2021 Georgia Code
Title 9 - Civil Practice
Chapter 3 - Limitations of Actions
Article 4 - Limitations for Malpractice Actions
§ 9-3-73. Certain Disabilities and Exceptions Applicable

1. Except as provided in this Code section, the disabilities and exceptions prescribed in Article 5 of this chapter in limiting actions on contracts shall be allowed and held applicable to actions, whether in tort or contract, for medical malpractice.
2. Notwithstanding Article 5 of this chapter, all persons who are legally incompetent because of intellectual disability or mental illness and all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article. A minor who has not attained the age of five years shall have two years from the date of such minor's fifth birthday within which to bring a medical malpractice action if the cause of action arose before such minor attained the age of five years.
3. Notwithstanding subsections (a) and (b) of this Code section, in no event may an action for medical malpractice be brought by or on behalf of:
   1. A person who is legally incompetent because of intellectual disability or mental illness more than five years after the date on which the negligent or wrongful act or omission occurred; or
   2. A minor:
      1. After the tenth birthday of the minor if such minor was under the age of five years on the date on which the negligent or wrongful act or omission occurred; or
      2. After five years from the date on which the negligent or wrongful act or omission occurred if such minor was age five or older on the date of such act or omission.
4. Subsection (b) of this Code section is intended to create a statute of limitations and subsection (c) of this Code section is intended to create a statute of repose.
5. The limitations of subsections (b) and (c) of this Code section shall not apply where a foreign object has been left in a patient's body. Such cases shall be governed by Code Section 9-3-72.
6. The findings of the General Assembly under this Code section include, without limitation, that a reasonable relationship exists between the provisions, goals, and classifications of this Code section and the rational, legitimate state objectives of providing quality health care, assuring the availability of physicians, preventing the curtailment of medical services, stabilizing insurance and medical costs, preventing stale medical malpractice claims, and providing for the public safety, health, and welfare as a whole.
7. No action which, prior to July 1, 1987, has been barred by provisions relating to limitations of actions shall be revived by this article, as amended. No action which would be barred before July 1, 1987, by the provisions of this article, as amended, but which would not be so barred by the provisions of this article and Article 5 of this chapter in force immediately prior to July 1, 1987, shall be barred until July 1, 1989.

(Code 1933, § 3-1104, enacted by Ga. L. 1976, p. 1363, § 1; Ga. L. 1987, p. 887, § 2; Ga. L. 2015, p. 385, § 4-15/HB 252.)

The 2015 amendment, effective July 1, 2015, substituted "intellectual disability" for "mental retardation" in the first sentence of subsection (b) and in paragraph (c)(1).

- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

- For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010).

JUDICIAL DECISIONS

Constitutionality.

- The 1987 amendment to O.C.G.A. § 9-3-73 should be construed as constitutional, rational, and consistent with the intent of the legislature. It was clearly the legislative intent that medical malpractice claimants whose claims were affected by the amendment be given a grace period within which to bring suit. Mansfield v. Pannell, 261 Ga. 243, 404 S.E.2d 104 (1991); Crowe v. Humana, 263 Ga. 833, 439 S.E.2d 654 (1994).

Subsections (b) and (g) of O.C.G.A. § 9-3-73 should be construed as meaning that no action will be barred before two years from the effective date. The result of that construction is that no action will be barred before July 1, 1989. Thus construed, the statute is constitutional. Mansfield v. Pannell, 261 Ga. 243, 404 S.E.2d 104 (1991); Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653 (1992).

The 1987 amendment of O.C.G.A. § 9-3-73, which altered the tolling provisions otherwise applicable to tort claims by injured minors in cases in which tort claims arose from health care professionals' malpractice, did not violate a brain-damaged childs' right to equal protection or right of access to the courts. Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566, 423 S.E.2d 235 (1992); Crowe v. Humana, 263 Ga. 833, 439 S.E.2d 654 (1994).

