Friday, April 26, 2013
Statute of repose for incompetent persons | Atlanta DUI lawyer
Exceptions and disabilities
OCGA 9-3-90 generally protects minors and persons legally incompetent because of mental retardation or mental illness or such when the cause of action accrues.. Mental incapacity tolls the statute is the unsound mind that renders the plaintiff incapable of acting for himself or herself in order to carry on her business, to undertake or maintain a suit for the recovery of the property, to prosecute her claim, and to manage the ordinary affairs of life. Charter peach for behavioral health system 233 Ga. App. 452 (1998). Whether one did not manage his own affairs or whether he managed them unsuccessfully or badly does not control the test for mental incapacity. The test is one of capacity whether the individual been of unsound mind could not manage the ordinary affairs of his life see Kumar v. Hall, 262 Ga. 639 (1992). Dowling v. Lopez, 211 Ga. App. 578 (1993). OCGA 9-3-73 specifically controls the application of disabilities and exceptions applicable specifically to medical malpractice cases. The exceptions delineated by subsection B and C specifically, the general application of OCGA 9-3-90 in medical malpractice cases. OCGA 9-3-73 B states: notwithstanding article 5 of this chapter, all persons who are legally incompetent because of mental retardation or mental illness and all minors who obtain the age of 5 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 5 years shall have 2 years from the date of such minors 5th birthday within which to bring a medical malpractice action if the cause of action arose before such minor attains the age of 5 years. OCGA 9-3-73 B.Consequently, persons who are legally incompetent because of mental retardation or mental illness and persons over 5 years of age are subject to the applicable statute of limitations for medical malpractice claims. A minor who has not reached age 5 at the time the cause of action arises has 2 years from his 5th birthday to file the action. OCGA 9-3-73 see further restricts the statute of limitations to practice cases and states-
Notwithstanding subsection a and B of this code section, in no event may an action for medical malpractice be brought by or on behalf of a person who is legally incompetent because of mental retardation or mental illness more than 5 years after the date on which negligent or wrongful act or omission occurred. Or after 5 years from the date on which the negligent or wrongful act or omission occurred if such miner was age 5 or older on the date of such act or omission. This provision imposes a statute of repose for legally incompetent persons, 9-3-73D.Contact an Atlanta lawyer today for help with your case.