O.C.G.A. § 9-3-72 (2019)

Annotations

Cross references. Tolling of limitations for medical malpractice, § 9-3-97.1. Editor’s notes. Ga. L. 1985, p. 556, § 3, not codified by the General Assembly, provides: “No action for medical malpractice which, prior to July 1, 1985, has been barred by the provisions of Title 9, relating to actions, shall be revived by this Act. No action for medical malpractice which would be barred before July 1, 1986, by the provisions of this Act but which would not be so barred by the provisions of Title 9 in force immediately prior to July 1, 1985, shall be barred until July 1, 1986.”

Law reviews. For article surveying judicial and legislative developments in Georgia’s tort laws, see 31 Mercer L. Rev. 229 (1979). For comment on statutes of limitations in medical malpractice actions in Georgia, see 33 Mercer L. Rev. 377 (1981). For survey article on torts, see 34 Mercer L. Rev. 271 (1982). For survey article on tort law, see 60 Mercer L. Rev. 375 (2008). For annual survey on torts, see 65 Mercer L. Rev. 265 (2013). For note, “Forty-Eight States are Probably Not Wrong: An Argument for Modernizing Georgia’s Legal Malpractice Statute of Limitations,” see 33 Ga. St. U.L. Rev. 805 (2017).

JUDICIAL DECISIONS Applicability of § 9-3-71. - When the defendant physician made a conscious decision in the exercise of the physician’s professional judgment to leave a foreign object in the patient’s leg, the patient’s claim rested on the defendant’s professional diagnostic judgment or discretion, and the two-year statute of limitations found in O.C.G.A. § 9-3-71 applies, rather than the one-year statute of limitations found in O.C.G.A. § 9-3-72. Whiddon v. Spivey, 194 Ga. App. 587, 391 S.E.2d 421, 1990 Ga. App. LEXIS 284, aff’d, 260 Ga. 502, 397 S.E.2d 117, 1990 Ga. LEXIS 390 (1990). O.C.G.A. § 9-3-72 does not shorten the limitation period provided for in O.C.G.A. § 9-3-71. Spivey v. Whiddon, 260 Ga. 502, 397 S.E.2d 117, 1990 Ga. LEXIS 390 (1990). Five-year statute of repose in O.C.G.A. § 9-3-71(b) does not bar a foreign object medical malpractice action timely filed within the one-year period set forth in O.C.G.A. § 9-3-72. Abend v. Klaudt, 243 Ga. App. 271, 531 S.E.2d 722, 2000 Ga.

App. LEXIS 368 (2000), cert. denied, No. S00C1335, 2000 Ga. LEXIS 716 (Ga. Sept. 29, 2000), overruled in part, Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). In a medical malpractice action, it is for a jury to determine whether a patient by exercising ordinary care should have learned on December 7, 2005, or on December 9, 2005, that a foreign object had been left in the patient’s body during the performance of surgery in 2001 and the decision of the jury would govern whether the statute of limitations in O.C.G.A. § 93-71 or O.C.G.A. § 9-3-72 controlled. Monfort v. Colquitt County Hosp. Auth., 288 Ga. App. 202, 653 S.E.2d 535, 2007 Ga. App. LEXIS 1167 (2007), cert. denied, No. S08C0463, 2008 Ga. LEXIS 225 (Ga. Feb. 25, 2008). Purpose of legislature in making distinction between two types of medical malpractice was to allow the plaintiff’s claim which did not rest on professional diagnostic judgment or discretion to survive until actual discovery of the wrong-

