Atlanta Injury Lawyers Blog

Published on: July 2, 2020

Georgia Bars Are Subject to Punitive Damages Awards For Over-Serving Drunk Drivers

In Georgia, if a bar, restaurant or other business that serves liquor over-serves a customer and that customer gets into their car and kills someone, the establishment can be held liable for punitive damages. If there was any doubt, the Supreme Court of Georgia reaffirmed in a unanimous decision, this in a recent decision. In other words, someone (i.e., a bar, restaurant, etc.) who helped cause a drunk-driving accident but was not the actual DUI driver, could still be liable for uncapped punitive damages as an “active tortfeasor” in the wreck.

To be sure that the ruling is not limited to a certain set of facts, the case that the Georgia Supreme decided involved a man who had been drinking and loaned his car to his friend who he had been drinking with. So, the punitive damages liability would apply to individuals and businesses alike. This broad case ruling changes the landscape on liability in these situations. Someone who serves somebody — a restaurant, bartender, or even a private host holding a party– who serves someone who is obviously too drunk to drive is subject to punitive damages. In the case decided by the Court, the one defendant asked his friend to drive his car and give him the keys to it, even though his friend was obviously too drunk to drive and he knew it. The friend, as it turns out, did not have a valid driver’s license and the court determined he had a habit of recklessness. Of course, his friend drove drunk and caused a wreck while DUI. In a situation like this, it is common for the DUI driver to be sued for negligence and the person who gave him the car to be sued for negligent entrustment, which is what happened in this case. Both were found liable for the injuries caused by the DUI driver who caused the wreck. The trial judge found that both defendants (the DUI driver and his friend who loaned him the car while knowing he was drunk) “acted in a manner that showed willful misconduct, malice, wantonness, and that entire want of care which would raise the presumption of conscious indifference to consequences.” Normally, this would give rise to punitive damages liability, but the trial judge, while awarding punitive damages agains the driver, would not award them agains the friend who had been found guilty of negligent entrustment.

In reversing the trial court, the Supreme Court of Georgia ruled that there is no limit to punitive damages in cases where the defendant is found to have acted or failed to act with the specific intent to cause harm and that, pursuant to Georgia law amended in 1997, a defendant under the influence of alcohol or drugs “to the degree that his or her judgment is substantially impaired” could be subjected to unlimited punitive damages as an active tortfeasor.” This couple with the ruling that the party guilty of negligent entrustment was an active tortfeasor was the impetus for the Court to hold that the negligent entrustor was liable for punitive damages, as well as the DUI driver.

Published on: June 24, 2020

Senior Care Provider in Atlanta Source of Probe

by Robert J. Fleming

As most have read recently, there has been legislation passed in almost every state which essentially gives businesses and adult living facilities a free pass when it comes to Covid-19 liability. This is true in Georgia. In other words, even if a Georgia senior living facility (i.e., nursing home, assisted living facility, old folks home, etc.) is negligent in the way that they handle Covid-19 and one of their residents suffers a serious injury or dies due to the negligence, the injured patient has no recourse and the nursing home will not be subject to a lawsuit. Whether that is right or wrong is certainly up for debate, but it is law, nonetheless.

SavaSenior Care is one of five for-profit nursing home chains targeted in a congressional investigation launched last week to explore the coronavirus crisis in the nation’s long-term care facilities. Sava’s CEO Jerry Roles, was sent a 10-page letter from the House Select Subcommittee on the Coronavirus Crisis asking detailed questions about the company’s operations and its handling of the pandemic. The letter was prompted by recent congressional testimony citing lax oversight by the U.S. Centers for Medicare and Medicaid Services, known as CMS, and the federal government’s failure to provide adequate testing supplies, masks, gowns and other protective equipment.

Sava has 13 nursing homes throughout Georgia, and nearly half of these nursing home facilities have had major Covid-19 outbreaks. According to recent numbers, 76 Sava residents and 42 staff at the home have tested positive and 11 residents have died after being confirmed as having COVID-19. Sava has 13 nursing homes across Georgia, and nearly half have had major outbreaks, according to the AJC. At Roselane Health and Rehabilitation Center in Marietta (which is just outside of Atlanta), 99 residents have tested positive for the coronavirus and 14 died. At Sandy Springs Health and Rehabilitation, 66 have tested positive and 13 have died, according to the Georgia Department of Community Health.

