Georgia law places a deadline on bringing a medical malpractice claim, and that deadline applies to a medical malpractice wrongful death case as well. The state also provides a narrow mechanism that can pause, or toll, that deadline while a person waits for medical records to be produced. This tolling provision is detailed, technical, and applied strictly by Georgia courts. Understanding how it works requires looking at the underlying limitation period and the precise steps the statute describes.
The Underlying Limitation Period
Medical malpractice claims in Georgia are governed by a specific statute of limitations found at O.C.G.A. section 9-3-71. The general rule is that an action for medical malpractice must be brought within two years after the date on which the negligent or wrongful act or omission caused the injury or death. Georgia law also includes a separate outer limit, known as a statute of repose, that bars most medical malpractice actions brought more than five years after the act or omission, regardless of when the injury is discovered. In a wrongful death case based on alleged medical malpractice, these timing rules shape when the claim must be filed.
The Medical Records Tolling Statute
The tolling provision tied to medical records requests is O.C.G.A. section 9-3-97.1. It allows the limitation periods for medical malpractice, including those in section 9-3-71, to be paused when a request for medical records is made in a particular way and the records are not promptly produced. The statute is designed to address the situation in which a person cannot evaluate a potential claim because the relevant records have not yet been received.
How the Request Must Be Made
The tolling does not happen automatically and does not happen because of any informal request. The statute requires that the request for medical records be made by the injured person or that person’s duly appointed attorney, and that it be sent by certified or registered mail, or by statutory overnight delivery, with return receipt requested. The request must be directed to a physician, hospital, or other health care provider, and it must seek medical records in that provider’s custody or control relating to the health or treatment of the injured person, records that the person is entitled by law to receive. The certified or tracked delivery requirement exists so that the date of receipt can be established with certainty.
When the Clock Stops and Restarts
The statute sets out a specific timeline. The limitation period does not stop on the day the request is sent. Instead, it ceases to run on the twenty-second day following the day the request was received by the provider. The period then resumes running on the day after the date the medical records are actually received by the injured person or the attorney, or after the date a response is received stating that the provider does not have custody or control of the records.
In other words, the statute builds in an initial window for the provider to respond before any tolling begins, and then pauses the clock during the wait for the records once that window has passed. Importantly, the statute allows this tolling to occur only once for any given cause of action. A second records request does not produce a second period of tolling.
The Court Petition for Additional Time
The statute also addresses what happens when a provider is slow. If the injured person has followed the required procedure but has not received the requested records, or a response stating the provider lacks custody or control, within 85 days, the statute gives that person the right to petition the court for an order tolling the limitation period beyond the period the statute otherwise provides. This judicial step exists for the situation in which a provider’s delay would otherwise leave a person without enough time even after the statutory tolling.
Strict Compliance Is Required
A central feature of O.C.G.A. section 9-3-97.1 is its instruction that the tolling provision is to be strictly complied with and strictly construed. Georgia courts apply this directive seriously. A request that does not use one of the required delivery methods, that is not sent by the injured person or a duly appointed attorney, or that otherwise departs from the statutory procedure may fail to produce any tolling at all. Because the consequence of a missed deadline in a malpractice case is severe, the strict construction standard means the precise mechanics of the statute carry real weight.
Application in Wrongful Death Cases
A wrongful death claim based on medical malpractice is subject to the medical malpractice limitation rules, and the medical records tolling provision can apply within that framework. When the records needed to evaluate a potential medical malpractice wrongful death claim are held by a physician, hospital, or other provider, a request that meets the statutory requirements can pause the running of the limitation period under the timeline described above. Other tolling doctrines recognized in Georgia, such as those connected to the administration of an estate, operate separately and under their own rules.
Summary
In Georgia, the medical records tolling provision at O.C.G.A. section 9-3-97.1 can pause the medical malpractice statute of limitations, including in a medical malpractice wrongful death case. Tolling requires a properly directed records request sent by certified or registered mail or statutory overnight delivery with return receipt requested. The limitation period stops on the twenty-second day after the provider receives the request and resumes the day after the records or a no-custody response are received, and this tolling is available only once per cause of action. If records are not produced within 85 days, the statute permits a petition to the court for additional tolling. Georgia law requires strict compliance with every part of this procedure.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.