Atlanta Injury Lawyers Blog

Published on: November 7, 2023

Atlanta Dental Malpractice — 25 Years of Experience and Counting

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: October 31, 2023

Troubling Case of Dental Malpractice Combined with Medical Malpractice

by Robert J. Fleming

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.

Published on: September 25, 2023

All-On-Four Dental Implants Can Lead to Severe Damage

by Robert J. Fleming

It’s all the rage these days. Clients are asking dentists to pull all of their teeth and install all-on-four dentures. Sometimes called teeth in a day or full mouth implants, these procedures are sometimes performed in the same day. While the billboard advertisements tout shiny smiles and happy patients, this may not always be the case.

All-on-four implants are offered by individual dentists and small dental practice groups. But, the vast majority of these procedures are performed by large dental chains. Some of the large dental chains that offer this type of procedure are ClearChoice, Affordable Dentures, Aspen Dental, Coast Dental, First Dent, DentChoice. This list is certainly not exhaustive and all-on-four dental implant procedures are performed by anyone from a general dentist, periodontist, prosthodontist, all the way up to an oral surgeon.

While the vast majority of these procedures are performed adequately, some complications due to dental malpractice can arise. These procedures require a great deal of expertise, proper planning and implementation, very precise radiographic tests such as the use of a Cone Beam CT Scan (CBCT) and a great deal of skill on the part of the dentist. Lack of proper planning, improper measurements, drilling to deeply when prepare the site for the implant and installing the implants too deeply into the jaw line or just some of the potential problems that can occur when these procedures are not performed correctly. This can happen when the dentist is not properly trained in the procedure, is careless, or lacks the skills to adequately plan and perform the procedure with the applicable standard of care.

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: July 6, 2023

Pedestrian Deaths in Georgia Highest in 4 Decades

by Robert J. Fleming

Not since 1981 have we seen so many pedestrians on the roads being runover and killed by negligent drivers. I am not sure what to make of it, but we would expect that the number of people who are walking, jogging or running in local neighborhoods and who are run over and killed by cars would decrease over time. However, this is not the case and the trend is worrisome, to say the least.

The number of pedestrians deaths nationwide has taken a sharp turn upward, especially in the last decade. What we have noticed lately is that there is a small percentage of drivers who seemingly disobey all traffic laws, tailgate incessantly, speed, run red lights, disregard stop signs, turn from the middle lane, fail to yield and otherwise drive with a complete disregard for the law and the safety of those around them. It is not clear if this phenomenon was spurred on by the COVID-19 pandemic or not, but anecdotal evidence seems to indicate that this is when this reckless driving starting showing up on our streets. There are surely no conclusive statistics on this erratice driving behavior and how many needless deaths it has lead to (as there is no way to track this and quantify it), but the general sense in Georgia is that this is happening much more frequently since the pandemic and has probably lead to an increase in pedestrian collisions, injuries and deaths. This seems to be especially true in the City of Atlanta city limits and on the interstates such as I-75, I-85, I-20, I-285 and I-675 that run through the city.

A recent federal report cites what could have contributed to this increase on the federal level, including more risky driving during the coronavirus pandemic and a lack of awareness and enforcement of laws meant to keep pedestrians safe. Nationwide, at least 7,508 people who were out walking were struck and killed in the United States last year alone, according to the Governors Highway Safety Association. Most pedestrian deaths caused by negligence happened after dark and on roads with no sidewalks. Passenger cars were involved in 35% of deaths and an SUV or pickup was the striking vehicle in 40% of deaths, the report said.

Published on: April 27, 2023

Chiropractor Neck Adjustments Can Lead to Stroke if Performed Below the Standard of Care

by Robert J. Fleming

High-velocity neck manipulation has been known to damage an artery in your neck, which can result in a stroke. Two pairs of blood vessels in the neck (the cervical arteries) carry blood to the brain. A tear in the lining of one of these vessels, called a cervical artery dissection, can occur if your chiropractor attemps a cervical adjustment and performs the procedured below the standard of care. While the vast majority of chiropractors can perform this procedure skillfully and safely, some do not have the appropriate skill, training or technique–and this can reuslt in a horrific injury and sometimes even death. The is one of the most common causes of stroke in people under the age of 50. While the tear can occur spontaneouely from some sort of injury to the neck, or even during sports such as weight lifting or golf, I have seen it most often associated with improper chiropratic care.

The American Heart Association (AHA) warns of this risk. i.e., the quick, thrusting neck movements some chiropractors and other health care professionals use to treat neck pain. The technique, known as cervical manipulative therapy, has been linked to cervical dissections in both younger people, according to an AHA statement. It is also seen in older patients who undergo cervical manipulative therapy.

