Medical malpractice is when a health care professional or provider is negligent and provides substandard care that caused harm, injury or death to a patient. Realizing that the person you trusted with your or a loved one’s health did not perform their duties to the best of their ability is difficult and stressful. An attorney is essential to helping you understand your rights as a patient.
Medical Malpractice Law in Georgia
Georgia has resisted or overturned laws that limit a patient’s right to receiving compensation for negligent medical care.
One of the most important things to do when filing a medical malpractice suit is to file it within the statute of limitations. Statute of limitations is legal speak for the amount of time that a patient (aka plaintiff) has to file a lawsuit against the health care provider. Each state has a different amount of time allotted in their statute of limitations, so it is important to find out what the time is in your state. If you file a claim outside of the statute of limitations, a court will throw out your case before hearing a single word.
In Georgia, you have to begin the lawsuit process within two years of the injury or death caused by the malpractice. At the latest, you have five years from when the malpractice occurred to file your claim. This means that if the injury does not show up for five years after the malpractice happened, then your case will be thrown out because it violates the statute of limitations.
Exceptions to the Statute of Limitations
As with almost every law, there are some exceptions. For example, if a foreign object had been left inside a patient’s body during surgery (surgical sponge, etc.), the plaintiff is allowed to sue within one year of discovering the object. The two and five year limits do not apply in this situation.
If the care provider conceals the malpractice in a fraudulent way, then the statute of limitations would be “toiled” or put on pause. An example of this would be that the care provider intentionally deceived you so that you would not find the malpractice. The statute of limitations would be paused until the malpractice is discovered.
Other exceptions include if the malpractice occurred before the plaintiff turned five years old. Both, the two and five year periods begin when the patient turns five.
The two year statute of limitations is toiled if a person is mentally disabled and it remains toiled until they recover. The five year statute of limitations remains active.
For more information on Georgia Medical Malpractice Statute of Limitations, please see O.C.G.A. § 9-3-71
What is a Damage Cap?
Several states have enacted caps on medical malpractice damages. This includes limitations on the amount of non-economic damages (i.e. compensation for things like pain and suffering). Georgia’s damage caps were ruled unconstitutional and they are no longer in effect. Georgia still allows for punitive damages and limits them to $250,000 in a medical malpractice case. This cap can be shifted in extremely rare cases where the plaintiff can prove that the defendant performed the malpractice with intent to harm the plaintiff.
What is an Expert Affidavit Requirement in Georgia?
When filing a medical malpractice claim in Georgia, a plaintiff must file a complaint (document that starts the lawsuit process), as well as an affidavit prepared by a medical expert. An affidavit is a written statement that is held under oath of a court of a law and can be used as evidence. The medical expert must be qualified to testify under Georgia law and can provide evidence that at least one negligent act was committed by the health care provider. With the evidence, they have to include a factual basis for that allegation.
In rare situations, it is possible to get a 45 day extension to file the affidavit. This only happens when the deadline for filing the lawsuit is quickly approaching and you have only recently hired your attorney, which has not allowed your team to prepare and file the affidavit.
Getting a Legal Team on your Side
As you can see, a lot goes into filing a medical malpractice claim. It’s important to contact an attorney as soon as you discover that something negligent has happened to you or a loved one because of a health care provider. The team at Litner + Deganian has years of experience in negotiating with insurance companies, health care companies and more. We understand that this can feel overwhelming and scary, but we are here to make it simple. Call us today for your free consultation.