Application of subsection (b) of O.C.G.A. § 9-3-73 to patient who was incompetent due to traumatic brain injury did not violate equal protection or due process. Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653 (1992).

Provision of O.C.G.A. § 9-3-73(b) making tolling unavailable for legally incompetent persons in medical malpractice cases does not violate the equal protection clause, U.S. Const., amend. 14. The legislature had a rational basis for distinguishing between the legally incompetent and parties who are permitted tolling: foreign object plaintiffs, unrepresented estates, and contribution plaintiffs. Deen v. Egleston, 597 F.3d 1223 (11th Cir. 2010).

Construction with § 9-3-71. - In a medical malpractice action, because the trial court erroneously applied the five-year statute of repose contained in O.C.G.A. § 9-3-71(b), and not O.C.G.A. § 9-3-73, in finding that the parents' amended negligence complaint against certain doctors and nurses was time-barred, the trial court erred in entering summary judgment against the parents; further, the trial court also erred in finding that the doctors and nurses were rendering care to only the mother, and not the mother and the newborn child. Johnson v. Thompson, 286 Ga. App. 810, 650 S.E.2d 322 (2007), cert. denied, No. S07C1840, 2008 Ga. LEXIS 90 (Ga. 2008).

- The 1987 amendment of O.C.G.A. § 9-3-73 could be applied retroactively to cause of action which arose prior to amendment's effective date. Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566, 423 S.E.2d 235 (1992); Crowe v. Humana, 263 Ga. 833, 439 S.E.2d 654 (1994).

- When a patient and the patient's spouse filed a medical malpractice complaint, which the spouse amended after the patient's death to add a wrongful death claim, the wrongful death claim was not barred by the statute of repose as the wrongful death claim did not initiate legal proceedings, but was filed as an amendment to a pending suit that timely asserted other claims arising out of the same alleged malpractice; this result was consistent with the legislative purpose of the statute of repose set forth in O.C.G.A. § 9-3-73(f), as the original medical malpractice allegations had been brought less than two years after the alleged negligence, and the wrongful death claim was based on the same alleged acts and omissions as the earlier claims. Wesley Chapel Foot & Ankle Ctr., LLC v. Johnson, 286 Ga. App. 881, 650 S.E.2d 387 (2007), cert. denied, No. S07C1879, 2007 Ga. LEXIS 820 (Ga. 2007).

- Even though O.C.G.A. § 9-3-73 permits tolling the statute of limitations for disabilities in medical malpractice actions, under O.C.G.A. § 9-3-90 a minor child must wait until reaching the age of 18 before tolling the two-year limitations period under O.C.G.A. § 9-3-71 barring a medical malpractice action because under O.C.G.A. § 19-7-2 such actions are vested exclusively in the parents until the minor reaches 18. Rose v. Hamilton Medical Ctr., Inc., 184 Ga. App. 182, 361 S.E.2d 1, cert. denied, 184 Ga. App. 182, 361 S.E.2d 1 (1987).

Right to recover the medical expenses of a minor is vested with the parents. Traylor v. Moyer, 199 Ga. App. 112, 404 S.E.2d 320 (1991).

Provisions of subsection (b) of O.C.G.A. § 9-3-73 pertaining to minors applies not only to suits brought on behalf of a minor, but also to suits brought personally by an injured minor upon reaching majority. Barnes v. Sabatino, 205 Ga. App. 774, 423 S.E.2d 686 (1992).

In a medical malpractice action against a hospital and physician for injury to an infant patient, the cause of action accrued, for limitations purposes, when the parents and patient discovered that the alleged negligence of the hospital and physicians caused the injuries, rather than when the alleged negligence was first discovered. Crowe v. Humana, 263 Ga. 833, 439 S.E.2d 654 (1994).

