A High-Low Agreement while the Jury Deliberates is Finalized resulting in a $ 875K Settlement in Favor of the Plaintiff in a Dental Malpractice Case in Fulton County, Georgia

dentist blog december 8 2014Imagine being 28 years old and going to the dentist for a relatively routine procedure to have a wisdom tooth extracted when instead the end result following the procedure is lifelong numbness and tingling, accompanied by continuous, unending excruciating pain in the lower part of your face and mouth. For Plaintiff Kerry Stolte this was more than something to be imagined, this was her reality after the Defendant Dentist M. James Fagan, III severed her lingual nerve during a dental procedure that was simply meant to remove her wisdom tooth.

Imagine further that after three (3) oral surgeries that have made your situation worse instead of better, approximately four (4) years of painstaking litigation, and two (2) lengthy jury trials that a video surveillance tape surfaces taken by the Defendant’s investigators showing you doing yard work that now creates an issue of whether or not you are a credible witness, and whether or not you should be impeached at trial which could potentially bar you from any recovery if seen in the wrong light by the jury.  All the while you are not relieved of the pain and suffering that you have endured for the past four (4) years that is most likely going to last for the rest of your life.

This was the scene in a Dental Malpractice Case in a Fulton County, Georgia Courtroom during a retrial of a Dental Malpractice case that began on September 22 when the defense presented said surveillance video of the Plaintiff. The Plaintiff did not take this evidence lightly, however, and understandably fought back by calling a Professor of said Defendant Dentist as a rebuttal witness to testify whether or not the procedure used by the dentist was taught by said Professor in dental school.

It became apparent that said procedure had not been taught in dental school since the said procedure was a high risk procedure and had the potential to cause the lingual nerve to be severed as was the case with this Plaintiff in this cause of action. In fact, it was further discovered that none of the witnesses had ever heard of a dental school teaching this particular procedure.

This discovery started such a heated debate that even after the defense raised several objections to the admissibility of this particular witnesses’ testimony that the Defendant Dentist took it upon himself to shout an obscenity in the courtroom. Fortunately for the Defendant, the obscenity was during a court recess and not during open court.

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$ 2.8M Verdict in Georgia for Dental Malpractice against Large Dental Firm Coast Dental

dental office for september 4 blogA DeKalb County Georgia State Court jury rendered a $ 2.8 Million Dollar verdict in favor of a Plaintiff against the employer of Dentist Dr. James Cauley of Coast Dental of Georgia. In February, 2008, Haley Buice, Plaintiff, age 33 and a mother with four children, began treatment at Defendant Coast Dental of Georgia and was treated by their employee dentist Dr. Cauley.

It was recommended that the Plaintiff have implant veneers and when the procedure was performed it was not performed to the standard of care that is used in the same or similar circumstances. Furthermore, Defendant Coast Dental did not complete the work when Dr. Cauley left during treatment of Ms. Buice in May of 2009 due to his alleged drug use that is further discussed herein below.

This prompted Ms. Buice to seek treatment with another dentist to remedy the issues left by the Defendant Coast, and for the Plaintiff to investigate further into the allegations of Dr. Cauley’s drug abuse that ultimately led to the Plaintiff to amend her complaint against Defendant Coastal for its negligence in hiring, retaining, and supervising of Dr. Cauley, and, for punitive damages.

As the Plaintiff prepared for trial, it became more and more evident that Dr. Cauley had a history of drug abuse making this case more than just a straightforward case of malpractice dentistry.  For example, the Plaintiff’s additional charges against Coast were substantiated by the fact that Dr. Cauley was hired in 2007 in light of a positive test for Valium during a drug screen performed pre-employment, and an overdose five (5) weeks after his employment of Fentanyl, plus using nitrous oxide that was supposed to be used on patients.

It should be duly noted that Defendant Coast Dental is not a small dental operation and has an excess of 130 dental offices reaching states as far as California including Florida, Georgia, and Nevada.

The Defendant argued during motions in pre-trial that Dr. Cauley’s drug abuse was not material and that it was actually prejudicial to the case and they cited a Georgia 2011 Court of Appeals case Williams v. Booker, 310 Ga. App. 209 where the court reversed a trial court’s decision that evidence of alcohol abuse by a Doctor in a medical malpractice case was admissible. The Defendant further argued that there was no evidence that substantiated that Dr. Cauley was, in fact, abusing the medications when he was treating the Plaintiff, and that the Plaintiff’s injuries may have been caused by pre-existing conditions instead of any wrong doing on Dr. Cauley’s part.

