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Published on: July 19, 2024

Premises Liability Atlanta Businesses Liable for Inadequate Security

There has been a number of large Georgia verdicts recently in inadequate security premises liability cases. The landscape is ever-chaning for these cases because the law evolves over time in the courts and the codes are interpreted more narrowly. A thorough and timely evaluation is essential to the ssuccessful pursuit of these cases. Some of the initial steps are: talking to the police; requesting crime history reports for the surrounding area; and securing statements from witnesses. Additionally, a thorough anlysis of what insurance is available to cover the incidetn is essential.

When someone gets injured or attacked on a business premises (such as a big box store, hotel, motel or restaurant), the most commong defenses are based on legal arguments of experiration of the applicable statute of limitation, assumption of the risk, trespasser status of the injured plaintiff, equal knowledge of the unsafe condition and contributory negligence. Other common defenses are that the incident did not happen on the property or that the incident was the sole responsiblity of a third party tortfeasor (the attacker).

Inadequate security can often be the basis for liability against the defendants. Most businesses have some type of secuirty measure in place, but the issue is usually crafted around whether the security measures were sufficient to protect against incident that occurred based on the totality of the circumstances. Some common security measure that may or may not be adequate to defend against liability are the organizations policies and procedures related to safety and security, criminal backgound checks of all employees, subcontractors etc., an on-site security guard, adequate fencing that is well-maintained (many incident are the direct result of third parties gaining access to the property through holes in the fence which are regularly used as cut throughs), a security gate for pedestrian access, a security gate for vehicular access, community engagement for safety, adequate reporting of incidents and potential dangers, courtesy officers on site showing a presence, and a documented effort to combat crime.

Published on: July 1, 2024

Lower Jaw Dental Work Common Cause of Dental Nerve Damage in Georgia

by Robert J. Fleming

Dental malpractice can occur during various procedures, but some common dental procedures result in a much higher percentage of dental malpractice claims. The reason for this is probably the complexity of the procedure, the proximity of the procedure to certain anatomical structures in the mouth and tongue and jaw and the severity of the injury when these structures are violated by the dentist performing the procedure. Some of the procedures which tend to cause the most Georgia Dental malpractice claims are:

Tooth Extractions in the Lower Jaw: Improper extraction techniques during complex extractions can lead to damage of the jawbone, nerves that run along the jaw and tongue and other parts of the face. This results in nerve damage and has leads to signs and symptoms such as pain, numbness, (pain and numbness together) and loss of feeling in the lip chin gums, teeth and face.
Root Canals Procedures in the Lower Jaw: Not complying with the applicable standard of care when performing root canal therapy (root canals) results in errors during root canal procedures, such as perforations of the root, over-instrumentation of the canals, apllying too much pressure whine filling the canals, using the wrong type of filling material, incomplete cleaning, or overfilling of the canal. These can call cause cause infection, pain, nerve damage and or damage to surrounding tissues and, even at time, damage to the surrounding bone when the malpractice causes and infection and the infection is not treated in a timely manner or is treated ineffectively. This can lead to osteomylitis, a very serious bone infection that is extremely hard to treat due to the lack of blood and oxegynation in the infected bone..

Published on: January 22, 2024

Root Canals in Georgia Performed Below the Standard of Care Causing Injury

by Robert J. Fleming

The need for a root canals typically arises when the patient has a cavity that is too deep to be filled congenitally. The cavity extends down into and close to the roots of the teeth. When this happens, the dentist will either refer the patient to and Endodontist or perform the root canal herself. Either is fine, but the root canal must be peformed properly to comply with the applicable standard of care for dental malpractice in Georgia.

X-rays or CT scans (“imaging”) are taken of the tooth to determine the extent of the decay and to determine how many canals must be accessed to perform the root canal. In order to comply with the legal standard of care for dentistry, imaging should be performed before, during and after the root canal is completed. In addition to imaging, there are many test that the dentist must perform to make sure she is performing the root canal on the correct tooth; that the tooth is not cracked (most cracked teeth cannot be cured by a root canal); and to make sure a root canal is indicated.

Most times, after a root canal, the tooth is scheduled for the placement of a crown, but if the area is not too large, a crown is not always necessary (just a filling). If all goes well, the pain from the original need for the root canal and from the drilling and pressure associated with the procedure itself should subside within a few days, at most. Similarly, the numbness from the anesthesia necessary to perform the root canal should wear off the same day.

Published on: November 7, 2023

Atlanta Dental Malpractice — 25 Years of Experience and Counting

by Robert J. Fleming

The more things change, the more they stay the same. Over the past 25 years, I have seen all types of dental malpractice situations. Most involved a procedure (root canal, dental implants, etc.) which create a dental nerve injury. While the advances in these procedures change over time, the need to perform them within the applicable standard of care does not.

Good, solid dental care certainly does not fit the one-size-fits-all description. Every care situation is different and the facts are what determine the outcome of many cases. The expression: the devil is in the details, certainly rings true in dental malpractice. And the details are often recorded in the patient’s chart so we can determine what took place, at least as far as what the notes say took place.

