(d) Nothing contained in subsection (a) or (b) of this
Code section shall be construed to repeal Code Section 9-3-73, which
shall be deemed to apply either to the applicable statutes of
limitation or repose.
9-3-97.1.
(a) The periods of limitation for bringing an action for
medical malpractice as provided in Code Sections 9-3-71 and 9-3-72 shall
be tolled if:
(1) The injured person or his duly appointed attorney
makes a request by certified or registered mail or statutory overnight
delivery, return receipt requested, upon any physician, hospital, or
other health care provider for medical records in their custody or
control relating to such injured person's health or medical treatment
which medical records the injured person is entitled by law to receive;
(2) The request, if made by an injured person's duly
appointed attorney, has enclosed therewith a properly executed medical
authorization authorizing release of the requested information to said
attorney;
(3) Such request expressly requests that the medical
records be mailed to the injured person or his attorney by certified or
registered mail or statutory overnight delivery, return receipt
requested and states therein that the requested records are needed by
the injured person for possible use in a medical malpractice action;
(4) The injured person or his attorney has promptly paid
all fees and costs charged by such physician, hospital, or other health
care provider for compiling, copying, and mailing such medical records;
and
(5) Such medical records or a letter of response stating
that the provider does not have custody or control of the medical
records has not been received by the injured person or his attorney
within 21 days of the date of receiving such request.
Such periods of limitation shall cease to run on the
twenty-second day following the day such request was received and shall
resume on the day following the date such medical records, or response
stating that the provider does not have custody or control of the
medical records, are actually received by such injured person or his
attorney; provided, however, that such periods of limitation shall be
tolled only once for any cause of action.
(b) Any action filed in reliance upon a tolling of the
statute of limitations as authorized by this Code section shall contain
in the complaint as first filed allegations showing that the plaintiff
is entitled to rely upon the provisions of this Code section, and said
complaint as first filed shall have attached thereto as exhibits copies
of the request, medical release, and evidence of mailing and receipt by
certified or registered mail or statutory overnight delivery.
(c) Notwithstanding any other provision of this Code
section, no period of limitation shall be tolled for a period exceeding
90 days except as provided in this subsection. In the event the
procedure set forth in subsection (a) of this Code section has been
followed by an injured person but the requested records or a letter of
response stating that the provider does not have custody or control of
the medical records have not been received within 85 days, the injured
person shall have the right to petition the court for an order tolling
the period of limitation beyond the 90 days and requiring the delivery
of the medical records originally requested or a letter of response
stating that the provider does not have custody or control of the
medical records.
(d) It is intended that the provisions of this Code
section tolling the statute of limitations for medical malpractice under
certain circumstances be strictly complied with and strictly construed.
9-3-72.
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. For the purposes of this Code section, the term
'foreign object' shall not include a chemical compound, fixation device, or
prosthetic aid or device.
9-3-73.
(a) Except as provided in this Code section, the disabilities
and exceptions prescribed in Article 5 of this chapter in limiting actions
on contracts shall be allowed and held applicable to actions, whether in
tort or contract, for medical malpractice.
(b) Notwithstanding Article 5 of this chapter, all persons
who are legally incompetent because of mental retardation or mental illness
and all minors who have attained the age of five years shall be subject to
the periods of limitation for actions for medical malpractice provided in
this article. A minor who has not attained the age of five years shall have
two years from the date of such minor's fifth birthday within which to
bring a medical malpractice action if the cause of action arose before such
minor attained the age of five years.
(c) Notwithstanding subsections (a) and (b) of this Code
section, in no event may an action for medical malpractice be brought by or
on behalf of:
(1) A person who is legally incompetent because of mental
retardation or mental illness more than five years after the date on which
the negligent or wrongful act or omission occurred; or
(2) A minor:
(A) After the tenth birthday of the minor if such minor was
under the age of five years on the date on which the negligent or wrongful
act or omission occurred; or
(B) After five years from the date on which the negligent or
wrongful act or omission occurred if such minor was age five or older on the
date of such act or omission.
(d) Subsection (b) of this Code section is intended to create
a statute of limitations and subsection (c) of this Code section is intended
to create a statute of repose.
(e) The limitations of subsections (b) and (c) of this Code
section shall not apply where a foreign object has been left in a patient's
body. Such cases shall be governed by Code Section 9-3-72.
(f) The findings of the General Assembly under this Code
section include, without limitation, that a reasonable relationship exists
between the provisions, goals, and classifications of this Code section and
the rational, legitimate state objectives of providing quality health care,
assuring the availability of physicians, preventing the curtailment of
medical services, stabilizing insurance and medical costs, preventing stale
medical malpractice claims, and providing for the public safety, health, and
welfare as a whole.
(g) No action which, prior to July 1, 1987, has been barred
by provisions relating to limitations of actions shall be revived by this
article, as amended. No action which would be barred before July 1, 1987, by
the provisions of this article, as amended, but which would not be so barred
by the provisions of this article and Article 5 of this chapter in force
immediately prior to July 1, 1987, shall be barred until July 1, 1989.
