Atlanta Injury Lawyers Blog

Published on: February 28, 2018

Georgia Mental Health Records Are Privileged in Dental Malpractice Litigation

Many times, a claim for dental implant malpractice or root canal malpractice involving dental nerve injuries includes a claim for mental pain and anguish. Defendants in these cases typically try to obtain all of plaintiff’s medical and psychiatric records for the previous 10 years, or longer. This type of request was addressed in Brown v. Howard, 778 SE2d. 810 (Ga. App 2015). In holding that the plaintiff’s mental health records were not subject to the defendant “fishing expedition”, the Howard court reasoned as follows:

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action [.]” OCGA § 9–11–26(b)(1). Georgia law provides several privileges related to mental health, which, collectively, are referred to as the “mental health privilege.” State v. Herendeen,279 Ga. 323, 325, 613 S.E.2d 647 (2005). The components of the mental health privilege include

(5) Communications between psychiatrist and patient;

Published on: February 21, 2018

Child Deaths From Dental Anesthesia in Georgia

by Robert J. Fleming

To the surprise of many, a child can be put to sleep for a dental procedure by a dentist who does not have a medical degree. While this should not be a concern in and of itself, when you couple this with the fact that according to the American Dental Association, educational and training requirements to administer sedation and dental anesthesia in Georgia is governed by the Georgia Board of Dentistry, this creates an alarming and dangerous situation. As a Georgia lawyer who specializes in dental malpractice, including injuries caused by improper administration of anesthesia, I am concerned for the safety and well-being of our children in Georgia (as well as adults who receive general anesthesia when they undergo complicated dental procedures) and would hope someone other than the Georgia Board of Dentistry would oversee this area of dentistry.

While the anesthesia is reportedly administered by dentists with anesthesia training, in almost all cases involving complicated dental procedures such as root canals, dental implants or complicated extractions, the anesthesia is not administered by a medically trained (i.e., and M.D.) anesthesiologist. To make matters worse, dentist can perform sedation and anesthesia themselves without having a physician (anesthesiologist) or dental anesthesiologist present.

This is all concerning for adults, but the problem is exasperated when it comes to parents who bring their children to the dentist and are left in the dark as to what is happening in the exam room. Sedating children is much more complicate and potentially dangerous than sedating adults. There is a much smaller room for error with kids. While state dental boards require the dentist to qualify for a special anesthesia permit, there is no assurance that these dentists who are sedating our children are specially trained and qualified to sedate children — and parents need to know this. There are no national standards for what the dental anesthesia permit requires, and some states do not require it at all. And, the standards are determined by the American Dental Association, not by the ABA or by medical boards or even the two national boards for dental anesthesiology. Why this is so, is not immediately clear, but a national standard administered by the medical community seems to make sense.

Published on: February 20, 2018

Lawsuit Filed Against General Dentist Office For Child Death Caused by Infection

by Robert J. Fleming

General dentists must comply with the standard of care for dentists under like or similar circumstances in Georgia and nationwide. When a dentist fails to comply with this standard of care and a serious injury or death results, a lawsuit for dental malpractice can be filed. A national dental practice, which touts itself as general dentistry for kids has been sued by a mother of a child-patient who died as a result of complications from a dental procedure, and an infection which was alleged to have not been treated properly. According to reports, the infection spread after a follow-up visit to the dentist and sadly took the fear year-old girl’s life.

Infections secondary to dental procedures, while not uncommon, rarely cause death. This is because most patients report back to the dentist and receive the proper treatment to get the infection under control and to make sure that the patient does not become toxic and the infection does not spread. Ludwig’s Angina is one type of dental infection that can cause death if not properly diagnosed and treated by dentists.The majority of cases of Ludwig’s angina are odontogenic in etiology, primarily resulting from infections of the second and third molars (wisdom teeth). In this scenario, the dental infection spreads to the throat and compromises the patient’s ability to breath and can, if not treated cause severe suffering, lack of oxygen to the brain, and even death. With progressive swelling of the soft tissues and elevation and posterior displacement of the tongue, the most life-threatening complication of Ludwig’s angina is airway obstruction. Prior to the development of antibiotics, mortality for Ludwig’s angina exceeded 50%

Even if the original dental procedure that caused the infection was performed within the standard of care, the dentist and the dental practice may be liable for failing to timely diagnose and treat Ludwig’s Angina and/or failing to refer the patient to a specialist in a timely manner.

Published on: February 20, 2018

Family Settles Death Case of Teenager who Died of Heart Attack During Dental Procedure

by Robert J. Fleming

Many teenagers have their wisdom teeth removed. If the extractions are performed while the patient is still young, the procedure is less likely to lead to complications. Tragically, this was not the case according to reports, for the family of a 17 year-old who died from alleged anesthesia complications during a wisdom tooth extraction. The teen was under general anesthesia in the oral surgeon’s office when her heart rate dropped dramatically. Despite a call being placed to emergency 9-1-1 and CPR being administered before the paramedics could arrive, the teen died from a lack of oxygen to the brain caused by her heart failing.