- In a medical malpractice lawsuit, the defendants' motion for a partial summary judgment on all claims for damages that the parents incurred on behalf of their minor child was granted as those claims were barred by the two-year statute of limitation because the five-year statute of limitation extension applied only to the claims of the minor child and did not apply to the parents' claims; thus, any of the parents' claims for damages for their minor child's medical expenses, and the parents' ancillary claims such as their own loss of income, were subject to the two-year statute of limitation applicable to medical malpractice actions generally, and were barred. Swallows v. Adams-Pickett, 344 Ga. App. 647, 811 S.E.2d 445 (2018), cert. denied, No. S18C0922, 2018 Ga. LEXIS 558 (Ga. 2018).

- Two year statute of limitations for wrongful death applied to a suit alleging tortious termination of life support of a parent and that limitations period was tolled based on the infancy of the parent's child, who was born to the parent prior to the defendant terminating the parent's life support. 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).

- Statute of limitations embodied in subsection (b) of O.C.G.A. § 9-3-73 was intended to compel legally incompetent person to file suit within two years of its effective date. Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653 (1992).

Tolling provisions of O.C.G.A. § 9-3-90 during periods of legal incapacity does not apply in actions for medical malpractice. Dowling v. Lopez, 211 Ga. App. 578, 440 S.E.2d 205 (1993).

In a medical malpractice action by parents and child against an obstetrician and a medical association, there was a material question of fact as to whether the failure of the defendants to inform the parents of the etiology of the child's condition, or the alleged intentional misrepresentation as to the cause of the child's problems, were sufficient to toll the statute of limitations as a matter of law. Bynum v. Gregory, 215 Ga. App. 431, 450 S.E.2d 840 (1994).

- Term "legally incompetent because of mental retardation or mental illness" has the same meaning in subsection (b) of O.C.G.A. § 9-3-73 as in O.C.G.A. § 9-3-90 and applied to an action brought on behalf of a patient who was incompetent due to traumatic brain injury. Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653 (1992).

Term "legally incompetent because of mental retardation or mental illness" includes those suffering from brain injury; thus, the tolling provisions of O.C.G.A. § 9-3-90 do not apply even when such mental incapacity exists. Robinson v. Williamson, 245 Ga. App. 17, 537 S.E.2d 159 (2000).

- Even though the plaintiff may have been mentally ill, the plaintiff was not legally incompetent within the meaning of subsection (b) of O.C.G.A. § 9-3-73 when the plaintiff's testimony did not show that the plaintiff was incapable of carrying out the plaintiff's day-to-day life activities and making decisions. Charter Peachford Behavioral Health Sys. v. Kohout, 233 Ga. App. 452, 504 S.E.2d 514 (1998).

- It was the intent of the legislature to enact subsection (g) of O.C.G.A. § 9-3-73 exactly as the subsection is drafted. Subsection (g) does not contain any express exceptions for actions which would not have been barred before July 1, 1987, but which would subsequently become barred within two years of the effective date of § 9-3-73, as amended in 1987. Mansfield v. Pannell, 194 Ga. App. 549, 390 S.E.2d 913 (1990).

When the complaint was filed after the effective date of the 1987 amendment of O.C.G.A. § 9-3-73, no issue of retroactivity was involved. Mansfield v. Pannell, 194 Ga. App. 549, 390 S.E.2d 913 (1990).

- Statute setting limitation and repose for medical malpractice actions applied to alleged professional negligence by an optometrist. Zechmann v. Thigpen, 210 Ga. App. 726, 437 S.E.2d 475 (1993).

- Pursuant to a question certified by the federal appellate court, the Supreme Court of Georgia finds that since the tolling of the ultimate statute of repose for medical malpractice cases is not required by O.C.G.A. § 9-3-71(d) or O.C.G.A. § 9-3-73(a) and it would contravene the mandatory language of O.C.G.A. § 9-3-71(b), the unrepresented estate statute, O.C.G.A. § 9-3-92, does not toll the statute of repose during the time that the estate of a claimant is unrepresented; thus, the district court properly dismissed the state court medical malpractice claims brought by the administrator of the estate of the claimant because the claims were time-barred and could not be extended by O.C.G.A. § 9-3-92. Simmons v. United States, 421 F.3d 1199 (11th Cir. 2005).

