Georgia Court of Appeals Judge Clyde Reese. (Photo: John Disney/ALM)

The old proverb warning that, but for the loss of a nail a kingdom would not have been lost, may be applicable to a medical malpractice case dismissed because of a pre-suit notice that failed to clearly identify where the plaintiff was treated.

The Georgia Court of Appeals affirmed the dismissal of a lawsuit filed by a man who claimed his lung cancer went untreated for several months, and sued multiple defendants including the Georgia University Board of Regents, which oversees the Augusta University Medical Center.

As required when suing a state government entity under the Georgia Tort Claims Act, Brown's lawyer filed an ante-litem notice that indicated he had been treated at the AU Medical Center—where the missed diagnosis allegedly occurred—rather than at the Charlie Norwood Veterans Administration Medical Center [CNVAMC], where he in fact received treatment.

Under the strict requirements waiving sovereign immunity under the GTCA, a plaintiff is required to include "the place of the transaction or occurrence" underlying the complaint.

Plaintiff Michael Brown Jr. had attached his medical records, including the chest X-ray that was performed at AU Medical Center, but two ante litem notices he filed both "seemed to indicate that treatment occurred at Augusta Medical Center when in fact, it occurred at CNVAMC," the opinion said.

That error justified the actions of a Richmond County Superior Court judge in dismissing the claims against the Board of Regents, wrote Judge Clyde Reese with the concurrence of Judges Todd Markle and Verda Colvin.

As detailed in the June 11 opinion, Brown went to the AU Medical Center in October 2016 complaining of shortness of breath. A doctor ordered a chest x-ray and a radiologist, noting a "significant abnormality," ordered a CT scan.

The followup, which didn't occur until May 2017, revealed a malignancy in Brown's lung.

Brown filed an ante litem notice, then filed a second one containing the same facts to correct typographical errors, the opinion said.

He filed a medical malpractice complaint against the Board of Regents, AU Medical center and two of its affiliates in 2018.

The board filed a motion to dismiss, arguing that the ante litem notice failed to identify the place of the occurrence as required.

Brown responded that the medical records attached to the notice "clearly indicated that he had received treatment" at the CNVAMC—"also known as 'Augusta VAMC'"—and "that the risk manager with whom he had been speaking never indicated a lack of knowledge as to where treatment occurred."

The board responded that Brown's medical records were only attached to the first notice, and that both indicated he'd been treated at the AU Medical Center.

Following a hearing, Judge Daniel Craig granted the board's motion to dismiss the claims against it. Brown filed an interlocutory appeal, which the court of appeals granted.

In affirming Craig, Reese noted that the GTCA requires disclosure of six categories of information before a claim can be filed against a governmental body: the name of the state entity, the time of the occurrence, the place of the occurrence, the nature of the loss suffered, the amount of the claim and the acts or omissions which caused it.

"Here, both of Brown's ante litem notices failed to indicate the place where the transaction occurred, which is an entire category" required under the act, wrote Reese.

"This court has previously held that 'the complete omission of one of the six categories of information required by the ante litem notice statute … rendered such notices insufficient,'" he said, citing a 2016 decision, Silva v. Ga. Department of Transportation.

Brown's case "is not an action where the extent of Brown's injuries were unknown, he made a good faith mistake, or that the ante litem notice was imprecise," Reese wrote.

"[A]s 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," Reese said.

"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,'" said the opinion, citing to the Court of Appeals' 2014 ruling in Driscoll v. Board of Regents.

Brown is represented by Edwin Wilson of Augusta's Frails & Wilson, who said he was not at liberty to comment.

The Board of Regents is represented by state Law Department attorneys Angela Cusimano and Peter Fisher; a spokeswoman for Attorney General Chris Carr did not respond to a request for comment.