Georgia Medical Malpractice Laws

Medical professionals are considered to be highly conscientious, highly detailed individuals. Their profession requires those skills and their patients demand them. However, it is possible for even the best physician to have a momentary lapse of skill which can unfortunately come at the cost of harming a patient. If you are thinking of pursuing a claim of medical malpractice, it is likely that you have suffered a significant injury at the hands of your health care provider and are looking for what to do next.

Medical malpractice litigation can be incredibly nuanced, the complexities of which require skilled and experienced legal counsel. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering.

This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Georgia; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Georgia. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Georgia

In Georgia, a medical malpractice action is considered any claim for damages resulting from the injury of any person arising from health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person, or any care or service rendered by a public or private hospital, nursing home, clinic, hospital authority, facility. [1] In other words, if you sustained an injury while undergoing medical treatment, it is possible that you may be able to file a medical malpractice lawsuit.

The law in Georgia places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Georgia allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, many cases settle out of court prior to the case advancing to the trial stage of litigation. Georgia is one of a few states that does not place a limit on damages that may be awarded to a plaintiff in a medical malpractice case.

How long do I have to file a medical malpractice case in Georgia?

The first step in bringing a claim for medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Georgia mandates that an action for personal injury be filed within two years after the date on which your injury arose from the negligent act or omission of a healthcare provider. [2] This time limitation is known as the “statute of limitations” which refers to the period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no other legal option to pursue justice. The reason behind placing a time limitation on when you may file a medical malpractice claim is based on the notion that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling, making your case all the more difficult to prove.

It is important to note that Georgia law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Once you discover, or should have discovered, your injury, the two-year window to file your lawsuit begins. However, you may not bring an action for medical malpractice more than five years from the time date that the alleged malpractice took place, regardless of when you actually discovered your injury. [3]

If the injured party was a minor child at the time of the injury, the statute of limitations will not begin to run until the child reaches seven years of age. [4]

In Georgia Medical Malpractice Cases, who is Responsible?

In Georgia, you may bring a medical malpractice lawsuit against a healthcare provider based upon their negligence being the cause of your injury.

Those that can be held responsible include professionals that provide services in health, medical, dental, or surgical, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform a service or by any person acting under the supervision and control of the lawfully authorized person; or care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment. [5]

However, if your injury occurred within a hospital that either posted a notice or obtained your acknowledgment that some of the healthcare professionals are independent contractors, then you will not be permitted to hold the hospital liable for your injury unless the healthcare provider is actually employed by the facility. [6]

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove that the alleged actions of the healthcare provider fell below the requisite standard of care. In Georgia, healthcare professionals must exercise the reasonable care and skill for their patients as, under similar conditions and like surrounding circumstances, is ordinarily employed by the medical profession generally. [7] When a healthcare provider fails to meet this standard of care, the departure constitutes negligence, and you likely have grounds to file a cause of action for the healthcare provider’s failure to exercise reasonable care and skill.

What if I am partially to blame? Can I Still Recover Money for Georgia Medical Malpractice?

Georgia, along with 32 other states recognizes the doctrine of modified comparative fault. [8] The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Georgia is one of 12 states (Arkansas, Colorado, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia) that follow a 50% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 49% or less.

For example, imagine you bleed excessively during a procedure performed by your doctor and the loss of blood caused a significant injury. A court finds that your excessive bleeding was caused by a combination of an incorrect incision performed by the doctor and a failure on your part to properly disclose all of the medication you had taken prior to the procedure. The court ultimately finds that the doctor should have performed a different incision during the procedure and assigns the defendant 60% of the blame while assigning 40% of the blame to you for not properly disclosing your medications to your doctor prior to undergoing the procedure. Since you were awarded 40% of the blame, you would be able to recover a portion of damages because you were not found to have been 50% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $60,000 after the apportioned 40% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Georgia decided to adopt a modified system.

Are there medical malpractice recovery caps in Georgia?

The Georgia Torts Claims Act once limited the amount of non-economic damages that may be awarded in a medical malpractice lawsuit to $350,000. [9] The caps were intended to address the notion that a crisis existed in the medical liability insurance market which made it difficult for health care providers to purchase liability insurance. The thought was that by limiting the amount of damages that could be awarded in a medical malpractice lawsuit, better insurance could be sought and the quality of healthcare services would improve. However, in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, the Court found that the damage cap violated the constitutional right to a trial by jury guaranteed by the Georgia Constitution. As a result, medical malpractice victims are entitled to have a jury of their peers determine the appropriate amount of damages to be awarded. [10]

In Georgia, there are three types of damage awards you may receive; Special Damages, General Damages and Punitive Damages.

Special Damages place you in the position you would have been in had your injury never occurred. Special Damages must be proven and are not automatically awarded to you by a jury.