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Important Questions to Ask to Determine if there was a Deviation in the Standard of Dental Care in Georgia when Treating a Patient Requesting Dental Implants ~ part two

dental lab blog june 22This is a follow up my last blog post titled, “Important Questions to Ask to Determine if there was a Deviation in the Standard of Dental Care in Georgia when Treating a Patient Requesting Dental Implants ~ part one.”  The following are more of some of the important questions that should be asked to determine if the Standard of Care was followed when Treating Patient Requesting Dental Implants:

6.) Was an an Informed Consent Obtained?

Why is this important?  The patient must consent to the procedure, and the clinician must obtain a signed informed consent from the patient prior to the procedure.

7.) Was a Pre-Operative Evaluation Performed?

Why is this important? A careful evaluation and understanding of the bone anatomy and architecture, including the quantity and quality of available bone, are mandatory before implant placement to avoid and/or reduce complications by proper patient selection and evaluation.

8.) What Complications Did the Patient Experience?

Why is this important?  The clinician must identify the following post-operative complications and mange them appropriately: 1.) Implant mobility; 2.) Pain; 3.) Numbness; 4.) Trauma; 5.) Infection; and 6.) Bone Fractures.

9.) Was the Patient Provided with Medications Post-Operatively?

Why is this important?  Antibiotics must be provided post-operatively and the following are some of the recommended antibiotics to help control post-operative infection: 1.) Cephalexin; 2.) Amoxicillin; and 3.) Clindamycin

10.) Was the Patient Provided with Post Operative Instructions?

Why is this important?  To ensure the implants durability and success, the clinician must provide adequate instructions to the patient regarding proper maintenance of the mouth and implant.

11.) Were any Delayed Post-Operative Complications Identified?

Why is this important?  The following are possible delayed post-operative complications associated with implant placement that should be addressed including, but not limited to: 1.) Unstable Implant; 2.) Implant Malposition; 3.) Excessive Vertical and Horizontal Bone Loss; 4.) Unanticipated Bony Deficiency; 5.) Dehiscence; 6.) Fracture of bone during the osteotomy; or 7.) Hyperplastic soft tissue response and graft failure.

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Important Questions to Ask to Determine if there was a Deviation in the Standard of Dental Care in Georgia when Treating a Patient Requesting Dental Implants ~ part one

dental june 22 blogIn my last three blog posts part one, part two, and part three, I discussed the recent ruling by the Georgia Supreme Court involving when the Statute of Limitations should be tolled in a particular case.  The case in point was a case that involved a woman who was receiving dental care for implants and later for a prosthetic.

None of the courts (the Trial Court, the Appellate Court, nor the Supreme Court) addressed the issue of whether or not there was Dental Malpractice committed in the placement of the implants since the trial court granted summary judgement to the Defendant and the Plaintiff’s appeals were addressing the issue of the improper granting of summary judgement, and not whether or not Dental Malpractice had been committed.

Since the Georgia Supreme Court remanded the case back to the trial court reversing the trial court’s ruling of summary judgement, at some point in the future the trial court will hear this case, unless the case  settles out of court, and the issue will be at that time will be, in large part, whether or not there was Dental Malpractice when the Plaintiff was treated for dental implants.

The following are some of the important questions that should be asked and answered to determine whether or not dental malpractice has occurred when a patient requests dental implants, and why these questions are important:

1.) Was the Patient’s Need for a Dental Implant Documented?

Why is this important?  Presence of one or more of the following indicate that a dental implant may be necessary: (1) a single missing tooth with the potential for preservation of the adjacent teeth; (2) a dental gap requiring more than one implant with the potential for preservation of tooth substance with and a clear disadvantage for conventional therapy; (3) a free-end gap with posterior teeth in the opposing jaw that contraindicate removing partial dentures; (4) reduced residual dentition with only one to three remaining teeth that indicated a need for implants to provide support for a fixed partial denture; and (5) an edentulous upper or lower jaw.

2.) Was a Thorough Medical History Obtained?

Why is this important?  Past Medical History (PMH) includes all past and current illness, hospitalizations, surgery, trauma, allergies, and medications. The date, location, and physician/surgeon for each hospitalization and/or surgery should also be included if available. Of particular importance are medications for oral manifestations including, but not limited to, immuno-suppressives, antibiotics, cardiac medications, and psychotropics.

