STATUTE OF LIMITATIONS

Explanation of Malpractice Statute of Limitations for Georgia

In Georgia the statute of limitations for medical malpractice is two years from the date on which an injury or death arising from the negligent act or omission occurred.  But Georgia also has something called 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.

Sponges, Needles and Other Foreign Objects

Cases involving leaving objects inside patients during surgery, like sponges, needles, broken scalpels, etc,  may be brought any time within one year of discovering the object.

Statute of Limitations for Minors

These limits apply to minors, except that the statute of limitations will never run prior to the minor’s seventh birthday and the statute of repose will never run prior to the minor’s tenth birthday. Keep in mind that if a minor is seriously hurt his parents may have a claim for some damages in their own right.  The parents’ claim may be cut-off by the standard statute of limitations, even if the minor’s claim may be extended because he is under age 7, or under age 10.

Ask lawyer if statute of limitations has expired

The bottom line on the statute of limitations/statute of repose issue is that this area of the law can be tricky, and there are a few exceptions.  If you think you may have a claim for medical malpractice you should contact a malpractice lawyer as soon as possible to learn the deadline for filing your case.  There may be a great deal of work to do to prepare your case before it can be filed. Some malpractice lawyers will not even agree to investigate a potential case unless there are several months remaining on the statute of limitations. Another benefit to starting the claim as soon as possible is that sometimes there are important records that should be obtained before they are destroyed or altered or reduced to digital images.  The prompt collection of evidence may make a big difference in successfully proving your case.  It is far easier to prove a medical record has been altered if you obtain it early.

Georgia Code language – Statute of Limitations for Medical Malpractice

9-3-71 to 9-3-73

9-3-71. General time limitation

(a) Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.

(b) Notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.

(c) Subsection (a) of this Code section is intended to create a two-year statute of limitations. Subsection (b) of this Code section is intended to create a five-year statute of ultimate repose and abrogation.

(d) Nothing contained in subsection (a) or (b) of this Code section shall be construed to repeal Code Section 9-3-73, which shall be deemed to apply either to the applicable statutes of limitation or repose.

HISTORY: Code 1933, § 3-1102, enacted by Ga. L. 1976, p. 1363, § 1; Ga. L. 1985, p. 556, § 1.

9-3-97.1. Tolling of statute of limitations for medical malpractice

(a) The periods of limitation for bringing an action for medical malpractice as provided in Code Sections 9-3-71 and 9-3-72 shall be tolled if:

(1) The injured person or his duly appointed attorney makes a request by certified or registered mail or statutory overnight delivery, return receipt requested, upon any physician, hospital, or other health care provider for medical records in their custody or control relating to such injured person’s health or medical treatment which medical records the injured person is entitled by law to receive;

(2) The request, if made by an injured person’s duly appointed attorney, has enclosed therewith a properly executed medical authorization authorizing release of the requested information to said attorney;

(3) Such request expressly requests that the medical records be mailed to the injured person or his attorney by certified or registered mail or statutory overnight delivery, return receipt requested and states therein that the requested records are needed by the injured person for possible use in a medical malpractice action;

(4) The injured person or his attorney has promptly paid all fees and costs charged by such physician, hospital, or other health care provider for compiling, copying, and mailing such medical records; and

(5) Such medical records or a letter of response stating that the provider does not have custody or control of the medical records has not been received by the injured person or his attorney within 21 days of the date of receiving such request. Such periods of limitation shall cease to run on the twenty-second day following the day such request was received and shall resume on the day following the date such medical records, or response stating that the provider does not have custody or control of the medical records, are actually received by such injured person or his attorney; provided, however, that such periods of limitation shall be tolled only once for any cause of action.

(b) Any action filed in reliance upon a tolling of the statute of limitations as authorized by this Code section shall contain in the complaint as first filed allegations showing that the plaintiff is entitled to rely upon the provisions of this Code section, and said complaint as first filed shall have attached thereto as exhibits copies of the request, medical release, and evidence of mailing and receipt by certified or registered mail or statutory overnight delivery.