doing, as in such situations danger of belated, false, or frivolous claims is eliminated. Dalbey v. Banks, 245 Ga. 162, 264 S.E.2d 4, 1980 Ga. LEXIS 726 (1980); Allrid v. Emory Univ., 249 Ga. 35, 285 S.E.2d 521, 1982 Ga. LEXIS 1111 (1982). Purpose of O.C.G.A. § 9-3-72 is to insure that a claim not be barred within an unjust period. The legislature never intended the statute to shorten the time within which a cause of action may be asserted. Spivey v. Whiddon, 260 Ga. 502, 397 S.E.2d 117, 1990 Ga. LEXIS 390 (1990). Intentional or unintentional actions. - Georgia Court of Appeals has reinterpreted the exception under O.C.G.A. § 9-3-72 to the one-year limitation period in medical malpractice cases for foreign objects left in the body to apply whether the object was left intentionally or unintentionally; thus, a trial court erred in granting summary judgment to a dentist who left a cotton pellet in a patient’s tooth as the claim was not time barred. Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). Classification created by O.C.G.A. § 9-3-72 bears fair and substantial relation to object of the legislation. Allrid v. Emory Univ., 249 Ga. 35, 285 S.E.2d 521, 1982 Ga. LEXIS 1111 (1982). This section is a legislative adoption of doctrine of continuing tort. Childers v. Tauber, 148 Ga. App. 157, 250 S.E.2d 787, 1978 Ga. App. LEXIS 3061 (1978). By requiring in O.C.G.A. § 9-3-72 that a patient who claims a foreign object was negligently left in the patient’s body must file an action within one year after the negligent act or omission is discovered, the Georgia General Assembly has adopted the continuing tort rule; therefore, based upon the plain language and the legislative intent of O.C.G.A. § 9-3-72, the Georgia Court of Appeals overrules both Pogue v. Goodman, 282 Ga. App. 385 (638 S.E.2d 824) (2006) and Shannon v. Thornton, 155 Ga. App. 670 (272 S.E.2d 535) (1980) as those cases improperly limit the statute’s application. Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013).

This section refers to objects placed in a patient’s body during some medical procedure in such fashion that the physician may be charged with knowledge that the object is lodged there. Clark v. Memorial Hosp., 145 Ga. App. 305, 243 S.E.2d 695, 1978 Ga. App. LEXIS 1961 (1978); Dalbey v. Banks, 245 Ga. 162, 264 S.E.2d 4, 1980 Ga. LEXIS 726 (1980). Suture allegedly left in plaintiff’s ureter after hysterectomy was a “foreign object” within the contemplation of O.C.G.A. § 9-3-72. Ivey v. Scoggins, 163 Ga. App. 741, 295 S.E.2d 164, 1982 Ga. App. LEXIS 2634 (1982). Bulldog clamp. - Sutures, pins, plates, and dental bridges would, for example, ordinarily be considered fixation devices; they are intended to remain within the body after surgery to serve a medical purpose. A bulldog clamp, on the other hand, is an arterial clamp used during surgery to occlude the vein graft temporarily, and it ought to be removed at the conclusion of the operation. Hence, a bulldog clamp unintentionally left in the body following surgery is a “foreign object.” Ringewald v. Crawford Long Mem. Hosp., 258 Ga. 302, 368 S.E.2d 490, 1988 Ga. LEXIS 242 (1988), overruled, Spivey v. Whiddon, 260 Ga. 502, 397 S.E.2d 117, 1990 Ga. LEXIS 390 (1990). Failure to inform not a separate act of malpractice. - Failure to inform a patient of the presence of a foreign object left by the physician merely tolls the oneyear statute of limitation until the time at which the patient discovers the presence of the object and does not constitute a separate act of malpractice. Hamrick v. Ray, 171 Ga. App. 60, 318 S.E.2d 790, 1984 Ga. App. LEXIS 2100 (1984), overruled in part, Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). Doctor’s fraudulent concealment of object. - Doctor’s alleged fraudulent concealment of a foreign object left in a patient’s body does not constitute a separate act of malpractice not subject to the one-year statute of limitations in O.C.G.A. § 9-3-72; rather, failure to inform the patient of such object’s presence merely tolls the one-year period until the time at which the patient discovers the presence

of the object. Karafotias v. Coyne, 184 Ga. App. 335, 361 S.E.2d 514, 1987 Ga. App. LEXIS 2263 (1987), overruled in part, Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). Acts covered by this section go beyond ordinary negligence. - When physician places foreign object in patient’s body during treatment, the physician has actual knowledge of its presence, and the physician’s failure to remove it goes beyond ordinary negligence so as to be classified by the legislature as a continuing tort which tolls the statute of limitations until the object is discovered. Dalbey v. Banks, 245 Ga. 162, 264 S.E.2d 4, 1980 Ga. LEXIS 726 (1980); Allrid v. Emory Univ., 249 Ga. 35, 285 S.E.2d 521, 1982 Ga. LEXIS 1111 (1982). While this section established new time limitation period for a continuing tort, it left unchanged applicable standard concerning event which triggers running of limitation period. Childers v. Tauber, 148 Ga. App. 157, 250 S.E.2d 787, 1978 Ga. App. LEXIS 3061 (1978). Limitation can only begin to run from time victim has knowledge, or through exercise of ordinary care could have learned, of existence of continuing tort. Childers v. Tauber, 148 Ga. App. 157, 250 S.E.2d 787, 1978 Ga. App. LEXIS 3061 (1978). Even though the plaintiff became aware that the plaintiff was suffering from some kind of injury, the one-year limitation period of O.C.G.A. § 9-3-72 did not start to run until the plaintiff knew or by the exercise of ordinary care should have learned that a foreign object was in the plaintiff’s body which was causing the injury. Abend v. Klaudt, 243 Ga. App. 271, 531 S.E.2d 722, 2000 Ga. App. LEXIS 368 (2000), cert. denied, No. S00C1335, 2000 Ga. LEXIS 716 (Ga. Sept. 29, 2000), overruled in part, Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). Negligence suit barred by either of the two statutes of limitation applicable to medical malpractice cases, O.C.G.A. §§ 93-71 and 9-3-72. Bevel v. Routledge, 168 Ga. App. 89, 308 S.E.2d 207, 1983 Ga. App. LEXIS 2689 (1983). Dental bridge not covered by section. - Dental bridge is in the nature of a

