Atlanta Injury Lawyers Blog

Published on: January 12, 2019

Wrongful Death of Minor Results in Dental Malpractice Suit

A dental malpractice wrongful death case has been filed against the dentist and dental practice who treated a 2 year-old boy. In a horrible set of circumstances, the toddler was under general anesthesia while having 9 teeth extracted. The oxygen tank that he was hooked up to and which was there in case of an emergency that was supposed to save him was not working properly. The allegations in the lawsuit include that a staff member at the dentist office repeatedly disabled the heart monitor alarm that the boy was hooked up to.

While the medical examiner listed the cause of death as “undetermined,” it is clear from the facts, as reported, that the boy died as a result of the dental treatment he received on the day of his death. General anesthesia is especially dangerous when used on the very young, very old, and those who are not healthy. Proper and working equipment must be utilized and monitoring must be vigilant to avoid this type of horrible result.

During the lawsuit, discovery can be utilized to uncover what exactly happened in this tragedy and why? As with all other medical providers, the dentist and the anesthesiologist in this case must always comply with the standard of care and any violation of the standard of care is considered dental malpractice or negligence. In most states, a properly trained anesthesiologist (or a medical provider who is similarly trained and licensed to monitor anesthesia delivery) must be on hand and monitoring a dental patient when they are under general anesthesia. This requirement would also include testing all of the equipment associated with the procedure prior to the administration of the general anesthesia. It appears in this case that some of the equipment was not properly working or not hooked up correctly and this is what apparently caused or substantially contributed to the death.

Published on: January 10, 2019

Georgia Long-Term Care Insurance Denials

by Robert J. Fleming

Long-Term Care Insurance Claims

Long-term insurance is one way to protect family assets and hedge against the high cost of long-term care when an elderly family member is no longer able to live on their own or take care of themselves. Because of declining health, these individuals often require long-term care in the form of home care, nursing home care, assisted living, nursing home care and other long-term care arrangements. Unfortunately, long-term care insurance denials are increasing at an alarming rate, partly because insurance companies did not anticipate the number of claims for this type of care or the amount of money each claim would entail.

Long-Term Care Insurance Denials

Published on: January 4, 2019

Georgia Pay Laws and Worker Protection

by Robert J. Fleming

General Pay Law in Georgia

Under O.C.G.A. §34-7-2, Georgia requires employers, with limited exceptions, to pay all employees all wages due on paydays selected by the employer, with paydays being divided between at least two (2) equal pay periods per month. This rule does not apply to company officials, superintendents, or other heads or subheads of departments who are paid a stipulated salary and who can be paid monthly or annually.

Payment Upon Separation From Employment

Published on: December 3, 2018

Georgia Commission Contracts Often Not Honored

by Robert J. Fleming

A commission is an amount of money that is paid to an employee upon completion of a task, usually the task of selling a certain amount of goods or services. It can be paid as a percentage of the sale, a flat dollar amount based on sales volume, or based on any formula that the employer and employee agree upon. Some jobs are 100% commission based, but the vast majority are not. Most sales jobs will offer you “base salary.” This is what the employer pays you as a based in addition to the money that you earn from your commissions. Employers often use sales commissions as an incentive to increase worker productivity. When a commission is paid in addition to a salary, it may be included in the employee’s paycheck or, paid on a separate schedule, usually bi-monthly or monthly.

Working for commission pay has many advantages for highly motivated and talented salespeople, with the most appealing aspect of this type of compensation plan being that you can leverage the risk to make quite a bit of money, if you are very good at your job. However, the are a lot of risks that come with a position that is heavily compensated by commission. One such risk is that many employers attempt to wrongfully withhold commissions even though they have been earned and are payable to the employee. The most common time this happens is when the salesperson (or account executive, broker or any other of a number of terms used to describe an employee who works mainly on commission) make a sale and then is either fired or quits prior to the commission being paid. While each case is different, most cases require a lawyer to resolve this type of dispute because the basis for the recovery is based on many factors, the law, and the application of the specific facts of the case to the law. A copy of your employment contract, and any commission plan or schedules that you were working under are important first steps in analyzing this type of situation.

We have litigated cases involving these legal issues with small local companies and large multi-national companies alike. Many of the tactics used by these companies are unlawful under Georgia law. Often, the only recourse if you want to get paid is to hire an attorney who knows the laws in Georgia as they apply to unpaid commissions and other monies owed and sue the company for your money.

