Phillips v. Clements: Minors and the Statute of Repose for Medical Malpractice in Georgia

Although information asymmetry between physicians and patients makes it difficult for one to determine whether he or she has a potential claim for medical malpractice, Georgia law nonetheless requires that one promptly bring his or her claim or bear the risk of losing it. This harsh procedural truth is at the heart of the Middle District of Georgia’s recent decision in Phillips v. Clements, in which the court upheld the dismissal of a medical malpractice claim that was brought more than two years following a physician’s alleged act of malpractice.
The act that gave rise to the Phillips v. Clements litigation occurred on or about October 20, 2008. At that time, the injured party was four years old and was harmed as a result of allegedly mis-filled prescription medication. The minor’s mother originally brought suit on behalf of her daughter on March 22, 2012, but she voluntarily dismissed her case on February 13, 2013. On October 17, 2013, the minor’s grandmother filed this suit seeking recovery on behalf of the same injured child. However,the defendants moved for the claims to be dismissed as time-barred under Georgia law or, alternatively, for summary judgment to be granted in their favor since the plaintiff had failed to proffer a standard of care expert, which is necessary to prove pharmaceutical malpractice under Georgia law.
First, under Georgia law, an action based on a pharmacist dispensing prescription medication falls within the purview of “medical malpractice” for purposes of the statute of limitations. Robinson v. Williamson, 245 Ga. App. 17, 19, 537 S.E.2d 159, 161 (2000); see O.C.G.A. § 9-3-70.

The general statute of limitations for medical malpractice actions in Georgia is set forth in O.C.G.A. 9-3-71. Pursuant to O.C.G.A. 9-3-71, an action for medical malpractice, subject to certain exceptions, must be brought within two years of the date on which the negligent or wrongful act occurred. O.C.G.A. 9-3-71(a). With respect to the age of the person harmed, “[a] minor who has not attained the age of five years shall have two years from the date of such minor’s fifth birthday within which to bring a medical malpractice action if the cause of action arose before such minor attained the age of five years.” O.C.G.A. § 9-3-73(b). However, even if an statutory or equitable exception applies, Georgia’s statute of repose for medical malpractice actions requires that an action for medical malpractice must always be brought within five years of the date of the negligent or wrongful act. O.C.G.A. 9-3-71(b).
In the current case, the plaintiff brought this action more than two years following the minor’s fifth birthday, which occurred on July 28, 2009. Since some other equitable or statutory exception does not apply, the action is therefore time-barred pursuant to O.C.G.A. 9-3-71. In addition, even if the plaintiff were entitled to recommence the earlier-filed action that had been brought by the injured minor’s mother, see O.C.G.A. § 9-2-61(a), the earlier-filed action had also been commenced more than two years following the minor’s fifth birthday. Accordingly, the action would still be time-barred. Although this conclusion was sufficient for purposes of resolving the case, the court further noted that the plaintiff’s allegations in this case required that she identify expert witnesses for establishing both the requisite standard of care and causation between the breach of that duty of care and the alleged injury. See Fed. R. Civ. P. 26(a)(2). Since the plaintiff had failed to make this mandatory disclosure under Rule 26 within the proper time, the court held that it could, alternatively, grant the defendants’ motion for summary judgment for this reason. Having come to these conclusions, the court granted the defendants’ motion for summary judgment.
Given that statutes of limitation or repose are the norm rather than the exception, one should be diligent about enlisting legal assistance and researching his or her possible claims following a potential act of medical negligence. Prompt action is necessary to assure recovery in many cases. The Atlanta medical negligence attorneys at the Law Office of Terrence R. Bethune are well versed in Georgia medical malpractice law and can offer the assistance you need with your possible claim. If interested in a free case consultation, please feel free to contact us. We look forward to hearing your story.

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