404.The.Baer (404.843.2237)
Are There Exceptions To The Malpractice Statute Of Limitations?
Under Georgia law, O.C.G.A. § 9-3-71, the statute of limitations for a medical malpractice claim is two years. This means that a lawsuit must be filed within two years from the date of injury or death. Generally, the clock starts to run two years from when the malpractice occurred as, in most cases, the injury caused by the malpractice occurs at the time of the malpractice. Thus, it is essential to contact an experienced Atlanta malpractice attorney as soon as possible. If suit is not timely filed (and the defendant served), your entire case can be thrown out.
Furthermore, given the complexity of medical malpractice cases, it can take many months if not years of investigation and reviews with experts to determine if there is a case. Thus, most Atlanta area medical malpractice lawyers will not even review a potential case that only has six months or less before the statute of limitations expires.
In addition to the statute of limitations, Georgia also has a five-year statute of repose. Georgia’s statute of repose for medical malpractice cases says that no action for medical malpractice may be brought more than five years after the date on which the negligent act or omission giving rise to malpractice occurred, regardless of when injury took place.
However, there are some exceptions to the two-year statute of limitations and the statute of repose.
Foreign Body Exception
Unfortunately, sometimes foreign objects used in surgeries such as sponges, clamps, gauze, etc. are negligently left in the body after surgery. A person may not discover these objects until years after the surgery. Accordingly, Georgia law, O.C.G.A. § 9-3-72, provides an exception to both the two-year statute of limitation and the five-year statute of repose for foreign objects. In order to take advantage of the exception, suit must be filed within one year after the foreign object is discovered.
Minors Under the Age of Five
The minor exception for medical malpractice cases is more limited than the minor exception for other types of personal injury case. For medical malpractice cases, the statute of limitations for a minor’s claim starts running once the minor turns five years old under O.C.G.A. § 9-3-73. It is important to note that the statute of limitations for other injuries suffered by minors typically does not start running until the person’s eighteenth birthday. Thus, if the injury occurs to a minor after his/her fifth birthday, there is just a two-year statute of limitations. Furthermore, O.C.G.A. § 9-3-73 does not provide an exception to the statute of limitations for medical malpractice actions due to intellectual disability or mental illness.
Fraud in Preventing Discovery of Cause of Action
The statute of limitations will toll (i.e., not run) due to fraud on behalf of the provider committing malpractice. Demonstrating that a provider committed actual fraud in preventing the discovery of a potential case is an EXTREMELY high bar and applies to only the most egregious of provider conduct.
The Georgia Supreme Court recently examined the fraud exception tolling the statute of limitations in Doe v. Saint Joseph’s Catholic Church. While this was not a malpractice case, the law as stated by Doe would apply to medical malpractice cases. Under Doe, a person or plaintiff who seeks to toll the statute of limitations due to fraud in a medical malpractice or other injury case must show three things:
- The defendant committed actual fraud (i.e., intentional deceit by stating something that was not true or failing to disclose information that needed to be disclosed in order to be true),
- The fraud concealed the cause of action from the plaintiff (i.e., the fraud deterred the plaintiff from bringing a lawsuit), and
- The plaintiff exercised reasonable diligence to discover cause of action within the statute of limitations.
Georgia courts are generally reluctant to toll the statute of limitations against medical providers due to fraud. Consequently, if you believe that you have been injured due to medical malpractice and you are not getting better, we recommend getting a second opinion from another doctor or medical provider quickly. If it takes you more than two years to learn that your initial doctor made a mistake, it is unlikely that Georgia courts would allow you additional time to bring your lawsuit. That said, it is possible your case remains viable if the doctor provided you with false information that prevented you from learning of the mistake s/he made within sufficient time to file a lawsuit.
New Injury vs. Continuing Injury – Misdiagnosis Cases
A common type of medical malpractice case in which a plaintiff seeks an exception to the running of the statute of limitations is a failure to diagnose case for the obvious reason that it could take years to learn of the misdiagnosis. Unfortunately, Georgia law does not toll the statute of limitations or statute of repose until the misdiagnosis is discovered. Instead, Georgia law holds that in most all misdiagnosis cases, the injury begins immediately upon the misdiagnosis. Worsening of a condition that continues to get misdiagnosed DOES NOT extend the statute of limitations or repose. In most misdiagnosis cases, the two-year statute of limitations and the five-year statute of repose begin to run simultaneously on the date that the doctor FIRST negligently failed to diagnose the condition and thereby injured the patient.
However, in some instances where a new injury presents as a result of a continuing misdiagnosis, the statute of limitations for the new injury begins when it occurs. For instance, say a doctor fails to properly diagnose a woman’s breast cancer. The statute of limitations for the patient’s breast cancer runs from the date of the initial misdiagnosis. Worsening of the breast cancer does not extend the time frame to bring a lawsuit. However, were the cancer then to metastasize to another part of the body, the cancer in the other part of the body is conceivably a “new” injury such that the statute of limitations for that injury would run from the date the cancer metastasized.
Consult with an Attorney
Calculating the statute of limitations or the statute of repose is a complicated issue. Since the timeliness of a lawsuit is the first and most important factor in any malpractice lawsuit, it’s essential to have your case evaluated by a legal expert.
If you believe you have a medical malpractice claim, you should contact an experienced medical malpractice lawyer. There are different variables that affect how large or small the window of time is to file a lawsuit. To learn more about the timeline that applies for your specific case, we encourage you to contact our office at The Baer Law Firm or call us at 404.THE.BAER (404.843.2237).
Attorney Bryan Baer has twenty (20) years of legal experience representing clients in serious and catastrophic personal injury and medical malpractice cases. He has been first chair in more than a dozen twelve-person jury trials on both the plaintiff and defense sides. Recognized as a leader in his legal community, he is frequently asked to speak at legal seminars on trial topics ranging from “Best Practices in Voire Dire” to “Maximizing Damages at Trial” as well as insurance issues such as “Navigating the Insurance Landscape” and “Injury Demands & Negotiations.” Learn more here.