Atlanta Injury Lawyers Blog

Published on: October 31, 2022

False Arrest and Unsafe Premises Are Common Bases for Liability in Georgia

False arrest, malicious prosecution and false imprisonment often occur when security for a store or other retail establishment improperly detains an individual, when they cause a person to be arrested without probable cause or they encourage prosecution of a person when the negligenctly (or sometimes with ill intent) when no probable cause exists absent false information that is given to the authorities. Unfortunately, we find that these cases often involve a security guard who has poor training, or who has a false sense of power, and decides to pursue an innocent individual. When this occurs, the person who was improperly detained, arrested or prosecuted has a claim for monetary damages against the store or retail establishment. These incidents can cause a victim emotional as well as physical trauma and many times, can lead to long, unjustited stays in jail.

Georgia law makes abundantly clear that a property owner owes a duty to invitees to exercise ordinary care to keep its premises and approaches safe. Sometimes, however, an invitee is injured due to a condition on the owner’s premises created by the owner’s independent contractor. This does not necessarily relieve the property owner of liability, however. In other words, it provides an additional basis for liability, not an excuse for the propery owner to escape liability where it exists.

While it is true that an employer is generally not liable for the torts of its independent contractor, there are exceptions to this rule. One such exception exists where the independent contractor is performing the employer’s nondelegable statutory duty – and such a duty exists under OCGA § 51–3–1, referenced above. For example, in Kroger Co. v. Strickland, the Georgia Court of Appeals held that a business that hired an independent contractor to clean its floors could be held liable for the negligence of an independent subcontractor where the subcontractor’s negligence rendered the premises and approaches unsafe. There are a number of bases for holding the property owner or its agent liable for unsafe premises. These unsafe conditions can be static property defects or, ever increasingly, inadequate security that subjects guests such as store shoppers, hotel guests, or other types of invitees to a commercial establishment to unsafe conditions which causes physical injury and sometimes even death.

Published on: April 28, 2022

Georgia Dentists Have Duty to Protect Patient Airway

by Robert J. Fleming

When a dental procedure is performed in Georgia, serious injuries can often result. However, one type of injury is completely preventable — swallowing (either whole or pieces that have broken off) dental instruments such as drill bits, root canal files, and teeth. Since the patient is most often lying prone in the dental chair and not cognizant of what is going on around them, it is encumbent upon the dentist to protect the airway so that nothing gets dropped down the patient’s throat, which could lead to dental instruments either being entrapped in the lungs, stomache or intestines.

“I was at the dentist getting a root canal, and the next thing I know I was told I swallowed a tool,” is a comment that I have heard in the past. “I didn’t really even feel it going down. All I felt was a slight cough. When they did the xray they realized, I swallowed it, and it is in my stomach,” is another sentiment that has been relayed to our office by dental patients who have swallowed dental instruments, sometimes without their knowledge. Often, once the dental instrument has made its way past the throat, it continues to work its way down the intestinal tract, or worse, can wind up deep in a lung.

Dental instruments are sharp and can wind up lodged in the back of the throat, the trachea, bronchial passages, stomach and intestines. Sharp edges can cause all types of complications in the body such as coughing up blood, stomach ulcers and rectal bleeding. Once lodged in these areas of the body, the dental instruments must be removed as soon as possible to prevent further harm, especially in the case of foreign objects in the lung, which sometimes require surgery to remove part of the lung along with the stuck dental instrument or foreign object. If immediate sugery is not performed to remove the dental instrument (and often some of the lung if it is lodged in the lung), infection could set in and infections in the lungs are very hard to treat. The dental instruments (such as a drill bit or root canal file that has broken off during a root canal procedure are a foreign body that was in the mouth and bacteria in the mouth is some of the most virulent and aggressive types of bacteria. If it remains in the lung (or other parts of the body), and if it’s sitting there any length of time, the risk is that it will create an abscess. Once an abcess develops, it is hard to control the infection, as antibiotics, while normally very affective in treating infections, have a difficult time traveling to some parts of the body such as the lungs due to a lack of sufficient blood flow.

Published on: July 28, 2021

Child Dies in Dental Chair Due to Suspected Malpractice

by Robert J. Fleming

The news is shocking. A 4 year-old boy went to the dentist for what appears to be a fairly routine procedure and winds up dying. Obviously, his family and their lawyer want answers. This appears to be a senseless death and a lawsuit will be filed shortly, according to the malpractice attorney representing the deceased child and his family.

