If you were harmed by medical care in Atlanta, Georgia may give you less time to file a lawsuit than you expect. Missing the deadline usually ends a claim before it starts, no matter how strong the evidence is. Our Atlanta medical malpractice lawyer can identify each deadline that applies to your situation and file before it runs. Moriarty Medical Malpractice Lawyers prepared this guide to explain how Georgia’s filing deadlines work.
The Two-Year Statute of Limitations
Under O.C.G.A. § 9-3-71, a medical malpractice lawsuit generally must be filed within two years after the date the injury or death occurred. The clock starts with the injury, not with the day the patient learns the injury was caused by negligence.
When a patient dies, the two years run from the date of death. Families bringing a wrongful death claim after a medical error are also subject to the five-year limit described below.
The Five-Year Statute of Repose
The same statute sets an outer limit. No malpractice lawsuit may be brought more than five years after the date of the negligent act or omission, even if the injury did not appear until later. This is called the statute of repose. It measures time from the provider’s conduct rather than from the injury, and courts apply it strictly.
Does Georgia Follow a Discovery Rule?
For most malpractice claims, Georgia does not delay the deadline until a patient discovers the negligence. Misdiagnosis cases show how this works. The Georgia Supreme Court explained in McCord v. Lee that the injury in most misdiagnosis cases begins at the misdiagnosis itself, so the two-year period starts then. The court also described a narrow “new injury” exception. It applies when an untreated condition later develops into a different, more serious condition after a period without symptoms. Because of these rules, the start date is often disputed in failure to diagnose cases.
Foreign Objects Left in the Body
Georgia has a separate rule when a foreign object is left in a patient’s body. Under O.C.G.A. § 9-3-72, the lawsuit must be brought within one year after the negligent act or omission is discovered, and the limits of § 9-3-71 do not apply. The statute excludes chemical compounds, fixation devices, and prosthetic aids or devices from the definition of a foreign object. Retained sponges and instruments are among the surgical errors this rule can cover.
Children and Adults Who Are Legally Incompetent
O.C.G.A. § 9-3-73 sets special rules:
- Children injured before age five. The child has two years from the fifth birthday to file, which means until the seventh birthday. No claim may be brought on the child’s behalf after the tenth birthday.
- Children injured at age five or older. The standard periods apply, and no claim may be brought more than five years after the negligent act.
- Adults who are legally incompetent. A person who is legally incompetent because of intellectual disability or mental illness is subject to the same periods as other adults, with no claim allowed more than five years after the negligent act.
Parents’ own claims, such as for a child’s medical expenses, are separate from the child’s claim. Georgia appellate decisions have held that those claims follow the standard two-year period. This difference matters in birth injury claims, where the child’s deadline and the parents’ deadline can fall years apart.
Medical Records Requests That Pause the Clock
Under O.C.G.A. § 9-3-97.1, a records request can pause the deadline if it meets strict requirements:
- The request is sent by certified or registered mail or statutory overnight delivery, with return receipt requested.
- It states that the records may be needed for a possible medical malpractice action.
- The copying and mailing fees are paid promptly.
- The provider does not send the records, or a letter saying it does not have them, within 21 days.
When those conditions are met, the deadline stops running on the 22nd day after the provider received the request and resumes when the records arrive. The pause is available only once per claim and cannot exceed 90 days without a court order. Our guide to requesting your medical records explains the request process.
Why Early Action Matters
A malpractice lawsuit in Georgia must be filed with a qualified medical witness’s affidavit under O.C.G.A. § 9-11-9.1. The law allows 45 extra days to file that affidavit only when the deadline is about to expire and the law firm was not retained more than 90 days before it. Obtaining records and a physician’s review takes time, so waiting until the deadline is close can put a claim at risk. Our guide to the affidavit of merit covers that requirement, and our guide on when to hire a lawyer explains why an early review helps.
Talk With Our Attorneys About Your Deadline
Continue any medical care you need and follow the advice of a treating physician about your health. This guide explains general legal rules. The deadline in your case depends on its specific facts.
Moriarty Medical Malpractice Lawyers represents patients and families in Atlanta and nearby communities, including Stonecrest. Contact us to schedule a free consultation and learn which deadlines apply to your claim.
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