Published on: June 24, 2020

Georgia Dental Patients Have Unqualified Right to Their File From Dentist

by Robert J. Fleming

In Georgia, when a patients suspects that they are the victim of dental malpractice and request their file, the dentist must give the patient a complete copy of their file, including all radiographic materials such as x-rays and cone beam CT scans. As a Georgia lawyer who regularly handles dental malpractice cases, I receive calls from irate patients who have properly requested a copy of their file but are being stonewalled by the dentist. In most cases, the dentist feels safe in refusing to provide the patient file, and in doing so, feels as if this will convince the injured patient to not seek legal action. Rarely does this work and, in more cases than not, it spurs the injured patient to hire an experienced dental malpractice lawyer to obtain a copy of the file, evaluate the case, and file a lawsuit if the case has merit.

When a dentist refuses to give the patient a copy of her records after they have been properly requested pursuant to statute and appropriate notice to the dentist via certified mail, the statute of limitations (or the amount of time within which the injured patient must file a lawsuit) could be tolled for the period of time during which the dentist refuses to comply with the statutory request for the records. See O.C.G.A. Section 9-3-97.1.

O.C.G.A. Section 31-33-2 provides, in pertinent part:

Published on: June 16, 2020

Talc Makers J&J and Gold Bond Are the Subject of Recent Suit

by Robert J. Fleming

Johnson & Johnson and other baby powder manufacturers are being sued under California’s strict Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code §25249.6. The suit alleges that J&J, along with such other suppliers and distributors of talcum powder as Gold Bond and Shower to Shower and private label brands from CVS, Dollar General, Target (a Dayton Hudson company), Walgreens and Walmart–were hiding that their talc products contained dangerous and potential deadly toxins that caused cancer, reproductive issue and birth defects.

The main thrust of the lawsuit is that a the above sellers and distributors of the baby powder, talcum powder, bath powder, etc. had a duty to provide consumers with a “clear and reasonable warning” before potentially exposing buyers of the products to the chemicals in the product. The suit alleges that the products contain arsenic, chromium, and lead, which are all toxins that are listed in CA’s Proposition 65 as chemicals that cause cancer and reproductive issues. Further, the suit alleges that the target defendants have tried to hide the presence of these chemicals in their products since at least 1976.

In other words, according to the suit, for decades, baby powder and other talcum powder products were sold and marketed as being pure and wholesome (who can forget the ever-present commercial for J&J’s baby powder and Shower to Shower talcum powders during the 1970’s), while they contained and exposed consumers to known asbestos and other carcinogens that potentially cause cancer and other diseases.

Published on: June 11, 2020

COVID-19 Dental Office Closures Affect Atlanta Patients and Dentists

by Robert J. Fleming

As a lawyer in Atlanta who handles dental malpractice on a regular basis, I can gauge by the number of potential new clients the amount of dental procedures that take place in Atlanta. Since we only handle new cases that involve injuries caused by a dental procedure, and the number of dental procedures performed in Atlanta was down to almost zero in April and May of 2020, we have seen the number of dental malpractice calls go down by almost 75% in April and 90% in May. Although the numbers are not in yet for June, as of this writing, I imagine the calls related to new dental malpractice claims are down by about 90%.

While dentist offices tend to be stable businesses that do not fluctuate much in the number of procedures performed, dentists have been especially hard hit by the corona virus pandemic. For the most part, any dental procedures that are not emergencies have been put off. This includes cavities, cleanings and a whole host of other dental procedures.

Atlanta dentists stopped all non-emergent care on March 16, when the CDC and the American Dental Association issued protocols against elective care. Some dentists say they closed even earlier as protective equipment became in short supply. By mid-April, half of dentists in Atlanta had either laid off their entire staffs or instituted staggered work weeks with a skeleton staff. While there are reports of some dentists not closing in some other parts of the county, I have not heard of any here in Atlanta. As Atlanta dentists ramp back up and head back to work, it’s unclear whether patients will follow. While Georgia has given dentist offices the go-ahead to reopen, patient volumes remain half of what they were before the pandemic.

Published on: June 8, 2020

My Commitment to A Better Community in Atlanta

by Robert J. Fleming

Our Atlanta community is hurting after the tragic death of George Floyd, and countless others who came before him. We are all shaken by grief and frustration, here in Atlanta and all throughout Georgia and the rest of the country. Personally, these recent events have caused me to reflect across the many parts of my life which have shaped my views and formed who I am. As a lawyer, as a former military policeman, as a U.S. citizen, and as a husband and parent, I am motivated to tackle this situation head on. I have always know that there is a history of suffering and injustice that has hurt people of color. While minorities may not have a monopoly on this, they have certainly had more than their share. However, I now realize that this affects all of us. It is clear to me, that so many of us are hurting emotionally because of what happened in Minnesota and Brunswick. While these incidents are certainly not indicative of all police (or police departments), these wrongful deaths have highlighted the unfair treatment that African-Americans and other minorities have endured and continue to endure today. I say this as a former Military Policeman who was in the trenches and had to deal with very similar circumstances as that in Minnesota.

As a lawyer, I like to think that I fight for justice every day. This fight now extends beyond the office and into rooting out inequality in our justice system and in society in general . I am happy to report that, among its many goals, our State Bar of Georgia has stated that it exists “to improve the administration of justice, working daily to protect the public and support its lawyers.” As an attorney, I feel like I am in the trenches, much like the trenches I was in while in the Military Police Corps. But this time, I am in the trenches fighting to give everyone an equal playing field in life and justice for all. Powerful words, but heartfelt one nonetheless. We have to strive for this. Is it attainable? I don’t know but I certainly hope so. I know first hand what it’s like to be fighting against all odds and I don’t wish that upon anyone, regardless of race or any other factor. As the state bar says, “we commit to engaging, listening and learning from the experiences and perspectives of all those willing to share them. We will act upon what we learn to deliver on the promise of equal justice for all people. These conversations are uncomfortable, but silence is unacceptable.”

This all comes on the heals of the COVID-19 crisis. Frankly it is draining, but it is here and these situations must be addressed because these back-to-back crises have raised issues that we, as a society need to address. Even though I am tired, I want to be a part of the solution, not the problem. I think we all have an obligation to take a fresh look at our society and (1) identify what is wrong with it; and (2) come up with a solution. One that will create a better future for everyone. We can do more. We owe it to everyone to make this work. I challenge each of you to join me.

Published on: June 5, 2020

COVID-19 Closures Delay Georgia Trials

by Robert J. Fleming

The Supreme Court of Georgia has promulgated rules and revised deadlines to deal with the stay at home and shelter in place demands of the COVID-19 pandemic. These essentially amount to an extension of all court filing and response deadlines. Much of the regular business of the state’s court system has been shut down since March 14, when Chief Justice Harold Melton declared a state of judicial emergency because of the pandemic. That order has since been extended to June 12, meaning no trials have been held or grand juries convened in the past 10 weeks. This has created a huge backlog of cases that would all hit at a time when the courts will be forced to furlough and lay off staff to meet the state’s requirement to cut spending. This two-edged whammy will result in trial delays for those injured in Georgia and who have sought redress from the courts.

Sen. William Ligon, R-Brunswick, the chairman of the Senate judicial budget subcommittee, started Monday’s hearing at the capitol with court officials by reminding them of the state of the economy. He said not every agency may wind up having to cut 14%, but that every agency, from the Supreme Court to the Department of Education, had to suggest spending cuts. “The governor’s office is not exempt from this 14% reduction proposal, nor is the legislative branch, nor is any executive branch agency, and the judicial branch is not either,” Ligon said.

The Honorable Sara Doyle, the presiding judge of the Georgia Court of Appeals, set the tone by telling lawmakers that to meet the proposed cuts the court would have to let go 17 or 18 staff members and furlough others for 22 days in the next fiscal year, which begins July 1. “The end result is an appellate court that can’t fully function or won’t fully function,” she said. “Now more than ever, this country and this state need fully functioning courts at all levels and not one working with half the necessary staff on a shortened work year,” she said. “While the cuts being requested are a terrible burden on my court’s ability to function and to those who will lose their livelihood, the impact on the state and the people who live and do business here is much more profound if its court system is crippled.”

Published on: June 1, 2020

Georgia Dental Implant Injuries and Sinus Perforation Injuries

by Robert J. Fleming

Many clients are getting dental implants in the upper jaw. The sinuses are located right above your upper teeth, which poses a potential problem when pulling teeth and installing dental implants such as sinus perforation when having one of your upper teeth extracted?

The anatomy of the sinus floor and its relationship to the upper teeth varies from person to person. In some people, the sinus floor is well above the roots of their teeth with bone separating the roots from the sinuses. While in other people the floor follows the roots more closely. In essence, wrapping around the roots with minimal bone between the sinus and tip of the roots. Still others actually have the roots of the teeth up into the sinus, which seems to work fine, so long as they are not disturbed (i.e., extracted forcefully). For those whose sinuses are very close to or even touching their tooth roots, there is a risk that the sinuses will be perforated when their tooth is extracted. This risk is greater if the tooth being extracted is infected or has an abscess at the tip of the root. This situation calls for extreme caution and if the dentist does not comply with the standard of care, a communication between the mouth and sinus can occur and this is often a very serious complication which could have been avoided which can take months and even years to resolve.

