Anesthesia Errors in Georgia: Dosing Mistakes and Intraoperative Awareness

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When a patient is harmed under anesthesia, the claim in Georgia is a medical malpractice claim, and two features set it apart. The defendant may be a physician anesthesiologist or a certified registered nurse anesthetist, and the statute that decides who may testify against each is specific. And the harm can be psychological rather than physical, which raises a separate rule about when emotional distress is recoverable.

The Malpractice Label

How the claim is labeled matters. In Southeastern Pain Specialists, P.C. v. Brown, 303 Ga. 265 (2018), a patient under propofol sedation during an epidural steroid injection suffered a catastrophic brain injury after pulse-oximeter alarms and zero readings, and the jury returned a verdict of roughly $22 million. The Supreme Court held that even a very strong malpractice case does not turn into ordinary negligence because the malpractice was egregious, since deciding how to respond to monitoring data during a procedure calls for medical judgment. It reversed because the jury had been instructed on both ordinary negligence and malpractice and ordered a new trial for the appellants. The label determines which rules apply, including the expert requirements below.

Whose Standard: Anesthesiologist or Nurse Anesthetist

OCGA 9-11-9.1(a) requires a professional-malpractice complaint against a listed licensed professional, or against a health care facility or entity liable for that professional’s conduct, to be filed with an affidavit of a competent expert that sets out at least one negligent act or omission and the factual basis for each claim. Medical doctors and nurses are among the listed professions (subsection (g)).

The expert’s qualifications come from OCGA 24-7-702(c)(2). At the time of the alleged act, the expert must have had actual professional knowledge and experience in the area of practice at issue through active practice or teaching for at least three of the last five years, and, except under the crossover described next, must be a member of the same profession as the defendant. The crossover is defined: a physician who during at least three of the last five years supervised, taught, or instructed nurse anesthetists, among others, and so has knowledge of the standard of care of that provider, is competent to testify to that provider’s standard, but a nurse anesthetist is not competent to testify to the standard of care of a physician (subparagraph (D)). The Supreme Court applies the rule as written: a witness must belong to the defendant’s profession or be a physician who meets the supervision requirement, whatever the witness’s personal experience with the treatment at issue (Hankla v. Postell, 293 Ga. 692 (2013)).

Matching the expert to the defendant is therefore a threshold task.

Awareness, Airway, and Dosing Claims

Anesthesia claims can take several forms, for example a response to monitoring alarms like the one in Brown, a wrong drug or dose, a drug given despite a documented allergy, or awareness during surgery. One clinical study, published in the Iranian Red Crescent Medical Journal in 2014, describes awareness during general anesthesia as an important adverse event and reports psychological aftereffects that include sleep disturbances, nightmares, and daytime anxiety.

Each claim needs expert proof of causation stated in terms stronger than possibility, as a reasonable medical probability or reasonable medical certainty (Zwiren v. Thompson, 276 Ga. 498 (2003)). Awareness claims add a legal question. In negligence cases, Georgia’s impact rule allows emotional distress damages only where a physical impact caused a physical injury and that injury caused the distress (Lee v. State Farm Mutual Insurance Co., 272 Ga. 583 (2000)). A claim whose main injury is the distress of having been aware is measured against that test.

Who Else Answers

A hospital can be responsible for anesthesia care delivered by an outside group in two ways. Under apparent agency, a hospital that represented that its physicians were its employees, on which the patient justifiably relied, may be liable for the legal insufficiency of their services (Richmond County Hospital Authority v. Brown, 257 Ga. 507 (1987)). The statute limits that theory: absent actual agency or employment, a hospital that posts the notice OCGA 51-2-5.1 requires in the form the statute provides is not liable for the acts of an independent-contractor health care provider (Hunter v. Emory-Adventist, Inc., 323 Ga. App. 537 (2013), in which two judges concurred only in the judgment).

Deadlines

An action for medical malpractice must be brought within two years after the date on which an injury or death arising from a negligent act or omission occurred, and never more than five years after the date of the negligent act or omission (OCGA 9-3-71(a), (b)). Minors and legally incompetent persons are covered by OCGA 9-3-73.

For example, imagine an anesthesia event on June 1, 2025. Two years after the injury would end on June 1, 2027, and the five-year outer limit measured from the act would end on June 1, 2030. By the terms of subsection (b), an injury connected to the event cannot be sued on after that date.

Frequently Asked Questions

Does the hospital’s independent-contractor notice work if the patient never saw it?
Yes, if it meets the statute. A notice posted as the statute requires, or a written acknowledgment signed by the patient or the patient’s representative, is sufficient even if the patient did not see or read it for any reason, including medical condition or language proficiency (OCGA 51-2-5.1(c)-(e)).

How is it decided whether the anesthesia provider was the hospital’s employee?
By the contract between the provider and the hospital; without a clear contract, the provider is treated as an employee or actual agent only if a preponderance of the evidence shows the hospital reserves the right to control the time, manner, or method of the provider’s services (OCGA 51-2-5.1(f)).

Can a defective expert affidavit be fixed?
Yes. It can be cured by amendment within 30 days after service of a motion challenging it (OCGA 9-11-9.1(e)), and the Supreme Court allowed the cure through the affidavit of a second, competent expert in Gala v. Fisher, 296 Ga. 870 (2015).

Does the malpractice damages cap limit pain and suffering?
No. The Supreme Court held in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), that applying the OCGA 51-13-1 cap to pain and suffering and loss of consortium damages violates the right to a jury trial, and it reaffirmed that holding in Clark v. Leigh, 324 Ga. 733 (2026), leaving open whether the cap could apply to a wrongful-death award standing alone.

  • OCGA 9-11-9.1(a), (e), (g); OCGA 24-7-702(c)(2); Hankla v. Postell, 293 Ga. 692 (2013); Gala v. Fisher, 296 Ga. 870 (2015)
  • Southeastern Pain Specialists, P.C. v. Brown, 303 Ga. 265 (2018); Zwiren v. Thompson, 276 Ga. 498, 578 S.E.2d 862 (2003); Lee v. State Farm Mutual Insurance Co., 272 Ga. 583 (2000)
  • Richmond County Hospital Authority v. Brown, 257 Ga. 507 (1987); OCGA 51-2-5.1(b)-(f); Hunter v. Emory-Adventist, Inc., 323 Ga. App. 537 (2013)
  • OCGA 9-3-71, 9-3-73
  • OCGA 51-13-1; Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010); Clark v. Leigh, 324 Ga. 733 (2026)
  • Iranian Red Crescent Medical Journal (2014), “The Ability of Bispectral-Guided Management Compared to Routine Monitoring for Reflecting Awareness Rate in Patients Undergoing Abdominal Surgery”

Disclaimer

This article provides general information about anesthesia error claims under Georgia law. It is not legal advice and does not create an attorney-client relationship. Whether a claim exists, who may be liable, and whether it is timely depend on the specific facts. A person harmed by an anesthesia error should consult a licensed Georgia attorney about the particular situation.

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