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The Law of Medical Malpractice in Georgia:

A Survey of Basic Considerations

This article provides an overview of Georgia medical malpractice law. In 2005 lawmakers in the Peach State enacted sweeping tort reforms, including creating additional procedural hurdles that malpractice plaintiffs must overcome and limiting the liability of emergency room physicians. But Georgia’s supreme court struck down the legislature’s attempt to impose a ceiling, or upper limit, on pain-and-suffering monetary damages.

Because it is useful for laypersons who have been injured by healthcare treatment to have some understanding of the law, this article will describe Georgia law in plain language with minimal use of legal jargon, so that the material is accessible to nonlawyers as well as legal practitioners.

Section I below summarizes broad principles and concepts. Sections II through XI examine some of the mechanics of filing and litigating a medical malpractice lawsuit in Georgia.

To jump directly to any topic in the Table of Contents, simply click on it.

I. Overview of Basic Principles and Concepts
II. Filing Deadlines for Medical Malpractice Claims
III. Medical Expert Affidavits and Other Requirements
IV. Immunities and Limitations on Liability
V. Medical Expert Witnesses
VI. Comparative Negligence / Proportionate Liability
VII. Limitations on Damages
VIII. Limitations on Attorney Fees
IX. Patient Compensation Funds
X. Apologies and Sympathetic Gestures
XI. Communications with Treating Physicians
XII. Disclaimer

I. Overview of Basic Principles and Concepts

In Georgia, healthcare providers must bring to the exercise of their profession “a reasonable degree of care and skill,” and if they perform their duties negligently they can be sued. Ga. Code Ann. § 51-1-27.

To establish medical malpractice (also known as medical negligence), a plaintiff must prove that the healthcare provider failed to exercise the degree of care and skill ordinarily employed by the healthcare profession under similar conditions and like circumstances, and that this failure caused the claimed injury.Smith v. Finch 681 S.E.2d 147 (Ga. 2009);Breyne v. Potter, 574 S.E.2d 916 (Ga. App. 2002).

A malpractice claim has three basic elements: (1) the duty inherent in the doctor-patient relationship; (2) a breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure caused the plaintiff’s injury. Knight v. Roberts, 730 S.E.2d 78 (Ga. App. 2012).

II. Filing Deadlines for Medical Malpractice Claims

Basic Time Limit

In Georgia, a plaintiff generally has two years to file a medical malpractice claim.The two-year “statute of limitations” commences running at the time of the claimed injury from healthcare treatment. Ga. Code Ann. § 9-3-71.

There is also a second time limit that comes into play in certain cases. Any lawsuit must be brought within no more than five years after the underlying negligent act. This outer time limit is important mainly in situations when an injury from medical treatment is not immediately apparent and takes many years to surface. The purpose is to give defendants “repose” or a sense of tranquility that they will not be sued for any medically caused injury after five years have passed. Id.Piedmont Hosp., Inc. v. D.M., 779 S.E.2d 36 (Ga. App. 2015);Simmons v. Sonyika, 614 S.E.2d 27 (Ga. 2005).

But as discussed below, these time limits can sometimes be extended.

Foreign Objects

First, the above time limits do not apply if a physician leaves an unauthorized foreign object in a patient’s body (e.g., a sponge). In foreign object cases, any malpractice lawsuit must be brought within one year after the physician’s negligent act is discovered — which can be numerous years after the surgery took place.Ga. Code Ann. § 9-3-72.

In Norred v. Teaver, a dentist forgot to remove a cotton pellet when placing a permanent crown on a patient’s molar. Some years later the patient went to another dentist and the crown fell off during a routine cleaning, revealing the cotton pellet. Because this malpractice case involved a foreign object, the patient had one year from the discovery of the cotton pellet to sue the first dentist for negligence, held the Georgia Court of Appeals. 740 S.E.2d 251 (Ga. App. 2013).

Fraudulent Concealment

If a healthcare provider fraudulent hides or conceals negligent medical care, the concealment will pause (in legal terminology “toll”) the statute of limitations. In such situations, the statute of limitations clock does not restart until the plaintiff discovers the fraud. Ga. Code Ann. § 9-3-96.

Note, however, that while fraudulent concealment will pause the two-year statute of limitations, the same may not be true of the five-year statute of repose. Gallant v. MacDowell, 759 S.E.2d 818 (Ga. 2014).

Injured Patients Who Are Minors

In cases where minors are injured by healthcare treatment, different time limits apply to malpractice lawsuits.

