The Georgia Court of Appeals Fifth Division (“Georgia Appellate Court”), in its opinion dated June 11, 2020, affirmed the dismissal of the plaintiff’s Georgia medical malpractice lawsuit, holding “both of Brown’s [plaintiff’s] ante litem notices failed to indicate the place where the transaction occurred, which is an entire category found in OCGA § 50-21-26 (a) (5) (C). Although Brown argues that the risk manager knew where he was treated, arguably implying actual notice, our precedent makes clear that this fact is irrelevant. Nevertheless, “[e]ven when the state agency has actual notice, a claimant is not excused from strictly complying with the notice requirements.””
The Underlying Facts
Brown’s presuit notice of claim, dated March 9, 2017, alleged that physicians employed by Augusta University Medical Center, which operated under the auspices of the Board of Regents of the University System of Georgia (“the Board”), failed to timely diagnose his lung cancer. One doctor ordered a chest x-ray in October 2016, due to his complaints of shortness of breath, and another, a radiologist, reviewed the scans, noticed a significant abnormality, and ordered a chest CT evaluation. The followup, which was not performed until May 2017, ultimately revealed a lung malignancy. Brown submitted a second presuit notice dated May 18, 2018, setting forth the same facts to correct typographical errors in the original filing.
In October 2018, Brown filed a Georgia medical malpractice action against the Board and several other defendants. In December 2018, the Board filed a motion to dismiss Brown’s complaint, arguing that Brown’s second presuit notice, dated May 18, 2018, failed to state the place of the transaction or occurrence as required by OCGA § 50-21-26 (a) (5) (C).
Georgia Tort Claims Act (“GTCA”)
Pursuant to the Georgia Tort Claims Act (“GTCA”) § 50-21-26 (a) (5): “A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following:
(A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim;
(B) The time of the transaction or occurrence out of which the loss arose;
(C) The place of the transaction or occurrence;
(D) The nature of the loss suffered;
(E) The amount of the loss claimed; and
(F) The acts or omissions which caused the loss.”
Georgia Appellate Court Opinion
The Georgia Appellate Court stated, “Brown clearly knew of the x-ray report’s existence. Further, as a practical matter, nothing in the record indicates, nor does Brown assert, that he was unaware of the location or the place where he underwent his October 2016 x-ray exam. Arguably, despite the minimal prejudice to the State, “the legislature plainly listed the required elements of an ante litem notice, and this Court is not authorized to ignore an element that is wholly absent from an ante litem notice.””
The Georgia Appellate Court held: “Based on the foregoing and in light of the specific facts of this case, we affirm the trial court’s dismissal of Brown’s complaint.”
Source Brown v. The Board of Regents of the University System of Georgia, A20A0344.
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