Malpractice Liability

Tort reform legislation in Georgia has placed significant limitations on medical malpractice lawsuits in the state. However, a serious malpractice case may still produce a serious financial recovery. In order for that to happen, one must go to an experienced attorney with the knowledge and resources to properly evaluate and handle the case.  It is simply impossible to be taken seriously otherwise.

The term "malpractice" refers to claims for damages based upon a professional's failure to exercise the appropriate standard of professional care.

It is important to remember that most medical professionals are highly competent and conscientious, and most things laymen think are malpractice aren't. A bad result does not equal malpractice. However, no one is perfect, and some studies indicate that medical errors are a major cause of disability and death in the U.S. With "managed care" restricting doctors' decisions and forcing fewer doctors and nurses to care for more patients in a day, serious mistakes are inevitable.

Georgia has a strict two year statute of limitation on medical malpractice cases. While there are limited circumstances to extend the time period, it is extremely dangerous to count on any extension.

In order to pursue a claim for medical malpractice, it is important to get to an experienced attorney at least six months to a year before expiration of the two-year statute of limitation, in order to allow adequate time for case evaluation, finding appropriate expert witnesses, and preparation of the case before filing suit.

The standard of care for physicians is that they must exercise such reasonable care and skill for their patients as, under similar conditions and like surrounding circumstances, is ordinarily employed by the medical profession generally. Hospitals owe their patients the duty of using ordinary care to furnish equipment and facilities reasonably suited to the uses intended and such as are in general use under the same, or similar circumstances in hospitals of approximately the same size serving similar areas or communities.

The question of whether the standard of care has been violated is almost always an exhaustive and expensive battle of experts. The out of pocket expense to take a medical malpractice case to trial often approaches $100,000. Lawyers who handle malpractice cases on a contingent fee contract while advancing the considerable expense must be careful in screening the economic viability of cases.

Tort reform legislation passed in the 2005 session of the Georgia General Assembly significantly restricts the rights of victims of medical malpractice, and makes it economically impractical to pursue a great many legitimate malpractice claims.  With recovery restricted and the high cost of preparing a case for trial, it is often impossible to find an attorney who is willing to take on the economic risk of handling a malpractice claim that does not involve a pretty unambiguous violation of a standard of care accompanied by catastrophic permanent injury.

Cap on noneconomic damages. Tort reform legislation passed in 2005 included a  $350,000 cap on noneconomic damages with a maximum of $1,050,000 in cases against three or more health care providers. However, the Georgia Supreme Court unanimously struck down the damages cap as unconstitutional.

Hospital emergency department cases. In cases arising in hospital emergency departments after February 21, 2005, the plaintiff must prove gross negligence by clear and convincing evidence. That is an extremely difficult burden for a plaintiff to meet.

Affidavit requirement. In Georgia, malpractice cases ordinarily expert testimony from a member of the same profession as to the standard of care and how it was violated. The expert must have be regularly engaged in practice or teaching three of the past five years in the same area of practice or specialty, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the same procedure, diagnosing the condition or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant. There is no longer a grace period for filing the expert affidavit after the suit is filed. If there is no malpractice affidavit, the suit will be dismissed.

The malpractice affidavit requirement applies to malpractice claims against architects, attorneys, certified public accountants, chiropractors, clinical social workers, dentists, dieticians, land surveyors, medical doctors, marriage and family therapists, nurses, occupational therapists, optometrists, osteopathic physicians, pharmacists, physical therapists, physicians' assistants, professional counselors, professional engineers, podiatrists, psychologists, radiological technicians, respiratory therapists, and veterinarians.

Expert testimony rules.  Georgia has adopted the Federal rule on admissibility of expert testimony, with specific reference to a body of Federal case law that gives judges broad discretion to screen expert testimony and summarily throw out of court cases in which they disapprove of the plaintiffs experts. In addition, the legislature stated its intent "that the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states."