Special Damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work [11]

General Damages are difficult to estimate but are those that the law presumes to flow from any tortious act. Those include:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life [12]

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than provide compensation. In Georgia, you must meet the burden of persuasion before a court may consider a punitive damage award. The law in Georgia requires that you prove by clear and convincing evidence that the named defendants acted with wantonness, malice, oppression, fraud, willful misconduct or such a total lack of care as to create a presumption of conscious indifference to the consequences of their actions. [13]

Unlike Special and General Damages, the law in Georgia does place a limit on the amount of Punitive Damages that may be awarded to $250,000. [14]

Expert witness reporting and testimony

In a medical malpractice action, the testimony given by an expert witness is not only invaluable to helping prove your claim, but required by law. An expert will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, you suffered injuries that would not otherwise have been incurred.

The law in Georgia requires that an affidavit be filed prior to the commencement of all medical malpractice cases. Within the affidavit, an expert must substantiate your claim by stating that some act or omission alleged in the claim was a negligent act or omission which was a departure from the professional standard of conduct. [15] The affidavit must accompany the initial complaint. If the affidavit is not filed alongside of the initial complaint, the defendant is not required to answer the complaint until 30 days after the affidavit is filed. [16]

The reason for the affidavit requirement is to prevent the filing of a professional malpractice lawsuit without the fact and opinion to support the claim and instead relying on discovery to provide the requisite facts. This, in turn, reduces the amount of frivolous filings and thus frees up the court system to hear legitimate cases.

To qualify as an expert, the person must have actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given. The knowledge and experience must be the product of either:

• The active practice of such area of specialty of their profession for at least three of the last five years; or
• The teaching of their profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession [17]

Are some Parties Immune from Medical Negligence Cases?

The law in Georgia provides immunity from medical malpractice liability in certain situations.

If a person, in good faith, rendered emergency care at the scene of an accident or emergency to you, they are not liable for any civil damages. [18] If such a person could be held liable, it would likely prevent capable people from providing lifesaving services in emergency situations.

Additionally, there is a one-year statute of limitations if you are bringing a claim against the State of Georgia. [19] The statute mandates that a Notice of Claim must be filed and served upon the State within 12 months of the discovery of your injury. The notice must include the name of the state government entity; the acts or omissions of which are asserted as the basis of your claims; the time that your injury was incurred; the place that the injury was incurred; the damages being claimed and the cause of the injury.

Settling Medical Malpractice Cases in Georgia

Unlike some other states, the law in Georgia does not require the use of alternative dispute resolution as a settlement method prior to the start of a trial. However, if both sides agree, arbitration may be sought by filing a petition with the court requesting a referee to be appointed. [20]

Despite the fact that the arbitration ruling is binding, the arbitration proceeding is informal. The appointed referee is usually an attorney who is an active member of the State Bar of Georgia. The referee will hear the arguments and facts presented by both sides and then render a decision. An appeal of the ruling may be sought but must be based on an allegation that the findings were procured by fraud; there was no evidence to support the findings of fact by the arbitrator; or the findings were contrary to law. [21]

Litigating Medical Negligence Cases in Georgia

A claim for medical malpractice in Georgia is initiated by preparing a Complaint that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In Georgia, a civil action begins by filing a Complaint with the clerk of the court. A Complaint should include:

• The proper name of every plaintiff and of every defendant
• A statement of facts constituting the cause of action
• A demand for relief

In addition to the Complaint, a Civil Summons must be filed and served upon all named defendants. The Summons notifies the court and the defendants that you are filing a lawsuit. The Summons must be signed by the clerk of the court and must then, along with the Complaint, be delivered to all named defendants in the lawsuit.

The law in Georgia also requires an affidavit be filed prior to the commencement of your medical malpractice case. The affidavit must contain the opinion of an expert that serves to substantiate your claim. The expert should state that in their opinion, the defendant acted negligently or committed an omission which constituted a departure from the professional standard of conduct. [22] The affidavit helps ensure the merits of your case.

After the Complaint, Summons and Affidavit are filed and served upon all named defendants, each named defendant must file an Answer to your complaint within thirty (30) days of being served. [23]

Preparing for Litigation

After the Complaint, Summons, Affidavit and the Answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission

A deposition is a fact finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that you will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

Litigation can be expensive and there is no guarantee that either side will come out unscathed. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation.

While not required, the law in Georgia does allow both sides to participate in voluntary arbitration as a way to find a resolution to the dispute outside of a trial setting. If both sides agree to arbitration, the decision made by the arbitrator is binding but can be appealed if the decision was found to be fraudulent, made without evidence, or against the law.