If the healthcare treatment occurred before the age of five years, the child has until his or her seventh birthday to bring a malpractice suit. Ga. Code Ann. § 9-3-73(b).

If the child was more than five years old at the time of the healthcare treatment, he or she must file any malpractice suit within five years from the date the negligence occurred. Ga. Code Ann. § 9-3-73(c).

There are additional subtleties to children’s time limits that are set forth in the statute. Ga. Code Ann. § 9-3-73(b),(c).

III. Medical Expert Affidavits and Other Requirements

Expert Affidavit Requirement

Georgia requires malpractice plaintiffs to demonstrate up front that there is a reasonable factual basis for the claim. More specifically, a plaintiff must file with the complaint that initiates the lawsuit an affidavit of a medical expert describing in detail “at least one negligent act or omission claimed to exist.”Ga. Code Ann. § 9-11-9.1 .

The purpose of the affidavit requirement is to weed out poorly supported claims. A plaintiff is forced to locate a medical professional who will vouch for the claim at the outset of the case, before the defendant healthcare provider begins to incur litigation expenses.

Not just any medical professional can sign the affidavit. The expert witness must be someone who is “competent to testify” in the case. (The question of who meets this test is discussed in Section V below.) Id.;Ga. Code Ann. § 24-7-702(e); Aguilar v. Children’s Healthcare of Atlanta, Inc., 739 S.E.2d 392 (Ga. App. 2013).

If the plaintiff fails to comply with the affidavit requirement, the lawsuit will generally be dismissed. However, in narrow circumstances a plaintiff can receive an extension of time to fulfill the requirement. Ga. Code Ann. § 9-11-9.1. See alsoZarate-Martinez v. Echemendia, 788 S.E.2d 405 (Ga. 2016); Schofill v. Phoebe Putney Health Systems, Inc., 728 S.E.2d 331 (Ga. App. 2012); Comprehensive Pain Management v. Blakely, 719 S.E.2d 579 (Ga. App. 2011).

A Case Illustration

In Ball v. Jones, a son whose elderly mother had passed away after an illness filed a medical malpractice suit against a physical therapist (and others). The son attached to the complaint an expert affidavit supporting his negligence claim, but the person who signed the affidavit was a registered nurse, and nurses are not competent to testify as to the standard of care owed by physical therapists. Therefore, because the expert affidavit was not a proper one, the son’s malpractice claim had to be dismissed, held the Georgia Court of Appeals. 687 S.E.2d 625 (Ga. App. 2009).

Arbitration

In Georgia, a detailed law addresses the procedures for litigating a medical malpractice claim through arbitration. Ga. Code Ann. §§ 9-9-60 to -83. Arbitration is a method of resolving disputes outside of a courtroom using less formal procedures than would apply in court; the case is tried before an arbitrator rather than a judge and jury. Under Georgia law, “no agreement to arbitrate shall be enforceable unless the agreement was made subsequent to the alleged malpractice and after a dispute or controversy has occurred and unless the claimant is represented by an attorney at law at the time the agreement is entered into.” Ga. Code Ann. § 9-9-62.

IV. Immunities and Limitations on Liability

Emergency Care

Emergency room situations require healthcare providers to provide treatment under extreme time pressure and often without benefit of a patient’s medical history. Recognizing this, Georgia makes it far tougher for an injured patient to prove negligence in emergency treatment situations. Specifically, a plaintiff must show “by clear and convincing evidence that the physician or health care provider’s actions showedgross negligence.”Ga. Code Ann. § 51-1-29.5(c).

The italicized terms have well-understood legal meanings. “Gross negligence” is a level of fault significantly higher than ordinary negligence, and “clear and convincing evidence” is a tougher burden of proof than the “more likely than not” standard that normally applies in malpractice cases.

The Georgia “ER statute” applies to healthcare that is provided “in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department,” but only up to the point at which “the patient is stabilized.” Ga. Code Ann. § 51-1-29.5(a)(5), (c).

Sometimes malpractice litigants clash over whether the situation was a true instance of emergency medical treatment. The defendant invariably argues that the treatment was indeed provided on an emergency basis, and therefore he or she should be held to a less rigorous standard of care and skill. The plaintiff asserts the opposite position. See Nguyen v. Southwestern Emergency Physicians, P.C., 779 S.E.2d 334 (Ga. 2015); Hospital Authority of Valdosta/Lowndes County v. Brinson, 767 S.E.2d 811 (Ga. App. 2014);Bonds v. Nesbitt, 747 S.E.2d 40 (Ga. App. 2013).

Volunteers and Good Samaritans

In Georgia, free health clinics (those that do not charge for their services) are immune from most malpractice claims.Ga. Code Ann. § 51-1-29.4.

A “Good Samaritan” statute shields healthcare providers (and others) who offer uncompensated assistance at the scene of an accident or emergency. Ga. Code Ann. § 51-1-29.

State law also confers some immunity on persons who provide rescue treatment using an external defibrillator. Ga. Code Ann. §§ 51-1-29.3.

Government Defendants

When medical malpractice suits are brought against medical professionals employed at government-run hospitals, immunity issues often arise.

In Shekhawat v. Jones, the parents of a child who was injured during an allegedly botched surgery brought a malpractice lawsuit against two associate professors at the Medical College of Georgia who had treated the child at a state-operated medical center. The Georgia Supreme Court held that the faculty members were entitled to official immunity because they were acting within the scope of their state employment in rendering the medical care at issue. 746 S.E.2d 89 (Ga. 2013); see also Cook v. Forrester, 746 S.E.2d 624 (Ga. App. 2013); and see Ga. Code Ann. § 50-21-25.

V. Medical Expert Witnesses

Most medical malpractice cases depend heavily on medical experts, who must aid the court and the jury in understanding the underlying treatment issues on which the outcome of the case depends. In Georgia, there are strict rules about who may give expert testimony concerning issues of medical negligence, to ensure that only those professionals who have “significant familiarity” with the subject matter serve as expert witnesses. Nathans v. Diamond, 654 S.E.2d 121 (Ga. 2007).

There are two basic requirements a medical expert witness must satisfy. First, he or she generally must be in the “same profession” as the defendant healthcare provider. Second, he or she must have expertise in the relevant healthcare area through either active practice or teaching. Ga. Code Ann. § 24-7-702(c). These requirements are discussed below.

Active Practice or Teaching

To serve as a medical expert in a malpractice case, a person must have been actively engaged in his or her proposed area of expertise for at least three of the last five years prior to the alleged negligence. This active engagement requirement can be met by either healthcare practice or teaching at an accredited educational institution.Id.;Zarate-Martinez v. Echemendia,supra; Aguilar, supra .

It almost goes without saying that the individual also must be properly licensed, but the license does not have to be in Georgia. Ga. Code Ann. § 24-7-702(c)(1).

Same Profession

In addition, a medical expert normally must be in the “same profession” as the defendant whose conduct is at issue. The same-profession requirement was added to Georgia law in 2005 as part of lawmakers’ effort to ratchet up the requirements for serving as expert witnesses in medical malpractice cases. Ga. Code Ann. § 24-7-702(c)(2)(C); Hankla v. Postell, 749 S.E.2d 726 (Ga. 2013).

There is a narrow exception to the same-profession requirement: a physician may testify as an expert witness against others in the healthcare field such as nurses or physical therapists, but only if the physician recently “supervised, taught, or instructed” such non-physician healthcare professionals. Ga. Code Ann. § 24-7-702(c)(2)(D).

A Case Illustration

In Hankla ,supra, the plaintiff sued a certified nurse midwife for negligence in connection with the delivery of her infant son, who was born with nerve damage. On appeal from a verdict for the defense, the Georgia Supreme Court held that an obstetrician/gynecologist should not have been allowed to testify as an expert witness for the defense, because the OB/GYN was not in the “same profession” as the defendant nurse midwife, nor had she recently supervised, taught, or instructed nurse midwives. Because the expert witness was not in the same profession as the defendant, her testimony should never have been presented to the jury, the court ruled, concluding that the case needed to be retried.

Reliability Challenges

Besides meeting the above requirements, a medical expert witness must offer testimony that is based on demonstrably reliable methods and principles. Georgia law expressly authorizes the state’s courts to “draw from the opinions of” the U.S. Supreme Court that address whether to permit expert medical or scientific testimony under federal law, including Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993) and other cases. Ga. Code Ann. § 24-7-702(b), (f).

The Georgia statute also makes clear the overriding objective: “It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states.”Id.;Fields v. Taylor, 797 S.E. 2d 127 (Ga. App. 2017).

VI. Comparative Negligence / Proportionate Liability

Sometimes a healthcare provider will try to pin the blame on the patient for a poor treatment outcome, criticizing the patient for neglecting to follow post-surgery instructions or supplying inaccurate health history information, for instance. In cases where a patient does bear some fault for causing his or her own medical injury, Georgia applies the doctrine of “comparative negligence.” Under this doctrine, a careless or negligent patient’s lawsuit is not barred completely, but any monetary damages obtained are reduced in proportion to the degree of the patient’s fault.

For example, if the plaintiff was 25 percent at fault for the bad treatment outcome and the physician 75 percent, the plaintiff can recover monetary damages from the physician but the amount will be reduced by 25 percent. SeeGa. Code Ann. § 51-12-33.

However, no plaintiff who was 50 percent or more responsible may ever recover damages. Id.

On a separate issue, if there is more than one culpable defendant, who pays what share of the monetary damages? Under Georgia law, each defendant generally is liable for only so much of the plaintiff’s damages as are proportionate to that defendant’s percentage of fault. For instance, if a particular defendant bears 30 percent of the blame, that defendant pays 30 percent of the monetary damages. There is no “joint and several liability” (in legal terminology).Ga. Code Ann. § 51-12-33;Doherty v. Brown, 794 S.E.2d 217 (Ga. App. 2016),cert. granted (May 30, 2017).

VII. Limitations on Damages

Money claimed by a plaintiff as compensation for a loss is referred to as “damages.” Although Georgia lawmakers tried to impose a $350,000 ceiling on pain-and-suffering damages in 2005, the Georgia Supreme Court struck it down as unconstitutional.

The state’s high court concluded inAtlanta Oculoplastic Surgery, P.C. v. Nestlehutt that the statutory limit violated a plaintiff’s right to trial by jury because it encroached on the jury’s historical function of making findings regarding damages. The bottom line is that while the cap on pain and suffering and other “noneconomic” damages remains on the statute books, it cannot be enforced because it has been ruled unconstitutional. 691 S.E.2d 218 (Ga. 2010).

Punitive Damages

The purpose of awarding punitive damages to a plaintiff is to punish an especially culpable defendant. Such damages are allowed to exceed the plaintiff’s proven loss.

Under Georgia law, a medical malpractice plaintiff can recover punitive damages if there is “clear and convincing evidence” that the defendant acted willfully, fraudulently, or with “conscious indifference to consequences.” Punitive damages are generally subject to an upper limit, or cap, of $250,000. Unlike pain-and-suffering damages, this cap has not been ruled unconstitutional. Ga. Code Ann. § 51-12-5.1;Tookes v. Murray, 678 S.E.2d 209 (Ga. App. 2009).

Periodic Payments

If damages are awarded for items such as futuremedical costs, does the defendant make these payments on a periodic basis or as one lump sum?

Under Georgia law, if a court awards $350,000 or more in future damages, and if any party makes a request, the trial judge must order that such damages be paid at periodic intervals, funded through an annuity policy. Ga. Code Ann. § 51-13-1(f);cf.Atlanta Oculoplastic Surgery, supra (expressing no opinion as to this provision’s constitutionality).

VIII. Limitations on Attorney Fees

Unlike some states, Georgia does not have a statute that limits medical malpractice attorney fees.

IX. Patient Compensation Funds

While some states have created special funds to reimburse certain patients injured by healthcare treatment, Georgia has not done so.

X. Apologies and Sympathetic Gestures

In instances where a healthcare provider apologizes for a poor treatment outcome, can the apology be used as evidence of negligence? The answer in Georgia is no. By statute, an expression of “regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence” with regard to a patient is not admissible in court to prove that the healthcare provider committed malpractice. Ga. Code Ann. § 24-4-416.

Airasian v. Shaak, a physician whose patient had complications from colon surgery allegedly told the patient’s wife “This is my fault.” Such uttered words were not admissible into evidence to show negligence, the Georgia Court of Appeals held, applying the apology statute. 657 S.E.2d 600 (Ga. App. 2008).

XI. Communications with Treating Physicians

May defense counsel communicate with a plaintiff’s treating physicians without the plaintiff’s consent and without the plaintiff’s attorney present?

In Georgia, the law on one-sided communications with treating physicians (in legal jargon “ex parte” communications) is somewhat complex. Generally speaking, defense attorneys have found it necessary to request a court order authorizing them to interview a patient’s physicians. Part of the reason for seeking a court order is that the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, imposes certain procedural requirements in this context. See45 C.F.R. § 164.512(e);Baker v. Wellstar Health System, Inc., 703 S.E.2d 601 (2010); Harris v. Tenet Healthsystem Spalding, Inc., 746 S.E.2d 618 (Ga. App. 2013).

XII. Disclaimer

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