Statute of Limitations on Claims. Does the Type of Claim Matter?

Imagine finding out, after years of stomach pain, discomfort and multiple doctor visits, that your medical problems are due to a surgical sponge which was negligently left inside your abdomen following an appendectomy you had performed years before. Another surgical procedure is required in order to remove the offending foreign object.

As with any operation, there are risks, including risks of anesthesia. There will be a period of recovery when you will need to take time off work. If you have children, you may not be able to care for them for a period of time. You likely will not be able to drive for a few weeks during your recovery time and, at a minimum, you will suffer some pain.

Maybe your operation will be covered by your insurance, but you will still likely have out-of-pocket expenses for co-pays and deductibles. You may not have enough sick days to take off of work or have someone to care for you when you return from the hospital.

You wonder if you have any recourse. The first operation was years ago. Could you still be file a medical malpractice lawsuit? A friend told you since it has been more than two years since the operation, you can no longer file a lawsuit. Is your friend correct? The only way to have these questions answered for sure is to consult with a personal injury attorney who is skilled in medical malpractice claims. But, here is an overview of the law that may help.

What is a Statute of Limitations?

If a lawsuit is not filed within the allowed amount of time required by law, the injured person will forever lose the right to collect damages from the party whose negligence caused the harm. This is true no matter how severely the person was injured, or whether or not a loved one was killed.

The time allowed depends on the nature of the injury and who was responsible. The reason for the law is so that lawsuits are brought while evidence is still relatively fresh or obtainable.

Every state has its own set of statutes of limitations. The laws cover how much time a person who has been injured in some way by the negligent acts or omissions of another has to file a lawsuit against whomever is responsible for the injury.

Statute of Limitations in Georgia

In general, the statute of limitations in Georgia for filing a personal injury lawsuit is two years “after the right of action accrues.” It is one year for damage to the reputation “after the right accrues” and four years after the right of action for loss of consortium “accrues.” The time for filing an action against a governmental entity may be substantially shorter.

The right of action accrues when a person knows, or reasonably should have known, that an injury occurred. If a person is bleeding with obvious broken bones and is rushed to the hospital in an ambulance immediately following a car accident, it is pretty clear an injury has occurred and the cause of action has accrued. The two-year time limit will begin running on the date of the accident.

On the other hand, a person may not know a chemical inhaled at the workplace caused him or her to contract cancer for some years. When the injury is discovered, the cause of action accrues and the statute begins running.

In the example of a sponge left in the abdominal cavity, Georgia has a specific statute for that type of event and the time for filing a lawsuit is one year after “the negligent or wrongful act or omission is discovered.”

Tolling of the Statute of Limitations

A tolling of the statute of limitations is when the running of the statute is paused for a period of time. This primarily occurs if there has been fraud committed by the defendant in concealing the cause of action. The running of the statute is also tolled when a minor is injured. The statute does not begin running until the child reaches the age of 18.

If you suffered injury through no fault of your own, or you have a loved one who injured or died as the result of another’s negligent act, contact Georgia Trial Attorneys. We offer a free consultation where we review the facts of your case and help determine if the statute of limitations has run.


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