As an experienced dental malpractice attorney in Georgia, I am at a loss to explain this tragic result. While I do not have any information or reason to believe that these types of actions were involved in the above tragedy, I receive many calls from parents who complain that they are strong-armed into getting, what they later consider to be unnecessary dental treatment on their very young children. Often, they relay to me after the fact that they took their baby to a dentist ‘s office that specializes in children’s dentistry and are told that their child needs multiple fillings on baby teeth, that the child must be put under anesthesia to perform the fillings, AND that the procedure has already been started. Every parents worst nightmare. This is an atrocity that should not be tolerated, yet this is apparently standard operating procedure at some pediatric dental offices that specialize in children’s dental care and who prey on the poor and uninformed. To be sure, this is not done at every office, and some children’s dental offices practice in an ethical and professional manner, but, once again, others do not.

According to a preliminary report from the medical and dental records the child may have had inadequate oxygen during a dental procedure and, in turn, the lack of oxygen caused an irregular heart rhythm which led to no pulse. The pediatric dental office that was providing the dental care to the child performed CPR until EMT’s arrived and the child was transported to the hospital where he died later that evening. While this certainly addresses the immediate causes of death, other inquiries should be: (1) what was the overall health of the child; (2) did he actually need the procedures that were performed on him on the day that he died. Considering that these were baby teeth, was it really required that he have major dental procedure at this age?; (3) did the procedure in question, if they were medically necessary, require general anesthesia or could local anesthesia have been used?; (4) what protocols were in place at the dental office to make sure the proper anesthesia was used, the proper monitoring during anesthesia was performed and what was to be done if complications, such as those that occurred in this case, were encountered and were they followed in this case?.

Published on: May 27, 2021

Brothers Mauled by Dogs in Alpharetta

by Robert J. Fleming

In another senseless dog attack in the Atlanta area, 2 brothers, aged 6 and 8 were mauled by a neighbor’s dangerous rottweilers. The dogs had gotten out of the owner’s yard, were on the loose, and snuck up on the little boys as they were riding their bikes in the neighborhood. Thankfully, the boys were saved by neighbors and are recuperating in the hospital. As a sad side note, one of the neighbors who saved the boys frantically called to a man passing by as the boys were being mauled and the passerby would not stop and help. As an Atlanta lawyer who regularly represents dog attack victims, I think that the worst attacks often involve 2 or more dogs that escape from their owner’s yard and roam the neighborhood until they attack a helpless child. This seems to be a common scenario– at least to me.

The boys were emergency-transported to Children’s Healthcare of Atlanta (CHOA) where they each received about 300 stitches to treat the bite wounds they sustained. The boys were torn apart from head to toe. Despite heroic efforts by neighbors, the dogs could not be pried off the boys and they almost killed them.

In Georgia, there are animal control laws and ordiances in place so that these types of situations are less likely to occur. In this particular dog bite case, the dogs owner was cited for violating local ordinances including having dogs at large and not having a valid county license for the dogs. In order to properly compensate victims of animal attacks causes by the negligence of (mostly, but not exlusively) dog owners, most homeowners’ insurance policies cover dog bite liability, unless they are specifically excluded from coverage. In this case, there appears to be available homeowner’s insurance, which would indicate that the dogs owner was a homeowner, and had valid insurance. The question here is: due to the extent of the boys’ injuries, will there be enough insurance proceeds to adequately compensate them for their injuries. Not only is a dog attack physcially punishing, the emotional toll is immense and, sometimes, can last a lifetime. In a case like this, the medical bills and other “hard” damages could easily exceed $500,000, not including the other damages mentioned above — such as pain and suffering, emotional damages, reduced ability to labor and work, etc. These damages add up quickly, and that is what ultimately fuels the value of the case.

Published on: April 29, 2021

Expert Testimony in Georgia Malpractice Cases

by Robert J. Fleming

Experts serve an important role in Georgia medical malpractice and dental malpractice lawsuits. In malpractice cases, doctors an dentists and other experts are frequently asked to offer expert opinions regarding standard of care, causation and damages. The subject matter of their testimony often relates to the the injuries that the plaintiff complains of in the lawsuit, the medical and/or dental treatment rendered to Plaintiff and the resulting injuries, limitations and damages. The subject matter of the tyestiony also includes, in almost all cases, testimony addressing changes in Plaintiff’s quality of life and future needs for medical and dental care due to the injuries sustained as a result of the negligence of the defendant doctor or dentist.

