1. Did the injury occur within the past two years?

If yes, then go to next question.

If not, then the claim is likely barred, unless there is some reason the statute has been tolled.

Note: In Georgia, the statute of limitations for medical malpractice claims begins at the time of the injury, not necessarily the negligent act or omission. In most cases, the date of injury is the date of the treatment; however, in some instances, particularly in failure to diagnose claims, determining the date of injury is not an easy task. A careful review of the entire medical record is necessary to ascertain the appropriate accrual date.

2. Did the negligence occur less than five years ago?

If yes, then go to the next question.

If not, then the claim is likely barred

Note: Georgia has a five-year statute of repose in medical cases. Unlike the statute of limitation, the repose period begins from the date of negligence. In situations where the patient has had an extensive history with the potential physician defendant, particularly for a related condition or injury, this can be problematic. It is important to carefully review the entire medical record to determine if the statute of repose is an issue.

3. Did the patient suffer a substantial injury or death as a result of the care or lack of care?

If yes, then go to the next question.

If the patient suffered minimal injury or damage, has since recovered from the injury, it is unlikely a malpractice action will be warranted.

Note: Malpractice actions are extremely costly and difficult to pursue. Even a simple case will likely require and investment of at least $75,000 to get to trial, and many medical cases will cost twice that amount or more. Therefore, in order to justify the cost, the damages recoverable must be substantial.

4. Did the medical provider's care fall below the professional standard of care?

If yes, then go to the next question.

If not, an essential element of the claim is missing.

Note: Determining the answer to this question is what separates medical malpractice actions from other torts. In almost no case is the answer known based solely on the client's description of the case. Establishing whether the standard of care has or has not been met requires a careful review of all of the records by counsel and consultation with competent medical expert(s) who can and will provide expert opinion testimony on negligence and causation. Unlike other tort claims, Georgia law requires that any suit for professional negligence must be supported by an expert affidavit at the time of filing.

5. Was the potential plaintiff's injury caused by the alleged negligence?

If yes, then go to the next question.

If not, an essential element of the claim is missing.

Note: Causation is one of the most difficult elements to prove in malpractice actions. Medical malpractice cases are unique in that the plaintiff typically is already hurt or suffering from an adverse medical condition when the physician or medical provider becomes involved. The provider is only responsible for any injury or additional harm suffered as a result of his or her care or lack of care. It is often difficult to determine what damages were suffered as a consequence of the original injury or illness as opposed to anything the medical provider did or didn't do.

6. Did the patient receive the treatment in the Emergency Room?

If not, then go to the next question.

If yes, the next question is whether you can establish "gross negligence.

Note: In Georgia, a plaintiff can recover for injuries related to care that is provided in an emergency department, or in an obstetrical unit or surgical suite immediately following evaluation in the ER, only if the care is deemed "grossly negligent," which must be established by "clear and convincing evidence." This is an extremely difficult burden, which essentially establishes immunity for ER claims.

7. If the case involves a death, was an autopsy performed?

If yes, then go the next question.

If not, this does not mean that the case is not viable, but proving causation will be very difficult.

8. Do you have the expertise and financial resources to prepare the case?

If yes, then get started.

If no, then associate counsel who does. Do so without delay!