Trial Attorney Blog
In most instances, medical malpractice cases in Georgia are subject to a two-year statute of limitations from the date of injury or death. See O.C.G.A. § 9-3-71(a). Medical malpractice cases differ from automobile cases and other types of tort cases in that it typically takes much longer to prepare and file suit. In many instances, it takes a minimum of three months from when the case first comes in to 1) obtain certified medical records, 2) find an expert to review the case, 3) prepare the Complaint and expert Affidavit and 4) file and serve the defendant(s). In any medical malpractice case where the relevant statute of limitations will expire in six months or less, a practitioner should carefully scrutinize the potential case and act quickly in either moving forward with the case or notifying the potential client in writing, preferably via certified mail or using some other verified service method, that they will not accept the case.
While the typical medical malpractice case is subject to a two-year statute of limitations, there are exceptions:
In “foreign object” cases involving leaving objects inside patients during surgery, such as sponges, needles, broken scalpels, etc., may be brought any time within one year of discovery of the object. See O.C.G.A. § 9-3-72.
In cases involving minors, when a child is injured, the child and the child’s parents have separate and independent claims. The parents’ claims include all medical and other necessary expenses related to the injury of the child up to the age of 18, and loss of the child services. For medical malpractice occurring before a child’s fifth birthday, the child’s suit must be filed by the seventh birthday. For acts of medical malpractice occurring after the fifth birthday, the limitation period is two years from the date of malpractice. See O.C.G.A. § 9-3-73(b).
In a case involving a wrongful death claim, the lawsuit must be filed within two years of the date of death. See Hart v. Eldridge, 250 Ga. 526 (1983).
In a case decided in June of this year, the Court of Appeals held that under the proper circumstances, an amended complaint adding a new party in a medical negligence case can relate back to the original filing for purposes of the two-year statute of limitations. See Tenet Healthsystem GB, Inc. v. Thomas, 816, S.E. 2d 627 (2018).
Georgia also has a statute of repose, which provides that even if the patient or family did not know about the malpractice, unless there is fraud, concealment, or misrepresentation, under no circumstances may a healthcare provider be sued for medical malpractice more than five years after the actual incident of malpractice. See O.C.G.A. § 9-3-71(c). The statute of repose prevents the filing of a wrongful death medical malpractice claim if five years have passed between the time of the malpractice and the filing of the claim, irrespective of the date of death. See Braden v. Bell, 222 Ga. App. 144 (1996). However, the courts have allowed the filing of a wrongful death claim outside the five-year period if it is filed as an amendment to an already filed medical negligence lawsuit. See Wesley Chapel Foot and Ankle Center, L.L.C. v Johnson, 286 Ga. App. 881 (2007).
If you or a loved one have been a victim of medical malpractice in Atlanta or anywhere in Georgia, it is important to contact an experienced medical malpractice attorney as soon as possible to discuss the case. As explained above, investigating these cases and preparing the documents necessary to file a lawsuit is a time-consuming process, and if the case is not filed within the statute of limitations there is often no way to recover, regardless of the merits of the case. If you have a matter you would like to discuss, contact one of the Georgia medical malpractice attorneys at Finch McCranie LLP at 404-658-9070 for a free consultation.