Surgical Errors in Georgia: Wrong Site Surgery and Retained Objects

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A claim for a surgical error is a medical malpractice claim under Georgia statutes, and those statutes attach conditions that an ordinary injury claim does not have: an expert’s affidavit filed with the complaint, a two-year limitation period with a five-year outer limit, and a separate one-year rule for an object left in a patient’s body.

What Counts as Medical Malpractice

An “action for medical malpractice” is “any claim for damages resulting from the death of or injury to any person arising out of” health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform it, or care or service rendered by a hospital, nursing home, clinic, or similar facility or its employees (OCGA 9-3-70). “A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had” (OCGA 51-1-27).

Not every claim arising in an operating room is professional negligence. In Lamb v. Candler General Hospital, Inc., 262 Ga. 70 (1992), a hospital used a replacement part from another company in eye-surgery equipment despite the manufacturer’s warning, and the Supreme Court of Georgia held that the hospital owed a duty of ordinary care to furnish equipment and that the claim did not require a physician’s affidavit, reasoning, with Jones v. Bates, that a claim is medical malpractice only when the professional’s act or omission calls for expert medical judgment. In Southeastern Pain Specialists, P.C. v. Brown, 303 Ga. 265 (2018), the Court wrote that “a very strong case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice.”

Wrong-Site Surgery

The Joint Commission’s Universal Protocol, as set out in its National Patient Safety Goals effective January 2026 for the Office-Based Surgery Program, begins its site-marking requirement with the statement that “[w]rong-site surgery should never happen.” It calls for three steps: a preprocedure process “to verify the correct procedure, for the correct patient, at the correct site”; marking the procedure site, at a minimum when there is more than one possible location for the procedure and performing it in a different location would negatively affect quality or safety; and a time-out “immediately before starting the invasive procedure or making the incision,” during which the team agrees at a minimum on the correct patient identity, the correct site, and the procedure to be done. Those steps are the accrediting body’s standard. In a Georgia lawsuit, the legal measure remains the reasonable degree of care and skill that OCGA 51-1-27 requires, shown through a qualified expert, and under the Supreme Court’s statement in Brown, egregiousness alone does not turn a malpractice claim into ordinary negligence.

The Expert’s Affidavit

In an action for damages alleging professional malpractice against a licensed professional on the statute’s list, or against an entity or licensed health care facility alleged to be liable for that professional’s act or omission, the plaintiff must file with the complaint an affidavit from a competent expert that identifies at least one negligent act or omission and the factual basis for each claim (OCGA 9-11-9.1(a)). The list in subsection (g) includes medical doctors, nurses, dentists, and radiological technicians, among others. If the limitation period will expire, or there is a good faith basis to believe it will, within ten days of filing, and the plaintiff alleges that an affidavit could not be prepared in time, the plaintiff may have 45 days after filing to supplement the pleadings, on the conditions in subsection (b), and a complaint without a required affidavit is subject to dismissal. If a defendant alleges with specificity that an affidavit is defective, “the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion” (OCGA 9-11-9.1(e)).

Three decisions describe how the requirement works:

  • What the affidavit is for. In Thompson v. Ezor, 272 Ga. 849 (2000), the Supreme Court called the affidavit “an initial pleading requirement” whose purpose is “to reduce the number of frivolous malpractice claims,” and held that contradictions in the affiant’s later testimony “go solely to the expert’s credibility, and are to be assessed by the jury.”
  • Replacing an unqualified affiant. In Gala v. Fisher, 296 Ga. 870 (2015), the Court held that the statute allows a plaintiff whose first affidavit came from an unqualified expert to amend with a second, competent expert’s affidavit within the 30 days.
  • Who falls outside the list. In Gillis v. Goodgame, 262 Ga. 117 (1992), decided before the current list in subsection (g), the Court held that a radiological physicist who calibrated a machine and did not practice medicine was outside the affidavit requirement.

The Time Limits

The general rule gives a medical malpractice action two years from the injury or death and sets an outer limit of five years from the negligent act or omission, whatever the date of injury; the statute treats the first as a limitation period and the second as repose (OCGA 9-3-71). An object left in the body is treated separately: “The limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient’s body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered,” and “foreign object” “shall not include a chemical compound, fixation device, or prosthetic aid or device” (OCGA 9-3-72). The same carve-out appears in the rules for minors and legally incompetent persons (OCGA 9-3-73(e)).

In Ringewald v. Crawford W. Long Memorial Hospital, 258 Ga. 302 (1988), a clamp was left in a patient’s chest during a July 1984 bypass and removed in a second operation the same day; the suit was filed in July 1986. The Supreme Court held that the one-year period ran from discovery “no matter whether the date of discovery is within or beyond the limitation period provided by OCGA § 9-3-71,” that the clamp was a foreign object and not a fixation device, and it affirmed summary judgment for the hospital by a vote of four to three. In Simmons v. Sonyika, 279 Ga. 378 (2005), the Court held that “the unrepresented estate statute does not toll the statute of ultimate repose in medical malpractice actions.” Minors and legally incompetent persons are subject to the medical malpractice periods with their own outer limits (OCGA 9-3-73(b), (c)).

