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Articles Posted in Statute of Limitations

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photo_5495_20080405Almost every type of legal claim is governed by an applicable statute of limitation that limits the amount of time a plaintiff has to bring legal action to redress his or her grievance. Among the shortest statutes of limitation is the one that limits the time a plaintiff has to bring a medical malpractice action. Under Georgia law, a plaintiff has only two years to bring his or her claim. O.C.G.A. § 9-3-71 (a). However, a key question that often arises in such cases is when the statute of limitation begins to run. This determination was the central issue in the Georgia Court of Appeals’ recent decision in Beamon v. Mahadevan.

The events leading to Beamon began in October 2007 when the plaintiff, complaining of what he thought was severe indigestion, went to a physician who after reviewing the results of an electrocardiogram immediately sent the plaintiff to the hospital. Doctors at the hospital determined the plaintiff needed cardiac bypass surgery and a mitral valve replacement. Six days later, the defendant in this case performed a four-vessel coronary artery bypass on the plaintiff. The plaintiff alleges that during this surgery, the defendant replaced the plaintiff’s poorly performing mitral valve with a bio-prosthetic one that was inappropriately sized. The plaintiff further alleged that the valve was negligently sutured to leaflet tissue as opposed to the proper tissue for suture, the annulus of the heart. Only a few months after the surgery, the plaintiff began to experience breathing trouble, fatigue, and exhaustion. The plaintiff’s condition continued to worsen, and by June 2008 the plaintiff was diagnosed with atrial fibrillation and a heart murmur. In March 2009, the plaintiff underwent a transesophageal echocardiogram that showed a significant heart valve leak. The following week, the plaintiff underwent a second surgery to replace the existing mitral valve replacement with a larger one. The surgeon who performed the second surgery observed the alleged errors in the suture job of the first surgery. The plaintiff originally brought suit against the first surgeon in December 2010 but voluntarily dismissed the suit. However, the plaintiff then filed a renewal action in October 2011, seeking damages for medical negligence. Following some discovery, the defendant moved for summary judgment on statute of limitations grounds, and the trial court granted the motion.

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photo_24041_20130404Although information asymmetry between physicians and patients makes it difficult for one to determine whether he or she has a potential claim for medical malpractice, Georgia law nonetheless requires that one promptly bring his or her claim or bear the risk of losing it. This harsh procedural truth is at the heart of the Middle District of Georgia’s recent decision in Phillips v. Clements, in which the court upheld the dismissal of a medical malpractice claim that was brought more than two years following a physician’s alleged act of malpractice.

The act that gave rise to the Phillips v. Clements litigation occurred on or about October 20, 2008. At that time, the injured party was four years old and was harmed as a result of allegedly mis-filled prescription medication. The minor’s mother originally brought suit on behalf of her daughter on March 22, 2012, but she voluntarily dismissed her case on February 13, 2013. On October 17, 2013, the minor’s grandmother filed this suit seeking recovery on behalf of the same injured child. However,the defendants moved for the claims to be dismissed as time-barred under Georgia law or, alternatively, for summary judgment to be granted in their favor since the plaintiff had failed to proffer a standard of care expert, which is necessary to prove pharmaceutical malpractice under Georgia law.

First, under Georgia law, an action based on a pharmacist dispensing prescription medication falls within the purview of “medical malpractice” for purposes of the statute of limitations. Robinson v. Williamson, 245 Ga. App. 17, 19, 537 S.E.2d 159, 161 (2000); see O.C.G.A. § 9-3-70.

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photo_933_20060126Although proving substantive claims already places a heavy burden on a plaintiff, procedural roadblocks often also arise to the chagrin of hapless litigants. In particular, issues related to proper service of process and initiation of the suit within the applicable statute of limitations period can hamper ill-advised plaintiffs with otherwise meritorious claims. A recent decision from the Georgia Court of Appeals, Callaway v. Goodwin, demonstrates the importance of these procedural requirements.

Callaway arose from a motor vehicle accident on August 10, 2010. In Georgia, the statute of limitations for bringing a personal injury action is two years. See Ga. Code Ann. § 9-3-33. In this case, the plaintiff did not file suit until August 7, 2012, only three days before the expiration of the statute of limitations. On that day, the plaintiff filed the complaint as well as a properly addressed summons for service on the defendant and a check for the service fee to obtain proper service through the Walton County Sheriff’s Office. However, the Sheriff’s office did not effectuate service of process on the defendant until August 22, 2010, 12 days following the expiration of the statute of limitations. Following receipt of the summons and complaint, the defendant moved for dismissal of the action, arguing that service of process was not perfected within the statute of limitations period and that the plaintiff otherwise failed to demonstrate diligence in perfecting service of process within the statutory period. The trial court granted the motion, and the plaintiff initiated this appeal.

Pursuant to Georgia law, “[w]hen a complaint is filed within the statute of limitation, but service is not made within five days or within the period of limitation, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service is made as quickly as possible.” Akuoko v. Martin, 298 Ga. App. 364-365 (1) (680 SE2d 471) (2009). Generally, the trial court has considerable discretion in determining whether a party has shown diligence to effect service of process, and an appeals court will only reverse a diligence determination if the trial’s court determination constitutes an abuse of discretion. Id. at 365. In reaching its conclusion to grant the motion to dismiss, the trial court erroneously found that the plaintiff had only paid the court filing fees and not the services of process fees when she filed her complaint and summons. However, evidence proffered by the plaintiff to both the trial court and on appeal showed that all applicable service and filing fees had been paid at the time of filing.

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