A surgical error is a medical malpractice claim, so it needs the same proof as any other: the standard of care, a departure from it, and an injury caused by the departure. A bad outcome alone proves nothing, because a known complication can happen in competent hands.
Georgia’s procedural gates arrive early:
- Expert affidavit. O.C.G.A. § 9-11-9.1 requires an expert’s affidavit with the complaint, naming at least one negligent act or omission and its factual basis. Subsection (b) has a narrow exception when the deadline will expire within ten days of filing and the firm was hired too late to prepare one.
- Deadline. Two years from the injury, and in no event more than five years from the act, under § 9-3-71.
- Retained objects. Section 9-3-72 removes those limits for a foreign object left in the body, but gives only one year after discovery. A “chemical compound, fixation device, or prosthetic aid or device” does not count.
Consent is a different question from technique. For surgery under general, spinal, or major regional anesthesia, § 31-9-6.1 requires disclosure of listed material risks, and a failure can support a malpractice action if a reasonably prudent patient would have refused. A flawlessly performed operation can raise that issue, and a perfect consent form doesn’t excuse a careless operation.
Causation needs its own proof. Under Zwiren v. Thompson (2003), the expert has to tie the departure to the injury as a reasonable degree of medical probability, not a mere possibility. Operative notes, anesthesia records, and the implant log are what that expert reads first, so a patient can request the full chart early.
General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.