Georgia's Medical Malpractice Limitations Period

October 01, 2010

Georgia statutes provide a two year statute of limitations to bring a claim for medical malpractice. Recently, the Georgia Court of Appeals addressed the issue of whether fraud or concealment on the part of a health care provider would toll the limitations period in Wilson v. Obstetrics & Gynecology of Atlanta, P.C.

In January of 2001, Kent and Lise Wilson gave birth to a daughter, Karah Alena Lindsey. The Lindseys contend that during the labor and delivery process, a certified nurse practitioner of Obstetrics & Gynecology of Atlanta, P.C., (OB/GYN of Atlanta) and other employees made errors that resulted in a prolapsed umbilical cord and oxygen deprivation. They further allege that the hospital actively concealed these mistakes from them, making the cause of Karah's injuries impossible to determine. Karah was ultimately diagnosed with ataxic cerebral palsy after she missed several developmental milestones.

After discovering the extent of her injuries, the parents filed suit on their and Karah's behalf seeking damages for past and future medical expenses. The trial court barred the claims by the Lindseys and ruled in favor of the defendants on a summary judgment motion dismissing the case, finding that the claims made by the parents were time barred by the statute of limitations.

Tolling the Statute of Limitations

Georgia code 9-3-71(a) states that, "an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred." Subsection (b) also notes that in no case should an action for medical malpractice be brought more than five years after the negligent act.

The main issue raised by the parents on appeal was that the trial court ignored evidence that the defendants intentionally concealed their involvement in Karah's injuries, which would toll the statute of limitations and create a genuine issue of fact for the jury.

In its decision, the Court of Appeals noted tolling the statute of limitations by fraud requires three factors. First, there must be actual fraud involving moral turpitude on the part of the defendant. Second, the fraud must conceal the cause of action from the plaintiff and, finally, the plaintiff must have exercised reasonable diligence to discover the cause of action.

The Court of Appeals held that the trial court erred in dismissing the claim, in part, because a question of fact was created about whether the defendants, OB/GYN of Atlanta, intentionally withheld or misrepresented information and whether that would be sufficient to toll the limitations period. This decision, according to the appellate court, belongs to the jury. The decision of the trial court to grant summary judgment in OB/GYN's favor was reversed.

Misrepresentations by the Defendant

Specifically, the court noted several instances where the defendant's misrepresented or omitted information from the parents of Karah. The hospital staff initially failed to determine the baby's presentation, or position, after the mother was admitted and failed to inform the parents of this fact. The defendants also did not notify the parents of fetal heart deceleration throughout the process or of the 33 minutes when no fetal heart rate was recorded. The trial court record showed that OB/GYN of Atlanta affirmatively misrepresented all of these facts.

The parents were also told that arterial blood taken from the umbilical cord after birth showed good oxygenation and that Karah had not been deprived of oxygen for a long period of time, when in fact, records indicated that the lab tests were incomplete. Ultimately, the hospital provided the missing records which noted significant oxygen deprivation to Karah.

Bynum V. Gregory

In concluding that this evidence was sufficient to create a question of fact for the jury, the court relied on Bynum v. Gregory. In Bynum, it was alleged that negligence on the part of the obstetrician resulted in oxygen deprivation and subsequent brain damage to a child during the delivery process.

The doctor in Bynum suspected that the condition was caused by spinal meningitis, but tests ruled that condition out within 36 hours of the birth. The doctor, however, did not tell the mother of this fact and instead told her that it was spinal meningitis, which would result in developmental delays. The mother did not pursue any other diagnosis as a result of this information. It was not until 15 years after the birth that the mother was informed by other doctors that developmental delays were likely the result of an injury during birth.

The Bynum trial court ruled in the doctor's favor, but the Court of Appeals reversed saying that whether the statute of limitations should be tolled was a question of fact for the jury to determine.

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