Med Mal - Statute Of Limitations

Front 1

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

Back 1

2) Date of INJURY / Death

(logical: how would patient know he needed to sue until injured?)

Front 2

How many years is the Med Mal SOL?

Back 2

2 years
from the date of injury or death

Front 3

HYPO:
1) Complaint Filed,
2) THEN SOL runs
3) BEFORE Timely Service Perfected
--> Does SOL bar the suit?

Back 3

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.

Front 4

HYPO:
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"]

Back 4

No discovery rule although patient unconscious.

2 year SOL NOT tolled.

Front 5

What is the special SOL rule for "Foreign Object" cases?

Back 5

Discovery Rule + 1 year SOL

Front 6

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

Back 6

Foreign:
1) Medical Tongs
4) Sponge
6) Kramer's Junior Mint

Not Foreign:
2) Chemical compound
3) Fixation Device
5) Prosthetic Aid/Device

Front 7

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]

Back 7

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.

Front 8

HYPO:
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

Back 8

2) General 2 year med mal SOL

Front 9

What effect do "symptoms" have on proving the date of an injury?

What if patient does REALIZE the symptoms indicate an injury?

Back 9

Symptoms = proof injury occured BY the time symptoms occured

NOT RELEVANT what patient realizes

Front 10

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

Back 10

No.
Statute runs from date of injury, NOT discovery
EVEN IF
Dr. (negligently) tells patient symptoms are from benign process

Front 11

If Dr. MISDIAGNOSES a patient,
and patient then CONTINUES TO AIL,
when did "injury" occur for the SOL?

Back 11

The date of Misdiagnosis

Front 12

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

Back 12

3) EACH new cancer metastasis is new injury

Front 13

HYPO:
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?

Back 13

NO!
The "injury" occured when the cancer metastasized.
NOT
when the "misdiagnosis" occured.

Front 14

What is the Special SOL rule for children?

Back 14

IF UNDER 5 years old
AT time of injury
--> have until 7TH BIRTHDAY
to file suit

Front 15

What will toll the SOL?

Back 15

1) FRAUD + Debarred
2) Death + unrep'd estate --> toll DECEDENT'S claims (e.g. pain & suffering)
3) Medical records not timely produced

Front 16

When will FRAUD toll the SOL?

Back 16

FRAUD by Dr.
+ DEBARRED/ deterred patient
from bring an action

Front 17

When will UNREPRESENTED ESTATE toll the SOL?

Back 17

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)

Front 18

If "temporary administrator" is appointed for an estate, is the estate "unrepresented" so as to toll the SOL for the estate's claims?

Back 18

No.
Temporary Administrator
≠
Representation

Front 19

When will NON-PRODUCTION OF RECORDS toll the SOL?

Back 19

1) Medical records sought pursuant to OCGA
2) records are NOT timely produced
--> toll the SOL

Front 20

True or False:
If patient sues Dr. under CONTRACT theory instead of TORT theory, he gets the longer SOL for contracts.

Back 20

FALSE
The same SOL applies for both Contract and Tort.

Front 21

What is the "Continuous Treatment Doctrine" ?

Back 21

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

Front 22

HYPO:
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 ?

Back 22

No.
There's no "Continuous Treatment Doctrine" in Ga.
So, 2 year SOL from the misdiagnosis DESPITE continuous treatment.