Experts base their opinions on their training, education and experience in their fields of expertise, the medical and dental records relating to Plaintiff, their examinations and treatment of the Plaintiff (if they have, in fact, examined the Plaintiff either as a treating doctor, expert or during an independent medical examination “IME”), information disclosed during discovery (including depositions, interrogatories, requests for admissions and other pleading in the case) and the testimony of other witnesses who have have knowledge of facts of the case or any other types of information that experts typically rely upon in forming their opinions.

The facts on which the experts base their testimony include, but are not limited to, past medical history, histories taken of the patient by other medical and dental providers, history of chief complaints, physical examinations, medical records, hospital records, death certificates, autopsy reports, operative reports, results of diagnostic tests, therapeutic treatment plans, x-rays, CT Scans, MRI’s, other imaging studies, photographs, results of therapy and medication, either performed or prescribed by each of the experts or by others in the medical or dental profession that the testifying expert takes into account when rendering the opinion.

Published on: March 30, 2021

Additional Insurance Coverage Under Georgia Auto Policies Could Be Available in UM Situations

by Robert J. Fleming

In order to properly evaluate any negligence case, Georgia lawyers will investigate what insurance coverage is applicable to the case and a lot of time, this involves excess coverage such as Uninsured Underinsured Motorist Coverage. As part of this process, att0rneys may look at the case of Georgia Farm Bureau Mut. Ins. Co. v. North, Nos. A11A0047 and A11A0134, 2011 WL 2716261 (Ga. Ct. App. July 14, 2011). Being sure to read the substitute opinion and not the original.

In this case, the Court notes, “Courts have held that there must be an offer of UM coverage and an insured must be given the option to reject such coverage, select minimum coverage, or select coverage up to the limits of liability under the policy. Georgia Interlocal Risk Mgmt. Agency v. Godfrey, 305 Ga. App. 130, 131 (2010) (citing O.C.G.A. § 33-7-11(a)(1), (3) & (b)(1) (D)(ii)).

Logically it follows that an insured cannot accept or reject UM coverage if there has been no offer from the insurer. Cases in Georgia have held that insurers are required to offer UM coverage in an amount equal to liability limits, but no cases in Georgia have addressed the fact that the natural consequence of the failure to offer is an insured‚s inability to make an affirmative choice of UM coverage.

Published on: March 10, 2021

Supreme Court of Georgia Judicial Order Lifts Stay on Dental Malpractice and Medical Malpractice Jury Trials

by Robert J. Fleming

The ban due to the Covid-19 pandemic has been lifted and we should see some civil actions such as dental malpractice, medical malpractice and other personal injury type cases going to trial soon.

Chief Justice Harold D. Melton issued an order last night that lifts the suspension of jury trials in Georgia, “effective immediately.” With today’s order, which is the 12th he has signed extending the Statewide Judicial Emergency due to the COVID-19 pandemic, trial courts may resume jury trials, “if that can be done safely and in accordance with a final jury trial plan developed in collaboration with the local committee of judicial system participants and incorporated into the court’s written operating guidelines for in-person proceedings.” Obviously, the onus is on “safety” and it is up to the judiciary, of which I and other members of the State Bar of Georgia, are a part of, to craft wasy that we can get back to conducting jury trials in a way that does not compromise the safety of the litgants, court staff, jurors, judges and attorneys.

Since the first announced Statewide Judicial Emergency on March 14, 2020 shortly after COVID-19 became prevalent in Georgia nearly a year ago, Georgia state and supeior courts have remained open, but jury trials were suspended due to the number of people required to gather at courthouses. There was a short repreive in October 2020, but then Chief Justice Melton was forced to re-implement the ban due to a significant increase in coronavirus cases.

Published on: December 2, 2020

Dental Malpractice Case Damages Can Include Loss of Career Income in Georgia

by Robert J. Fleming

As a dental malpractice attorney in Atlanta, I see many types of claims for damages resulting from dental malpractice. Sometimes, the injury sustained due to the malpractice is discreet and not ongoing, but still debilitating. Other times, the injury is ongoing, permanent and renders the client unable to perform her normal duties at work. Still others are more unique, in that the client has a special talent of career which is impacted by a dental injury (such as a dental nerve injury that affects the ability to use the tongue or lips) and this ruins a promising career or talent. As an example, a musician who must use her mouth to play her instrument can purse claims for the loss of her career following an allegedly botched procedure by a dentist. This is the situation in a closely followed case that is just entering litigation. The musician, who has performed in orchestras in areas outside of Atlanta, claims in her lawsuit that her face could prematurely age because of irreversible bone loss as a result of negligent work performed by the defendant dentist. According to the suit, in an attempt to avoid jaw surgery after lifelong dental and breathing problems, the plaintiff sought an alternative. The dentist defendant, treated her unsuccessfully for years before placing an anterior growth device and controlled arch braces, in the musician’s mouth.

