Atlanta Injury Lawyers Blog

Published on: September 27, 2020

Georgia Insurance Dispute Litigation Increases

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: September 8, 2020

Georgia Dental Board Provides Little Protection Against Dental Malpractice

by Robert J. Fleming

If you are a dental patient in Georgia and you suspect that your dentist may be recommending treatments you don’t actually need or if you sustain and injury from a dental procedure and suspect that the injury was caused by dental malpractice, you can complain to the dental board. However, the odds are pretty good that nothing will happen and to add insult to injury, many times the dental board will drag out the proceedings until after the statute of limitations has run, effectively precluding you from filing a lawsuit and suing the dentist for the malpractice.

As is true for other medical professions, state dental boards are typically made up of dentists overseeing dentists, leaving the profession to police itself. This is certainly true of the Georgia Board of Dentistry, which, as of last count, is compromised of almost all dentists. While this is the norm, and certainly not illegal, it does cause suspicion as to just how objective the board will be when looking into your situation.

Nationwide, dentists rarely have their licenses pulled by their dental boards. In 2018, according to the Department of Health and Human Services, state boards revoked or suspended only 225 licenses – 0.1% of all dentists. Ten states didn’t suspend a single dentist.

Published on: July 27, 2020

Dog Bites are Up in Georgia as COVID-19 Pandemic Drags On

by Robert J. Fleming

Many people in Atlanta have surmised that dogs have never been happier since Covid-19 has resulted in lots of dog walks and added attention from their owners. In a surprising development, the number of dog bites are up as people and their pets are spending more time together, at home in often stressful situations, but there are also attacks involving dogs outside. To add insult to injury, a lot of the increased dog attacks are directed at children, with some requiring emergency room care.

In almost all in-town counties such as Fulton, DeKalb, Clayton, and Cobb, a dog’s owner must comply with the local leash law, or liability is attached to the attack via the legal argument of negligence per se. Some county residents are relaying instances of dogs not on a leash and being spooked by masked walkers and the end result is predictable: A dog attack and avoidable injuries.

In the City of Atlanta, dog owners have a duty to keep their dogs leashed and under control as follows:

Published on: July 2, 2020

Georgia Bars Are Subject to Punitive Damages Awards For Over-Serving Drunk Drivers

by Robert J. Fleming

In Georgia, if a bar, restaurant or other business that serves liquor over-serves a customer and that customer gets into their car and kills someone, the establishment can be held liable for punitive damages. If there was any doubt, the Supreme Court of Georgia reaffirmed in a unanimous decision, this in a recent decision. In other words, someone (i.e., a bar, restaurant, etc.) who helped cause a drunk-driving accident but was not the actual DUI driver, could still be liable for uncapped punitive damages as an “active tortfeasor” in the wreck.

To be sure that the ruling is not limited to a certain set of facts, the case that the Georgia Supreme decided involved a man who had been drinking and loaned his car to his friend who he had been drinking with. So, the punitive damages liability would apply to individuals and businesses alike. This broad case ruling changes the landscape on liability in these situations. Someone who serves somebody — a restaurant, bartender, or even a private host holding a party– who serves someone who is obviously too drunk to drive is subject to punitive damages. In the case decided by the Court, the one defendant asked his friend to drive his car and give him the keys to it, even though his friend was obviously too drunk to drive and he knew it. The friend, as it turns out, did not have a valid driver’s license and the court determined he had a habit of recklessness. Of course, his friend drove drunk and caused a wreck while DUI. In a situation like this, it is common for the DUI driver to be sued for negligence and the person who gave him the car to be sued for negligent entrustment, which is what happened in this case. Both were found liable for the injuries caused by the DUI driver who caused the wreck. The trial judge found that both defendants (the DUI driver and his friend who loaned him the car while knowing he was drunk) “acted in a manner that showed willful misconduct, malice, wantonness, and that entire want of care which would raise the presumption of conscious indifference to consequences.” Normally, this would give rise to punitive damages liability, but the trial judge, while awarding punitive damages agains the driver, would not award them agains the friend who had been found guilty of negligent entrustment.