Published on: November 22, 2018

Commissions Owed in Georgia Form Basis of Lawsuit for Breach of Contract

by Robert J. Fleming

Most highly compensated commissioned salespeople work long and hard to obtain results for their company which result in sales and revenue to the company. In turn, the company pays the salesperson a pre-determined amount of the sale in the form of commissions to the salesperson. (Note: I use “salesperson” as a generic term as most large corporations refer to highly compensated salespeople as account executives, financial advisors, consultants, agents, real estate agent, broker, representative, sales rep, etc. No matter what the title, if an employee or 1099 contractor is selling goods or services for a company, they are covered under the laws of Georgia and are entitled to be paid for the sales that have been earned and payable under their agreement with the company).

One of the common situations that we see under this arrangement is when a salesperson leaves the company after a sale is made but before being paid the commissions. Most times in this situation, the company refuses to pay the commission. While each case is different and very fact-dependent, many times the company refuses to pay the commission even though they have no legal basis to do so. In other cases, the company, feeling as if they have the upper hand in the negotiations, offer the salesperson a fraction of what they are owed, and conditions the payment on the salesperson signing a release which releases all future claims against the company for anything that may have happened up to the time of the signing of the release, including the refusal to pay the full amount of the commissions owed. Legal counsel should be sought by anyone who is in this position and is presented with a release, as there are too many potential pitfalls. Sometimes, the release adds additional restrictive covenants that were not in play prior to the signing of the release which restricts the ability of the salesperson to compete against her former employer, or work in certain industries or markets which may be important to her livelihood. This is an especially common tactic when the amount owed is not substantial, since a potential client’s ability to retain legal counsel in these situations is limited due to the amount of money in controversy. In other words, if there is not a lot of money at stake, a law firm such as ours, will not be able to get involved as the economics just do not make sense and the company sometimes realizes this and does not treat the leaving employee fairly.

Many of the clients who we represent in these types of cases work for Georgia corporations but live in other states. However, the most common situation is a client who lives and works in Georgia for an out-of-state large corporation. Choice of law provisions are important in this type of case as the law that applies may determine where the suit can be filed, which states’ substantive law applies and, ultimately the outcome of the case.

Published on: November 15, 2018

Georgia Dog Bite Attacks of Children On the Rise

by Robert J. Fleming

According to the CDC, approximately 4.7 million dog bite attacks occur in the United States each year, and 800,000 of those attacks result in medical care. The U.S. population is approximately 325.7 million people as of 2017. That means a dog bites 1 out of every 70 people in America, and more troubling than that, dogs are attacking children at an increasingly high rate.

Most dog bites occur in or around the home or at public parks such as nature parks or dog parks. Why do dogs bite? With the rare exception, dogs bite because the are afraid. Most common situations which result in dog bites are:

Dogs bite as a reaction to a stressful situation.

Published on: October 23, 2018

Involved in a Car Accident in Georgia? Don’t Leave the Scene

by Robert J. Fleming

In the event that you are a driver involved in an accident, Georgia law requires that you stop immediately at the scene, or as close as possible. This is true for any driver involved, not just drivers of the primary cars in the crash. Bellamy v. Edwards, 181 Ga. App. 887, 354 S.E.2d 434 (1987). Drivers should cooperate at the scene and exchange information, including name, address, and registration numbers. If someone is hurt, it is the responsibility of the other driver to offer reasonable assistance — including notification of emergency services and law enforcement, or even transporting the injured person to the nearest doctor, if emergency transport is not available and the injury required immediate attention.

If you are involved in a bad car wreck and you are not at fault, your first priority is the safety of you and those around you. Make sure that you are free from the danger of being hit by other cars speeding past you and if you have are on the side of the road of shoulder of the highway, make sure that you do not linger close to oncoming traffic as the car speeding by you may not see you and could wind up hitting you. Not only is being hit while on the side of the road more common than you might think, the results are usually catastrophic and often this type of accidents leave the accident victim in much worse shape than the original accident. For example, there are many cases of a fender bender taking place on the highway, the cars moving over to the shoulder of the road, and then one of the driver who was involved in the original wreck being hit and killed by a passing car as they waited for the police or ambulance to come to the scene. Don’t take any chances and don’t assume other drivers are watching out for you and can see you on the side of the road. Move as far from traffic as you can and make sure you are not in a position to be hit by a car who is traveling on the road while you wait for the authorities to come to the scene of your accident. Keep calm, make sure that the at-fault driver does not leave the scene, but most important, stay safe.

