Articles Posted in Negligence

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In an unbelievable turn of events, missing dentures were found stuck in a dental patient’s throat 8 days after he had surgery! His case involves a 72-year-old man whose partial dentures apparently got stuck in his throat during surgery and weren’t discovered for eight days. The man went to the emergency room because he was having a hard time swallowing and was coughing up blood. Doctors ordered a chest X-ray, diagnosed him with pneumonia and sent him home with antibiotics and steroids. Apparently they didn’t think to x-ray his throat at the first ER visit. It took another hospital visit before another X-ray revealed the problem: His dentures (a metal roof plate and three false teeth) were lodged at the top of this throat! The man had previously thought his dentures were lost while he was in the hospital for minor surgery. How he could suffer this type of pain and disability is beyond comprehension.

A case like this would typically be referred to our practice by a former client (many times former clients are employed in the healthcare industry and are appalled at the negligence and sloppy medical care that goes on in their institutions), family or friends of the injured or of former clients, healthcare providers themselves (yes, this happens. I healthcare provider will be so concerned with the level of ineptitude that they will inform the injured potential client to call us for a free case evaluation), self referral, or other attorneys. I should point out that, in today’s environment, the overwhelming number of new case referrals we receive are through the internet when people search for Georgia dental malpractice lawyers or Georgia medical malpractice lawyers. For me, this is a two edge sword. It is sort of an equalizer that victims of malpractice who do not personally know good lawyers who specialize in malpractice can locate a good one by doing some basic google searches, sometimes the “heavy advertisers” get the calls, and they are, in most cases, not the best choice.

In a case like the above, getting the facts of the case up front is critical. During the initial call, be prepared to discuss who, what when and where in detail. As an initial matter, the attorney must determine when the alleged malpractice took place (and or when the injury was first discovered) so they can determine when the applicable statute of limitation may begin to runWhether the case has merit or not depends on so many factors such as whether the facts that the caller is relaying to you “add up” and make sense, are the resulting damages caused by the malpractice sufficient to warrant the attorney time and case expenses, the Plaintiff’s background and particular circumstances, whether other qualified attorneys who specialize in dental malpractice or medical malpractice have reviewed the case (including obtaining the records ands even possibly hiring and expert to review the facts and the records and render an opinion as to whether, in her opinion, malpractice occurred and whether the malpractice caused the injuries that the Plaintiff is claiming.

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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.

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As an Atlanta injury lawyer who has been handling personal injury and malpractice cases for over 25 years, I have seen a lot of potential new clients. Many have asked, in one form or another, some version of the following questions:

My wife fell when leaving our neighbors house. She broke her ankle in 3 places, can we recover for her injuries?

I have a quick question, my husband was hit by that train that was in the news and we need help.

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To add a party defendant into an existing Georgia state court lawsuit, leave of the court must be sought and the complaint must be amended to add the additional party. Plaintiff would move under these circumstances for Joinder and would typically file a brief in support of her motion for joinder, such as the following:


This case arises from Defendant’s failure to pay for agreed upon labor and materials to renovate the Defendant’s restaurant located in Atlanta, Georgia (the “Project”). 

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Sometimes, an isolated incident of dental medical negligence can cascade into a horrible situation which ends in permanent injury or even death. As happened in another case that an out-of state law firm handled, clients have gone for treatment for what would be considered a routine dental procedure such as treatment for chronic decay around and under a crown (Note: this is usually caused by the crown margins not being sealed properly). In a case like this, the general dentist will remove the crown and the post (which is used to provide stability to the crown), removed the decay, and then reinstall the post and crown to complete this, very common and non-complex treatment.

However, in the above-mentioned case according to the attorneys who prosecuted the case, the dentist performing this procedure did not use the same pilot hole when installing the new post. Instead, he drilled a second pilot hole, which was drilled on an angle, resulting in  perforation of the tooth. A perforation is dangerous because it almost always leads to tooth loss and/or infection.

As a result of drilling at a crooked angle, the risk of perforating the wall of the tooth was increased dramatically, which is what happened. The dentist placed the new post into the new post hole, and because of the perforation, the tip of the new post was seated in the  jawbone (maxilla). In other words, the dentist drilled right through the tooth and then place the post in the hole which was coming out of the tooth (clearly, treatment that is below the standard of care for a number of reasons). This perforation of the tooth lead to an infection which lasted for several months. During this time the patient complained of pain and swelling which the dentist negligently dismissed as irritation from the new crown and did nothing to address the perforation, possible infection or other possible sources of the increased pain. The patient was eventually referred to a specialist about 4 months after the crown post was negligently seated, who performed a Cone Beam CT scan (3d x-ray of the tooth), diagnosed the condition as a perforation and extracted the tooth.

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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.


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.”

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When one’s spouse is injured and is involved in a lawsuit, damages for loss of companionship and loss of services for the other spouse are known as loss of consortium claims. Damages for loss of consortium run from the date the spouse was injured and continue until the injury no longer interferes with society, companionship, affection and all other matters arising from marriage, or the termination of the marriage.

The standard jury charge for loss of consortium in cases that involve non-permanent injury to the spouse is:

Consortium; Definition; Determination of Value; Generally

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Georgia trial lawyers on both sides of the fence have been pushing to modernize the Georgia code of evidence. The current version was enacted during the Civil War era and the changes would bring the laws of evidence in Georgia state courts in line with those used in federal court. Many states have done this over time, and it is generally viewed as a positive development.

Proposed legislation could be passed this year that would bring Georgia’s code of evidence more in line with the federal rules of evidence, eliminate Georgia’s arcane hearsay rules (and some questionable exceptions to hearsay) and modernize trial procedure that would make more sense in introducing medical records into evidence at trial.

As an Atlanta Injury Lawyer, I support the proposed changes and hope they become law.

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 harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

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To My Democrat Friends:

Please accept with no obligation, implied or explicit, my best wishes for an environmentally conscious, socially responsible, low-stress, non-addictive, gender-neutral celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious persuasion of your choice, or secular practices of your choice, with respect for the religious/secular persuasion and/or traditions of others, or their choice not to practice religious or secular traditions at all. I also wish you a fiscally successful, personally fulfilling and medically uncomplicated recognition of the onset of the generally accepted calendar year 2011 but not without due respect for the calendars of choice of other cultures whose contributions to society have helped make America great. Not to imply that America is necessarily greater than any other country nor the only America in the Western Hemisphere . Also, this wish is made without regard to the race, creed, color, age, physical ability, religious faith or sexual preference of the wishee.

To My Republican Friends:

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According to a recent article in the Fulton County Daily Report, growing dissatisfaction with the billable hour dominated a recent discussion between in-house counsel and lawyers from boutique firms.

As an experienced Atlanta injury lawyer and business litigator who has been an associate, partner and managing partner during my legal career, this comes as no surprise to me. Simply put, the size of a firm does not equate with the quality of legal work it performs and anyone who implies the opposite is misguided. While this is garnering headlines now as Corporate America attempts to tighten its belt, this is something that most legal insiders have come to realize some time ago. You see, the “big firm” business model is arcane and simply does not work in today’s competitive environment.

Most large Atlanta defense firms bill strictly on an hourly basis. While there is a lot of talk about changing, change comes slowly, if at all. Conversely, most smaller law firms who tend to represent injured Plaintiffs take most new cases on a contingency fee basis. In other words, the law firm’s fee is a percentage of the amount that is recovered for the client and if there is no recovery, there is no fee.

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