Georgia Medical Malpractice Laws

A look at the "affidavit of expert" requirement for Georgia medical malpractice lawsuits, the lawsuit-filing deadline, and the state's cap on damages.

By , J.D. · University of San Francisco School of Law

A medical malpractice lawsuit is usually a pretty complex undertaking in any state, Georgia included. First, the legal and medical issues common to these cases are notoriously complicated. And second, the plaintiff (the injured patient, or his or her legal representative) usually needs to comply with one or more procedural rules that are unique to these kinds of lawsuits. Finally, the plaintiff needs to understand the rules on the types of compensation ("damages") that can be awarded in a successful court case. In this article, we'll look at some key Georgia medical malpractice laws, including the "expert affidavit" requirement, the lawsuit-filing deadline, and the current status of the Georgia medical malpractice damages cap.

Georgia's Medical Malpractice Statute of Limitations

Anyone who wants to file a medical malpractice lawsuit in Georgia first needs to be aware of the statute of limitations, which is a law that sets a strict limit on the amount of time you have to get your case started in the state's civil court system.

The standard statute of limitations for a medical malpractice lawsuit in Georgia can be found at section 9-3-71 of the Georgia Code, and it says "an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred."

The Georgia law goes on to specify that "in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred."

This last section of the law is known as a "statute of repose," and it is important in cases where a medical error occurs, but harm to the patient does not manifest right away, or when medical malpractice ends up causing a patient's death years after the treatment error occurred. In a case like that, even where it is clear that the patient's death was caused by the medical error, no lawsuit can be filed if more than five years have passed since the error occurred.

There is an exception to this overall five-year deadline for medical malpractice lawsuits in Georgia. Where a "foreign object" has been left in a patient's body, the lawsuit must be brought within one year after the medical negligence is discovered. That would include a surgical instrument or a sponge used during a procedure, but the relevant Georgia statute specifically states that a "chemical compound, fixation device, or prosthetic aid or device" does not qualify as a "foreign object." This law can be found at Georgia Code section 9-3-72.

If you try to file your Georgia medical malpractice lawsuit after the applicable deadline has passed, the court is almost certain to dismiss your case, no matter how glaring the health care provider's error, or how badly you were harmed. That's why it's so important to understand and comply with the medical malpractice statute of limitations.

The "Affidavit of Expert" Requirement for Georgia Medical Malpractice Lawsuits

According to Georgia Code section 9-11-9.1, when any medical malpractice lawsuit is filed in Georgia's courts, besides the initial complaint (the document that sets out the plaintiff's allegations against the health care provider and starts the civil case), the plaintiff must file an affidavit prepared by a qualified medical expert who will offer a sworn opinion as to at least one negligent act committed by the health care provider who is being sued, including the expert's factual basis for that opinion.

A few more notes on Georgia's "expert affidavit" requirement:

  • Failure to file a compliant "affidavit of expert" will likely lead to the dismissal of your medical malpractice lawsuit, but the court could give you an opportunity to fix and re-file the affidavit.
  • You may be able to get an extra 45 days to file the affidavit if the statute of limitations deadline (discussed in the previous section) is fast-approaching, and you have only recently hired an attorney.

This is just a quick summary of Georgia's "affidavit of expert" filing requirement. For the details, conduct your own research or discuss your situation with an experienced Georgia medical malpractice lawyer.

Georgia's Medical Malpractice Damages Cap

The state of the law isn't settled, but Georgia lawmakers have legislated a "cap" on certain kinds of medical malpractice damages. In other words, even after a jury holds a defendant liable for malpractice and awards a plaintiff a certain amount of damages, this Georgia law kicks in to cap the actual amount that the plaintiff will end up getting.

Like most states, Georgia's medical malpractice damage caps apply only to noneconomic damages. That includes compensation for the injured patient's pain and suffering, anxiety, mental anguish, loss of enjoyment, lost companionship, scarring, and similar difficult-to-quantify losses caused by the defendant's malpractice.

Georgia has a $350,000 cap in place on non-economic damages in any single medical malpractice claim against health care providers. For claims against a single health care facility there is a $350,000 cap on noneconomic damages, which bumps up to $700,000 if more than one facility is deemed liable. For any single medical malpractice case, there is an overall $1.05 million cap on noneconomic damages.

But note that in 2010, Georgia's cap on non-economic damages was deemed unconstitutional by the Georgia Supreme Court, so the application of this cap is very much in doubt when it comes to medical malpractice lawsuits filed in Georgia after 2010.

Although the state of Georgia's damages cap is murky, one thing is clear: the cap has no effect on a plaintiff's economic damages. Put another way, there is no limit on how much compensation a medical malpractice plaintiff can receive for things like medical care (past and future) necessitated by the malpractice, lost earnings, lost future earning capacity, and any other economic losses attributable to the defendant's malpractice.

If you're looking for more specifics on Georgia's medical malpractice laws and how they apply to your potential case, it could be time to discuss your situation with an experienced medical malpractice attorney in your area.

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