Tolling of Limitations for Medical Malpractice

  1. Law
  2. Georgia Code
  3. Civil Practice
  4. Limitations of Actions
  5. Tolling of Limitations
  6. Tolling of Limitations for Medical Malpractice

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  1. The periods of limitation for bringing an action for medical malpractice as provided in Code Sections 9-3-71 and 9-3-72 shall be tolled if:
    1. The injured person or his duly appointed attorney makes a request by certified or registered mail or statutory overnight delivery, return receipt requested, upon any physician, hospital, or other health care provider for medical records in their custody or control relating to such injured person's health or medical treatment which medical records the injured person is entitled by law to receive;
    2. The request, if made by an injured person's duly appointed attorney, has enclosed therewith a properly executed medical authorization authorizing release of the requested information to said attorney;
    3. Such request expressly requests that the medical records be mailed to the injured person or his attorney by certified or registered mail or statutory overnight delivery, return receipt requested and states therein that the requested records are needed by the injured person for possible use in a medical malpractice action;
    4. The injured person or his attorney has promptly paid all fees and costs charged by such physician, hospital, or other health care provider for compiling, copying, and mailing such medical records; and
    5. Such medical records or a letter of response stating that the provider does not have custody or control of the medical records has not been received by the injured person or his attorney within 21 days of the date of receiving such request.

      Such periods of limitation shall cease to run on the twenty-second day following the day such request was received and shall resume on the day following the date such medical records, or response stating that the provider does not have custody or control of the medical records, are actually received by such injured person or his attorney; provided, however, that such periods of limitation shall be tolled only once for any cause of action.

  2. Any action filed in reliance upon a tolling of the statute of limitations as authorized by this Code section shall contain in the complaint as first filed allegations showing that the plaintiff is entitled to rely upon the provisions of this Code section, and said complaint as first filed shall have attached thereto as exhibits copies of the request, medical release, and evidence of mailing and receipt by certified or registered mail or statutory overnight delivery.
  3. Notwithstanding any other provision of this Code section, no period of limitation shall be tolled for a period exceeding 90 days except as provided in this subsection. In the event the procedure set forth in subsection (a) of this Code section has been followed by an injured person but the requested records or a letter of response stating that the provider does not have custody or control of the medical records have not been received within 85 days, the injured person shall have the right to petition the court for an order tolling the period of limitation beyond the 90 days and requiring the delivery of the medical records originally requested or a letter of response stating that the provider does not have custody or control of the medical records.
  4. It is intended that the provisions of this Code section tolling the statute of limitations for medical malpractice under certain circumstances be strictly complied with and strictly construed.

(Code 1981, §9-3-97.1, enacted by Ga. L. 1989, p. 419, § 2; Ga. L. 2000, p. 1589, § 4.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

O.C.G.A. § 9-3-97.1 does not prescribe exact language for identifying the records sought, and using slightly different language in the request and the authorization to release records does not change the request itself. Ajayi v. Williams, 248 Ga. App. 325, 546 S.E.2d 537 (2001), overruled on other grounds by VATACS Group, Inc. et al. v. Homeside Lending, Inc., 281 Ga. 50, 635 S.E.2d 758 (2006).

Requirement that records be sent "return receipt requested."

- There was no violation of O.C.G.A. § 9-3-97.1 because the plaintiff failed to request that the plaintiff's medical records be mailed by certified or registered mail or statutory overnight delivery, "return receipt requested," since such requirement is for the protection of the patient making the request rather than the provider, and it was undisputed that the records were never sent. Ajayi v. Williams, 248 Ga. App. 325, 546 S.E.2d 537 (2001), overruled on other grounds by VATACS Group, Inc. et al. v. Homeside Lending, Inc., 281 Ga. 50, 635 S.E.2d 758 (2006).

Request for certified copies of records.

- There was no violation of O.C.G.A. § 9-3-97.1 because the plaintiff requested certified copies of the plaintiff's medical records, notwithstanding that such request is not authorized by the statute; however, because compliance with this request was not mandated by the statute, but was merely an additional request of terms with which the defendant was not required to comply. Ajayi v. Williams, 248 Ga. App. 325, 546 S.E.2d 537 (2001), overruled on other grounds by VATACS Group, Inc. et al. v. Homeside Lending, Inc., 281 Ga. 50, 635 S.E.2d 758 (2006).


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