Statute of repose | Atlanta lawyer

The statute of repose imposes an absolute limit on the time within which an action may be brought. An exception to this rule applies when a plaintiff has filed a medical malpractice action within the statute limitation in the statute of repose and later amends the complaint to add a wrongful death claim after the patient dies. This assumes that the death arose out of the same negligent conduct as alleged in the original complaint for medical malpractice. To complement the two-year statute of limitations the Gen. Assembly enacted a 5 year statute of repose. OCGA 9-3-71 the State: notwithstanding subsection a of this code section, in no event may an action for medical malpractice be brought more than 5 years after the date on which the negligent or wrongful act or omission occurred. OCGA 9-3-71 see explained that subsection B creates a five-year statute ultimate repose and abrogation. The statute of repose cuts off a medical malpractice claim 5 years after the date of the negligent act unless the plaintiff filed suit within that period. The statute ultimate repose does not bar a cause of action from being brought, which is a defense to the merits that can be waived, but abrogates any cause of action so that no cause of action continues to exist; thus, the cause of action ceases to exist in law after the 5 years had passed. As a consequence statute ultimate repose delineate the time period in which a right may accrue. Likewise even if the injuries arising from the negligent acts occurred less than 5 years before the suit was filed within 2 years of the statute of limitations, statute of repose cuts off all claims filed more than 5 years after the date of the last negligent or wrongful act or omission. Although a timely filed complaint will prevent the statute of repose from attaching, a voluntary dismissal after 5 years brings the statute of repose back into effect, and the case cannot be refiled. This is different from the statute of limitations. If the complaint is filed within the statute of limitations, dismissed pursuant to OCGA 9-11-41 a, and then refiled after the two-year statute of limitations would have run, the case will stand on its original footing and not be cut off. Wright v. Robinson 262 Georgia 844. 1993. Also, amending the complaint to add the real party plaintiff after the five-year statute repose is run but when the complaint was properly filed will not bar the amendment. This statute does not cut off actions for contribution from tortfeasors in medical malpractice actions. The statute of repose can also be the basis for granting a motion in limine to cut off a medical providers negligent acts that occurred outside of the five-year limitation period. Furthermore the statute of repose applies to medical claims for battery and negligent hiring, negligent retention negligent supervision, and negligent entrustment. The statute repose stated in OCGA 9-3-71 however does not apply in a foreign object case and will not bar a case brought within the one-year statute of limitations even if the case is filed more than 5 years after the negligent act. Actual fraud in concealing tortious injury by a physician to avoid suit will equitably estop the raising of the statute of repose by such defendant. The plaintiff must prove the doctor’s intent to keep the patient from discovering the injury to equitably estop the statute of repose. Osborne v. Goldman to269 Ga. App. 303 (2004). In this case plaintiff failed to prove defendant fraudulently withheld information from the patient.

The two-year statute of limitation pursuant to OCGA 9-3-71 does not apply in cases where a physician leaves a foreign object in the patient’s body. OCGA 9-3-72 states a foreign object statute of limitation: the limitation code section OCGA 9-3-W1 shall not apply where foreign object has been left in a patient’s body, but in such a case action shall be brought within one year after the negligent or wrongful act or omission is discovered. For the purpose of this code section, the term foreign object shall not include a chemical compound fixation device, or prosthetic aid or device. In such case the plaintiff must bring the action within one year discovery of the negligent or wrongful act or omission. The code sections specifically excludes a chemical compound, fixation device, or prosthetic aid or device as a foreign body. The statute of repose stated in OCGA 9-3-71 does not apply in a foreign object case and will not bar a case brought under the statute of limitations, even if the case is filed more than 5 years after the negligent act. A band v. Klotz to 43 Ga. App. 271 (2000). Under this section, discovery means the time at which plaintiff actually learns of the negligence or could have learned of it by the exercise of ordinary care. Childers v. Tauber  148 Ga. App. 157 (1978).

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