Articles Posted in Wrongful Death

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To the surprise of many, a child can be put to sleep for a dental procedure by a dentist who does not have a medical degree. While this should not be a concern in and of itself, when you couple this with the fact that according to the American Dental Association, educational and training requirements to administer sedation and dental anesthesia in Georgia is governed by the Georgia Board of Dentistry, this creates an alarming and dangerous situation. As a Georgia lawyer who specializes in dental malpractice, including injuries caused by improper administration of anesthesia, I am concerned for the safety and well-being of our children in Georgia (as well as adults who receive general anesthesia when they undergo complicated dental procedures) and would hope someone other than the Georgia Board of Dentistry would oversee this area of dentistry.

While the anesthesia is reportedly administered by dentists with anesthesia training, in almost all cases involving complicated dental procedures such as root canals, dental implants or complicated extractions, the anesthesia is not administered by a medically trained (i.e., and M.D.) anesthesiologist. To make matters worse, dentist can perform sedation and anesthesia themselves without having a physician (anesthesiologist) or dental anesthesiologist present.

This is all concerning for adults, but the problem is exasperated when it comes to parents who bring their children to the dentist and are left in the dark as to what is happening in the exam room. Sedating children is much more complicate and potentially dangerous than sedating adults. There is a much smaller room for error with kids. While state dental boards require the dentist to qualify for a special anesthesia permit, there is no assurance that these dentists who are sedating our children are specially trained and qualified to sedate children — and parents need to know this.  There are no national standards for what the dental anesthesia permit requires, and some states do not require it at all.   And, the standards are determined by the American Dental Association, not by the ABA or by medical boards or even the two national boards for dental anesthesiology. Why this is so, is not immediately clear, but a national standard administered by the medical community seems to make sense.

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Many teenagers have their wisdom teeth removed. If the extractions are performed while the patient is still young, the procedure is less likely to lead to complications. Tragically, this was not the case according to reports, for the family of a 17 year-old who died from alleged anesthesia complications during a wisdom tooth extraction. The teen was under general anesthesia in the oral surgeon’s office when her heart rate dropped dramatically. Despite a call being placed to emergency 9-1-1 and CPR being administered before the paramedics could arrive, the teen died from a lack of oxygen to the brain caused by her heart failing.

In addition to paying the $2 million settlement, the oral surgeon who caused the death was temporarily suspended from practicing dentistry 6 weeks after the incident and disciplined by the state board of dentistry.

All medical providers, whether they be doctors, nurses, dentists or oral surgeons have a duty to administer anesthesia appropriately and to properly monitor the patient during and after the procedure to ensure there are no complications related to the anesthesia. If there are complications, the medical provider must comply with the standard of care and uncover the complication and treat it in an appropriate and timely manner. Failure to comply with the standard of care constitutes negligence and the practitioner is liable for all damages (up to and including death) that flow from the negligence.

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The official code of Georgia, O.C.G.A. § 51-4-1 governs the measure of damages in a Georgia wrongful death case and states, in pertinent part: ” [The] Full value of the life of the decedent, as shown by the evidence means the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he [or she] lived.”  While the measure of damages for wrongful death varies by state, Georgia is unique in that the laws of Georgia allow for damages to be calculated based on the value of the decedent’s life to him. With this in mind, it follows that the measure of damages in a Georgia wrongful death lawsuit are the same as those calculated in a negligence case in which the injured victim survives but is rendered permanently disabled by the negligence. The only exception, obviously, is that the wrongful death litigant cannot recover for future medical and living expenses, since they are no longer living. The full value of life is made up of 2 categories: (1) the economic value of the deceased person’s normal life expectancy and; (2) and  “an intangible element incapable of exact proof.” (See, Peeler v. Central of Georgia Railway Co., 163 Ga. 784 (1927). When the jury considers the evidence of the decedent’s life from the decedent’s perspective to determine what he lost rather than from the perspective of what the plaintiff’s loss was, the value is not what the decedent would place on his life. Any charge by the Judge to the jury, should make clear that the value of the life is not that which the decedent would place on his or her own life, but the value is, in fact, based upon what the decedent lost. While, from a practical perspective, this may seem like a distinction without a meaningful difference, it is important that the jury charges accurately reflect the law and the correct methodology that the jurors must employ in calculating damages. Otherwise, one risks a mistrial or the verdict being overturned on appeal. A decedent’s personal expenses (such as income taxes) are not to be considered by the jury when calculating wrongful death damages in Georgia. A properly instructed jury, which returns a substantial verdict in a wrongful death case, will not be overturned or disturbed, absent proof that they were guided by improper considerations.

It might be surprising to learn that punitive damages are not available to in a wrongful death action in Georgia. This is so because the damages are already in the nature of a civil penalty against the defendant and to impose punitive damages in this type of case would be duplicative. Punitive damages are, however, recoverable by the estate in connection with the injuries and pain and suffering endured by the deceased before the death. In other words, if there is proof of “that willful misconduct, malice, fraud, wantonness, oppression,” or “that entire want of care which would raise the presumption of conscious indifference for the life of another,” punitive damages can be recovered by the estate of the deceased.

