Individuals who suffer an injury or the loss of a loved one due to a medical mistake in Georgia must not delay in seeking compensation. The time an individual has to file a Georgia medical malpractice lawsuit is strictly controlled by a statute of limitations. Once time runs out, an individual may not be able to seek compensation for that injury.
What Is a Statute of Limitations?
A statute of limitations is a deadline created by law that limits the amount of time an individual has to file a lawsuit. The purpose of a statute of limitations is to make sure lawsuits are filed within a reasonable amount of time after an injury or loss occurs. Bringing a lawsuit too long after an injury occurs makes it difficult to present reliable evidence. The likelihood of witnesses’ memories fading, witnesses dying, or records being lost or destroyed increases with the passage of time.
General Statute of Limitations for Medical Malpractice in Georgia
In Georgia, the general statute of limitations for filing a medical malpractice lawsuit is two years from the date the negligent or wrongful act (or failure to act) that caused injury or death. Do not delay in consulting with an attorney if you believe you or a loved one were injured as a result of medical negligence.
Statute of Repose
There are some situations in which a person does not discover their injuries until a few years after the treatment or procedure. In addition to the statute of limitations, Georgia also has a statute of repose, which stipulates that an injured patient has a maximum of five years after the incident to file a medical malpractice lawsuit. This does not mean that an individual can wait five years to bring a claim. Instead, the statute of repose means that even if someone does not discover their injuries until a later date, their medical malpractice lawsuit will valid if they wait to file more than five years after the incident that caused their injuries.
Statute of Limitations for Foreign Objects Left Inside of a Patient
There is an exception to the two-year statute of limitation and five-year statute of repose. In cases of foreign objects being left inside of a patient after a procedure (ex: sponges, needles, broken scalpels), the victim must file their lawsuit within one year of discovering the medical malpractice. This one-year time limit lengthens the statute of limitations available for medical malpractice victims; it does not shorten it.
So, for example, let’s say a person had surgery eight years ago. But they only recently discovered that the surgeon left a foreign object after the procedure. As long as it’s been less than one year since the people discovered that foreign onbject, they can still file a medical malpractice lawsuit.
Exception to the Standard Statute of Limitations for Children Under Age Five
Because young children cannot always alert those caring for them to problems they are experiencing after a medical procedure, lawmakers created an exception to the general statute of limitations. The statute of limitations to file a medical malpractice suit will never run prior to the child’s seventh birthday. The statute of repose will never run prior to the child’s tenth birthday. Additionally, if a young child is seriously injured due to medical malpractice, their parents may also have a claim for some damages.
Medical Malpractice Claims Involving Death
If negligent medical care results in a patient’s death, the patient’s family has two years to file a medical malpractice lawsuit. The five-year statute of repose also applies. As a result, if an individual dies from injuries incurred more than five years ago, their family would be legally barred from filing a medical malpractice claim.
However, if a lawsuit for negligence was properly filed before the person’s death, the wrongful death claim can be added to that lawsuit even if the death occurs more than five years after the negligent medical care that is at issue.
See Wesley Chapel Foot & Ankle Ctr. LLC v. Johnson, 286 Ga. App. 881 (2007).
Tolling the Statue of Limitations (Stopping the Clock)
There are certain circumstances that stop the clock from running on the statute of limitations. This is known as “tolling” the statute of limitations.
- Tolling Due to Intellectual Disability or Mental Illness. For individuals who are legally incompetent due to an intellectual disability or mental illness, the statute of limitations is tolled until the individual regains competence. However, the five-year statute of repose still applies, meaning a medical malpractice suit must still be filed by the individual or their family within five years of the negligent or wrongful act.
- Tolling After Medical Records Request. The statute of limitations is also briefly tolled when an individual or an attorney properly requests the individual’s medical records from their doctor, hospital, or other medical care facility. If the individual or their attorney does not receive the medical records or a note of explanation from the records custodian for more than 21 days, the statute of limitations will “toll” until they receive the records or a proper response. This stopping of the clock only lasts for 90 days; however, the individual or their attorney can petition the court for an order tolling the period of limitation beyond those 90 days and requiring the records custodian to deliver the requested records.
- Tolling for Fraudulent Acts. Fraud or deception by the healthcare provider that conceals his negligence or wrongful act also tolls the statute of limitations. In cases of fraud or deception, the statute of limitations does not start running until the victim discovers the fraud or deception. So, an individual deceived by a provider’s actions would have two years from the date of discovering the fraud to file a medical malpractice suit.
Shortened Time to Bring a Claim Against a State, County, or City Provider
If an individual is injured by a provider employed by a city, county, or state government facility, Georgia’s statute or limitations and statute of repose apply. That individual must also provide notice of their intent to file a claim. This notice is often referred to as an ante litem notice.
For city-run facilities, an individual only has six months from the date of injury (or death) to give the city an ante litem notice. For county and state facilities, an individual has 12 months from the date of injury (or death) to give a proper ante litem notice. If an individual does not give a proper and timely ante litem notice, they may not be able to file a claim again the government entity – even if the statute of limitations or repose has not run.
Time Limits on Claims Against Federal Healthcare Providers
For injuries occurring because of the negligent or wrongful act of a provider at a federal facility, the Federal Tort Claims Act (“FTCA”) governs the process for filing a medical malpractice claim. Under the FTCA, an individual has two years to file an administrative claim for an injury. The administrative claim must be filed first, and a medical malpractice lawsuit can only be filed if the agency denies the claim or refuses to pay all of the monetary damages sought in the claim. An individual has six months from the date of administrative denial (or refusal to pay all damages sought) to file a medical malpractice suit in federal court.
If you or a loved one have been injured by the negligent or wrongful actions (or failure to act) of a healthcare provider, do not delay in seeking competent legal advice about your rights and remedies. Waiting to seek compensation for your injuries can mean you or your loved ones forever bear the financial burden of your injury.