If you think you might have a viable medical malpractice case in Georgia, you're likely wondering about the different state laws that might affect your claim. In this article, we'll summarize a number of these laws, including lawsuit filing deadlines, procedural "hoops" that a medical malpractice plaintiff must jump through, and the current state of Georgia's statutory caps on damages in medical malpractice lawsuits.
A "statute of limitations" is a state law that sets a limit on the amount of time that can pass before you can bring a case to civil court. There are different deadlines depending on the kind of case you want to file.
Georgia, like most states, has passed a specific statute of limitations for medical malpractice lawsuits. This law, which can be found at Georgia Code section 9-3-71, says that a medical malpractice lawsuit must be filed against the health care provider within two years of the date on which "an injury or death arising from a negligent or wrongful act or omission occurred" -- meaning the surgical error, misdiagnosis, or whatever mistake the provider allegedly committed.
Section 9-3-71 also sets an over-arching five-year deadline for getting a medical malpractice lawsuit filed when the health care provider's error wasn't discovered -- and couldn't have been discovered -- right away. This so-called "statute of repose" means that regardless of when you "discovered" the malpractice, if it occurred more than five years before you filed your lawsuit, the case is barred under the Georgia statute of limitations.
Why is the statute of limitations so important? If you don't get your medical malpractice lawsuit filed before the applicable deadline set out in the statute, the court is almost certainly going to throw out your case without hearing it, unless an exception applies.
One exception to Georgia's standard two-year and five-year deadlines is when a foreign object is left in a patient (a surgical sponge or instrument, for example). If that happens, the plaintiff can sue within one year of discovering the presence of the object, regardless of whether the two or five year limitation periods have already passed.
Special rules may also apply if the injured patient is "legally incompetent" or a minor under the age of five at the time of the alleged malpractice. Since compliance with the statute of limitations can make or break your medical malpractice case, it's time to talk to an experienced Georgia attorney if the filing deadline is approaching, or if you think you might be entitled to an extension of the deadline.
According to Georgia Code section 9-11-9.1, along with the complaint -- that's the document that starts the lawsuit -- the plaintiff in a Georgia medical malpractice case must file an affidavit prepared by a medical expert who is qualified to testify under Georgia law, and who can provide evidence of at least one negligent act committed by the defendant health care provider, including the factual basis for that allegation.
It's possible to get a 45-day extension to file this affidavit, but only in rare situations where the lawsuit filing deadline is right around the corner and you've only recently hired your attorney, so that there wasn't reasonable time to prepare and file the affidavit.
If you don't file a compliant "affidavit of expert", your medical malpractice lawsuit can be dismissed, although the court may give you a chance to fix the affidavit in some situations.
A number of states have enacted caps on medical malpractice damages, including limitations on the amount of non-economic damages (such as those meant to compensate for "pain and suffering") that an injured patient can recover.
Georgia previously had damage caps that, among other things, limited a medical malpractice plaintiff's total recovery of non-economic damages from one defendant to $350,000 -- and recovery of damages from all defendants to $1,050,000. However, these caps were ruled unconstitutional by the Georgia Supreme Court in 2010 and are no longer in effect.
In Georgia, punitive damages are limited to $250,000 in medical malpractice cases (except in extremely rare cases where the plaintiff can show an intent to harm on the part of the defendant).