G.A. § 51-12-32, which had allowed for contribution among tortfeasors who jointly caused the plaintiff’s harm. As amended, the statute provides that contribution may be enforced against joint tortfeasors as if an action had been brought against them jointly, “except as provided in Section 51-12-33.” Because that statute requires apportionment, many lawyers, judges and commentators assumed that joint and several liability had been abolished.

To paraphrase the late Mark Twain, the reports of the demise of joint and several liability may have been exaggerated. In Zurich American Insurance Company v. Heard, in a decision issued March 28, 2013, the Court of Appeals reversed a trial court’s ruling and found that a tortfeasor that settled a claim for more than another tortfeasor could sue for contribution so that each tortfeasor pays an equal share of the total amount paid. The Court found that Section 51-12-33 requires apportionment only if the tortfeasors are sued jointly. If that occurs and the jury actually apportions damages, then (and then only) would contribution be precluded. If that does not occur, however, then the “old” contribution rules of Section 51-12-32 remain in effect.

In practical terms, this latest construction of the statutes has the following implications. Unless a lawsuit is filed and it proceeds to judgment in which the jury actually apportions the liabilities, whoever pays a claim can pursue other parties for contribution in equal shares regardless of the degrees of fault the parties may have. Because any degree of fault suffices to show contribution, the defense of such a claim may be very limited and impossible to show if a payment was in fact made. In addition, there is case law that might allow a defendant to bring a third party claim against another tortfeasor prior to the main claim being resolved. If the matter proceeds to judgment, the plaintiff can then apportion liability to the third party. Alternatively, if the defendant settles, it might then pursue a contribution claim against the third party defendant. Theoretically, therefore, a defendant might be able to bring a settling party back into the case.

Depending on the circumstances of the case, indemnity by the plaintiff could provide some protection to a settling party, especially if the indemnity includes cost of defending a contribution claim. There is a chance the Supreme Court of Georgia will review the Court of Appeals’ construction of these statutes, with contribution claims among joint tortfeasors being relegated once again to the annals of Georgia jurisprudence. Unless and until that occurs, litigants and their insurers are encouraged to consider the ramifications of settling claims that may not extinguish all of the exposures presented.

Georgia’s Emergency Room Statute Further Defined

Posted on: April 3rd, 2013

By: Scott Rees

In  Johnson v. Omondi, 318 Ga.App. 787 (Nov. 27, 2012), the Court of Appeals further defined the contours of Georgia’s emergency room statute (O.C.G.A. 51-1-29.5), which was enacted in 2005, but has had little guidance as to its scope. The emergency room statute covers emergency medical care provided in a hospital emergency department (or care provided in an obstetrical or surgical suite immediately following treatment in an emergency department). The statute  requires a heightened evidentiary standard (clear and convincing evidence) and lowered standard of care (gross negligence – defined as a failure to provide even a slight degree of care).

In Johnson, the Court affirmed the trial court’s order granting summary judgment to the emergency room physician, because there was evidence establishing that the physician provided a slight degree of care. The Court noted that the physician spent time with the patient and his family in obtaining a history, performed a number of tests, and ruled in and out a number of different diagnoses, even though he was ultimately wrong (and failed to do certain things as testified to by plaintiff’s experts). The Court held that in light of such actions, the plaintiff could not provide clear and convincing evidence that the physician failed to provide even a slight degree of care. As part of that ruling, the Court noted that the plaintiff’s expert focused on what the physician did wrong, as opposed to what he did right.

What to take from this case:  As plaintiff attorneys have complained about since the passage of this law, it is incredibly difficult for a plaintiff to satisfy the burden that an emergency room physician failed to provide even a slight degree of care. What a plaintiff must prove in these types of cases closely resembles what a plaintiff must prove in a 42 USC 1983 claim – deliberate indifference to a serious medical need.