Georgia Medical Malpractice Summary

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In 2005, Georgia enacted comprehensive tort reform legislation commonly referred to as Senate Bill 3 (“SB 3″). Most provisions affecting medical malpractice apply only to claims arising on or after February 16, 2005. Some of these, including caps on non-economic damages, have been held to be unconstitutional, while others have been upheld or remain unchallenged. One important provision of SB 3 that does not fall into any of the categories discussed below is an enhanced burden of proof for cases arising out of emergency medical care in hospital emergency departments or obstetrical units, and for surgery immediately following such emergency care. To recover in these cases, a claimant must prove gross negligence by “clear and convincing evidence,” a standard more rigorous than mere preponderance of the evidence but less exacting than beyond a reasonable doubt. Ga. Code Ann. § 51-1-29.5 (Westlaw 2010). The Georgia Supreme Court rejected a constitutional challenge to this section in Gliemmo v. Cousineau, 287 Ga. 7, 694 S.E.2d 75 (2010).

Statutes of Limitations

The statute of limitations for medical malpractice is two years from the date of injury or death. Ga. Code Ann. § 9-3-71(a) (Westlaw 2010). Injury or death may occur later than the wrongful act or omission that causes them, see Young v. Williams, 274 Ga. 845, 560 S.E.2d 690 (2002), but an action is barred five years after the act or omission by a statute of ultimate repose and abrogation, Ga. Code Ann. § 9-3-71(b) (Westlaw 2010), which has been held to be constitutional. Craven v. Lowndes County Hospital Authority, 263 Ga. 657, 437 S.E.2d 308 (1993). These limits apply to minors, except that the statute of limitations cannot run prior to the claimant’s seventh birthday and the statute of repose cannot run prior to the claimant’s tenth birthday. Ga. Code Ann. § 9-3-73 (Westlaw 2010). A claimant’s incompetence because of mental retardation or mental illness tolls the running of the statute of limitations. Ga. Code Ann. § 9-3-90 (Westlaw 2010). Claims based on a foreign object left in a patient’s body may be brought any time within one year of discovering the wrongful act or omission. Ga. Code Ann. § 9-3-72 (Westlaw 2010).

Contributory or Comparative Negligence

For claims arising on or after February 16, 2005, a modified form of comparative negligence is prescribed by statute. A plaintiff cannot recover if he is 50 percent or more responsible for the injury claimed. If he is less than 50 percent responsible, his damages are reduced by his percentage of fault. Ga. Code Ann. § 51-12-33(a) and (g) (Westlaw 2010). The law applicable to claims arising before this date is similar. See Union Camp Corp. v. Helmy, 258 Ga. 263, 367 S.E.2d 796 (1988). Under special circumstances, Georgia applies a form of contributory negligence. A plaintiff’s action is barred if by ordinary care he could have avoided the consequences to himself of the other parties’ negligence. Ga. Code Ann. § 51-11-7 (Westlaw 2010).

Joint and Several Liability

For claims arising on or after February 16, 2005, defendants are not jointly liable. Damages are apportioned based upon each defendant’s percentage of fault. The fault of nonparties (including those who have settled) must be considered in making this determination. Ga. Code Ann. § 51-12-33 (Westlaw 2010). For claims under prior law, a similar rule is applied if the plaintiff has a degree of fault, but liability is joint and several if the plaintiff is without fault. Id. (see notes for the prior wording).

Contribution

The right of contribution is available to joint tortfeasors who are jointly and severally liable. Ga. Code Ann. § 51-12-32 (Westlaw 2010). However, there is no contribution for allocated several liability under Ga. Code Ann. § 51-12-33 (Westlaw 2010). See Joint and Several Liability. A contribution claim may be asserted as a cross-claim in the underlying action or brought as a separate lawsuit. Greenhorne & O’Mara, Inc. v. City of Atlanta, 298 Ga. App. 261, 679 S.E.2d 818 (2009).