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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According to a recent study, medical malpractice could be the third-leading cause of death in the United State after cancer and heart disease.

Martin Makary, a professor of surgery at the Johns Hopkins University School of Medicine who led the research, said in an interview that the category includes everything from bad doctors to more systemic issues such as communication breakdowns when patients are handed off from one department to another. “It boils down to people dying from the care that they receive rather than the disease for which they are seeking care,” Makary said. Makary explained that he and co-author Michael Daniel, also from Johns Hopkins, conducted the analysis to shed more light on a problem that many hospitals and health-care facilities try to avoid talking about.

Respiratory disease, accidents, stroke, Alzheimer’s disease, flu and pneumonia, kidney disease and suicide round out the leading causes of death in America. Interestingly, medical malpractice and accidents account for almost 400,000 deaths each year in the United State. To term these causes of death as “accidents” is a bit misleading, since many of these incidents are caused by the negligence of a third-party and should more accurately be termed wrongful death. In the case of medical error, the negligence is attributed to the doctor performing below the applicable standard of care which leads to death and should more aptly be termed medical malpractice. In the case of an accident, many times the incident is caused by the negligence of a third-party tortfeasor, which could be a careless automobile driver, negligent premises owner or a person who does something negligent which leads to the death of another.

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As this recent article detailing the death of a young child as a result of dental care shows, damages from dental malpractice can include serious injuries such as damage to the dental nerves, pain, numbness and even death.

After their 6-year-old son died following a dental procedure, a California couple went to the California Legislature, hoping a new law could prevent other families from experiencing similar tragedy. Unfortunately, what they learned is that, sometimes, the quest for truth is not what the state dental boards strive for. According to the article, in California, for example, the California Dental Association spent about $664,000 lobbying last year – more than the pharmaceutical industry trade group or the association for Hollywood movie studios.

As an Atlanta attorney who regularly handles dental malpractice claims, I have been interviewed on just how difficult it is to know what the Georgia Board of Dentistry is and is not doing when it comes to investigations. While it is hard to know just what the Georgia Board of Dentistry is up to, we do know that they rarely take action, and this is unfortunate because, as discussed above, dental malpractice can and often does lead to horrific injuries which in many cases are permanent.

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Despite Atlanta drivers spending more and more time in their cars, the number of highway deaths in Georgia has decreased to the lowest rate since 1949. According to the Federal Transportation Department, 32,788 occupants of cars were killed in highway accidents during 2010. This is a 3% decrease from 2009 levels. Georgia and the Southeast trends follow closely the national statistics.

While the trend downward is promising, when you think about it, over 30,000 Americans died in car accidents last year alone–a sobering number, to say the least. As an Atlanta car accident lawyer, I am fully aware of the different types of auto accidents that lead to serious personal injury and death. We all must be vigilant in our attempts to continue this trend of better safety for the well-being of all who travel our roads.

Georgia recognizes two separate and distinct types of wrongful death claims. The first is a claim to establish the “full value of the life of the deceased.” This claim is brought by or on behalf of the surviving family members of the deceased person. It includes monetary damages related to both the financial and intangible value of the deceased person’s life, such as:

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MARTA v. Maloof decided yesterday by the Georgia Court of Appeals holds that a wrongful death claim is not stayed by Georgia Code Section 9-3-92 (Tolling time for Unrepresented Estates). This holding affects the time in which an estate may bring a wrongful death claim. The reasoning is odd and this case is not helpful to plaintiffs who are pursuing a wrongful death claim on behalf of the estate.

Under O.C.G.A. § 9-3-92 an estate claim should be tolled. The code sections state:

9-3-92. Five-year tolling for unrepresented estate — In favor of estate

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The Supreme Court of Georgia recently clarified and re-affirmed a surviving spouse’s legal right to obtain copies of the deceased spouse’s medical records. Alvista Healthcare Center v. Miller, 2009 Ga. LEXIS 679 (2009).

The Court made it clear that when one’s spouse dies, a copy of the deceased’s medical records may be legally obtained by the estate executor or administrator (if the estate is represented) or by the surviving spouse. I regularly receive calls from a husband or wife who has lost their spouse and who has properly requested and been improperly denied their deceased spouse’s medical records and bills from insurance companies, doctors, dentists, doctors, nursing homes, and a whole host of other medical care providers.
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Under Georgia law, when a death results from a crime or negligent act, the estate of the deceased (the “Estate”), is entitled to recover two general types of damage. The first is damages from the negligent party for funeral expenses, medical expenses, and any other expenses flowing from the injury or death. This portion of the wrongful death damages is limited and precise (and known as special damages in legal terms). The second element of damages is not.

In addition to the above, the measure of wrongful death damages in Georgia includes the full value of the life of the decedent without deducting for any of the personal expenses had the decedent lived. In other words, the Estate can also recover the amount equal to what the deceased would have recovered from the negligent party had the deceased lived but rendered totally disabled.
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