Atlanta Injury Lawyers Blog

Published on: April 29, 2021

Expert Testimony in Georgia Malpractice Cases

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.

Published on: September 8, 2020

Georgia Dental Board Provides Little Protection Against Dental Malpractice

by Robert J. Fleming

If you are a dental patient in Georgia and you suspect that your dentist may be recommending treatments you don’t actually need or if you sustain and injury from a dental procedure and suspect that the injury was caused by dental malpractice, you can complain to the dental board. However, the odds are pretty good that nothing will happen and to add insult to injury, many times the dental board will drag out the proceedings until after the statute of limitations has run, effectively precluding you from filing a lawsuit and suing the dentist for the malpractice.

As is true for other medical professions, state dental boards are typically made up of dentists overseeing dentists, leaving the profession to police itself. This is certainly true of the Georgia Board of Dentistry, which, as of last count, is compromised of almost all dentists. While this is the norm, and certainly not illegal, it does cause suspicion as to just how objective the board will be when looking into your situation.

Nationwide, dentists rarely have their licenses pulled by their dental boards. In 2018, according to the Department of Health and Human Services, state boards revoked or suspended only 225 licenses – 0.1% of all dentists. Ten states didn’t suspend a single dentist.

Published on: July 27, 2020

Dog Bites are Up in Georgia as COVID-19 Pandemic Drags On

by Robert J. Fleming

Many people in Atlanta have surmised that dogs have never been happier since Covid-19 has resulted in lots of dog walks and added attention from their owners. In a surprising development, the number of dog bites are up as people and their pets are spending more time together, at home in often stressful situations, but there are also attacks involving dogs outside. To add insult to injury, a lot of the increased dog attacks are directed at children, with some requiring emergency room care.

In almost all in-town counties such as Fulton, DeKalb, Clayton, and Cobb, a dog’s owner must comply with the local leash law, or liability is attached to the attack via the legal argument of negligence per se. Some county residents are relaying instances of dogs not on a leash and being spooked by masked walkers and the end result is predictable: A dog attack and avoidable injuries.

In the City of Atlanta, dog owners have a duty to keep their dogs leashed and under control as follows:

Published on: July 2, 2020

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

by Robert J. Fleming

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.