O.C.G.A. 9-3-71 Interpretation
What Is the Purpose of the Legislature In Classifying Foreign Object Medical Malpractice Cases As Continuing Torts ?
The legislative interests in classifying foreign object medical malpractice cases under O.C.G.A. 9-3-72 as continuing torts were set forth in the 1980 decision in Dalbey v. Banks, 245 Ga. 162, 163 (264 S.E.2d 4) (1980):
Where a physician places a foreign object in his patient's body during treatment, he has actual knowledge of its presence.
His failure to remove it goes beyond ordinary negligence so as to be classified by the legislature as a continuing tort which tolls the statute of limitations until the object is discovered.
The purpose of the legislature in making [this type of medical malpractice a continuing tort] was to allow the plaintiff's claim which does not rest on professional diagnostic judgment or discretion to survive until actual discovery of the wrongdoing.
In such situations the danger of belated, false or frivolous claims is eliminated.
The foreign object in the patient's body is directly traceable to the doctor's malfeasance. Dalbey, 245 Ga. at 163-164.
By contrast, in Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 659 (437 S.E.2d 308) (1993), the court identified the legislative interests behind the two-year statute of limitation and the five-year statute of repose in O.C.G.A. 9-3-71.
According to Craven, the purpose of the statute of limitation was the elimination of stale claims. Id. at 659-660.
As to the five-year statute of repose included in the 1985 amended version of O.C.G.A. 9-3-71, Craven concluded that it was directed toward the following interests:
Because of the nature of the practice of medicine, uncertainty over the causes of illness and injury makes it difficult for insurers to adequately assess premiums based on known risks.
Furthermore, the passage of time makes it more difficult to determine the cause of injury, particularly in diseases where medical science cannot pinpoint the exact cause.
Therefore, we conclude that the purpose of the statute of repose is rational. Craven, 263 Ga. at 658.