In reversing the trial court, the Supreme Court of Georgia ruled that there is no limit to punitive damages in cases where the defendant is found to have acted or failed to act with the specific intent to cause harm and that, pursuant to Georgia law amended in 1997, a defendant under the influence of alcohol or drugs “to the degree that his or her judgment is substantially impaired” could be subjected to unlimited punitive damages as an active tortfeasor.” This couple with the ruling that the party guilty of negligent entrustment was an active tortfeasor was the impetus for the Court to hold that the negligent entrustor was liable for punitive damages, as well as the DUI driver.

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: June 24, 2020

Georgia Dental Patients Have Unqualified Right to Their File From Dentist

by Robert J. Fleming

In Georgia, when a patients suspects that they are the victim of dental malpractice and request their file, the dentist must give the patient a complete copy of their file, including all radiographic materials such as x-rays and cone beam CT scans. As a Georgia lawyer who regularly handles dental malpractice cases, I receive calls from irate patients who have properly requested a copy of their file but are being stonewalled by the dentist. In most cases, the dentist feels safe in refusing to provide the patient file, and in doing so, feels as if this will convince the injured patient to not seek legal action. Rarely does this work and, in more cases than not, it spurs the injured patient to hire an experienced dental malpractice lawyer to obtain a copy of the file, evaluate the case, and file a lawsuit if the case has merit.

When a dentist refuses to give the patient a copy of her records after they have been properly requested pursuant to statute and appropriate notice to the dentist via certified mail, the statute of limitations (or the amount of time within which the injured patient must file a lawsuit) could be tolled for the period of time during which the dentist refuses to comply with the statutory request for the records. See O.C.G.A. Section 9-3-97.1.

O.C.G.A. Section 31-33-2 provides, in pertinent part:

Published on: June 16, 2020

Talc Makers J&J and Gold Bond Are the Subject of Recent Suit

by Robert J. Fleming

Johnson & Johnson and other baby powder manufacturers are being sued under California’s strict Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code §25249.6. The suit alleges that J&J, along with such other suppliers and distributors of talcum powder as Gold Bond and Shower to Shower and private label brands from CVS, Dollar General, Target (a Dayton Hudson company), Walgreens and Walmart–were hiding that their talc products contained dangerous and potential deadly toxins that caused cancer, reproductive issue and birth defects.

The main thrust of the lawsuit is that a the above sellers and distributors of the baby powder, talcum powder, bath powder, etc. had a duty to provide consumers with a “clear and reasonable warning” before potentially exposing buyers of the products to the chemicals in the product. The suit alleges that the products contain arsenic, chromium, and lead, which are all toxins that are listed in CA’s Proposition 65 as chemicals that cause cancer and reproductive issues. Further, the suit alleges that the target defendants have tried to hide the presence of these chemicals in their products since at least 1976.

In other words, according to the suit, for decades, baby powder and other talcum powder products were sold and marketed as being pure and wholesome (who can forget the ever-present commercial for J&J’s baby powder and Shower to Shower talcum powders during the 1970’s), while they contained and exposed consumers to known asbestos and other carcinogens that potentially cause cancer and other diseases.

Published on: June 11, 2020

COVID-19 Dental Office Closures Affect Atlanta Patients and Dentists

by Robert J. Fleming

As a lawyer in Atlanta who handles dental malpractice on a regular basis, I can gauge by the number of potential new clients the amount of dental procedures that take place in Atlanta. Since we only handle new cases that involve injuries caused by a dental procedure, and the number of dental procedures performed in Atlanta was down to almost zero in April and May of 2020, we have seen the number of dental malpractice calls go down by almost 75% in April and 90% in May. Although the numbers are not in yet for June, as of this writing, I imagine the calls related to new dental malpractice claims are down by about 90%.

While dentist offices tend to be stable businesses that do not fluctuate much in the number of procedures performed, dentists have been especially hard hit by the corona virus pandemic. For the most part, any dental procedures that are not emergencies have been put off. This includes cavities, cleanings and a whole host of other dental procedures.

Atlanta dentists stopped all non-emergent care on March 16, when the CDC and the American Dental Association issued protocols against elective care. Some dentists say they closed even earlier as protective equipment became in short supply. By mid-April, half of dentists in Atlanta had either laid off their entire staffs or instituted staggered work weeks with a skeleton staff. While there are reports of some dentists not closing in some other parts of the county, I have not heard of any here in Atlanta. As Atlanta dentists ramp back up and head back to work, it’s unclear whether patients will follow. While Georgia has given dentist offices the go-ahead to reopen, patient volumes remain half of what they were before the pandemic.

