Atlanta Injury Lawyers Blog

Published on: August 3, 2017

Georgia Pit Bull Attacks and Kills Child Outside Atlanta — Charges Filed

Pit bull attacks continue to dominate the number of dog attack cases in Georgia, especially when it comes to fatal attacks on young children. Two pit bulls killed a 20-month-old boy at his grandmother’s house in Hart County, Georgia, and she is now faces criminal charges related to the attack, according to recent reports.

While it is rare that dog bite cases result in criminal charges beyond citations from animal control for failing to properly maintain control of the dog and allowing it to attack someone, civil actions are much more common, as this is the usual course of action to hold the dog owner liable for the damages inflicted by the dogs after an attack.

In addition to the leash laws related to the proper control of dogs that a Georgia homeowner owns or has in its custody of control, the Georgia Code of civil procedure provides as follows:

Published on: July 26, 2017

Attorneys’ Fees Recoverable Under OCGA § 13-6-11 in Georgia If Elements Proven

by Robert J. Fleming

In addition to damages that normally flow from a personal injury, the plaintiff in Georgia in automobile accident or trucking accident cases can make a claim for attorneys’ fees and expenses of litigation under certain circumstances. For instance, a claim can be brought pursuant to O.C.G.A. § 13-6-11 for attorneys fees when the Defendant, acting by himself or through his agent, has acted in bad faith, has been stubbornly litigious, or has caused the Plaintiff unnecessary trouble and expense, thereby entitling the Plaintiff to an award of attorneys’ fees and expenses of litigation under the Civil Code of Georgia.

By way of example, when the insurance adjuster assigned to an automobile or trucking accident case does not conduct an independent investigation of the claim, and denies the claim in it’s entirety based solely personal opinion, a claim for attorneys’ fees and expenses of litigation may be properly plead by the Plaintiff.

Another typical scenario of when it is proper for a Georgia Plaintiff to plead and seek attorneys’ fees in an automobile accident or trucking accident case is when the Defendant pleads guilty to the citation that was issued at the scene and which caused the wreck (such as an improper lane change, following too close, failure to yield the right of way, etc.) and admits his negligence to the police officer. Yet, the Defendant then refuses to admit simple negligence in his or her Answer to the lawsuit. This is certainly evidence of stubborn litigiousness. This is known as the “so sue me attitude” and it makes sense that the Georgia trial court would allow a claim for attorneys’ fees and expenses of litigation and the plaintiff should be allowed to recover these if he or she can prove the elements that are required under OCGA § 13-6-11. Not every case is ripe to recover attorneys’ fees (in fact most cases are not), but there are actions by defendants which lead to such a claim.

Published on: July 24, 2017

Atlanta Airport Injuries Continue to Rise

by Robert J. Fleming

You have surely heard of car accidents, but have you heard of cart accidents. Well, if you regularly travel through Atlanta’s airport, you may. Along with a host of other incidents that result in serious injuries to airport patrons, cart injuries (those passenger shuttle carts operated by the Airlines and the Terminal Authority) in the terminals are on the rise, and many result in serious injuries.

Other injuries at Atlanta Hartsfield International Airport which are on the rise are:

trips, slips and falls on the marble floors and carpeting in the terminals;

Published on: July 21, 2017

Motions To Exclude Expert Testimony on the Rise in Crash Injury Cases

by Robert J. Fleming

Daubert motions are becoming more prominent in personal injury litigation as more and more judges entertain pre-trial motions to strike the other side’s expert. Historically, the defendants took the lead in this tactic, but lately, Plaintiff litigants have been filing their share of Daubert motions in an attempt to strike a defendant’s expert or to strike portions of that expert’s testimony at trial. Motions being filed ares similar to the following motion used in state court:

PLAINTIFFS’ MOTION TO EXCLUDE EXPERT TESTIMONY

Plaintiffs, files this motion to strike the testimony of A.B., M.D., and Mr. T.G., P.E., and would respectfully show as follows:

Published on: July 18, 2017

Insurance Adjuster Files are Discoverable in Georgia In Personal Injury and Malpractice Cases

by Robert J. Fleming

During the discovery phase of litigation, it is inevitable that discovery disputes arise between the plaintiff and defendants in Georgia personal injury, premises liability and malpractice litigation. One area of dispute that comes up often is when the plaintiff seeks the file that the insurance adjuster has compiled on the case. While the insurance companies try to avoid turning the file over, it is often discoverable unless the defendants can show a compelling reason to the court that it not be discoverable.

