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.

Medical malpractice case | Atlanta DUI lawyer

Fixed or foreign object?

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).

Although OCGA 9-3-72 specifically excludes chemical compounds and certain fixation and prosthetic devices from its purview, it does not define a foreign object. Recent decisions on this issue provide helpful guidelines in determining when to apply the one-year statute. A bulldog clamp is not a fixation device because its purpose is to temporary occlude an artery during surgery. Unlike certain devices such as pins and sutures that are designed to remain in the body a bulldog clamp should be removed before completing the surgery, therefore, is a foreign object. A suture even though ordinarily considered a fixation device, will come under the foreign object limitation if placed and left in the wrong part of the patient’s body. A surgical sponge and a steel arterial clamp are foreign objects because they should be removed before completing surgery. A dental file and a broken drill bit are foreign objects. A dental bridge is not a foreign object because it comes under the exclusion covering fixation or prosthetic devices. The failure to find and remove a foreign object like a piece of metal from a cutting tool or pieces surrounding face that entered plaintiff’s body as a result of some injury does not, under the one-year rule. In both examples the objects were not left by some deliberate act of the physician in treating the patient, rather he failed to find the object and remove it, which amounts to simple misdiagnosis and mistreatment. Defendants’ failure to inform patient of the foreign object does not raise a separate cause of action, nor does fraud or misrepresentation claims condition related to the foreign object. Fraud would toll the statute of limitations until discovery of the object. Upon discovery, the statute begins to run. Defendant broke off a piece of dental file in plaintiff’s mouth during a root canal. Plaintiff returned the next day, and defendant supposedly take care of the problem. 9 months later plaintiff consulted with another dentist who found the file still embedded in the tooth. Plaintiff filed a complaint over one year from the time of this discovery. Denial of defendant’s motion for summary judgment was reversed. Even if misrepresentation occurred, plaintiff discovered the existence of the file still embedded in her tooth from another doctor. The statute a limitation was only told up to the point that plaintiff discovered the problem with her tooth from another doctor. In Ballard v. Rappaport 168 Ga. App. 671 (1983), plaintiff filed a claim alleging negligent surgery. Her amended complaint specifically alleged that the contract claim did not arise out of the care and treatment provided by defendant as a medical doctor. The medical malpractice claim was dismissed, but the court liberally construed plaintiff’s complaint and reverse the trial court’s grant of summary judgment on the contract claim would affirm the grant of the malpractice claim. The plaintiff’s complaint provided no factual basis for the breach of contract claim.Contact an Atlanta lawyer today for help with medical malpractice case or any case you may have.

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).

Contact a Atlanta lawyer today to help with your case.

Burden of Proof | Atlanta DUI lawyer

Burden of proof

Plaintiff has the burden of proving that defendant is liable for medical negligence that defendant failed to exercise the standard of care, and that such failure caused plaintiff's injuries. OCGA 24-4-1 (1995) burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of his case or defense the proof of such facts is essential. If the negation or negative affirmation is in all essential to a party's case or defense.

The burden of proof is determined by  pleadings, and where a party has the burden of proof to establish a fact by a preponderance of the evidence it remains on him throughout the trial unless the defendant admits a prima facie case by the plaintiff. The burden of proof includes both the burden of persuasion and the burden of production. The burden of production is a party’s duty to introduce enough evidence on an issue to have an issue decided by the factfinder, rather than decided against the party in a preemptory ruling such as summary judgment or directed verdict. Stated another way the term burden of proof has two applications. First is the necessity of establishing certain set of facts by evidence which preponderates to a legally required extent. This covers plaintiff's duty to convince the jury of all the necessary elements of medical negligence claim. That it is of necessity which rests on a party at a particular time during the trial to create a prima facie case in his own favor or to overthrow one when created against him. Contact an Atlanta dui lawyer to discuss the burden of proof in your case.

A mere conclusionary affidavit from plaintiff's expert that defendant's negligence amounted to gross negligence will not defeat summary judgment when OCGA 51-1-29 applies. When emergency-room physician immediately ordered x-rays of the patient's way to determine if he suffered a fractured, had a radiologist read the x-rays, and relying on the radiologist read the x-rays to make her diagnosis, as a matter of law treatment did not amount to the exercise of slight care. Pottinger v. Smith 293 Ga. App. 626 (2008). The standard of care applicable to this treatment a physician provides his patient is a national standard. The local standard does not apply. If an expert bases his opinions on a local standard, his testimony has no evidentiary value and should be excluded. Consequently testimony based on a general surgeon should you in a sophisticated medical community is insufficient as it evidence of the practice of medicine in Atlanta or Fulton County. Since locality rule does not apply, an expert needs no personal knowledge of the standards of practice and community where the alleged negligence occurred. Furthermore because the standard is a general or national standard, what a particular doctor would have done under the circumstances will not raise an issue of fact on negligence when defendants presents evidence that he did exercise that degree of skill and care required in general. The issue is not what an individual doctor would have done; the issue is what the standard of care requires. Johnson v. Riverdale anesthesiologist Associates 275 Ga. 240 2002. This case held that it would be improper to ask a defense expert if he would have pre-oxygenated the patient before the procedure and that what the expert person would've done under the circumstances is not admissible. Contact an Atlanta DUI lawyer today for a free consultation.

OCGA 51-1-27 and the statutory standard for a medical malpractice case

OCGA 51-1-27 states the statutory standard for medical malpractice action: the person professing to  practice surgery or the administering of medicine for compensation must direct the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had. This section sets a duty or standard that medical practitioners must satisfy  in caring for patients. This duty arises on the implied contract between patient and physician, public considerations about the nature of the practice of medicine, and the consensual nature of the relationship between patient and physician. A departure from the standard, constitutes negligence, and the plaintiff will have a cause of action for defendants' failure to exercise reasonable care and skill. Case authority has explained that degree of skill and care required is that degree of skill and care which under similar conditions and like surrounding circumstances is ordinarily employed by the medical profession generally. Note that a failure to exercise care and skill may arise by failure to exercise care only or by failure to exercise skill whole or by failure of both.  him and Contact an Atlanta Dui lawyer today for a free consultation.

The standard of Care | Atlanta lawyer

Case authorities as explained that degree of skill and care required is that degree of skill and care which under similar conditions and like surrounding circumstances is ordinarily employed by the medical profession generally. This statement of the standard of care had 3 major elements. First it focuses on the exercise of care and skill in treating the specific patient or the specific problem, the similar condition element. 2nd and describes quality of care that the physician must provide, ordinary  medical care. 3rd ordinary care requires what a physician generally provide a national standard not a local standard. This! Principles of the standard of care applies generally to medical providers. But in light of the new statute protecting medical providers who render emergency medical treatment, practitioner should consult OCGA 51-1-29.5 T.C. is the ordinary care standard applies the treatment given to  in plaintiff's 4 if the gross negligence standard applies because the claim involves emergency treatment. A mere conclusionary affidavit from plaintiff's expert that defendant's negligence amounted to gross negligence will not defeat summary judgment when OCGA 51-1-29 applies. When an emergency emergency-room physician immediately ordered x-rays of a patient's leg to determine if he suffered a fracture, had a radiologist read the x-rays, and relying on the radiologist read the x-rays to make her diagnosis, as a matter of law treatment did not amount to exercise of slight care. Pottinger v. Smith 293 Ga. App. 626, 2008. Contact in Atlanta Atty. today for free consultation.