Most Georgia patients who seek chiropractic care each year walk away injury-free, but medical experts caution that chiropractors need to better communicate the potential risks of cervical adjustments, . Such neck adjustments, also known as cervical manipulative therapy (CMT), might be linked to strokes in relatively young people, according to the AHA. The authors of the statement reiterated that while the overall probability of a stroke is still low, patients undergoing CMT should be informed of the risks.

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: November 18, 2022

Dental Nerve Injury From Root Canal on Lower Molars

by Robert J. Fleming

The primary goal of root canal treatment is to eliminate and prevent re-infection of the root canal system anatomy. In necrotic teeth, microorganisms can colonize anatomical complexities, such as isthmuses, ramifications and dentinal tubules and this causes infection and abcesses that are partially the reason why a root canal is performed. Instrumentation (dental files) can reduce the bacterial load by approximately 80%. However, the microorganisms cannot be completely eliminated with dental files alone as the file are very small but not small enought to get into every crevice of the roots of the tooth. sometime, in order to try and achieve this or simply due to inexperience or a lack of skill or knowledge, dentists over-instrument the canals, which is below the standard of care and often leads to catastrophic nerve injury.

After the canals are obturated (or cleaned out) the endodontist (or the general dentist if the patient has not been referred out to a root canal specialist: for the rest of this article we will refer to the practitioner performing the root canal as the “dentist” as both general dentists and endodontists are dentists) places sodium hypochlorite (NaOCl) solution into the canals to clean and disinfect them. This is a strong solution which, due to its antimicrobial/antibiofilm activity, and organic tissue dissolution capacity is able to clean and disinfect the canals. It is placed into the canal by the dentist using a needle coupled to a syringe, a system known as conventional syringe irrigation (CSI). CSI has a rinsing effect, which is an important part of the irrigation process. Once again, due to inexperience, a lack of skill, or nelgigence, too much apical pressure by the dentist can lead to sodium hypochlorite extrusion outside of the tooth roots and, many times, into the dental nerve which lays just beyond the apex of the tooth being treated (if the tooth is a bottom molar).

Root Canal therapy is widely used and is a relatively safe procedure when performed by a properly trained and skilled dentist who complies with the applicable standard of care and performs the procedure taking this into account. However, serious injury can occur if the dentist is negligent and injures the dental nerves below the bottom teeth. Over instrumentation and extrusion of sodium hypochlorite can lead to serious injury that can be prevented with proper care and treatment.

Published on: October 31, 2022

False Arrest and Unsafe Premises Are Common Bases for Liability in Georgia

by Robert J. Fleming

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.

Published on: April 28, 2022

Georgia Dentists Have Duty to Protect Patient Airway

by Robert J. Fleming

When a dental procedure is performed in Georgia, serious injuries can often result. However, one type of injury is completely preventable — swallowing (either whole or pieces that have broken off) dental instruments such as drill bits, root canal files, and teeth. Since the patient is most often lying prone in the dental chair and not cognizant of what is going on around them, it is encumbent upon the dentist to protect the airway so that nothing gets dropped down the patient’s throat, which could lead to dental instruments either being entrapped in the lungs, stomache or intestines.

“I was at the dentist getting a root canal, and the next thing I know I was told I swallowed a tool,” is a comment that I have heard in the past. “I didn’t really even feel it going down. All I felt was a slight cough. When they did the xray they realized, I swallowed it, and it is in my stomach,” is another sentiment that has been relayed to our office by dental patients who have swallowed dental instruments, sometimes without their knowledge. Often, once the dental instrument has made its way past the throat, it continues to work its way down the intestinal tract, or worse, can wind up deep in a lung.

Dental instruments are sharp and can wind up lodged in the back of the throat, the trachea, bronchial passages, stomach and intestines. Sharp edges can cause all types of complications in the body such as coughing up blood, stomach ulcers and rectal bleeding. Once lodged in these areas of the body, the dental instruments must be removed as soon as possible to prevent further harm, especially in the case of foreign objects in the lung, which sometimes require surgery to remove part of the lung along with the stuck dental instrument or foreign object. If immediate sugery is not performed to remove the dental instrument (and often some of the lung if it is lodged in the lung), infection could set in and infections in the lungs are very hard to treat. The dental instruments (such as a drill bit or root canal file that has broken off during a root canal procedure are a foreign body that was in the mouth and bacteria in the mouth is some of the most virulent and aggressive types of bacteria. If it remains in the lung (or other parts of the body), and if it’s sitting there any length of time, the risk is that it will create an abscess. Once an abcess develops, it is hard to control the infection, as antibiotics, while normally very affective in treating infections, have a difficult time traveling to some parts of the body such as the lungs due to a lack of sufficient blood flow.