Georgia Medical Malpractice
Georgia Medical Malpractice Laws: A Quick Overview for Potential Clients
Filing a medical malpractice claim in Georgia involves navigating a specific and often complex set of state laws and procedural rules. This guide provides an overview of the key legal requirements, from the expert affidavit needed to file a lawsuit to the statute of limitations that limits the time you have to act. Understanding these rules is a critical first step for anyone considering a medical negligence claim in the state.
Expert Affidavit Requirement (O.C.G.A. § 9-11-9.1)
In Georgia, a medical malpractice claim must be filed with a qualified expert affidavit to prove the claim is not frivolous.
The expert affidavit requirement is one of the most significant procedural hurdles for a medical malpractice lawsuit in Georgia. Under O.C.G.A. § 9-11-9.1, a plaintiff must file an affidavit from a qualified expert along with their complaint. This document is designed to ensure that the claim is not frivolous and has a legitimate basis in professional negligence.
Requirements for the Expert Affidavit
The affidavit must:
Come from an "expert competent to testify."
Specifically identify at least one negligent act or omission.
Provide a "factual basis for each such claim."
Demonstrate that the expert meets all qualification requirements under O.C.G.A. § 24-7-702.
A limited grace period may apply if the statute of limitations is about to expire. If the period will expire within 10 days and your attorney was retained less than 90 days before that, you may have an additional 45 days to file the affidavit. However, failure to file a proper affidavit can lead to your case being dismissed.
Expert Witness Qualification Requirements (O.C.G.A. § 24-7-702)
To be a qualified expert witness in Georgia, a person must have been licensed and actively practicing or teaching in the relevant field for at least three of the last five years.
Georgia law has strict rules for who can serve as an expert witness in a medical malpractice case. These rules, found in O.C.G.A. § 24-7-702, were enacted as part of the 2005 tort reform efforts.
General Requirements
At the time of the alleged malpractice, the expert must have been:
Licensed to practice or teach their profession in the state where they were working.
Actively engaged in their profession for at least three of the last five years, either through active practice or teaching at an accredited institution.
"Same Profession" Rule
Generally, the expert must be a member of the same profession as the defendant. For example, a doctor typically testifies against another doctor. There are limited exceptions, such as a physician who has supervised other healthcare providers being able to testify about their standards of care.
The Georgia Supreme Court has clarified that courts should focus on the expert's knowledge and experience rather than a requirement that they have performed the exact procedure at issue, as demonstrated in the case Zarate-Martinez v. Echemendia. This nuance highlights the importance of working with an attorney who understands the evolving legal landscape.
Statute of Limitations and Repose
In Georgia, medical malpractice claims must be filed within two years from the date of injury, but no more than five years after the negligent act occurred.
In Georgia, there are two key deadlines for filing a medical malpractice lawsuit:
Two-Year Statute of Limitations: You must generally file your claim within two years from the date of the injury.
Five-Year Statute of Repose: This is a hard deadline. Regardless of when you discovered your injury, you cannot file a claim more than five years after the negligent act occurred.
Limited exceptions exist, such as for the discovery of a foreign object (e.g., a surgical sponge) left inside a patient, where the statute runs one year from the date of discovery. For minors under the age of five, the statute of limitations runs for two years after the child's fifth birthday.
Damage Caps and Constitutional Uncertainty
There are currently no caps on non-economic damages in Georgia medical malpractice cases.
Georgia's history with damage caps in medical malpractice cases is a complex one. While some states limit the amount of money you can recover for non-economic damages (like pain and suffering), Georgia's caps were found to be unconstitutional.
Historical Context: In 2005, Georgia enacted a law that capped non-economic damages at $350,000.
Constitutional Challenge: In the landmark 2010 case Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, the Georgia Supreme Court struck down these caps. The court ruled that the caps violated a plaintiff's constitutional right to a jury trial by essentially nullifying a jury's verdict on damages.
Current Status: As a result of the Nestlehutt decision, there are currently no caps on non-economic damages in medical malpractice cases in Georgia. However, recent legal activity, particularly concerning wrongful death claims, suggests the courts may be re-examining the scope of this decision, creating some ongoing legal uncertainty.
It is also important to note that a separate law in Georgia maintains a $250,000 cap on punitive damages, which are awarded to punish a defendant for particularly egregious conduct.
FAQs About Georgia Medical Malpractice Laws
What is the "rebuttable presumption of proper care"?
Georgia law presumes that healthcare providers have acted with the proper degree of care, skill, and diligence. This means that a plaintiff must present expert testimony to overcome this presumption and show that the defendant was negligent.
Are contingency fees allowed in Georgia?
Yes. Georgia law permits attorneys to use contingency fee agreements in medical malpractice cases, typically ranging from 33⅓% to 40%. These agreements must be in writing.
What if my loved one died from medical malpractice?
Medical malpractice resulting in death is considered a wrongful death case. The two-year statute of limitations generally applies from the date of death. The recent Supreme Court activity regarding damage caps in wrongful death cases makes it crucial to consult with an attorney experienced in these specific claims.
The DEH Law Difference in Atlanta and Across Georgia
Georgia’s medical malpractice laws are complex, presenting high procedural barriers that can make it difficult for plaintiffs to succeed without experienced legal counsel. Having practiced law on both the plaintiff and defense sides of medical malpractice claims, attorney Daniel E. Holloway understands the detailed procedural and legal challenges that these cases present. He knows how to satisfy the stringent expert affidavit requirements and navigate the intricacies of Georgia’s unique legal system.
If you believe you have been harmed by medical negligence in Georgia, you need a determined advocate on your side. Contact DEH Law, PLLC today to discuss your case during a free, confidential consultation.