In this video, Darl Champion discusses numerous factors that can impact a medical malpractice case, and why some cases take longer to settle than others. Watch the video to learn what you might expect with a medical malpractice case in Georgia.
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, and, once time runs out, an individual cannot ever 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 because the likelihood of witnesses’ memories fading—or, witnesses dying—and 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 suit on medical malpractice claims is two years from the date the negligent or wrongful act (or failure to act) that caused injury or death occurred. Two years can pass quickly when you are dealing with an injury or death caused by the negligent action of a healthcare provider. Do not delay in consulting with an attorney about your injury if you believe you were injured as a result of medical negligence.
Statute of Repose
In the event that an injury from an act or failure to act is not discovered right away, the statute of limitations provision includes a “statute of repose,” giving an individual up to five years to bring a claim. But, this does not mean an individual can wait to bring a claim for more than two years and expect her claim to be valid. Instead, this code section would apply to individuals who could not and did not discover their injuries within the two-year statute of limitations. Regardless of when the person discovers their injury or first learns of a medical mistake, a medical malpractice claim cannot be brought if more than five years have passed since the negligence occurred.
Statute of Limitations for Foreign Objects Left Inside of a Patient
In cases of foreign objects being left inside of a patient after a procedure, a different statute of limitations applies. Individuals who discover they have a foreign object inside their body after a procedure have one year from the date of discovery of the object to file a lawsuit. This one-year time limit lengthens the statute of limitations available for medical malpractice victims; it does not shorten it. In other words, you can file the lawsuit within two years from the date of the negligent act, or one year from discovery of the foreign objection, whichever is later.
It is important to note that the five-year statute of repose does not apply in foreign object cases. So, even if an individual had surgery eight years before the discovery of a foreign object is made, she can still file a lawsuit for medical malpractice, so long as she does so within one year of making the discovery.
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. If a child under the age of five undergoes a medical procedure, the statue of limitations does not start running until the child turns five, giving her caregivers until the child’s seventh birthday to file a medical malpractice lawsuit. The five-year statute of repose also does not begin to run until the child turns five.
Medical Malpractice Claims Involving Death
If negligent medical care results in a patient’s death, then the person entitled to bring the claim under Georgia’s wrongful death statute has two years from the date of the death to file the lawsuit. However, the five-year statute of repose still applies. As a result, if a patient dies 6 years after the negligent or act, then the wrongful death claim is barred because of the five-year statute of repose. 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)
Although the two-year statute of limitations applies to everyone (except children under the age of five at the time of the negligent or wrongful act), there are certain circumstances that stop the clock from running on the statute of limitations. This stopping of the clock 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 disability is removed. However, the five-year statute of repose still applies, meaning a medical malpractice suit must still be filed by the individual or her next friend 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’s medical records are properly requested by the individual or her attorney. If the records, or a proper response that the requested party does not have the records, is not received within 21 days of the request, then the statute of limitations is tolled until the day after the records, or a response that the party does not have the records, are received. This stopping of the clock only lasts for 90 days, although the court can extend the tolling of the statute by an order of the court. This tolling of the statute of limitations can only be used once for any individual cause of action.
- 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 fraud or deception is discovered. 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
When an individual is injured by a provider employed by a government facility run by the state or a local government, the time and filing limitations placed on all civil lawsuits filed against government entities in Georgia also apply to medical malpractice lawsuits. Whether an individual is injured by a city, county, or state healthcare provider, she must give notice of her claim to the proper government office to be allowed to file a lawsuit. 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. Failure to give an ante litem notice in time bars an individual from seeking compensation for her injury, even if the general statute of limitations has not run out.
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.