In addition to paying the $2 million settlement, the oral surgeon who caused the death was temporarily suspended from practicing dentistry 6 weeks after the incident and disciplined by the state board of dentistry.

All medical providers, whether they be doctors, nurses, dentists or oral surgeons have a duty to administer anesthesia appropriately and to properly monitor the patient during and after the procedure to ensure there are no complications related to the anesthesia. If there are complications, the medical provider must comply with the standard of care and uncover the complication and treat it in an appropriate and timely manner. Failure to comply with the standard of care constitutes negligence and the practitioner is liable for all damages (up to and including death) that flow from the negligence.

Published on: January 24, 2018

Negligence During Georgia Dental Implant Procedure Can Lead to Permanent Injuries

by Robert J. Fleming

I recently took a call from a potential client who suffered what appears to be a lingual nerve injury after she received a dental implant in the lower jaw. While this is unusual, the fact that she received a nerve injury after the placement of a dental implant in the lower jaw is not as uncommon as one might believe. A recent study in the U.K. revealed that about 1% of dental implant procedures performed each year result in nerve injuries.

The number of dental implants installed in the U.S. and around the world is increasing at a rapid rate. Implants can replace lost teeth and are preferred over bridges and other dental devices because implants are permanently screwed into the jawbone and more readily mimic real teeth than a bridge or other device can. This allows the implant to promote a strong bone structure around it and the patient is much less likely to suffer from bone resorption (or bone loss around the area of the missing tooth) after the loss of a tooth when a dental implant is installed rather than a bridge.

However, with this added benefit comes added risk. If the dentist installing the implant does not comply with the standard of care when installing the implant post, dental nerve injury can result. If someone suffers a dental nerve injury from a dental implant, they often suffer from numbness and pain in the jaw, lips, mouth, gums, teeth and chin areas. Although it is less common, someone who suffers a dental implant nerve injury can also suffer from pain that radiates up from the lower jaw and up into the ear and head. While this type of injury is less common, it is almost always a much more serious and debilitating nerve injury and much more difficult to treat due to the transitory (moving) nature of the pain and symptoms. In addition, if the cause of this painful condition is not addressed quickly, the pain can be permanent and result in a significant negative impact in the quality of life. Many of these injured dental implant clients wind up with constant pain and discomfort for the rest of their life.

Published on: January 17, 2018

VA Medical Care is Sub Par and Often Replete with Malpractice

by Robert J. Fleming

According to a recent article in NPR news, a veteran has sued the VA hospital for malpractice related to the VA leaving a surgical scalpel in his stomach. While medical malpractice is not uncommon, leaving a surgical tool (in this case a four-inch scalpel used to cut tissue inside the body) is not common due to the hospital protocols and procedures that are now in place in almost all medical care facilities. However, in my opinion, the level of care at the VA hospitals is suspect, at best, and an error like this coming out of a VA institution does not surprise me.

While it is always difficult to get accurate numbers, it is estimated that there are almost 1,500 cases of foreign materials left in the body following surgical procedures in the U.S. Most of these cases, however, involve sponges, gloves or other devices (or more often pieces of materials) made out of pliable material. While a mishap like that is bad enough, leaving a scalpel in someone’s stomach after a surgery and then continuing to leave it in after they complain of stomach pain over the next 4 years is such and egregious act of malpractice, that, in my opinion as an Atlanta medical malpractice lawyer, it rises to the level of gross negligence.

Georgia courts define “gross negligence” as being “equivalent to the failure to exercise even a slight degree of care and the lack of the diligence that even careless men are accustomed to exercise. Said another way, the definition for gross negligence provided by Georgia courts, and what a plaintiff in an Emergency Room medical malpractice case must prove in order to win a ER medical malpractice case in Georgia, a plaintiff must show by “clear and convincing evidence” that a physician failed to provide even a “slight degree” of medical care or that the physician’s medical care was less than “careless negligence.” These are high standards to prove (and not needed to prevail against the VA in a non-Emergency Room case), but something that is certainly capable of being proven with facts such as a surgical scalpel being left behind after surgery and not being found even while the patient complains of stomach pain after the surgery. Absolutely horrendous care and something that our veterans should not be subject to, for any reason.

Published on: January 4, 2018

Auto Accidents and Georgia O.C.G.A. § 40-6-123

by Robert J. Fleming

When does Georgia law require you to signal when making a turn or changing lanes? Simple question, no simple answer. O.C.G.A. § 40-6-123 provides as follows:

(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Georgia Code Section 40-6-120 or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section.

(b) A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.

Published on: December 4, 2017

VA Staffing Hospitals with Doctors Who have Committed Malpractice or Who have Felony Convictions

by Robert J. Fleming

In a never-ending series of examples of just how little the VA cares about the veterans that it provide care to, a USA TODAY investigation has engaged in illegal hiring practices that has resulted in VA hospitals being staffed by doctors who have committed malpractice. For instance, neurosurgeon Dr. John Henry Schneider has been accused of medical malpractice more than a dozen times in two different states, yet the VA found him fit to work in the VA hospital and provide surgical care to our veterans. This, even after the state of Wyoming revoked his license to practice medicine after a surgical patient that he treated died.

