Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
For injuries that occur in emergency rooms, in order to succeed in a medical malpractice action Georgia requires that a patient alleging injury prove that the doctor's acts rose to the level of gross negligence. That standard is extremely difficult for an injured patient to prove.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Although the Georgia legislature passed a statute capping damages in medical malpractice cases, the Georgia Supreme Court has ruled that caps on non-economic damages are unconstitutional under the state constitution.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Georgia instead applies a rule of several liability, with the plaintiff recovering damages from each defendant in an amount proportionate to the percentage of fault attributed to the defendant. Where a plaintiff is found to be partially at fault, damages are reduced by the court in proportion to the plaintiff's percentage of fault. A plaintiff cannot recover damages if the plaintiff is determined to be 50 percent or more responsible for the injury.
The Collateral Source Rule
Georgia applies the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Georgia, a plaintiff alleging malpracitce has two years from the date of injury to bring a malpractice claim, but in no cases may the claim be brought more than five years from the date of the act or omission giving rise to the injury. Claims based upon the presence of a foreign object within the plaintiff's body may be filed within one year of the date of discovery.
For children injured by malpractice before the age of five, the limitations period is two years from the child's fifth birthday.
Additional rules affecting malpractice litigation in the State of Georgia include:
Alternative Dispute Resolution
In Georgia, the parties to a malpractice case may choose to submit the claim to arbitration. The arbitrators make a written finding on every matter in controversy that is submitted to arbitration, with a finding by any two arbitrators being given the same force and effect as a finding made by all. The arbitration has the same force and effect as a judgment, and may be enforced as such.
Affidavit of Expert
In Georgia, the plaintiff in a malpractice case is required to file with the complaint an affidavit of an expert competent to testify, setting forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.
Medical Expert Witness Restrictions
In order to testify in a medical malpractice action, a proposed medical expert must be qualified as to the acceptable standard of conduct of the professional whose conduct is at issue. At the time that the act or omission underlying the complaint is alleged to have occurred, the expert must had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in the active practice of the same area of professional specialty for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or must have been engaged in the teaching of the expert's profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.
The proposed expert must be a member of the same profession, a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy, or be a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor. Notwithstanding that general rule, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Under Georgia law, for any claim involving a patient who allegedly experienced an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence that are made by a health care provider or an employee or agent of a health care provider to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome are inadmissible as evidence and do not constitute an admission of liability or an admission against interest.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.