Statute of limitations and repose for Georgia medical malpractice: O.C.G.A. § 9-3-71

Georgia gives a malpractice plaintiff two years from the injury or death and sets an outer limit of five years from the negligent act. O.C.G.A. § 9-3-71(a) and (b) use different starting events, and mixing them up gives the wrong date. Discovery of the error starts neither clock. Children, foreign objects, fraud, and public defendants each change the calculation.

Two clocks with two different starting points

Period	Length	Starts on	Statute
Limitation	2 years	The date "an injury or death" occurred	§ 9-3-71(a)
Repose	5 years	The date of the "negligent or wrongful act or omission"	§ 9-3-71(b)

Subsection (c) calls the second period “a five-year statute of ultimate repose and abrogation”. A surgery and the injury from it can happen the same day, so the two start together. A missed diagnosis is where they separate.

When the injury happens in a misdiagnosis case

The Supreme Court of Georgia addressed this in Amu v. Barnes, 283 Ga. 549 (2008). In the usual misdiagnosis case, it said, the injury begins “immediately upon the misdiagnosis”, through the pain, suffering, or economic loss from that point forward. The clock runs even if the patient does not know the diagnosis was wrong.

The Court also confirmed a limited exception: the “new injury” rule. It applies where a person has a benign and treatable condition that, because it was misdiagnosed and left untreated, “subsequently develops into a much more serious and debilitating condition”, and symptoms appear after a period without symptoms. In Amu, a missed diagnosis in January 2000 led to metastatic colon cancer, and symptoms returned in June 2004. The two-year period ran from the symptoms of the new injury in 2004 as to that injury. The earlier losses had long since been barred.

Two limits matter. The Court said the exception does not apply when the evidence shows only that the same condition was misdiagnosed and mistreated. It is also not a discovery rule. The trigger is the date of the new injury. The five-year limit is separate: as the facts in Amu suggest, a case can pass the two-year test and still have to clear the repose date.

The five-year limit

Section 9-3-71(b) says “in no event” may the action be brought more than five years after the act. A person who first has symptoms in year six has nothing left under this section, however strong the evidence. Fraud does not change that result as a matter of course: § 9-3-96 stops the limitation clock when fraud deterred the plaintiff, but Esener v. Kinsey, 240 Ga. App. 21 (1999), says “The statute of repose is not tolled by fraud”, while addressing estoppel as a separate question generally for a jury.

Foreign objects

O.C.G.A. § 9-3-72 replaces these limits when “a foreign object has been left in a patient’s body”, and gives one year after the negligent act “is discovered”. The term “shall not include a chemical compound, fixation device, or prosthetic aid or device”, so a failed implant falls outside this rule, and a retained sponge falls under it.

Children

Section 9-3-73 sets its own schedule, based on age at the time of the act. Birth injury claims apply it to a child hurt at delivery.

Age at the act	Limitation	Outer limit
Under 5	Two years from the fifth birthday, so the last day is the seventh birthday	Tenth birthday
5 or older	The ordinary period in § 9-3-71 applies	5 years from the act

A statement that the two years run “from the seventh birthday” adds two years to the deadline and is wrong. A foreign object in a child’s body stays under § 9-3-72, as § 9-3-73(e) says. Persons who are legally incompetent have a separate five-year outer limit under subsection (c)(1).

The child’s right is separate from a parent’s own claims. The extension should not be assumed for a parent’s claim for medical bills.

Death

Section 9-3-71(a) refers to “injury or death”, so a family’s claim runs two years from the death, subject to the same five-year outer limit from the act. See wrongful death from medical malpractice.

Public defendants come first

A claim against a state facility or employee needs written notice within 12 months of when the loss was or should have been discovered under § 50-21-26. A county has 12 months, and a city 6 months, under the sections described in pre-suit notice requirements.

The affidavit does not stop the clock

O.C.G.A. § 9-11-9.1(c) says the statute “shall not be construed to extend any applicable period of limitation”, apart from its own 45-day rule, explained on the expert affidavit page. A filing near the end of a period leaves little room for finding a qualified expert.

How to build the calendar

Write down three dates: the act, the first symptom or harm from it, and any later change in condition. Add five years to the act. Add two years to the injury date, and treat the earliest possible injury date as the safe one, unless a lawyer has concluded that the new injury rule applies. Each separate act over a course of care may need its own line. If the patient was under five, use the child’s table instead.

Sources

• Official Code of Georgia Annotated, November 2022 public release: §§ 9-3-71, 9-3-72, 9-3-73, 9-3-96, 9-11-9.1, 50-21-26
• Amu v. Barnes, 283 Ga. 549
• Esener v. Kinsey, 240 Ga. App. 21

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.