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22 Cards in this Set

  • Front
  • Back
When does the med mal SOL start to run?
1) Date of Injury/Death
2) Date of Negligence
3) "Discovery Rule" (date injury 'discovered')
2) Date of INJURY / Death

(logical: how would patient know he needed to sue until injured?)
How many years is the Med Mal SOL?
2 years
from the date of injury or death
1) Complaint Filed,
2) THEN SOL runs
3) BEFORE Timely Service Perfected
--> Does SOL bar the suit?
No; SOL not bar the suit.

Service will "relate back" to time of filing IF
service was "timely perfected"
EVEN IF SOL runs before service.
1) Jan. 1, 2007: Dr. negligently injures patient in surgery [the injury]
2) Patient unconscious for 8 weeks after surgery [toll SOL?]
3) Mar. 1, 2007: Patient wakes up and "discovers" injury
When does SOL expire?
A) 1/1/09 [2 yr SOL not tolled]
B) 3/1/09 [SOL tolled under "discovery rule"]
No discovery rule although patient unconscious.

2 year SOL NOT tolled.
What is the special SOL rule for "Foreign Object" cases?
Discovery Rule + 1 year SOL
Which of the following are "foreign objects"

1) Medical tongs
2) Chemical compound
3) Fixation Device
4) Sponge
5) Prosthetic Aid/Device
6) Kramer's Junior Mint
1) Medical Tongs
4) Sponge
6) Kramer's Junior Mint

Not Foreign:
2) Chemical compound
3) Fixation Device
5) Prosthetic Aid/Device
HYPO: 1/1/2000 Dr. negligently leaves foreign object in patient during surgery.
When does SOL expire?
1) 1/1/2001 [after 1 year special Foreign Object SOL]
2) 1/1/2002 [after 2 year general med mal SOL]
2) on 1/1/2002.
Patients get AT LEAST the 2 year general med-mal SOL.
The "discovery rule + 1 year SOL" for foreign objects can only EXTEND the normal SOL.
Dr. uses "professional diagnostic judgment/discretion" in CONSCIOUS decision to leave Foreign Object in patient.
What SOL applies?
1) Discovery Rule + 1 year
2) General 2 year med mal
2) General 2 year med mal SOL
What effect do "symptoms" have on proving the date of an injury?

What if patient does REALIZE the symptoms indicate an injury?
Symptoms = proof injury occured BY the time symptoms occured

NOT RELEVANT what patient realizes
Is SOL tolled if:
1) patient sees SYMPTOMS of injury
2) Dr. NEGLIGENTLY (no intent to mislead) tells patient symptoms are from BENIGN Process
3) Dr's statement DELAYS patient from realizing truth
Statute runs from date of injury, NOT discovery
Dr. (negligently) tells patient symptoms are from benign process
If Dr. MISDIAGNOSES a patient,
and patient then CONTINUES TO AIL,
when did "injury" occur for the SOL?
The date of Misdiagnosis
If patient has CANCER, but Dr. MISDIAGNOSES, when does the "injury" defined?
1) Date of misdiagnosis
2) Date of FIRST metastasis
3) EACH metastasis is new injury
3) EACH new cancer metastasis is new injury
Jan 1, 2000 - Doctor's MISDIAGNOSIS that cancer is "the flu"
Jan 1, 2004 - first Metastasis of Cancer
Does 2 year SOL bar a case?
The "injury" occured when the cancer metastasized.
when the "misdiagnosis" occured.
What is the Special SOL rule for children?
IF UNDER 5 years old
AT time of injury
--> have until 7TH BIRTHDAY
to file suit
What will toll the SOL?
1) FRAUD + Debarred
2) Death + unrep'd estate --> toll DECEDENT'S claims (e.g. pain & suffering)
3) Medical records not timely produced
When will FRAUD toll the SOL?
FRAUD by Dr.
+ DEBARRED/ deterred patient
from bring an action
1) Plaintiff Dies
2) Estate is Unrepresented
--> Decedent's/Estate's claims tolled UP TO 5 YEARS
(e.g. Pain & Suffering)

NOT toll non-decedent claims (e.g. Wrongful Death)
If "temporary administrator" is appointed for an estate, is the estate "unrepresented" so as to toll the SOL for the estate's claims?
Temporary Administrator

1) Medical records sought pursuant to OCGA
2) records are NOT timely produced
--> toll the SOL
True or False:
If patient sues Dr. under CONTRACT theory instead of TORT theory, he gets the longer SOL for contracts.
The same SOL applies for both Contract and Tort.
What is the "Continuous Treatment Doctrine" ?
note: not recognized in Ga!

1) Misdiagnosis persisted b/c patient continued in negligent Dr's care
2) SOL tolled
3) SOL commences when bad treatment TERMINATES
1) 1/1/2000 - Patient goes to Dr. who MISDIAGNOSES foot cancer as foot fungus [injury]
2) Patient continues treating with Dr. and uses Gold Bond powder to treat foot. [toll SOL?]
3) 1/1/2003 - Patient terminates treatment with Dr.
Does "Continuous Treatment Doctrine" toll SOL until 1/1/2003 ?
There's no "Continuous Treatment Doctrine" in Ga.
So, 2 year SOL from the misdiagnosis DESPITE continuous treatment.