In a medical malpractice action, because the undisputed evidence showed that both the personal injury claims and a later-added wrongful death claim were timely filed, both in terms of O.C.G.A. § 9-3-71 and the relevant statute of repose, the doctors sued were properly denied summary judgment as to those claims. Moreover, construction of the medical malpractice statute of repose was consistent with the stated purposes of preventing stale medical malpractice claims in recognition of the fact that time eroded evidence, memories, and the availability of witnesses. Cleaveland v. Gannon, 288 Ga. App. 875, 655 S.E.2d 662 (2007), aff'd, 284 Ga. 376, 667 S.E.2d 366 (2008).

- Time for ultimate repose is not computed from the time the cause of action arises, even in cases in which the injury is subsequent to the time of medical treatment, but rather it occurs in relation to the wrongful act or omission; thus, in an action against an optometrist involving misdiagnosis of a disease which led to glaucoma and enucleation of the plaintiff child's eye, the time for ultimate repose was calculated not from the time that glaucoma developed, but from the time misdiagnosis occurred, and the action was barred. Zechmann v. Thigpen, 210 Ga. App. 726, 437 S.E.2d 475 (1993).

- In a malpractice action against an optometrist, the statute of repose was not tolled when there was no evidence of fraudulent concealment by the defendant and it could not be presumed that the defendant withheld information fraudulently rather than negligently or without fault; and, even if there was evidence of fraudulent concealment, the running of the period was not tolled since the plaintiff knew of the correct diagnosis and had time to file suit within such period. Zechmann v. Thigpen, 210 Ga. App. 726, 437 S.E.2d 475 (1993).

In a medical malpractice action by parents and child against an obstetrician and a medical association, alleged conduct of the defendants in failing to inform the parents of the etiology of the child's condition, or the intentional misrepresentation as to the cause of the child's problems, went far beyond simple nondisclosure and would authorize a jury to conclude that they engaged in intentional, deliberate misrepresentation, or fraud, as opposed to a question of fact as to whether the plaintiff's action was barred by the statute of ultimate repose. Bynum v. Gregory, 215 Ga. App. 431, 450 S.E.2d 840 (1994).

- Fraud under O.C.G.A. § 9-3-96 does not toll the statute of repose; however, if the evidence of defendant's fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit is found by the jury to exist, then the defendant is estopped from raising the defense of the statute of ultimate repose. Esener v. Kinsey, 240 Ga. App. 21, 522 S.E.2d 522 (1999).

Cited in Parker v. Vaughan, 124 Ga. App. 300, 183 S.E.2d 605 (1971); Mattair v. St. Joseph's Hosp., 141 Ga. App. 597, 234 S.E.2d 537 (1977); Childers v. Tauber, 160 Ga. App. 713, 288 S.E.2d 5 (1981); Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 298 S.E.2d 600 (1982); Siler v. Block, 263 Ga. 257, 429 S.E.2d 523 (1993); Bieling v. Battle, 209 Ga. App. 874, 434 S.E.2d 719 (1993); Pilzer v. Va. Ins. Reciprocal, 260 Ga. App. 736, 580 S.E.2d 599 (2003); In re Carter, 288 Ga. App. 276, 653 S.E.2d 860 (2007).

RESEARCH REFERENCES

ALR.

- Medical malpractice statutes of limitation minority provisions, 62 A.L.R.4th 758, 71 A.L.R.5th 307.

When is person, other than one claiming posttraumatic stress syndrome or memory repression, within coverage of statutory provision tolling running of limitations period on basis of mental disability, 23 A.L.R.6th 697.

Estoppel to Assert Statute of Limitations or Statute of Repose in Action for Malpractice of Health Care Provider, 45 A.L.R.7th Art. 3.