Georgia Medical Malpractice Laws and Statutory Rules

From the statute of limitations to the "affidavit of expert" requirement, a number of key state laws are sure to affect your Georgia medical malpractice lawsuit.

Updated by , MSLIS · Long Island University

If you think you have a medical malpractice case in Georgia, you're likely wondering about the state laws that could affect your claim. Because medical malpractice lawsuits are so complicated, you'll almost certainly want—and need—the help of an experienced medical malpractice attorney. But it can be helpful to understand the general outline of what to expect before you get started. In this article, we'll summarize a few of the applicable laws, including lawsuit filing deadlines, some procedural "hoops" that a medical malpractice plaintiff must jump through when starting the case, and the current state of Georgia's statutory caps on medical malpractice damages.

The Georgia Statute of Limitations for Medical Malpractice Lawsuits

A "statute of limitations" is a law that sets a limit on the amount of time that can pass before a plaintiff (the person filing the lawsuit) can bring a case to civil court. There are different deadlines depending on the kind of case you want to file. But the time limits are strictly enforced, and if you fail to comply with the applicable deadline, the court is almost certainly going to throw out your case without hearing it. That's why it's so important to understand the statute of limitations.

Georgia, like most states, has a specific statute of limitations for medical malpractice claims. This law says that a medical malpractice lawsuit must be filed within two years of the date on which "an injury or death arising from a negligent or wrongful act or omission occurred."

Under what's called a "statute of repose," Georgia law also sets an overarching five-year filing deadline for situations where the health care provider's error wasn't discovered—and couldn't have been discovered—right away. This means that regardless of when you discovered the malpractice, if it occurred more than five years before you file your lawsuit, the case will be barred under Georgia's statute of limitations. (Ga. Code § 9-3-71 (2022).)

As is often the case with medical malpractice statutes of limitations, there are some exceptions to the standard rules described above, including:

When a foreign object is left in the patient's body. The statute of limitations is different in a case where a health care provider left a "foreign object"—such as a surgical sponge or instrument—in the patient's body. In that situation, the injured person has one year from the time the negligence is discovered to file the lawsuit, even if the two- or five-year deadlines described above have passed. Note that Georgia's law specifically states that a "foreign object" does not include "a chemical compound, fixation device, or prosthetic aid or device." (Ga. Code § 9-3-72 (2022).)

When the injured patient is a child younger than five years old. If the patient is a child younger than five years of age when the medical error occurred, the lawsuit must be filed before the child's seventh birthday or, if the injury wasn't (and couldn't have been) discovered right away, the claim must be filed no later than the child's tenth birthday. Note that the limitation period in Ga. Code § 9-3-72 (described just above) applies if the case is based on a foreign object left in the child's body. (Ga. Code § 9-3-73 (2022).)

Georgia's "Expert Affidavit" Requirement for Medical Malpractice Cases

Many states, as part of their efforts at tort reform, have created specific hoops that a potential plaintiff in a medical malpractice case must jump through when filing the lawsuit. In Georgia, a plaintiff in a medical malpractice case must file an "affidavit of expert" alongside the complaint (that's the document that starts the lawsuit). In this affidavit, a qualified medical expert must name at least one negligent act or omission that the defendant health care provider committed and provide the factual basis for the claim. This requirement is intended to weed out lawsuits that don't have merit before they move too far through the legal process.

Although, as noted above, the affidavit must typically be filed at the same time as the initial complaint, it is possible to get a 45-day extension. But such an extension is allowed only in the rare situation where the lawsuit filing deadline is right around the corner and you've just recently hired your attorney. But if you don't file an affidavit of expert when you're required to do so, the court could dismiss your medical malpractice lawsuit (although, in some situations, the court can give you a chance to fix the affidavit).

See Ga. Code § 9-11-9.1 for the specifics on the affidavit of expert requirement. And see Ga. Code § 24-7-702 for details on who is qualified to act as a medical expert witness under Georgia law. Because this is only a basic overview of the filing requirements—and the process can be quite complicated—you might want to contact an experienced medical malpractice attorney to discuss your specific situation.

Georgia Medical Malpractice Damage Caps Ruled Unconstitutional

A number of states have imposed limits (or "caps") on the amount of compensation a plaintiff can receive in a successful medical malpractice case, especially when it comes to noneconomic damages (such as those meant to compensate for "pain and suffering").

Georgia also has a statutory damage cap for medical malpractice cases that limits a plaintiff's total recovery of noneconomic damages from one or more defendant health care providers to $350,000 and total recovery of noneconomic damages from a single medical facility to $350,000 (which is increased to $700,000 if more than one facility is held liable). The statute also the caps overall noneconomic damages at $1.05 million. But in 2010, the Georgia Supreme Court ruled that these caps were unconstitutional, which means that, although the law that limits noneconomic damages is still on the books, it is no longer in effect. (Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (2010).)

Note that economic losses were never subject to the state's statutory damage caps. Economic damages include compensation for ongoing medical treatment and lost income and earning capacity. There is no limit on the amount of economic damages that can be awarded in a Georgia medical malpractice case.

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