According to the plaintiff’s account, the device was supposed to be a substitute for jaw surgery by stimulating new bone growth, helping to move teeth and the the jaw forward and improve her airway. Instead, the plaintiff claims in pleadings that the device worsened the condition and that the use of the device was below the standard of care of what a reasonably prudent dentist would do under like or similar circumstances (what is known as the standard of care in Georgia) because it is unproven and not supported by medical knowledge or science. Due to the alleged malpractice, the plaintiff fears that she could lose four to six front teeth, and, over time vertical height in her front jaw leading to the early aging of her face.

The above is an interesting example of the what the law calls an “egg shell plaintiff.” In other words, if one commits dental malpractice and, due to some unique factors that apply only to the injured plaintiff, the damages are exponentially increased (such as the loss of a music career due to a dental injury), the defendant is liable for all of those damages so long as the remaining elements of the claim are proven by the Plaintiff. Another example would be a professional athlete who can no longer play professional sports due to an injury sustained from dental malpractice. As is true with every case, even with damages, the plaintiff must prove duty, breach and causation to prevail in a dental malpractice claim in Georgia.

Published on: October 14, 2020

Georgia Malpractice on the Rise in Both Medical Malpractice and Dental Malpractice

by Robert J. Fleming

I don’t know if it is a product of the pandemic, or something else is going on, but as a lawyer in Atlanta who concentrates on medical malpractice and dental malpractice cases, I have seen an uptick in both types of these cases. What is especially disturbing though, is the rise in case of malpractice that are so aggregious that they border on criminal. One example is dentist who actually tried to extract a patient’s tooth while he was on a hoverboard and was sentenced to 12 years for Medicaid fraud and other crimes. Not only is this heinous, he bragged about it afterwards in texts, according to the judge who sentenced him.

The 2016 hoverboard incident, while not so much a factor in a serious injury, shows that something has changed in the way that doctors and dentists and their respective practices are controlling quality of care. Performing a tooth extraction on a sedated patient while on a hover board has been described as outrageous, narcissistic and crazy. Yet, over the last year, I have seen far worse, including failing to perform biopsies and other tests to catch obvious cases of cancer, performing procedures which were not consented to by the patient and failing to recognize that a patient was bleeding severally during an outpatient procedure, leading to his death. All of these unfortunate incidents are unusual, at least to me, and seem to be evidence that these types of horrific medical and dental negligence cases are on the rise in Georgia.

The pandemic has created so much uncertainty in our lives. Even a simple thing like a trip to doctors office for an outpatient procedure seems to be riskier than before. Our firm has the experience to pursue these types of case and is a tremendous resource to you in this pursuit. You should not have to wrestle with these things alone. Often times, the malpractice is covered up with faulty records, and as we have seen recently, changing of the records after the malpractice case has been filed. This should not be tolerated and it takes aggressive pursuit of your case to prove it.

Published on: September 27, 2020

Georgia Insurance Dispute Litigation Increases

by Robert J. Fleming

2020 has been quite a year for us in Georgia and throughout the world. With so few insurance claims, insurance companies have been sending rebates to their insured in droves. Yet, curiously, insurance companies are relying on exclusions and policy language to void coverage and wrongfully deny claims.

Policy exclusions are contained in the body of the insurance policy itself. Even if the insured can show that other requirements are met, and the loss should be covered, the large insurance companies such as Allstate, State Farm, GEICO and others are trying to rely on exclusions to take otherwise valid coverage away.

If this fails, they drop down and ague not coverage based on rules of construction. This end play by the insurance company can be successfully challenged in litigation if the policy language is ambiguous. Under well established Georgia law, if policy language is ambiguous, it is construed against the insurance company, mainy because they wrote the policy. As has been explained repeatedly by Georgia Appellate Courts, contract construction involves 3 steps: (1) the court must decide whether the language is clear and not ambiguous. If ti is, the court simply enforces the contratual term, as written; (2) If the court decides that the language is ambiguous, the court must apply the rules of contract construction to resolve the ambiguity; and (3) if the ambiguity remains after applying the rules of construction, then it is a jury question. Importantly, courts in Georgia construe insurance contracts in accordance with the reasonable expectations of the insured (who, obviously expect to be insured for losses) and any ambiguity is construed in favor of the insured and against the insurance company.