Statutes of Limitations

Georgia has a two-year statute of limitations running from the date of injury or death, and a five-year statute of "ultimate repose and abrogation." Ga. Code Ann. § 9-3-71 (1992). Foreign object cases, however, may be brought any time within one year of discovering the object. Ga. Code Ann. § 9-3-72 (Supp. 1997). These limits apply to minors, except that the statute of limitations will never run prior to the claimant's seventh birthday and the statute of repose will never run until the claimant's tenth birthday. Ga. Code Ann. § 9-3-73 (1997). As with adults, if the negligent act involves a foreign object, the action must be brought within one year of discovering the object. Id. The statute of repose is constitutional. Craven v. Lowndes County Hospital Authority, 263 Ga. 657, 437 S.E.2d 308 (1993).

A claimant's insanity tolls the running of the statute of limitations. Ga. Code Ann. § 9-3-91 (1992).

Contributory or Comparative Negligence

Georgia has adopted a variation of comparative negligence. Ga. Code Ann. § 51-11-7 (1982). Under this doctrine, a claimant's action is barred if he could have avoided the consequences of the defendant's negligence. Otherwise, the claimant's recovery is diminished in proportion to his degree of negligence. Id.

Joint and Several Liability

For causes of action that accrue after July 1, 1987, liability to the claimant is apportioned among the joint tortfeasors severally based upon their degree of fault. Ga. Code Ann. §§ 51-12-32 and 51-12-33 (1992). However, joint and several liability is imposed on joint tortfeasors if the claimant is without fault. Id.

Contribution

The right of contribution is available to joint tortfeasors who are jointly and severally liable. Ga. Code Ann. § 51-12-32 (1992). The right of contribution is not affected by a compromise or settlement. Id. While the right of contribution arises at the time of the initial litigation, it can be enforced in a separate action as well. Independent Manufacturing Co. v. Automotive Products, Inc., 141 Ga. App. 518, 233 S.E.2d 874 (1977).

Vicarious Liability

Georgia statutory law imposes liability on an individual for the negligent acts of a contractor when the contractor's work is wrongful in itself, results in a nuisance, is inherently dangerous, violates a duty imposed in a contract, violates a duty imposed by statute, was directed or controlled by the employer, or was ratified by the employer. Ga. Code Ann. § 51-2-5 (1982). Interpreting this statute as it relates to hospitals, a Georgia appellate court found that a hospital may not be liable for a contracting physician's negligent acts. Hollingsworth v. Georgia Osteopathic Hospital, 145 Ga. App. 870, 245 S.E.2d 60, aff'd, 242 Ga. 522, 250 S.E.2d 433 (1978). Factors to consider in determining if the hospital is directly liable for the negligent acts of the physician are whether the hospital negligently granted him privileges or undertook to direct the doctor's method of treating patients. Id.

In Brown v. Coastal Emergency Services, Inc., 181 Ga. App. 893, 354 S.E.2d 632, aff'd sub nom. Richmond County Hosp. Authority v. Brown, 257 Ga. 507, 361 S.E.2d 164 (1987), a Georgia appellate court discussed the concept of apparent agency as it relates to physicians and hospitals. The court found that when a patient relies on the hospital to provide health services and there is no indication of the doctor's employment status, the hospital may be liable for the physician's negligence due to the appearance of an agency relationship between the physician and hospital. Id.

Expert Testimony

A medical malpractice complaint must generally contain an affidavit of an expert stating that the facts justify a claim of negligence. Ga. Code Ann. § 9-11-9.1 (Supp. 1997). When a claimant fails to file an affidavit in a timely manner, the complaint is subject to dismissal for failure to state a claim. Id.

Damage Caps

Currently, Georgia does not place a cap on the amount of compensatory damages that may be awarded. However, punitive damages are capped at $250,000, unless the claimant can successfully demonstrate that the defendant had an intent to harm. Ga. Code Ann. § 51-12-5.1 (1992).

Statutory Cap on Attorneys' Fees

There is no limitation in Georgia on the amount of fees attorneys can collect in a medical malpractice action. Contingent fee arrangements need not be approved by the court.

Periodic Payments

Georgia does not require the use of structured settlements or periodic payments.

Collateral Source Rule

A Georgia statute allowing tort defendants to reduce damages by introducing evidence of payments to the claimant from collateral sources, Ga. Code Ann. § 51-12-1 (1992), has been held to be unconstitutional. Denton v. Con-Way Southern Express, Inc., 261 Ga. 41, 402 S.E.2d 269, (1991).

Pre-Judgment Interest

Pre-judgment interest is not allowed in personal injury actions, unless the defendant rejects a formal pre-trial demand by the claimant and the judgment is equal to or greater than the demand. Ga. Code Ann. § 51-12-14 (Supp. 1997). In such cases, pre-judgment interest is calculated at twelve percent, beginning 30 days after the date of the demand. Id.

Patient Compensation Funds and Physician Insurance

Georgia does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.

Immunities

The State of Georgia has waived its sovereign immunity. Ga. Code Ann. § 50-21-23 (1994). This waiver applies to all actions within the scope of an employee's duty. Id. However, this waiver is limited by many exceptions. Ga. Code Ann. § 50-21-24 (1994). There is a one-year limitation period for claims against the state. Ga. Code Ann. § 50-21-26 (1994). The Georgia Constitution allows the General Assembly to waive the immunity of counties, municipalities, and school districts. Ga. Const. Art. IX, § 2, para. 9 (1983). For any action against the state the claimant's recovery is limited to $1,000,000. Ga. Code Ann. § 50-21-29 (1994). The state's aggregate liability per occurrence cannot exceed $3,000,000. Id. There is also a provision for a Tort Claims Trust Fund. Ga. Code Ann. § 50-21-33 (1994).

Arbitration

The parties in a medical malpractice action may, by agreement, request an appointment of a referee from the Superior Court. Ga. Code Ann. § 9-9-61 (Supp. 1997). However, the agreement cannot be made prior to the alleged act of malpractice, and the claimant must be represented by an attorney. Ga. Code Ann. § 9-9-62 (Supp. 1997).

A copy of the arbitration panel's decision will be entered into the minutes of the court that authorized the arbitration. Ga. Code Ann. § 9-9-79 (Supp. 1997). The findings will have the force and effect of a final judgment and may be enforced by the court. While the findings are final, a party can appeal to the Superior Court of the county in which the arbitration was authorized. Ga. Code Ann. § 9-9-80 (Supp. 1997). However, the arbitration panel's findings of fact are conclusive, unless they are found to be based on fraud or are not supported by the evidence. Id.

    

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