2020 Georgia Code
Title 9 - Civil Practice
Chapter 3 - Limitations of Actions
Article 4 - Limitations for Malpractice Actions
§ 9-3-70. "Action for Medical Malpractice" Defined

Universal Citation: GA Code § 9-3-70 (2020)

As used in this article, the term "action for medical malpractice" means any claim for damages resulting from the death of or injury to any person arising out of:

  1. Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or
  2. Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.

(Code 1933, § 3-1101, enacted by Ga. L. 1976, p. 1363, § 1.)

Law reviews.

- For annual survey on torts, see 36 Mercer L. Rev. 327 (1984). For article, "State of Emergency: Why Georgia's Standard of Care in Emergency Rooms is Harmful to Your Health," see 45 Ga. L. Rev. 275 (2010). For article, "When Do State Laws Determine ERISA Plan Benefit Rights?," see 47 J. Marshall L. Rev. 145 (2014). For note, "You Can't Get There from Here -- Questioning the Erosion of ERISA Preemption in Medical Malpractice Actions Against HMOs," see 30 Ga. L. Rev. 1023 (1996).

JUDICIAL DECISIONS

Action for wrongful death can be premised upon an allegation of medical malpractice. Allrid v. Emory Univ., 166 Ga. App. 130, 303 S.E.2d 486, aff'd, 251 Ga. 367, 306 S.E.2d 905 (1983).

Intentional termination of life support a wrongful death claim, not a malpractice claim.

- Trial court properly refused to dismiss a plaintiff's claim asserting tortious termination of life support based on the defendant's argument that it was really a medical malpractice claim and, therefore, required an expert medical affidavit under O.C.G.A. § 9-11-9.1; because such a claim is a suit for wrongful death, not medical malpractice, no expert medical affidavit was necessary. DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 655 S.E.2d 823 (2007), cert. denied, No. S08C0710, 2008 Ga. LEXIS 477 (Ga. 2008).

Actions against parties other than physicians authorized.

- Georgia law historically has allowed medical malpractice suits against parties other than physicians. Allrid v. Emory Univ., 166 Ga. App. 130, 303 S.E.2d 486, aff'd, 251 Ga. 367, 306 S.E.2d 905 (1983).

Doctor was a person authorized by federal law to perform medical services under O.C.G.A. § 9-3-70, even if the device had not been approved as used. Knight v. Sturm, 212 Ga. App. 391, 442 S.E.2d 255 (1994).

Actions against pharmacist.

- Action based upon the conduct of a pharmacist in dispensing medication upon a doctor's prescription constitutes an "action for medical malpractice" within the meaning of O.C.G.A. § 9-3-70. Robinson v. Williamson, 245 Ga. App. 17, 537 S.E.2d 159 (2000).

Actions against infertility clinic.

- Under O.C.G.A. § 9-3-70, in a married couple's suit based on an infertility clinic's failure to preserve sperm, claims against two employees of the clinic were claims for professional negligence, not for ordinary negligence, and thus were time-barred under O.C.G.A. § 9-3-71(a); the employees were involved in the process of thawing and using the husband's sperm in order to fertilize the wife's eggs, and the employees performed these technical functions within the scope of their employment and under the supervision of licensed medical doctors. Baskette v. Atlanta Ctr. for Reprod. Med., LLC, 285 Ga. App. 876, 648 S.E.2d 100 (2007), cert. denied, No. S07C1618, 2008 Ga. LEXIS 103 (Ga. 2008).

Actions against privately operated prisons.

- Former federal inmate's argument alleging that the Bivens decision should be extended to the inmate's Eighth Amendment claim against private prison employees because the affidavit requirement of O.C.G.A. § 9-11-9.1(a) made recovery only theoretical under state law failed; not only did the complaint not allege a claim for medical malpractice as defined by O.C.G.A. § 9-3-70, but even if it did the inmate stood in the same shoes as anyone else in Georgia filing a professional malpractice claim and was subject to no stricter rules than the rest of Georgia's residents. Alba v. Montford, 517 F.3d 1249 (11th Cir. 2008), cert. denied, 129 S. Ct. 632, 172 L. Ed. 2d 619 (2008).

Actions against day facility.

- A court must look to the substance of an action against a medical professional, hospital, or health care facility in determining whether the action is one for professional or simple negligence. Therefore, in a suit for simple negligence, negligence per se, wrongful death, intentional infliction of emotional distress, breach of contract, and negligent supervision and training, summary judgment was improperly granted to the defendants because the plaintiffs were not required to establish that the plaintiffs' expert met the requirements of O.C.G.A. § 24-7- 702(c)(2)(D) as the plaintiffs' suit was not a medical malpractice action as the facility where the plaintiffs' son collapsed was a day facility that provided education, life skills, job assistance, and rehabilitation services to people with mental and physical disabilities, and the individual defendants listed in the case were non-medical personnel and personal care givers. Blake v. KES, Inc., 336 Ga. App. 43, 783 S.E.2d 432 (2016).

