Failure to treat claims in Georgia medical malpractice

A failure to treat claim says the provider got the diagnosis right, or close enough, and then did not act on it, did not follow up, or stopped too soon. Georgia has no separate statute for it. It is a malpractice claim under O.C.G.A. § 51-1-27, with the affidavit and limitation rules that go with one. The proof problems are what the chart shows was intended, whose job the next step was, and whether treatment would probably have changed the result.

How it differs from its neighbors

Claim	What went wrong	Page
Misdiagnosis	The answer was wrong	Misdiagnosis claims
Delayed diagnosis	The answer came late	Delayed diagnosis claims
Failure to treat	The answer was right and no adequate action followed	This page

The separate pages are misdiagnosis claims and delayed diagnosis claims. The line matters for dates. A claim that a known condition went untreated has a different story from one about a condition nobody found, and its limitation analysis depends on when the injury occurred.

Kinds of omission

The following patterns describe the types of allegation, not a standard of care. Whether any was a breach depends on expert testimony in the particular case.

• A recommended medicine, surgery, or referral was never ordered.
• An abnormal test was returned but did not reach the person who ordered it, or nobody acted on it.
• A plan depended on follow-up, and nobody tracked it.
• A treatment was stopped or changed without a recorded reason.
• A patient was discharged while something still needed attention.

Who the claim is against

A claim about a lost result may be against the physician, an office, a hospital, or more than one of them. An office or hospital can be liable for its employees under O.C.G.A. § 51-2-2. A claim about a system rather than a person raises the question of whether it falls within the definition of malpractice in § 9-3-70, which includes care or service by a hospital or clinic “or by any officer, agent, or employee”. A staff member’s failure to pass along a message was treated separately in Deen v. Stevens, which is why each allegation should be classified on its own.

The patient’s part

Fault can be divided under § 51-12-33, so the defense can raise missed appointments or refused treatment. How much that argument carries depends on what the patient was told and whether the office tried to reach them. A chart note saying the patient declined after a full discussion is different from a blank chart. A patient has the right to refuse treatment, and a documented informed refusal changes the analysis.

Dates

Under § 9-3-71(a), the two years run from the injury. In a failure to treat case, that date may be close to the omission if harm began then, or later if the “new injury” reasoning in Amu v. Barnes applies. The five-year repose in § 9-3-71(b) runs from the act or omission. A long course of care may contain several omissions, each with its own date. The cautious assumption treats the earliest as the one that counts, unless counsel concludes otherwise. See limitation and repose.

Causation

The plaintiff has to show that treatment would probably have changed the outcome, with expert opinion stated as more than a possibility under Zwiren v. Thompson. A treatment that might have helped does not meet that. So the expert needs to say what treatment should have happened, when it would have been given, and how this patient would probably have responded. Causation challenges covers these issues.

Mental health treatment

A failure to treat claim about mental health care has a special rule. For causes of action arising on or after July 1, 2024, O.C.G.A. § 51-1-29.7, added by House Bill 1409, requires gross negligence for liability in a mental health care liability claim, according to the Legislative Counsel’s summary, and sets a higher bar for punitive damages.

Records that show the gap

Start with the order or plan, then look for what should have followed. The useful records are the visit notes, messages between providers, lab and imaging results with time stamps, referral records, appointment records, and any phone logs. An electronic chart may show when a result was opened and by whom. That information can sit in the audit trail, which has to be requested specifically. The medical records article explains the request.

Sources

• Official Code of Georgia Annotated, November 2022 public release: §§ 9-3-70, 9-3-71, 51-1-27, 51-2-2, 51-12-33
• Amu v. Barnes, 283 Ga. 549
• Deen v. Stevens, 287 Ga. 597
• Zwiren v. Thompson, 276 Ga. 498
• Legislative Counsel, Summary of General Statutes Enacted, 2024: House Bill 1409

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.