Published on: June 8, 2020

My Commitment to A Better Community in Atlanta

by Robert J. Fleming

Our Atlanta community is hurting after the tragic death of George Floyd, and countless others who came before him. We are all shaken by grief and frustration, here in Atlanta and all throughout Georgia and the rest of the country. Personally, these recent events have caused me to reflect across the many parts of my life which have shaped my views and formed who I am. As a lawyer, as a former military policeman, as a U.S. citizen, and as a husband and parent, I am motivated to tackle this situation head on. I have always know that there is a history of suffering and injustice that has hurt people of color. While minorities may not have a monopoly on this, they have certainly had more than their share. However, I now realize that this affects all of us. It is clear to me, that so many of us are hurting emotionally because of what happened in Minnesota and Brunswick. While these incidents are certainly not indicative of all police (or police departments), these wrongful deaths have highlighted the unfair treatment that African-Americans and other minorities have endured and continue to endure today. I say this as a former Military Policeman who was in the trenches and had to deal with very similar circumstances as that in Minnesota.

As a lawyer, I like to think that I fight for justice every day. This fight now extends beyond the office and into rooting out inequality in our justice system and in society in general . I am happy to report that, among its many goals, our State Bar of Georgia has stated that it exists “to improve the administration of justice, working daily to protect the public and support its lawyers.” As an attorney, I feel like I am in the trenches, much like the trenches I was in while in the Military Police Corps. But this time, I am in the trenches fighting to give everyone an equal playing field in life and justice for all. Powerful words, but heartfelt one nonetheless. We have to strive for this. Is it attainable? I don’t know but I certainly hope so. I know first hand what it’s like to be fighting against all odds and I don’t wish that upon anyone, regardless of race or any other factor. As the state bar says, “we commit to engaging, listening and learning from the experiences and perspectives of all those willing to share them. We will act upon what we learn to deliver on the promise of equal justice for all people. These conversations are uncomfortable, but silence is unacceptable.”

This all comes on the heals of the COVID-19 crisis. Frankly it is draining, but it is here and these situations must be addressed because these back-to-back crises have raised issues that we, as a society need to address. Even though I am tired, I want to be a part of the solution, not the problem. I think we all have an obligation to take a fresh look at our society and (1) identify what is wrong with it; and (2) come up with a solution. One that will create a better future for everyone. We can do more. We owe it to everyone to make this work. I challenge each of you to join me.

Published on: June 5, 2020

COVID-19 Closures Delay Georgia Trials

by Robert J. Fleming

The Supreme Court of Georgia has promulgated rules and revised deadlines to deal with the stay at home and shelter in place demands of the COVID-19 pandemic. These essentially amount to an extension of all court filing and response deadlines. Much of the regular business of the state’s court system has been shut down since March 14, when Chief Justice Harold Melton declared a state of judicial emergency because of the pandemic. That order has since been extended to June 12, meaning no trials have been held or grand juries convened in the past 10 weeks. This has created a huge backlog of cases that would all hit at a time when the courts will be forced to furlough and lay off staff to meet the state’s requirement to cut spending. This two-edged whammy will result in trial delays for those injured in Georgia and who have sought redress from the courts.

Sen. William Ligon, R-Brunswick, the chairman of the Senate judicial budget subcommittee, started Monday’s hearing at the capitol with court officials by reminding them of the state of the economy. He said not every agency may wind up having to cut 14%, but that every agency, from the Supreme Court to the Department of Education, had to suggest spending cuts. “The governor’s office is not exempt from this 14% reduction proposal, nor is the legislative branch, nor is any executive branch agency, and the judicial branch is not either,” Ligon said.

The Honorable Sara Doyle, the presiding judge of the Georgia Court of Appeals, set the tone by telling lawmakers that to meet the proposed cuts the court would have to let go 17 or 18 staff members and furlough others for 22 days in the next fiscal year, which begins July 1. “The end result is an appellate court that can’t fully function or won’t fully function,” she said. “Now more than ever, this country and this state need fully functioning courts at all levels and not one working with half the necessary staff on a shortened work year,” she said. “While the cuts being requested are a terrible burden on my court’s ability to function and to those who will lose their livelihood, the impact on the state and the people who live and do business here is much more profound if its court system is crippled.”