For more than 20 years, Attorney Robert J. Fleming has been handling wrongful death cases, personal injury, dental malpractice and medical malpractice lawsuits for individuals and families who have been injured or died as a result of the negligence of others in and around the Atlanta, Georgia area, including Alpharetta, Brookhaven, Chamblee, College Park, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. He has handled car wreck cases that have also involved injuries from a second wreck as well. If you or someone you know has been seriously injured or died while under anesthesia 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 22, 2018

Georgia Dental Injuries by Prevalence

by Robert J. Fleming

As a lawyer in Georgia who regularly handles dental injuries, I come across a lot of situations which result in dental injuries. Some injuries are sustained prior to the patient going to the dentists, while others are caused by the dental treatment itself. Some of the most common situations which result in dental injuries outside of the dental office are:

Car Accidents. The most common situation that I encounter that results in a non-dentist induced dental injury is in accident cases and most commonly in car wrecks. Probably the most common scenario that results in dental injuries is a car accident victim who smashes their mouth into the steering wheel when they are hit from behind while stopped.

Sports Injuries. There’s a reason most sports require you to sign paperwork and waivers before you can play. While fun to participate in, sports put your body in danger. With balls, bats, sticks, and even other players moving quickly around on the field or court, it doesn’t take a lot to cause an injury. Protect yourself while playing any sport by wearing the right protective gear, and be prepared for the unexpected. Unfortunately, most sports injuries occur to children, who do not yet have the self-awareness to appreciate some of the dangers inherent in all sports. A hard tackle in football, a foul ball at a baseball of softball game, or even an elbow in basketball can knock a tooth out or even fracture a jaw.

Published on: October 19, 2018

Rash of Pharmacy Error Due to Negligence in Georgia

by Robert J. Fleming

Katz Wright & Fleming LLC, LLC is a personal injury law firm that has handled many pharmacy negligence cases in the Atlanta area and throughout Georgia. The number of pharmacy error cases in the United States keeps increasing as more and more pressure is placed upon pharmacists at the big box employers such as CVS, RiteAid, Walgreens and Walmart. For example, pharmacists are often discouraged from taking bathroom or lunch breaks during their shifts because rule and regulations which require the pharmacy to close if there is not a pharmacists on site and working. Examples of actionable malpractice include, but are not limited to:

The patient’s doctor ordering medication to raise blood pressure the blood pressure of single mom to treat the patient after a stroke and the pharmacy dispensing medication which actually raised her blood pressure causing post-stroke complications.

A middle-aged man who was prescribed medication to treat skin lesions. The pharmacy filled the prescription with the wrong medication which caused boils to form on most of the skin on his body, including his genitals.

Published on: October 18, 2018

Negligence Provides Georgia State Court Action for Medical Records Privacy Violations

by Robert J. Fleming

While it is true that federal laws related to privacy regarding medical records and treatment (“HIPAA”) imposes universal standards on covered entities who provide medical care and treatment to protect a patient’s privacy, HIPAA does not explicitly create an individual right of action for patients affected by the privacy violation. This has been an impediment to bringing lawsuits against these medical providers where a clear HIPAA violation has occurred. It has been stated many times that an individual does not own a private right of action to bring her own complaint against a medical provider who fails to comply with HIPAA and releases her private medical information. Rather, this individual must file a complaint with the Department of Health and Human Services or the appropriate Georgia authority such as the Georgia Attorney General’s office or the Georgia Board of Medicine. Usually if the federal or state agency decides to pursue a victim’s complaint, it may impose fines against the covered entity and force them to implement a set of standards to avoid future pitfalls of violating HIPAA. However, for the injured patient, i.e., the one who suffered because of the erroneous release of the private information, and the one who suffered damages in the form of invasion of privacy, mental anguish, lost income or job opportunities, etc. due to violation of their HIPAA rights, there has been little relief available in state court. This present a predicament as there is a harm without the corresponding available relief to a plaintiff who has suffered due to the negligence of a doctor or hospital.

This lack of a private cause of action seems inconsistent with the notions of fairness and justice. In other words, the one that is injured by the release of their medical records and information should be allowed to sue in Georgia state court for the damages caused by the medical provider who released the information. This type of cause of action would be similar to a medical malpractice lawsuit, but would sound in negligence and be based on the unlawful release of private information.

These cases are not brought under the HIPAA laws, but rather are brought in Georgia state court under traditional negligence theories with the negligence supported by an evidentiary showing that the medical provider was negligent by disclosing a patient’s private information and arguing that the medical provider is responsible for all damages caused by the HIPAA violation and must be held liable for damages. In this scenario, HIPAA provides an objective standard for examining a covered entity’s negligence in disclosing a person’s protected health information or “PHI.” While the lawsuit will not be brought under the applicable HIPAA laws, these laws will provide the plaintiff with the framework to bring these causes of action. If the plaintiff can prove HIPAA violations, that should support a finding of negligence against the medical provider in state court, even though the HIPAA laws are federal in nature. At least, that is the theory.