Claims for emotional pain and distress sounded in professional malpractice and were subject to the five-year statute of repose. Thompson v. Long, 225 Ga. App. 719, 484 S.E.2d 666 (1997), cert. denied, 522 U.S. 1147, 118 S. Ct. 1165, 140 L. Ed. 2d 175 (1998).

Cause of action for battery exists when objected-to treatment is performed without the consent of, or after withdrawal of consent by, the patient; there is no authority for holding that a medical consent form signed for one operation or treatment is valid for another operation later and elsewhere. Joiner v. Lee, 197 Ga. App. 754, 399 S.E.2d 516 (1990).

O.C.G.A.

§ 9-3-70 is not applicable to action for injury to a corpse. - Bauer v. North Fulton Med. Ctr., Inc., 241 Ga. App. 568, 527 S.E.2d 240 (1999).

No cause of action found.

- Patient could not bring a professional liability claim for damages against a family doctor for interference with the patient's marriage, loss of affection, or depression and anxiety that resulted from the doctor having an affair with the patient's wife because O.C.G.A. § 51-1-17 abolished tort claims for adultery. The claim was not an action for medical malpractice under O.C.G.A. § 9-3-70 because the patient failed to allege an error of professional skill or judgment with regard to the doctor's care. Witcher v. McGauley, 316 Ga. App. 574, 730 S.E.2d 56 (2012).

Exclusive remedy under Workers' Compensation Act.

- There is no controlling authority for the premise that an employee injured as a result of medical malpractice may, consistent with the exclusive remedy provision of the Workers' Compensation Act, O.C.G.A. § 34-9-11, bring a medical malpractice action against a certified athletic trainer. McLeod v. Blase, 290 Ga. App. 337, 659 S.E.2d 727 (2008).

Nonprofit blood bank.

- Suit alleging that a nonprofit blood bank was negligent in collecting and supplying human blood - including screening volunteer blood donors and testing blood for the presence of human immunodeficiency virus (HIV) - was an action for medical malpractice under O.C.G.A. § 9-3-70. Bradway v. American Nat'l Red Cross, 263 Ga. 19, 426 S.E.2d 849 (1993).

Failure to inform patient of HIV results.

- Patient's claim against a doctor and hospital for failure to report the positive results of the patient's HIV test to the patient as required under O.C.G.A. § 31-22-9.2 was a classic medical malpractice claim under O.C.G.A. § 9-3-70, despite the patient's claim that it was ordinary negligence; because the claim was brought eight years after the test, the claim was barred by the five-year statute of repose, O.C.G.A. § 9-3-71(b). Remand was required for consideration of equitable estoppel. Piedmont Hospital, Inc. v. D. M., 335 Ga. App. 442, 779 S.E.2d 36 (2015).

O.C.G.A.

§ 9-3-70 applies to actions against hospitals for negligent retention. - Parents' claim against a hospital for negligent retention of a physician was subject to the statute of limitations for medical malpractice because the claim was predicated on the doctor's skill, or lack thereof, and damages were predicated upon proof that substandard care caused injuries. Ray v. Scottish Rite Children's Med. Ctr., Inc., 251 Ga. App. 798, 555 S.E.2d 166 (2001).

Statute of limitations.

- Five-year medical malpractice statute of repose did not bar patient and husband's claims in refiled action for sexual assault, battery, and loss of consortium claims as the refiled complaint alleged those claims arose out of a non-consensual touching of the patient and not out of the provision of professional services to the patient, but those claims were nevertheless barred because they were not raised in the original action and were time barred under their own applicable limitations period by the time they were filed as part of the refiled complaint. Blier v. Greene, 263 Ga. App. 35, 587 S.E.2d 190 (2003).

Trial court erred in denying partial summary judgment on a patient's medical malpractice and ordinary negligence claims, when, given evidence that the patient suffered an injury arising out of the misdiagnosis in January of 1999, when the patient was first seen by the doctor manifesting continuous symptoms of a moderate B-12 deficiency and the doctor failed to make the diagnosis and provide treatment, and the patient failed to file an action within the two years; but, because the patient's ordinary negligence and breach of fiduciary duty claims were essentially malpractice claims, subject to the same limitations period, summary judgment as to these claims was upheld. Stafford-Fox v. Jenkins, 282 Ga. App. 667, 639 S.E.2d 610 (2006).

Claim of medical malpractice time barred.

- Trial court properly struck, as time barred, the breach of fiduciary duty claim because the gravamen of that claim was the doctor's alleged failure to correctly read the patient's ultrasound and the failure to diagnose the patient's medical condition, amounting to a claim of negligence that went to the propriety of the doctor's exercise of medical skill and judgment, a medical malpractice as contemplated by O.C.G.A. §§ 9-3-70 and9-3-71(b). Johnson v. Jones, 327 Ga. App. 371, 759 S.E.2d 252 (2014).