WORK PRODUCT IS NOT A BLANKET PROTECTION

The Defendants often claim that the adjuster’s investigative file is protected from disclosure by the so called “work product” privilege under O.C.G.A. §9-11-26(B)(3). This code section of the Georgia Civil Code deals with trial preparation materials and states in relevant part “a party may obtain discovery of documents … otherwise discoverable … and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative … only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”

Published on: July 18, 2017

Dental Implant Nerve Injuries Explained by Atlanta Dental Malpractice Attorney

by Robert J. Fleming

As an Atlanta dental malpractice attorney, I receive calls every day from dental patients who have been injured due to dental procedures. Almost all of the dental nerve injuries that are actionable dental malpractice claims involved the trigeminal nerves of the face, mouth, neck and jaw.

The trigeminal nerve is the largest of the cranial nerves and has three major divisions: the opthalmic nerve (V1), the maxillary nerve (V2), and the mandibular nerve or inferior alveolar nerve (hereafter referred to as the “mandibular nerve” for simplicity and consistency) (V3). A nerve outside of the central nervous system is called a peripheral nerve. The mandibular nerve is a peripheral nerve which is the largest of the trigeminal nerves and is the most common branch injured following dental implant surgery. While the mandibular nerve is technically outside of the central nervous system, most of my clients report debilitating pain in parts of their face and head served by the mandibular nerve. This nerve carries sensory information from the lower lip, chin, lower teeth, gums, the lower jaw, and, at times, can extend up and into the ear on the side of the face affected by a dental implant injury, for example.

The mandibular nerve also contains motor fibers for supply of the muscles for eating (mastication), muscles of the ear and muscles of the soft palate. However, these motor branches and many of the sensory fibers to the external ear are rarely injured during implant surgery because these motor fibers are separated from the V3 branch of the trigeminal nerve prior to its exit from the foramen ovale of the skull and many of the sensory fibers enter the nerve above the lingula of the ramus. A V3 injury in dental implant surgery usually occurs after the nerve enters the lingula of the mandibular ramus and anywhere along its pathway in the jaw and/or its exit from the mental foramen in the chin area of the jaw.

Published on: June 20, 2017

Upturn in Number of VA Medical Malpractice Claims in Georgia

by Robert J. Fleming

As a Georgia personal injury attorney who has handled many VA medical malpractice claims, I have seen a rise in the number of potential claims against the VA as the amount of resources devoted to veterans has not kept up with the amount of medical care needed by our veterans. The sample pleading below is a form complaint to sue the VA for medical malpractice in Georgia, but prior to initiating such action there are a number of unique procedurals hurdles that must be complied with, such as filing a timely administrative claim under the FTCA for damages with the Veterans Administration prior to filing suit or your right to sue may be lost forever:

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA — ATLANTA DIVISION

Published on: June 19, 2017

Do You Have the Right Lawyer For Your Georgia Case

by Robert J. Fleming

In the news recently was the story of a woman who pretended to be a lawyer at the Towns County, Georgia Detention Center in April. She was arrested earlier this month by the Towns County Sheriff’s office and has been charged with practicing law without a license.

While your current lawyer may or may not be well suited to represent you, I doubt that you are in the position of being represented by someone who doesn’t even have a law license. Well, I certainly hope not. So, with that in mind, let’s look at what might be important to you if you ask: Is the lawyer I have the best choice for me and my case in Georgia?

There are many factors to take into account when trying to answer this question. First, you must ask whether the lawyer has the skill and training in the particular area of law in which your case falls. This is a pre-requisite for any attorney that you hire in Georgia. However, based on the news story at the top of this post, maybe the first questions should be whether person you hired is actually a lawyer (a thinly veiled attempt at humor). In any case, your lawyer should have adequate training and experience in the specific area of law that the case involves. Some common areas of law are car accidents, slip and falls, premises liability, medical malpractice, etc. All of these areas involve unique issues and laws that require a good amount of familiarity that usually can only be obtained by handling these cases over the course of many years.