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The Georgia Supreme Court rules that the Statute of Limitations was Tolled when a Dental patient Seeking the advice of a Second Dentist who was a part of the original treatment, and/or performed part of the original treatment, may have begun to realize that the First Dentist(s) committed Dental Malpractice ~ part three

dentist part threeThis is the further analysis of the case and the Georgia Court of Appeals and the Georgia Supreme Court’s final decisions that were discussed in my prior blog post titled, “The Georgia Supreme Court rules that the Statute of Limitations was Tolled when a Dental patient Seeking the advice of a Second Dentist who was a part of the original treatment, and/or performed part of the original treatment, may have begun to realize that the First Dentist(s) committed Dental Malpractice ~ part two.”

The Defendant’s then appealed the decision to the Supreme Court of Georgia which granted appellants’ petition for a writ of certiorari, directing the parties to brief the following: Did the Court of Appeals err when it held that the statutory period [of limitation] was tolled even after the plaintiff consulted with a second dentist? See Witherspoon v. Aranas, 254 Ga. App. 609, 614 (2) (b) (562 SE2d 853) (2002), overruled on other grounds by Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 157 (2) (b) (682 SE2d 165) (2009).

The Supreme Court stated that the tolling statute already provides that, where the defendant has engaged in fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation runs only from the plaintiff’s discovery of such fraud. OCGA § 9-3-96.

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The Georgia Supreme Court rules that the Statute of Limitations was Tolled when a Dental patient Seeking the advice of a Second Dentist who was a part of the original treatment, and/or performed part of the original treatment, may have begun to realize that the First Dentist(s) committed Dental Malpractice ~ part two

dental office part twoThis is the further analysis of the case and the Georgia Court of Appeals and the Georgia Supreme Court’s final decisions that were discussed in my prior blog post titled, “The Georgia Supreme Court rules that the Statute of Limitations was Tolled when a Dental patient Seeking the advice of a Second Dentist who was a part of the original treatment, and/or performed part of the original treatment, may have begun to realize that the First Dentist(s) committed Dental Malpractice ~ part one.”

On February 13, 2008, Dr. Arnold, after examination of the Plaintiff, treated her by remaking the prostheses and also told the Plaintiff about the the improper placement and angulations of the implants that Dr. Gallant had concealed from the Plaintiff this entire time. As a result, the Plaintiff brought Dental Malpractice claim again Dr. Gallant on January 26, 2010.

The Defendant filed a motion for summary judgement claiming that the suit was time-barred. The Plaintiff, on the other hand, argued that the statute of limitations was tolled by the Defendant’s fraudulent concealment of his opinion about the improper placement of the implants. The Plaintiff argued that she did not discover the issues with the implants until she saw Dr. Arnold on February 13, 2008, which was less than two (2) years before she filed the complaint.

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The Georgia Supreme Court rules that the Statute of Limitations was Tolled when a Dental patient Seeking the advice of a Second Dentist who was a part of the original treatment, and/or performed part of the original treatment, may have begun to realize that the First Dentist(s) committed Dental Malpractice ~ part one

dentist part oneOn June 16, 2014, the Georgia Supreme Court upheld the Georgia Court of Appeals decision to reverse the trial court’s granting of summary judgement in a case whereby the trail court held that the statutory period of limitation was not tolled after the Plaintiff consulted a second dentist in a potential Dental Malpractice Case. The case is S13G1733. GALLANT, et al. v. MacDOWELL .

The Plaintiff, Ursula MacDowell, was to undergo services necessary for a full mouth prosthodontic reconstruction that would involve a dentist, Dr. Winston, to extract teeth and place implants into the Plaintiff’s jaw that another dentist, Dr. Gallant, would use to install the dental prostheses.

In August, 2006, after the first of many implant procedures, Dr. Gallant determined that the implants were not properly placed which would make the prostheses installation difficult. Dr. Gallant consulted with another dentist, Dr. Hal Arnold, who confirmed Dr. Gallant’s observations.

Dr. Gallant, instead of informing the Plaintiff of his opinion or discussing options of treatment with her, instead decided to use his own judgement and work around the obstacles created by the improperly placed implants and moved forward with the installation of the prostheses.

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