When considering an extraction of an upper tooth, if x-rays show that the tooth’s roots are near the sinus floor or actually in the sinus cavity; or if there is an infection or abscess, the dentist should take a cone beam CT scan (“CBCT”) of that area prior to extracting the teeth and certainly before placing the implant in that area. A CBCT can assess the proximity of the roots to the sinus or assess the degree of existing defects that may lead to a sinus perforation following an extraction. Since CT scans are imperative in planning and placing implants, it is considered below the standard of care for dentists to not perform a CBCT before extraction and implant in this area. In fact, due to the complicated anatomy, it may be necessary to perform a pre-extraction CBCT and a pre-implant CBCT. This is so because the extraction may cause significant changes to the bone structure that would affect the available bone in which to place the implant. If there is enough bone height, the implant will fail, or worse, the implant will be screwed into the sinus where it will invariably lead to communication between the mouth and sinus and repeated infections. Sinus perforations, if not diagnosed and left untreated, can persist, leading to an oral-antral fistula—an opening between the sinus and the mouth. Oral-antral fistulas can result in sinus infections as well as fluid drainage from the mouth to the nose. They can also lead to drinks being leaked into the sinus, whistling noises when breathing, and a whole host of unpleasant problems caused by the opening between the mouth and sinus. It is important to manage sinus perforation at the time it occurs to prevent it from progressing to a chronic oral-antral fistula. Proper care and treatment after a communication is caused often requires that an oral surgeon consult with an ENT and/or the two of them working together to resolve the issue.

Published on: May 19, 2020

Georgia Dental Procedures To Increase After COVID-19 Along With Dental Malpractice Claims

by Robert J. Fleming

With the post COVID-19 shelter at home situation nearing an end, many people contemplate getting dental work that they may have needed before all of this started, but have not been able to complete. This could be because of shelter in place and business laws that have been enacted to combat the spread of the corona virus, or it may be due to a personal decision to not receive non-emergency dental or medical care until the pandemic has subsided. This pent up demand may be seen as a way to have a new beginning or to get ready for the post COVID-19 lifestyle. As an Atlanta Dental Malpractice lawyer, I am far too aware of injuries that can result from botched dental work. While I hope that it happens to none of you, chances are some of you will receive dental treatment which is below the standard of care and this may result in a dental malpractice lawsuit to recover for injuries.

Dental implants, root canals, and tooth extractions are just three of the many dental procedures that result in serious nerve injuries to the lingual and inferior alveolar nerves. It’s a simple (not simplistic) error that dentists make that cause these injuries. Most times, the injury occurs because the dentist does not take into account the distance between the tooth root and the nerves, or worse yet, doesn’t even take pre-procedure x-rays to make sure there is sufficient room between the tooth roots and the nerves. Other times, the injuries are the direct result of sloppy dentistry or the dentist simply not caring enough about his patient to ensure that the procedure is done correctly and the nerve is not placed in danger.

Dental implant procedures are “in” these days and they are effective, if performed within the standard of care. Unfortunately, we are seeing a lot more clients coming into our office complaining of nerve injuries after the dental implant was placed too deep into the jaw and resulting in a damaged nerve. There are many ways for the dentist to measure the amount of bone height that is available for the implant prior to drilling the hole for the implant and placing the implant in the jaw. While some of these measurements have a margin of error, most methods today do not.

Published on: May 12, 2020

Georgia Nursing Homes Get Additional Protections From Lawsuits Just as Their Malpractice Rises

by Robert J. Fleming

A new report based on an Atlanta Journal Constitution (“AJC”) review of inspection reports for Georgia’s assisted living communities (which includes nursing homes and senior living facilities) and large personal care homes revealed hundreds of recent infractions, including 140 violations of residents’ rights, 51 citations for failing to report serious incidents and dozens of medication errors and cases where residents with dementia went missing. Yet, despite these horrific incidents of negligence and malpractice, these very same facilities are benefitting from laxer oversight and accountability in the form of recent legislation to protect them against lawsuits.

The AJC review also exposed 180 new cases with violations involving residents being harmed or placed at high risk of harm. The details of these and hundreds of other new violations are available through an updated version of the AJC’s senior care ratings site. I highly recommend scouring these (not just browsing) before making any decisions as to whether you want to place your loved one into one of these facilities, and if so, which one. I would also look at the number of government web sites which compile statistics on these facilities. If you do this, you will see a pattern and, while you may not be able to settle on the very best one, you will certainly be able to discern a pattern of sloppiness and negligence on the part of the worst ones.

Some of the reports date to spring 2018, though state regulators only made them public in recent months. The AJC unveiled its website last fall as part of its investigation of the state’s senior care industry. This was met with a lot of publicity and well deserved credit to the AJC for helping expose the sloppy care and abuse that is rampant in this industry.