Published on: June 14, 2017

Claims Owned by Spouse in Georgia Airport Personal Injury Cases

by Robert J. Fleming

When a married person is severely injured due to the negligence of someone else (such as one of the entities at Atlanta Hartsfield Airport), the spouse owns a legal claim known as loss of consortium. Loss of consortium is legal cause of action in Georgia that is in place to compensate a spouse for the loss of services of the injured spouse. These services can include, but are certainly not limited to whatever the spouse did to contribute to the home before the injury and the loss and/or decrease in sexual relations. Many written discovery requests focus on this claim to the uninjured spouse (as they are also a Plaintiff in a case that includes claims for loss of consortium). Responses to these types of inquiries usually run along the lines of the following:

As a result of my husband’s injuries, we could not go out together to visit friends or other entertainment; we could not participate together in other activities outside the home as had been our practice; we could not perform any of our other usual activities together at home; his injuries resulted in irritability and helplessness leading to friction and, occasionally, arguments; and he was completely unable to participate in physical intimacy with me for an extended periods following the crash. I was required to expend effort and time to care for my husband while he was completely disabled as well as to assist him to a greater degree than before during his continuing partial disability. In addition, my husband was used to being a supportive, handy, helpful spouse and was unable to perform his household chores and assist me in other matters during that same time period. I do not claim that my husband’s accident has caused us to lose the prospect of becoming a parent or of having additional children. See my answers to the specific questions that follow for additional information.

Loss of consortium is a form of non-economic damages and is not subject to definite computation. The extent of my damages are described fully in my other answers, which set forth the time period during which my husband was disabled from various activities. Without waiving that objection, the aftereffects of my husband’s injuries still persist. We cannot do all the things together that we used to do frequently because my husband is simply not up to it. This continues to put a strain on our marital relationship.

Published on: June 12, 2017

Atlanta Root Canal Dental Malpractice

by Robert J. Fleming

Molar tooth anatomy sometimes includes auxiliary root canals, loops, curved roots and fins which are difficult to detect, clean and obturate (fill). Many times, general dentists try to perform root canals on multi-rooted molars with these conditions and it could be below the standard of care for dentists under like or similar circumstances for them to do so. Other situations that may require referral by a general dentist to an endodontist to perform the root canal are narrow canals, abnormally large canals, internal resorption, broken files in a canal, canals requiring a post, and canals that are in the inferior alveolar nerve canal or in the sinus for maxillary molars and pre-molars.

Improper technique by a general dentist performing a complex root canal can lead to apical and coronal leakage of the root canal, root canal failure and, in the worst case scenario, injury to the nerves and other anatomic structures around the tooth. Improper technique can be in the form of over instrumentation of the root, not getting accurate working lengths, using excessive force while condensing with instruments to compact the gutta-percha, not properly sealing the core prior to obturation, not creating an apical stop, or over filling the canal by applying too much gutta-percha too quickly or placing too much volume in the canal to the fill with canal without exuding out of the end of the canal.

In addition to improper technique, a general dentist can commit dental malpractice while performing a complex root canal therapy treatment by: failing to perform an adequate and sufficient implant placement work-up and evaluation, including measurements to determine the depth of the available bone into which the implant can be safely placed without injury to the nerve; failing to sufficiently determine the location within the bone of the nerve bundle (the bundle that carries the nerve, the artery and the related anatomy through the jaw) to allow for the safe placement of the implant without injury to the nerve; placing the implant into the nerve canal and injuring the inferior alveolar nerve; failing to timely treat and/or remove the implant after becoming aware of complaints of numbness or pain or pain and numbness together; failing to adequately monitor and mitigate the consequences of paresthesia after negligent placement of the implants into the nerve canal; failing to timely refer the injured patient to a nerve specialist after the implant was placed in the nerve canal and the patient sustained a nerve injury, as indicated by the signs and symptoms of number, pain and/or pain accompanied by numbness relayed by the injured patient; and failing to gain informed consent for the implant procedure. All of these are actions or inactions on the part of the general dentist that can result in a dental malpractice claim, if the malpractice has resulted in injury sufficient in nature to warrant the filing of a malpractice claim.