Vicarious Liability

A new statute governs the vicarious liability of hospitals for healthcare professionals in claims arising on or after February 16, 2005. If the hospital posts a notice in prescribed form or obtains an acknowledgment from the patient or his representative that some of the healthcare professionals are independent contractors, then it is not liable unless the professional has an actual agency or employment relationship with the hospital. Ga. Code Ann. § 51-2-5.1 (Westlaw 2010). If the healthcare professional has no contract with the hospital, or if the contract is unclear or ambiguous, then the relationship can only be found to be agency or employment if the hospital reserves the right to control the time, manner, or method in which the professional performs the services for which he is licensed. The statute includes a list of factors based on prior case law that can be considered in making this determination. Ga. Code Ann. § 51-2-5.1(f) and (g) (Westlaw 2010).

For claims under prior law, a hospital may be vicariously liable for the acts of a physician who is either an actual employee or an apparent agent. Cooper v. Binion, 266 Ga. App. 709, 598 S.E.2d 6 (2004). The test of whether a physician is an actual employee resembles that in the current statute. See Id.; Allrid v. Emory University, 249 Ga. 35, 285 S.E.2d 521 (1982). The test of apparent agency is whether the hospital represents that the physician is its agent and thereby causes the patient justifiably to rely upon the care or skill of such apparent agent. Richmond County Hospital Authority v. Brown, 257 Ga. 507, 361 S.E.2d 164 (1987).

Expert Testimony

A medical malpractice complaint must generally be accompanied by a competent expert’s affidavit stating the factual basis for at least one negligent act or omission. Ga. Code Ann. § 9-11-9.1 (Westlaw 2010). If a plaintiff fails to file such an affidavit in a timely manner, the complaint is subject to dismissal. Id.

Damage Caps

Georgia has no cap on compensatory damages for medical malpractice. Caps on non-economic damages of $350,000 per defendant and $1,050,000 for all defendants were enacted in 2005 as part of SB 3 and may be found at Ga. Code Ann. § 51-13-1 (Westlaw 2010). However, the Georgia Supreme Court held this section to be unconstitutional in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 2010 WL 1004996 (Ga. March 22, 2010). Punitive damages are allowed for tort claims generally only when it is proven by clear and convincing evidence that a defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or conscious indifference to consequences. Ga. Code Ann. § 51-12-5.1(b) (Westlaw 2010). Except in cases of intentional harm or those involving drugs or alcohol, punitive damages are limited to $250,000. Ga. Code Ann. § 51-12-5.1(g) (Westlaw 2010).

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

For claims arising on or after February 16, 2005, at the request of any party, the court must order that future damages of $350,000 or more be paid by means of an annuity policy with a cost equal to the amount of the award for future damages. Ga. Code Ann. § 51-13-1(f) (Westlaw 2010). Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 2010 WL 1004996 (Ga. March 22, 2010), which found the damage caps in § 51-13-1 to be invalid, expressed no opinion about subsection (f).

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 (Westlaw 2010), has been held to be unconstitutional. Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405, 434 S.E.2d 450 (1993); 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 (Westlaw 2010). In such cases, pre-judgment interest is calculated at the Federal Reserve’s prime rate plus three percent, beginning 30 days after the date of the demand (12 percent for actions filed before July 1, 2003). 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 for the torts of state officers and employees acting within the scope of their official duties or employment, subject to certain exceptions and limitations. Ga. Code Ann. § 50-21-23 (Westlaw 2010). The exceptions include one for discretionary functions and duties, but there is nothing specific in the exceptions section for the provision of medical care. Ga. Code Ann. § 50-21-24 (Westlaw 2010). There is a one-year limitation period for claims against the state. Ga. Code Ann. § 50-21-26 (Westlaw 2010). No one person can recover more than $1,000,000 because of a single occurrence, and the state’s aggregate liability cannot exceed $3,000,000. Ga. Code Ann. § 50-21-29 (Westlaw 2010). This section also provides that in medical malpractice cases subject to sovereign immunity, the cap on non-economic damages specified in Ga. Code Ann. § 51-13-1 (Westlaw 2010) is a total cap on all damages. See Damage Caps.

Arbitration

The parties to a medical malpractice claim may, by agreement, initiate arbitration by petitioning the superior court for the appointment of a referee. This can only be done after the alleged malpractice, and the claimant must be represented by an attorney. Ga. Code Ann. § 9-9-62 (Westlaw 2010). Arbitration findings are final and conclusive unless review is sought. A party can appeal to the superior court, but the arbitrators’ findings can only be set aside if they were procured by fraud, not supported by any evidence, or contrary to law. Ga. Code Ann. § 9-9-80 (Westlaw 2010).

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