According to numerous reports, Dr. Schneider a number of procedures at the VA including brain surgery as well as lumbar surgeries to treat an infection, apparently caused by a previous Schneider surgery. As the Atlanta Journal Constitution reports, “Schneider’s hiring is not an isolated case. A VA hospital in Oklahoma knowingly hired a psychiatrist who had been sanctioned for sexual misconduct and went on to sleep with a VA patient, according to internal (presumably VA) documents. Additionally, a Louisiana VA clinic hired a psychologist with felony convictions.” This is simply hard to comprehend. How can the VA be putting in place these types of medical professionals operate on and treat our veterans? It is hard to comprehend, yet nothing regarding the VA ceases to amaze me. Clearly, the VA should not be allowed to continue as an organization because is has proven, time and again, that it cannot provide quality and timely care to the veterans that it is charged with servicing. It seems to me, that allowing veterans to obtain this care in the private sector would serve the veterans better, and probably be less expensive to the government in the long run. As a U.S. Army veteran, I have been treated by the VA and can state first hand that the level of care that they provide is sub-standard and is disgraceful. As far as my experience, which admittedly was a long time ago, not only was the level of care not good, but the way that the almost all of the VA staff treated me and the other patients was not good. It seemed to me as if they simply did not care about the patients, and the mentality of the staff was one of “we are doing you a favor and you should be glad that we are even seeing you.” Yes, I know that this is a subjective opinion on my part, but I do believe it to be true and I do believe it accurately reflects that lack of caring that most (not all) of the staff at the VA exhibit toward patients.

For more than 20 years, Attorney Robert J. Fleming has been handling wrongful death cases, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been injured or died as a result of the negligence of others in and around the Atlanta, Georgia area, including Alpharetta, Austell, Brookhaven, Chamblee, College Park, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. He is a former U.S. Army military policeman who is active in helping today’s veterans. If you have been seriously injured and would like quality legal representation or if you would just like to consult about your potential case, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

Published on: December 1, 2017

Dental Implant Problems that Lead to Malpractice Claims in Georgia

by Robert J. Fleming

The placement of dental implants is a surgical procedure that comes with many potential complications. Dental implants are designed to be a permanent replacement for teeth and as such are anchored into the jaw. However, with an increased rate of the placement of dental implants comes more injuries and complications from these procedures. The following are common bad outcomes from dental implants, and in many cases, are the direct result of dental malpractice committed by the dentist who installed the dental implant:

Facial nerve damage from the implant being placed into the nerve under the tooth. Common signs and symptoms include numbness, loss of sensation, and pain in the jaw, lips, chin and tongue. It is common to have pain and numbness at the same time or alternating pain and numbness.
failure of the implant to anchor into the jaw, this is known as failed osseointegration. The most common sign of this is that the implant is very loose or falls out.

Published on: November 15, 2017

A Georgia Lawyer Who Specializes in Dental Malpractice

by Robert J. Fleming

I have been practicing law since 1994. Over the years I have had, what I consider, some great trial victories in areas such as medical malpractice, civil litigation and personal injury. But, there is one area of law to which I have gravitated over the years and which has become somewhat of a specialty for me: dental malpractice. While I could not fully explain in this article all of the reasons why I have come to specialize in dental malpractice, I can say that I am drawn to this area of law because it allows me to help clients who have been seriously hurt — many times seemingly out of the blue. In other words, many of my clients went to the dentist to have a simple dental procedure performed (such as getting a dental implant installed or root canal performed) and within days they have suffered a life-changing injury. This is very unsettling and I understand what these clients are going through. Consequently, I get a deep sense of satisfaction in being able to walk them through the legal and dental process, and ultimately I do everything I can to help them recover from the dental injury and move on with their life.

I consider myself to by very good at identifying dental negligence and being able to quickly and accurately identify which dental injuries are caused by malpractice and which cases have merit. This seemingly simple step goes a long way in helping those injured in the dental chair have a clearer understanding of how and why they were hurt and what their prospects of being adequately compensated for their dental injuries are. In handling dental malpractice claims in Georgia, the reality is that the vast majority of case do not wind up being a case that we can take and file a lawsuit over. Oddly enough, some potential clients have voiced great relief when informed that their dental injury was probably not the result of malpractice. I think I get that. There is a sense of clarity and it can be a bit easier to accept an injury that was not caused by malpractice but rather simply occurred through no fault of someone else.

While my dental malpractice clients vary in every respect (i.e, age, gender, income level, political affiliation, etc.), they all have one thing in common: they were seriously injured by no fault of their own, and many times this happens when they are under general anesthesia and not even cognizant of what is taking place. I understand how troubling this is and I do all I can to address this with my clients. Many of these injuries are debilitating and permanent such as trigeminal nerve injuries, mental nerve injuries, inferior alveolar nerve injuries, and lingual nerve injuries. Due to the nature of facial nerve injuries, there is a great deal of pain, numbness, and quite frankly disbelief. All of these reactions are real and normal and I do my best to address them with each client that I represent in this area of law.