Unfortunately, many potential clients (and quite a few lawyers who don’t have the depth of experience with dental malpractice cases) conflate sloppy dentistry with dental malpractice. But, sloppy dentistry, while frustrating and while it can certainly cause much harm and frustration cannot support a lawsuit. However, dental malpractice, if committed by the treating dentist and resulting in sufficient injuries due to the malpractice, certainly can. The general standard of care for dental malpractice in Georgia is a national standard and if an expert bases his opinion on a local standard, his opinion can be excluded. Since this is the case, a standard of care expert needs no personal knowledge of the standard of care in the local community in which the malpractice occurred (such as Fulton County, DeKalb County, or Gwinnett County, or the City of Atlanta, for instance) to render an opinion of what the standard of care in the case is; and whether the applicable standard of care was violated by the dentist. What a particular dentist would have done under like and similar circumstances is also not dispostive on the issue of whether the standard of care was violated, although this type of testimony has become common to impeach experts who are being less than transparent when trying to defend a dentist who has clearly committed malpractice. In other words, the dental expert testifies that the way the procedure was performed met the standard of care, but admits under oath that he would not perform the procedure that way. In most cases, that is because performing the procedure the way the defendant did was below the standard of care and that deviation of the standard of care is what caused the injures that the Plaintiff is complaining of in the lawsuit.

Published on: August 21, 2023

Attorney Robert J. Fleming Once Again Named To Super Lawyers 2023

by Robert J. Fleming

Robert J. Fleming handles medical malpractice and dental malpractice cases in the Atlanta area and throughout Georgia. He is a skilled trial lawyer who has delivered verdicts that far exceeded the last offer from any insurance company or defendant. He is well versed in all aspects of medical/dental malpractice litigation and continues to exceed expectations. Helping clients get back on their feet, pay outstanding medical bills, and funding trusts for the victim and their family are some of the remedies that Robert J. Fleming has fashioned when representing clients who have been injured due to negligence and dental/medical malpractice.

With almost 30 years of experience in the law, Fleming was, again, recognized by Super Lawyers Magazine as one of the best medical malpractice lawyers in Georgia. Within the area of medical malpractice, he regularly handles dental malpractice cases that involve dental nerve injuries. Some of the procedures that commonly lead to dental malpractice litigation include root canals, dental implants and complicated extractions. Dentists in Georgia must comply with the standard of care when rendering care and treatment to their patients. Just like many other types of professionals, dentists must provide care that a reasonable dentist would provide under like and similar circumstances. Some examples of dental malpractice are quite clear, such as extracting the wrong tooth, drilling into areas that are not in the surgical area and failing to order a biopsy when the patient clearly has signs or symptoms of cancer (and must be ruled out or risk them dying from undiagnosed cancer). Others examples or malpractice are less obvious (but just as culpable) and the case must be reviewed by a dental expert such as an endodontist or oral surgeon who can review the facts of the case, the treatment rendered and the resulting injuires to render an opinion of whether there was malpractice or not.

The resulting damages from dental malpractice certainly can run the gamut. Some malpractice results in relatively minor damages (and hence do not result in a lawsuit), while others can result in permanent life altering injuries or even death. In addition, there is not always a direct relationship between the level of malpractice and the severity of the injury. That is why a potential dental malpractice client would be well advised to seek a lawyer who has substantial experience evaluating and pursuing dental cases in court. The dental malpractice lawyer should be able to evaluate the case from a medical-legal perspective to determine (1) if the case should be reviewed by a dental expert; and if so, which expert would be best qualified to review the case. Experts need to have complete copies of files in order to propery evaluate a case and render an opinion.

Published on: January 3, 2023

Wrongful Prosecution Cases Lead to Settlement

by Robert J. Fleming

According to reports, a major car rental company is settling a number of claims by customers who were falsely reported by the company as having stolen its vehicles, with some innocent renters arrested and jailed for weeks or longer over the false theft claims. According to the report, the company released a statment that it was settling 364 claims, which it said amounted to 95% of outstanding claims against it over the false theft reports. Based on these statistics, it appears that the company is involved in, our has been involved in before the settlement, almost 400 of these cases. The reports state that dozens of customers had shared stories on social media and television of being arrested, “swatted” or stopped at border crossings after the company incorrectly reported them to the authorities for stealing vehicles from its fleet of avaialable rental cars. In some of the most aggresious cases, it appears that the customer had paid for and properly returned the car that they rented weeks or months prior — or had never rented a car at all. While the settlement is noteworthy, it is not clear what caused this high number of falsely reported claims and in these types of cases, the facts are crucial. The settled cases do, however, highlight the liability that a company undertakes when it accuses someone of theft without maintinaing adequate safeguards in place and properly investigating the situation to make sure that the accusations are not false.

In Georgia, a company has a duty to properly investigate a case and to not negligently accuse someone of a theft. Many times, the allegations are made without any justification and result in an arrest of an innocent person, lengthy jail stays and other damages. 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.

For over 25 years, Attorney Robert J. Fleming has been handling premises negligence, medical malpractice and other personal injury lawsuits for individuals and families who have been injured or died as a result of the negligence in the Atlanta, Georgia area. He is a partner in the law firm of Katz Wright & Fleming, LLC and regularly handles cases in Atlanta as well as Alpharetta, Brookhaven, Chamblee, College Park, Duluth, Decatur, Doraville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, Smyrna, Peachtree City, and other cities in Georgia. He is committed to making a difference in his clients’ lives. If you or family member have been seriously injured or died as a result of premises negligence and would like quality legal representation or if you would just like to consult about a potential case, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

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: 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: May 12, 2020

Georgia Dental Offices Told to Make Changes to Protect Patients

by Robert J. Fleming

All dentists and dental offices must use best practices and follow the standard of care to protect patients and provide the safest office environment possible. This has always been the law in Georgia, but now, in the face of the COVID-19 pandemic, these dental providers must do much more.

To reduce the risk that patients and staff will be exposed to COVID-19, the American Dental Association has provided various guidelines to dental offices. The guidelines echo the recommendations of the U.S. Centers for Disease Control.

These are among the highlights of the new guidelines and should be instituted by general dentists, oral surgeons, endodontists, periodontists, and all other dental specialists: