I’ve been getting a lot of questions lately about medical malpractice and I’ve heard some truly awful stories from clients about their experiences right here in Middle Georgia. One of the questions I get most often is “How long can you sue for medical malpractice?” The statute of limitations in Georgia is 2 years for almost all medical malpractice cases. This means you have up to 2 years after the date of the incident to file a lawsuit.

There are, however, a few exceptions to the 2-years statute of limitations.

  • You have less time if the healthcare facility being sued is run by a city, county, or state government. For city-run facilities, you have just 6 months to file an ante litem notice alerting the entity to the claim being brought against them. For county- and state-run facilities, you have 12 months to file the ante litem notice.
  • You may have more or less time if the healthcare facility is run by the federal government. For federal facilities, you must file an administrative claim within two years of the incident, and you can only file a medical malpractice claim if the administrative claim is denied. If it is denied, you have 6 months to file a medical malpractice claim (see Federal Tort Claims Act).
  • You have more time if the injury or connection to the negligence wasn’t and couldn’t have been discovered until that 2-year window was passed. The statute of limitations may also be extended if children or people with mental disabilities are the ones who suffered the harm because that can’t clearly communicate to their caregivers that something is wrong or what is wrong.

Medical Staff Graphic

Why is it important to file within the statute of limitations?

Two years may seem like plenty of time, but there’s a lot of legal work that has to happen to file a lawsuit, particularly a malpractice suit. We have to track down documentation like medical records and personnel logs, investigate the negligence, and discover if this is a pattern that extends beyond what happened to you. If the facility where the neglect occurred is run by the government, additional legal filings must be made on their own timelines.

Additionally, under Georgia state law, every medical malpractice filing must include an affidavit from a qualified medical expert. To be considered a qualified expert, the medical professional must, (1) share the same discipline as the person being sued, (2) be licensed, (3) be in good standing with their medical board, and (4) be willing to testify in court. Each potential expert we approach needs time to thoroughly review the case and decide if they’re willing to testify in court. If someone isn’t willing or is unable to do it, we have to find and approach another person. I have a wide range of contacts, both from my time as a nurse and my nearly 3 decades in law, but it still takes time. The sooner you call my office to set up your free consultation, the more time I’ll have to put together a strong case that will get you a fair result.

Can I file a claim after the statue of limitations has passed?

In most cases, once the statute of limitations is passed, you can’t file a claim. The statute of limitations exists in part to help keep the courts from becoming overwhelmed. If you file a claim late, it’ll be thrown out by the court and never considered. It’s like a teacher tossing a homework assignment in the garbage because it doesn’t have the student’s name at the top. That’s the rule, everyone knows it, and breaking that rule results in immediate dismissal. Only timely suits can be brought to court.

There are three types of exceptions to the 2-years statute of limitations.

  1. The Discovery Rule. This rule allows the court to grant an extension to the statute of limitations if your injury or its connection to medical malpractice couldn’t have been reasonably known within the 2-year statute of limitations. Usually, this rule comes into play when the healthcare provider fraudulently concealed facts of the malpractice or the injuries didn’t manifest during the 2 year window. If requested medical records aren’t provided within 21 days, you can be granted an extension, which is usually 90 days.
  2. Tolled statute of limitations. In some cases, the statute of limitations can be paused for a short period of time. In Georgia, these limitations are listed here but I most often tolling when a children under the age of five or a person with mental incapacities suffered the medical malpractice. In these cases, the patient is dependent upon their caregiver and can’t necessarily tell their caregiver if something’s wrong or what is wrong. For a child who experienced medical malpractice under the age of five, the statute of limitations won’t run out until their seventh birthday, two years after their fifth birthday.
  3. Statute of Repose. If an injury wasn’t discovered until after the statute of limitations is past, the patient has five years after the incident that caused the injury to file a lawsuit.

Who can be sued in a medical malpractice case?

The healthcare provider in a medical malpractice case could be a medical professional like a doctor, nurse, anesthesiologist, or pharmacist, or it could be an institution like a hospital or clinic. An institution could be responsible if their hiring practices are out of date, if the computer system is known to be faulty or incomplete, if their training program is inadequate, or if a policy directly resulted in the person’s injury.

A few years ago, a client told me about an instance where their father fell at a nursing home, breaking several bones. The facility caring for him has a policy against rails on the bed. Even though the family and the man’s doctor both asked for rails to be provided and were told they would be, rails weren’t provided because of the facility’s policy. The policy resulted in the injury, so the facility is at fault. If the facility hadn’t had a policy against rails, but the rails weren’t installed or installed correctly, the person who failed to do so would be responsible.

It’s important to note that in medical malpractice cases, a patient must have suffered harm as a direct result of the negligence. Not installing the rails is an example of inaction that would have resulted in injury to the patient. Also, the negligent person must be providing caring for that patient. In the scenario at the nursing home, the staff doctor at the facility could not be sued because the doctor wasn’t responsible for installing the rails. A nurse on another hall of the building couldn’t be sued either because she wasn’t providing direct care to that patient at the time.

What makes something medical malpractice?

There are 4 requirements for a case to be medical malpractice, and all 4 have to be proven to win the case.

1. A relationship existed between the healthcare professional and the patient. (You were their patient or being care for by them.)
2. The medical professional was negligent. (Standard of care was not met. Their action or inaction was not what another, reasonable medical professional would have done in the same situation.)
3. The medical professional’s negligence caused the injury to the patient. (If the professional is ER doctor, gross negligence must be proved.)
4. The patient suffered actual injuries as a direct result of the negligence. (Damages exist.)

Without any one of these requirements, you don’t have a case, and no attorney should string you along, telling you that you do. I went from being a full-time critical care nurse to being a medical malpractice attorney because I believe the best way for me to help patients who have been wronged is through the law. My nursing experience and experience in hospitals helps me read medical records and figure out what really happened in a situation, which saves you time and heartache.

Sometimes patients come to me with real injuries and devastating stories, but if negligence didn’t occur or we won’t be able to prove all 4 points, or if we can’t prove gross negligence in a situation involving ER doctors, I tell it to them straight. I’m willing to investigate and do my best to find out the truth, but if we don’t have a case, I’m going to be honest and up front about reality. That’s how I’d want to be treated, and that’s how I treat my clients and the people who come to me for a legal consultation. I offer free consultations, but remember that we only have 2 years to file a lawsuit if one is warranted, so call my office right away to set up your appointment.

What is “gross negligence”?

Emergency room doctors are particularly difficult to sue for medical malpractice because Georgia law extends them additional protections over other medical professionals. Simply violating the standard of care isn’t enough to sue an emergency room doctor. Instead, gross negligence must be proven, meaning the doctor had to have known that their behavior had the potential to cause you harm. Understandably, this is very difficult to prove. Most doctors, if they’re reprehensible enough to knowingly put a patient at risk of an injury, don’t walk around saying so. They don’t write it up in their notes, either. We have to dig into their backgrounds, their training, their other cases, and find their past patients and coworkers who can testify that they knew their actions or inactions would put you in danger of harm.

These cases are complicated and difficult to prove, but I think they’re some of the most important ones I take on. I want to make sure a doctor can’t hide behind their position, the busyness of the ER, or even state law. If a doctor knowingly putting a patient at risk of injury, they deserve every bit of legal hell we can bring down on them. That’s why I keep a sign over the door in my conference room, a quote from the 1993 film Tombstone: “Tell them I’m coming! And Hell’s coming with me!”

Memberships & Associations

Tracey L. Dellacona

Rated by Super Lawyers

loading …

Are you ready to work with Dellacona Law?