Williams v. Department of Human Resources

Fletcher, Presiding Justice.

Paul and Sheila Williams sent an ante litem notice to the state claiming that she suffered pain, disfigurement, and reduced life expectancy and he suffered loss of consortium due to a public health nurse’s failure to diagnose Mrs. Williams’ breast cancer. After his wife died, Mr. Williams filed a wrongful death action against the Georgia Department of Human Resources, which the trial court dismissed for insufficient notice. The Court of Appeals for the State of Georgia affirmed, holding that Williams failed to strictly comply with the notice requirements of OCGA § 50-21-26.¹ Because the ante litem notice failed to assert a claim for wrongful death, we agree that it did not adequately notify the state of Williams’ wrongful death claim. Therefore, we affirm.

Sheila Williams complained about a lump in her breast on five visits to the Lumpkin County Health Department from March to August 1994, but the health department’s nurse did not examine Williams or refer her to a doctor for further evaluation. In November, Williams was diagnosed with breast cancer. On November 7, 1995, the couple gave written notice of their claims under OCGA § 50-21-26 of the Georgia Tort Claims Act. Ms. Williams died on January 28, 1996, but her husband did not give the state any notice of her death or his wrongful death claim. Instead, he sued Annette Harkins, the Lumpkin County Health Department, and DHR, alleging that Harkins committed malpractice in failing to diagnose and treat his wife. DHR moved to dismiss the complaint based on the plaintiff’s failure to provide ante litem notice of the wrongful death claim. The trial court granted the motion as to the wrongful death claim, and the court of appeals affirmed. Williams’ loss of consortium claim remains pending in the trial court, and the estate’s claim for Sheila Williams’ pain and suffering apparently has been filed in a separate action.

OCGA § 50-21-26 of the Georgia Tort Claims Act prohibits any person, firm, or corporation from bringing a tort action against the state without first giving notice to the state of the claim. The statute provides that no court shall have jurisdiction until a written notice of claim has been timely presented to the state as provided in subsection (a).² The court of appeals has consistently held that substantial compliance with the notice provisions is inadequate.³

Unlike the Federal Tort Claims Act or the notice required before suing municipal corporations, § 50-21-26 (a) specifies a detailed procedure for notifying the state of a claim before filing a lawsuit against it.⁴ The notice must be given in writing within 12 months of the date that the loss was discovered or should have been discovered;⁵ it must be mailed by certified mail, return receipt requested, or delivered personally to the Risk Management Division of the Department of Administrative Services; and a copy must be mailed or delivered to the state government entity whose acts or omissions serve as the basis for the claim.⁶ The contents of the notice must include:

(A) The name of the state government entity [that committed] the acts or omissions . . . ;

(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.⁷

The purpose of these requirements is to ensure that the state receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.⁸

In construing this statutory provision, both this Court and the court of appeals have looked to the plain meaning of the statutory language. In Norris v. Georgia Department of Transportation,⁹ we held that the requirement of notice is satisfied when the plaintiff mails the notice of a claim in the manner specified under OCGA § 50-21-26 (a) (2), rejecting the state’s contention that it must receive actual notice. Similarly, the court of appeals has held that parties must follow the procedure outlined in the statute to satisfy the requirement of ante litem notice. Thus, the court of appeals has dismissed claims when the plaintiff did not give any notice to the state,¹⁰ failed to give notice within 12 months of the accident,¹¹ and failed to send notice to the Department of Administrative Services and the state agency responsible for the loss.¹²

OCGA § 50-21-26 (a) states that a person with a tort claim against the state shall not bring any lawsuit without first giving the state “notice of the claim.” The term “claim” in the State Tort Claims Act is defined as “any demand against the State of Georgia for money only on account of loss caused by the tort of any state officer or employee”; the term “‘[l]oss’ means personal injury; disease; death; damage to tangible property . . . ; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.”¹³

Construing these terms in the context of the statutory purpose and requirements for ante litem notice, we conclude that Mr. Williams never gave the state notice of his claim for the wrongful death of his wife prior to bringing his action against the state. The November 7,1995, letter described the nature of Mrs. Williams’ loss as pain, disfigurement, and a reduced life expectancy; it described Mr. Williams’ loss as a loss of consortium. The notice did not, and could not, have asserted the death of Mrs. Williams as part of his loss since the letter was written 11 weeks before she died. Because a claim for wrongful death does not accrue until the death occurs, it is impossible to determine the nature of the loss or the person having the claim until the death.¹⁴

Applying the dissent’s interpretation, individuals could sue the state based on the notice of other persons about other claims, so long as the claims derived from the same negligent act. If, for example, Paul Williams had died before his wife, their children would be entitled to bring the action for Mrs. Williams’ wrongful death and, under the dissent’s view, would have been able to sue based solely on their mother’s notice of her pain and suffering and their father’s notice of loss of consortium. That liberal construction would undermine substantially the requirement of notice to the state.

Following Mrs. Williams’ death, Mr. Williams should have given the state notice of his claim for the wrongful death of his wife before suing the state. Because the notice that he and his wife gave prior to her death did not adequately describe the nature of his loss after her death, we agree with the court of appeals that the trial court properly dismissed the wrongful death claim.

Judgment affirmed.

All the Justices concur, except Benham, C. J, Hunstein and Thompson, JJ., who dissent.

1 Williams v. Department of Human Resources, 234 Ga. App. 638 (507 SE2d 230) (1998).

2 OCGA § 50-21-26 (a) (3) (1998).

3 See, e.g., Howard v. State of Georgia, 226 Ga. App. 543, 544 (487 SE2d 112) (1997).

4 Compare OCGA § 50-21-26 with 28 USCA § 2675 (claimant shall present claim to the appropriate federal agency) and OCGA § 36-33-5 (person shall present claim in writing to the governing authority stating the time, place and extent of injury and the negligence that caused the injury). See generally David J. Maleski, The 1992 Georgia Tort Claims Act, 9 Ga. St. U. L. Rev. 431, 436-438 (1993).

5 OCGA § 50-21-26 (a) (1).

6 OCGA § 50-21-26 (a) (2).

7 OCGA § 50-21-26 (a) (5).

8 See Maleski, 9 Ga. St. U. L. Rev. at 437.

9 268 Ga. 192, 193 (486 SE2d 826) (1997); Doe v. Department of Corrections, 268 Ga. 582, 584 (492 SE2d 516) (1997).

10 See, e.g., Board of Regents v. Frost, 233 Ga. App. 692, 695 (505 SE2d 236) (1998); Langton v. Department of Corrections, 220 Ga. App. 445, 446 (469 SE2d 509) (1996).

11 See McGee v. State of Georgia, 227 Ga. App. 107, 108 (487 SE2d 671) (1997).

12 See Kim v. Department of Transp., 235 Ga. App. 480, 481-482 (510 SE2d 50) (1998); Howard, 226 Ga. App. at 545.

13 OCGA § 50-21-22 (1), (3).

14 See OCGA §§ 51-4-2, 51-4-5; Lovett v. Garvin, 232 Ga. 747 (208 SE2d 838) (1974) (because wrongful death claim is for injury sustained by survivor as a result of the death, not for the injury suffered by the deceased, husband has claim that accrues at time of wife’s death, not at time injuries were inflicted).