Child Injury Claims – Georgia Statutes of Limitation

A statute of limitation is a deadline for filing suit. It is the maximum time an injured person has after an injury to file a law suit. If the deadline has passed and no suit was filed, no legal action is permitted.

Under some circumstances, however, the statute of limitation is suspended or “tolled.” Tolling means that an injured person is given more time before the statute of limitation expires or “runs out.”

To illustrate how tolling works, think of an hourglass. It is as if on the day of injury, the law turns the hourglass and the sand begins to flow. When the sand stops flowing, your time to file suit is up. Tolling suspends time, so to speak, it pushes back the time when the law turns the hourglass.

The law speaks of tolling in terms of legal disability. The rationale for tolling a statute of limitation in a particular instance is that the law deems that a particular class of claimants labor under a disability of some sort and therefore should not be held to the same standards as those who suffer from no disability.

One such disability is being a minor. The statute of limitation is generally tolled on a minor’s claim during the period of that child’s disability (during the period the child is legally considered a child, which means until the child turns 18). Once the child’s disability is removed (by turning 18), the hourglass is turned over and the statute of limitation sands begins to flow.

To give a for instance – in Georgia persons who do not labor under a legal disability (most adults come to mind) and who are injured in an automobile accident are given 2 years in which to either settle their claim or file a lawsuit. After the two year statute of limitation expires, they lose all their legal rights with regard to the injury claim arising from that automobile accident. Yet a child who is injured in that same accident would be given until their 20th birthday to settle or sue. The two year statute of limitation does not begin to run until they reach their 18th birthday.

But there are exceptions that complicate things. Children who are the victims of sexual abuse are given until their 23rd birthday to settle or sue. And children who are the victims of medical malpractice are handled altogether differently. For malpractice occurring before the child’s fifth birthday, the child’s suit must be filed by the seventh birthday. For acts of medical malpractice occurring after the fifth birthday, the limitation period is two years from the date of the malpractice.

To make matters even more complicated, Georgia law views any medical or necessary expenses arising from an injury to a child as belonging to the parents of that child, not the child itself. So the parents must bring a claim for medical expenses and that claim must be filed within four years of the date of injury, except when the claim arises from medical malpractice the claim must be filed within two years.

Simple, huh? And in case you’ve been following all this, here is another wrinkle. There is a recent decision from the Georgia Court of Appeals where the Court confused the rules concerning which statute of limitation applies to the parent’s claim for medical expenses  and applied the medical malpractice two year limitation in cases that do not arise from medical malpractice.  Because the Courts have not yet corrected this mistake, suits for a parent’s claim for a child’s medical expenses should be filed within two years of the date of injury, even when no medical malpractice was involved.

There also are ante litem notice requirements. Ante litem notices are required anytime you have a claim against a governmental entity, such as Cities, Counties, States, or the federal government. Ante litem notices act like statutes of limitation. If you fail to notify the right department in the proper manner,  you and your child’s claim will be forever barred. Some of these deadlines are breathtakingly short, as short as six months from the date of injury.

If your head is not swimming by this point, it should be. Determining which statute of limitation applies to which part of what claims is not for the layperson. We lawyers have to check and double check it ourselves.

If you have any questions about these important issues, the time to call is immediately. Statutes of limitations are unforgiving. Let me help you make certain you do not miss a deadline. You can contact me here, here, or here.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s