Surgical error claims in Georgia medical malpractice

A bad surgical result is not itself malpractice in Georgia. A plaintiff has to show that the surgeon, or another member of the team, fell below “a reasonable degree of care and skill” under O.C.G.A. § 51-1-27, and that this caused the harm. Three facts shape these cases more than others: a retained object has its own deadline, consent is governed by a statute for listed procedures, and several providers in the same room can each need a different expert.

A known risk versus a mistake

A defense may say the injury was a recognized complication, disclosed on the consent form. That does not end the question. A recognized risk can still be realized through negligence, and a form describing the risk is not a finding that care was proper. It also does not win the case for the plaintiff. Expert testimony has to say what the standard required in that operation, with that anatomy, and how the conduct departed from it. Where accepted techniques differ, the respectable minority rule comes into play.

Retained objects have a different clock

O.C.G.A. § 9-3-72 removes the limits in § 9-3-71 “where a foreign object has been left in a patient’s body”, and requires the action “within one year after the negligent or wrongful act or omission is discovered”. The term “shall not include a chemical compound, fixation device, or prosthetic aid or device”. Two practical results follow.

• A sponge or instrument found years later may still support a claim, but only for one year from discovery. One year is shorter than the ordinary period.
• A plate, screw, or implant does not get this rule, so its claim runs under § 9-3-71 or as a separate product question.

In a child’s case, § 9-3-73(e) sends foreign object claims to the same section. See limitation and repose.

Consent

O.C.G.A. § 31-9-6.1 applies to surgical procedures under general, spinal, or major regional anesthesia, and to certain other listed procedures. For those procedures, it requires disclosure of matters such as the diagnosis, the nature and purpose of the procedure, material risks, the likelihood of success, practical alternatives, and the prognosis if the procedure is rejected. Subsection (d) says a failure to comply “shall not constitute a separate cause of action”, but it may give rise to a malpractice action, with proof that the injury was proximately caused by the procedure, that the information about that injury was not disclosed, and that a reasonably prudent patient would have refused or chosen an alternative. The expert’s affidavit has to address those points. Subsection (e) lists exceptions, including an emergency. A plaintiff can raise this and a claim that the operation was done badly where the facts support both.

The team

The surgeon, an anesthesia provider, circulating nurses, surgical technicians, and the hospital each have a different legal position.

Person	Whose standard	Possible expert	Liability route
Surgeon	Surgical specialty	Same area, three of five years	Own conduct
Anesthesia provider	Anesthesia	Same field; see the anesthesia page	Own conduct or group
OR nurse	Nursing	Nurse, or a physician who met § 24-7-702(c)(2)(D)	Hospital, if it's the employer
Hospital	Depends on the claim	Depends on the claim	§ 51-2-2, § 51-2-5.1

Anesthesia error claims covers that specialty. A surgeon is not automatically responsible for every act of every person in the room. Don’t assume that Georgia’s “captain of the ship” history is current law, and ask counsel to check it. Sponge counts raise the same question, because they involve both surgeon and nurses.

Records that reconstruct the operation

• The operative report, and the time it was dictated.
• The anesthesia record, which may be generated by monitoring equipment.
• The circulating nurse’s record, including counts and times.
• Pre-operative notes and imaging, including what anatomy was known.
• Post-operative notes showing when a problem was noticed.
• Pathology, if tissue was sent.

An expert reads these together. A discrepancy between two documents is not proof of malpractice, but it is what a deposition is built on. The time of each entry can matter. Request the electronic history as well as the printed report.

After the operation

A surgical claim can also be about what happened next, like a leak, a bleed, or an infection that was not recognized. Care in the recovery unit and on the floor can involve other providers, and that care may be easier to evaluate from the record. A claim limited to the operation misses that possibility. Causation still has to be shown for each part under Zwiren v. Thompson. An injury in surgery following an emergency department evaluation may also fall under the gross negligence rule of § 51-1-29.5(c), which reaches “a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department”.

Next questions for a reader

Which of the four routes on this page applies: retained object, technique, consent, or after-care? Each has a different proof, and the first has a different deadline. The expert requirement is on the affidavit page.

Sources

• Official Code of Georgia Annotated, November 2022 public release: §§ 9-3-71, 9-3-72, 9-3-73, 24-7-702, 31-9-6.1, 51-1-27, 51-1-29.5, 51-2-2, 51-2-5.1
• Zwiren v. Thompson, 276 Ga. 498

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.