Statute of Repose in Georgia Medical Malpractice

The time period within which you may bring a medical malpractice suit in Georgia is very limited. In a recent case, a couple appealed the dismissal of their medical malpractice case. The trial court had ruled the claims were time-barred. The case arose when the couple sued the doctor for damages. The wife and physician had entered into a patient-physician relationship in connection with the wife’s medical condition. The doctor misinterpreted a transvaginal ultrasound, failing to show the required degree of care. As a result, the doctor misdiagnosed the wife’s normal intrauterine pregnancy, finding it to be an ectopic pregnancy.
As a result, the woman’s pregnancy was terminated through dilation and curettage. The woman experienced pain and suffering related to her abortion. She and her husband sued. Their lawyer attached an affidavit from another doctor to the complaint, as required by OCGA § 9-11-9.1 (a), which relates to professional negligence.
The second count in the complaint was brought to recover for the defendant’s breach of fiduciary duty. It also alleged that the doctor had a duty to properly diagnose her condition through her transvaginal ultrasound. It alleged that the physician-patient relationship gave rise to a fiduciary duty and that the doctor’s breach in fiduciary duty by misreading the ultrasound resulted in damages to the plaintiff.
The third count incorporated the prior allegations and charged the doctor with gross negligence. The fourth count claimed loss of consortium on behalf of the husband.
Jones filed a motion to dismiss, attacking all counts as premised upon a theory of medical malpractice, and hence barred in light of the statute of repose set out in OCGA § 9-3-71. That statute requires actions for medical malpractice to be brought within two years after the date on which the injury or death at issue occurred. Under no circumstances—including late discovery—can a medical malpractice action be brought more than five years after the medical act at issue occurred.
The doctor argued that the complaint was barred by the five-year statute of repose. The misdiagnosis had occurred in 2006, but the couple did not file their lawsuit until 2012.
The couple agreed that their medical malpractice claims were not viable after the five-year statute of repose. However, they argued that they had also asserted breach of fiduciary duty and loss of consortium, which they believed were still viable claims.
The trial court dismissed the case. The couple appealed. They did not contest the dismissal of the medical malpractice count but did contest the dismissal of the other causes of action.
The appellate court found no merit in the plaintiff’s argument. The court explained that the statute of repose applied in the context of “medical malpractice,” meaning claims for damages resulting from death or injuries caused by health, dental, or surgical services offered by someone lawfully authorized to do so, or care offered by a hospital or clinic or its employees acting within their job duties.
The plaintiffs had styled the claims as breach of fiduciary duty. However, they went to the propriety of medical decisions made by a professional. Therefore they were really medical malpractice claims related to the physician’s exercise of medical skill and judgment. Similarly, the loss of consortium claim was derivative and premised on medical malpractice. The summary judgment was affirmed.
If you are hurt due to negligence, you may be able to recover compensation for your losses. Experienced Atlanta personal injury attorney Terrence R. Bethune can evaluate your case and fight for any compensation you may deserve. Contact us at 404-875-7800 or via our online form.
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