Trial

During a trial all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Georgia: a judge or a jury. In Georgia, a civil trial may have no less than six jurors [24]

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. The law in Georgia allows each side to have three peremptory challenges where jurors may be eliminated from consideration. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Georgia, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of Georgia
• at least 18 years of age; and
• of sound mind

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. Most appeals taking place in Georgia must be filed within thirty (30) days from notice of the judgment or decision. [25]

How to find the best Georgia Medical Malpractice Lawyer for your case

Achieving the best possible outcome in your medical malpractice case is often contingent upon securing the best possible counsel to represent you in your action. Finding skilled legal representation can take your mind off of the legalese involved in a lawsuit so that you can focus on healing your injury.

One of the main motivating factors in bringing a medical malpractice lawsuit against a health care provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. Without a damage award, it is likely that you would be forced to go out-of-pocket in order to help heal your injury. Therefore, it is easy to see why hiring proper legal counsel is of the utmost importance.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your time table, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit. Once you have several candidates lined up, weigh the pros and cons of each and decide which you feel most comfortable with.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to yours. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation. Do not be afraid to ask about their fee structure and if they prefer to litigate on an hourly or contingency rate.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs. If the attorney or law firm is unwilling to communicate with you the way you prefer, move on and find representation that will.

Some notable medical malpractice law decisions from Georgia

These cases represent awards to plaintiffs in medical malpractice cases in Georgia. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Davis v. Thomas

The plaintiff, Glenda Daniels, underwent surgery to have her gallbladder removed at the Habersham Medical Center. The defendant, Dr. Chadwick V. Thomas, was the plaintiff’s surgeon. During the surgery, the defendant lacerated a major artery. Because of the laceration, the plaintiff began to bleed heavily from the artery and needed an emergency blood transfusion as a result. However, she was not given a blood transfusion at the Habersham Medical Center before being transferred to the N.E. Georgia Medical Center. The delay left her permanently impaired and disabled.

A lawsuit was brought against Dr. Chadwick Thomas, two Certified Registered Nurse Anesthetists, and employees of the Habersham Medical Center claiming she received substandard medical care.

After a seven-day trial, the jury agreed with the plaintiff that medical malpractice had occurred and that the negligence was the proximate cause of the plaintiff’s current condition. Damages were awarded in the amount of $10,964,000.00. The verdict is believed to be the largest medical malpractice verdict in Habersham County history.

Hagan v. Brookwood Medical Center

The mother of the plaintiff, Libby Hagan, was pregnant with Libby in June 2011. She decided that she wanted to have a more natural childbirth than she had with her three older children and so she decided to have her child at Brookwood Medical Center which had advertised being a specialist in the field.

However, during labor, the mother was restrained and forced to lay on her back instead of having the ability to rest on her hands and knees. In addition, a nurse applied pressure to Libby’s head to delay delivery. Once born, Libby struggled to breathe and was immediately taken to the NICU. While in the NICU, Libby was given an overdose of insulin. The overdose was figured to be 100 times the amount that she should have been given. As a result of the overdose, Libby has irreversible neurological brain damage.

A lawsuit was brought by Libby’s parents on her behalf against Brookwood Medical Center for medical negligence as well as reckless fraud over the natural birth advertising campaign that lured Libby’s parents to the medical center.

Ultimately a jury awarded $10 million in compensatory damages, $5 million in punitive damages and another $1 million in punitive damages.

Footnotes

[1] GA. Code Ann. § 9-3-70

[2] GA. Code Ann. § 9-3-71(b)

[3] GA. Code Ann. § 9-3-71(b)

[4] GA. Code Ann. § 9-3-73(b)

[5] GA. Code Ann. § 9-3-70

[6] Ga. Code Ann. § 51-2-5.1

[7] Ga. Code Ann. § 51-1-27

[8] Ga. Code Ann. § 51-11-7

[9] Ga. Code Ann. § 51-13-1

[10] Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, NO. SO9A1432

[11] Ga. Code Ann. § 51-12-2

[12] Ga. Code Ann. § 51-12-2

[13] Ga. Code Ann. § 51-13-5.1(b)

[14] Ga. Code Ann. § 51-12-5.1(g)

[15] Ga. Code Ann. § 9-11-9.1(3)

[16] Ga. Code Ann. § 9-11-9.1(3)(e)

[17] Ga. Code Ann. § 24-7-702

[18] Ga. Code Ann. § 51-1-29

[19] Ga. Code. Ann. § 50-21-26

[20] Ga. Code. Ann. § 9-9-62

[21] Ga. Code. Ann. § 9-9-80

[22] Ga. Code. Ann. § 9-11-9.1(3)

[23] Ga. Code. Ann. § 9-11-12(a)

[24] Ga. Code. Ann. § 15-12-122

[25] Ga. Code. Ann. § 5-6-38(a)