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Medical Malpractice


1. What is Medical Malpractice?

Medical malpractice is the failure of a medical provider to perform within a reasonable degree of care and skill.

There are many ways that malpractice can occur, ranging from failure to diagnose or failure to take action, to taking the wrong action. It can also include the improper administration of medication or pharmacy mistakes. It can even include failing to properly supervise a patient, resulting in the patient falling or otherwise sustaining injury.

The medical provider may be a medical doctor (“MD”), a Doctor of Osteopathic Medicine (“D.O.”), dentist (“DDS”), a nurse (“RN”), or any other licensed practicing care provider. Likewise, hospitals and nursing facilities may also be liable for malpractice.

There are number of specialized challenges in medical malpractice actions. Here are some things to consider.

2. Must Prove the Existence of a Duty

One of the other critical elements of a medical malpractice action is the question of the existence of a physician-patient relationship. Stated differently, to bring an action, the medical provider must have a specific obligation to the injured party. This is particularly important in situations when a resident or a doctor in training commits malpractice, and a patient has had limited or no contact with the supervising physician. In other words, if a nurse or doctor not assigned to a patient injures the patient, the plaintiff must establish the liability against each responsible party.

3. Not All Bad Outcomes Are Malpractice

Not all bad outcomes are malpractice. Depending on the circumstances, it can be difficult to determine if malpractice in fact incurred. As with any injury case, a plaintiff (the injured party) must show that the injury was caused by the wrongdoing of the medical provider.

The attorneys at Krause Golomb & Witcher have been involved in injury cases for many years and have developed a strong understanding of medicine. One of our attorneys, Roger Krause, has specialized training in neuroscience and physiology as he has earned a masters in psychology from Columbia University. Moreover, Krause Golomb & Witcher has an extensive network of physicians and nurses that we use to assist in evaluating cases.

4. Special Requirement: The Need to Obtain An Expert Affidavit

To initiate a medical malpractice action, one must have an expert affidavit. This is required by law. (O.C.G.A. § 9-11-9.1). The affidavit has to specifically state that the doctor or medical professional committed medical malpractice by providing medical care in a manner below the standard of care. The person who signs the affidavit must be in the precise profession and subspecialty as the defendant. In other words, if an orthopedic physician is the defendant, then only an orthopedic physician can draft the affidavit. Also, the signer of the affidavit must have been in practice for three of the past five years.

There is significant expense to filing a medical malpractice suit, and it takes time to prepare the case for filing. Doctor’s charge anywhere between $300 and $800 dollars per hour to review these cases. Doctors practicing within the state often are unwilling to testify against fellow doctors, thus requiring experts to travel from neighboring states. When you add all the expenses together, the costs to bring a medical malpractice case are significantly higher than a typical injury case.

5. Special Problems With the Statue of Limitation

Medical malpractice cases also pose special problems with regards to the statute of limitations, or the requirement when a lawsuit must be filed. The general rule for medical malpractice is that the claim must be brought within two years of the wrongful act. (O.C.G.A. § 9-3-7).

However, there are special exceptions. For example, if the injury is to a child under the age of five, the general rule is that the child has up to and until the age of seven to bring such a suit. (O.C.G.A. § 9-3-73(b)). Likewise, the statute of limitations can be extended when a foreign object is found in a patient’s body. In such circumstances, the patient has a one-year “discovery rule” in which to bring suit. (O.C.G.A. § 9-3-72). There is even some case law that suggests the statute of limitations can be tolled as a result of fraud in changing or altering the medical records.

Free Consultation

If you think that malpractice occurred, you owe it to yourself to explore the issues with attorneys skilled in medical malpractice actions. Krause Golomb & Witcher attorneys have experience in identifying, addressing, and overcoming difficult issues. While time is of the essence in all injury cases, for medical malpractice, time is even more urgent due to the limitations and requirements to bring a medical malpractice action.


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Atlanta, GA 30309





Disclaimer: This website is intended for informational purposes only and is not intended to create an attorney-client relationship or serve as a substitute for legal counsel. If you are in need of specific legal advice, please contact an attorney immediately. Please note that communication with an attorney or staff member at Krause, Golomb & Witcher, LLC, does not by itself create an attorney- client relationship or constitute the provision or receipt of legal advice. Any communication from an attorney or staff member should be considered informational only, and should not be relied or acted upon until a formal attorney-client relationship is established via a written agreement signed by all parties. While we have achieved great results for many of our clients, we cannot guarantee the outcome of your potential case. Our firm services all of Georgia. We are authorized to to practice in all of the State Courts of Georgia, including all State Courts, Superior Courts, Georgia Court of Appeals and Georgia Supreme Court, as well as in the Federal Courts in the Northern District Court of Georgia and Bankruptcy Court for the Northern District Krause, Golomb & Witcher, LLC of Georgia, and the Eleventh Circuit Court of Appeals.