(c) Notwithstanding any other provision of this Code section, no period of limitation shall be tolled for a period exceeding 90 days except as provided in this subsection. In the event the procedure set forth in subsection (a) of this Code section has been followed by an injured person but the requested records or a letter of response stating that the provider does not have custody or control of the medical records have not been received within 85 days, the injured person shall have the right to petition the court for an order tolling the period of limitation beyond the 90 days and requiring the delivery of the medical records originally requested or a letter of response stating that the provider does not have custody or control of the medical records.

(d) It is intended that the provisions of this Code section tolling the statute of limitations for medical malpractice under certain circumstances be strictly complied with and strictly construed.

HISTORY: Code 1981, § 9-3-97.1, enacted by Ga. L. 1989, p. 419, § 2; Ga. L. 2000, p. 1589, § 4.

9-3-72. Foreign objects left in body during surgery

The limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient’s body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered. For the purposes of this Code section, the term “foreign object” shall not include a chemical compound, fixation device, or prosthetic aid or device.

HISTORY: Code 1933, § 3-1103, enacted by Ga. L. 1976, p. 1363, § 1; Ga. L. 1985, p. 556, § 2.

9-3-73. Certain disabilities and exceptions to statute of limitations applicable

(a) Except as provided in this Code section, the disabilities and exceptions prescribed in Article 5 of this chapter in limiting actions on contracts shall be allowed and held applicable to actions, whether in tort or contract, for medical malpractice.

(b) Notwithstanding Article 5 of this chapter, all persons who are legally incompetent because of mental retardation or mental illness and all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article. A minor who has not attained the age of five years shall have two years from the date of such minor’s fifth birthday within which to bring a medical malpractice action if the cause of action arose before such minor attained the age of five years.

(c) Notwithstanding subsections (a) and (b) of this Code section, in no event may an action for medical malpractice be brought by or on behalf of:

(1) A person who is legally incompetent because of mental retardation or mental illness more than five years after the date on which the negligent or wrongful act or omission occurred; or

(2) A minor:

(A) After the tenth birthday of the minor if such minor was under the age of five years on the date on which the negligent or wrongful act or omission occurred; or

(B) After five years from the date on which the negligent or wrongful act or omission occurred if such minor was age five or older on the date of such act or omission.

(d) Subsection (b) of this Code section is intended to create a statute of limitations and subsection (c) of this Code section is intended to create a statute of repose.

(e) The limitations of subsections (b) and (c) of this Code section shall not apply where a foreign object has been left in a patient’s body. Such cases shall be governed by Code Section 9-3-72.

(f) The findings of the General Assembly under this Code section include, without limitation, that a reasonable relationship exists between the provisions, goals, and classifications of this Code section and the rational, legitimate state objectives of providing quality health care, assuring the availability of physicians, preventing the curtailment of medical services, stabilizing insurance and medical costs, preventing stale medical malpractice claims, and providing for the public safety, health, and welfare as a whole.

(g) No action which, prior to July 1, 1987, has been barred by provisions relating to limitations of actions shall be revived by this article, as amended. No action which would be barred before July 1, 1987, by the provisions of this article, as amended, but which would not be so barred by the provisions of this article and Article 5 of this chapter in force immediately prior to July 1, 1987, shall be barred until July 1, 1989.

HISTORY: Code 1933, § 3-1104, enacted by Ga. L. 1976, p. 1363, § 1; Ga. L. 1987, p. 887, § 2.

DISCLAIMER – Some of these codes have been amended over the years, and they can be amended again by the legislature at any time.  For some codes you use the version that existed at the time the malpractice occurred, but for others you use the version of the code that exists at the time you go to trial.  We show you these codes for general education purposes, but you should always consult an experienced Georgia medical malpractice attorney before relying on these provisions. 

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