“fixation device or prosthetic aid or device” and, as such, is excluded by this section from consideration as a “foreign object.” Shannon v. Thornton, 155 Ga. App. 670, 272 S.E.2d 535, 1980 Ga. App. LEXIS 2731 (1980), overruled, Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). Doctor’s failure to remove particles of ceramic glass from patient’s hand, which were not placed there by the doctor, is more akin to ordinary misdiagnosis and mistreatment covered by Ga. L. 1976, p. 1363, § 1 (see now O.C.G.A. § 9-3-71) than to cases covered by Ga. L. 1976, p. 1363, § 1 (see now O.C.G.A. § 9-3-72). Dalbey v. Banks, 245 Ga. 162, 264 S.E.2d 4, 1980 Ga. LEXIS 726 (1980). When an object is purposely placed in a body it cannot be said to have been “left,” which, in the context of this section, connotes a nonpurposeful act. Shannon v. Thornton, 155 Ga. App. 670, 272 S.E.2d 535, 1980 Ga. App. LEXIS 2731 (1980), overruled, Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). When an object was purposely placed in a body it was not a “foreign object” as contemplated by O.C.G.A. § 9-3-72, and the fact that it might have been negligently placed did not alter this finding; hence, absent evidence of a doctor’s fraud or concealment of the placement, summary judgment in a patient’s medical malpractice suit was properly granted to a doctor and a clinic as the applicable twoyear statute of limitation had expired by the time the action was filed. Pogue v. Goodman, 282 Ga. App. 385, 638 S.E.2d 824, 2006 Ga. App. LEXIS 1396 (2006), overruled, Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). Inadvertent leaving of object not requirement. - No language in O.C.G.A. § 9-3-72 limits the statute’s application to only those foreign objects left inadvertently as such an interpretation of the statute would allow a defendant-doctor to unilaterally bar a plaintiff’s claim, that has already fallen outside of the general limitation period, merely by asserting that the doctor left the foreign object in the patient’s body intentionally,

no matter how absurd the assertion. Norred v. Teaver, 320 Ga. App. 508, 740

S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013).

RESEARCH REFERENCES Am. Jur. 2d. 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers, § 304. C.J.S. 70 C.J.S., Physicians, Surgeons, and Other Health Care Providers, § 121. ALR. Statute of limitations applicable to malpractice action against physician, surgeon, dentist, or similar practitioner, 80 A.L.R.2d 320; 70 A.L.R.4th 535. When statute of limitations commences to run against malpractice action against physician, surgeon, dentist, or similar practitioner, 80 A.L.R.2d 368; 70 A.L.R.3d 7. Malpractice: liability of physician, surgeon, anesthetist, or dentist for injury resulting from foreign object left in patient, 10 A.L.R.3d 9. When statute of limitations commences

to run against malpractice action based on leaving foreign substance in patient’s body, 70 A.L.R.3d 7. Medical malpractice: applicability of “foreign object” exception in medical malpractice statutes of limitations, 50 A.L.R.4th 250. Timeliness of action under medical malpractice statute of repose, aside from effect of fraudulent concealment of patient’s cause of action, 14 A.L.R.6th 301. When statute of limitations begins to run in case of dental malpractice, 17 A.L.R.6th 159. Effect of fraudulent or negligent concealment of patient’s cause of action on timeliness of action under medical malpractice statute of repose, 19 A.L.R.6th 475. Medical Malpractice: Dental Crowns or Bridges, 58 A.L.R.7th Art. 2.