Cited in St. Joseph's Hosp. v. Mattair, 239 Ga. 674, 238 S.E.2d 366 (1977); Childers v. Tauber, 160 Ga. App. 713, 288 S.E.2d 5 (1981); Faser v. Sears, Roebuck & Co., 674 F.2d 856 (11th Cir. 1982); Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484 (1983); Johnson v. Gamwell, 165 Ga. App. 425, 301 S.E.2d 492 (1983); Wade v. Thomasville Orthopedic Clinic, Inc., 167 Ga. App. 278, 306 S.E.2d 366 (1983); Edmonds v. Bates, 178 Ga. App. 69, 342 S.E.2d 476 (1986); Zechmann v. Thigpen, 210 Ga. App. 726, 437 S.E.2d 475 (1993); Griffin v. Carson, 255 Ga. App. 373, 566 S.E.2d 36 (2002); Breyne v. Potter, 258 Ga. App. 728, 574 S.E.2d 916 (2002); Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80, 666 S.E.2d 401 (2008).

RESEARCH REFERENCES

Am. Jur. 2d.

- 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers, §§ 157, 158, 168, 171, 173, 175.

Hospital's Failure to Supervise Private Physician Using Hospital Facilities, 6 POF2d 647.

Hospital Liability for Negligent Selection of Staff Physician, 14 POF3d 433.

Hospital Liability for Negligent Retention of Staff Physician, 15 POF3d 181.

Liability of Physician for Improper Referral of Patients to a Medical Care Facility in Which Physician Has a Financial Interest, 61 POF3d 245.

C.J.S.

- 70 C.J.S., Physicians, Surgeons, and Other Health Care Providers, § 57 et seq.

ALR.

- Malpractice: treatment of fractures or dislocations, 54 A.L.R.2d 200.

Malpractice: diagnosis of fractures or dislocations, 54 A.L.R.2d 273.

Statute of limitations relating to medical malpractice actions as applicable to actions against unlicensed practitioner, 70 A.L.R.2d 114.

Malpractice in diagnosis or treatment of tuberculosis, 75 A.L.R.2d 814.

Malpractice in treatment and surgery of the ear, 76 A.L.R.2d 783.

Physician's or surgeon's malpractice in connection with diagnosis or treatment of rectal or anal disease, 5 A.L.R.3d 916.

Malpractice: physician's failure to advise patient to consult specialist or one qualified in a method of treatment which physician is not qualified to give, 35 A.L.R.3d 349.

Malpractice: questions of consent in connection with treatment of genital or urinary organs, 89 A.L.R.3d 32.

Malpractice: liability of anesthetist for injuries from spinal anesthetics, 90 A.L.R.3d 775.

Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.

Medical malpractice: instruction as to exercise or use of injured member, 99 A.L.R.3d 901.

Modern status of "locality rule" in malpractice action against physician who is not a specialist, 99 A.L.R.3d 1133.

Physician's liability for causing patient to become addicted to drugs, 16 A.L.R.4th 999.

Medical malpractice: liability for failure of physician to inform patient of alternative modes of diagnosis or treatment, 38 A.L.R.4th 900.

Recovery by patient on whom surgery or other treatment was performed by one other than physician whom patient believed would perform it, 39 A.L.R.4th 1034.

What nonpatient claims against doctors, hospitals, or similar health care providers are not subject to statutes specifically governing actions and damages for medical malpractice, 88 A.L.R.4th 358.

Liability of physician, nurse, or hospital for failure to contact physician or to keep physician sufficiently informed concerning status of mother during pregnancy, labor, and childbirth, 3 A.L.R.5th 123.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by inadequate attendance or monitoring of patient during and after pregnancy, labor, and delivery, 3 A.L.R.5th 146.

Malpractice in treatment of skin disease, disorder, blemish, or scar, 19 A.L.R.5th 563.

Liability of health maintenance organizations (HMOs) for negligence of member physicians, 51 A.L.R.5th 271.

Hospital liability as to diagnosis and care of patients in emergency room, 58 A.L.R.5th 613.

Coverage of professional-liability or indemnity policy for sexual contact with patients by physicians, surgeons, and other healers, 60 A.L.R.5th 239.

Medical-malpractice countersuits, 61 A.L.R.5th 307.

Liability of hospital or medical practitioner under doctrine of strict liability in tort, or breach of warranty, for harm caused by drug, medical instrument, or similar device used in treating patient, 65 A.L.R.5th 357.

Timeliness of action under medical malpractice statute of repose, aside from effect of fraudulent concealment of patient's cause of action, 14 A.L.R.6th 301.

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