For example, imagine an instrument left in a patient during an operation on January 15, 2027, and discovered on August 20, 2027. Under OCGA 9-3-72, the action must be brought within one year after discovery, by August 20, 2028. For a claim not involving a foreign object in which the injury occurred on January 15, 2027, the two-year period would end on January 15, 2029, and the five-year outer limit on January 15, 2032.

Georgia’s informed consent statute applies to surgery under general, spinal, or major regional anesthesia, and requires that the patient be informed in general terms of a diagnosis, the nature and purpose of the procedure, the “material risks generally recognized and accepted by reasonably prudent physicians,” the “likelihood of success,” the practical alternatives, and the prognosis if the procedure is rejected (OCGA 31-9-6.1(a)). A failure to comply is not a cause of action of its own, though it can support a medical malpractice action (OCGA 31-9-6.1(d)). In Blotner v. Doreika, 285 Ga. 481 (2009), the Court held that Georgia has no common law informed consent doctrine, that its requirements come only from statute and regulation, and that Ketchup v. Howard was “wrongly decided and is hereby overruled.”

Damages

In Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), the Supreme Court held that “the noneconomic damages caps in OCGA § 51-13-1 violate the right to a jury trial as guaranteed under the Georgia Constitution” and that “[t]he very existence of the caps, in any amount, is violative of the right to trial by jury.” In Clark v. Leigh, 324 Ga. 733 (2026), the Court reaffirmed Nestlehutt and held that “the cap statute’s damages cap is not capable of being applied in a case like this one, where a jury’s verdict includes noneconomic damages for a cause of action to which the right to trial by jury applies (the estate’s medical malpractice claim for pre-death pain and suffering).” The Court did not decide whether the cap could apply to a wrongful death award standing alone, “a question we do not reach today and express no opinion on.”

Frequently Asked Questions

Who is responsible for obtaining the patient’s informed consent?
Where consent is required, the responsible physician must ensure that the required information is disclosed and that the consent is obtained, and the information may be conveyed through written or recorded materials or through nurses, physician assistants, counselors, or others the physician knows to be capable of communicating it (OCGA 31-9-6.1(c)).

What records show whether the team verified the site?
The Universal Protocol’s verification step lists items that must be available before the procedure, including the history and physical, the signed procedure consent form, and properly displayed, labeled imaging and test results, and it requires that completion of the time-out be documented (Joint Commission, National Patient Safety Goals, Office-Based Surgery Program, effective January 2026, UP.01.01.01, UP.01.03.01).

Who can testify that a surgeon fell below the standard of care?
An expert licensed at the time of the operation who, for at least three of the last five years, regularly practiced or taught in that area with enough frequency, as the judge determines, in performing the procedure at issue, and who, with limited exceptions, is a member of the same profession (OCGA 24-7-702(c)).

Must a surgeon disclose personal factors such as health or drug use?
Not without the patient’s inquiry. “Absent inquiry by a patient or client, there is neither a common law nor a statutory duty” to disclose “unspecified life factors which might be subjectively considered to adversely affect the professional’s performance” (Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296 (2000)).

  • OCGA 9-3-70; OCGA 51-1-27; Lamb v. Candler General Hospital, Inc., 262 Ga. 70 (1992); Southeastern Pain Specialists, P.C. v. Brown, 303 Ga. 265 (2018)
  • OCGA 9-11-9.1(a), (b), (e), (g); Thompson v. Ezor, 272 Ga. 849 (2000); Gala v. Fisher, 296 Ga. 870 (2015); Gillis v. Goodgame, 262 Ga. 117 (1992)
  • OCGA 9-3-71; OCGA 9-3-72; OCGA 9-3-73(b), (c), (e); Ringewald v. Crawford W. Long Memorial Hospital, 258 Ga. 302 (1988); Simmons v. Sonyika, 279 Ga. 378 (2005)
  • OCGA 31-9-6.1(a), (c), (d); Blotner v. Doreika, 285 Ga. 481 (2009); Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296 (2000)
  • The Joint Commission, National Patient Safety Goals Effective January 2026 for the Office-Based Surgery Program, UP.01.01.01, UP.01.02.01, UP.01.03.01
  • OCGA 24-7-702(c)
  • Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010); Clark v. Leigh, 324 Ga. 733 (2026)

Disclaimer

This article provides general information about surgical malpractice claims under Georgia law. It is not legal advice and does not create an attorney-client relationship. Whether a claim is timely and what must be filed depend on the date of the error and its discovery, the professionals involved, and the specific facts. A person harmed by a surgical error should consult a licensed Georgia attorney promptly about the particular situation.

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