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D.C. District Court Finds No Grounds to Waive Notice Requirements of D.C. CODE § 16-2802 in Medical Malpractice Claim on Behalf of HIV-infected Minor Child
Nora Carmichael v. Threvia West
In Carmichael v. West, the United States District Court for the District of Columbia held that D.C. CODE § 16-2802 was applicable to the plaintiff’s wrongful death claims, and the plaintiff’s failure to comply with the notice requirement prior to initiating suit could not be excused based on good faith efforts to comply or waived in the interests of justice. Rather, Judge Howell determined that failure to comply with the statutory notice requirement deprived the Court of its subject matter jurisdiction to hear the case, which required that the Court grant the defendant’s Motion to Dismiss.
Plaintiff, Nora Carmichael, brought this diversity action as mother and next friend of John Doe, a minor child, against Threvia West, M.D., alleging medical malpractice arising out of West’s medical care of minor John Doe. On August 30, 1998, Sheila Moody, pregnant with minor John Doe, was admitted to D.C. General Hospital, where West provided her with obstetric medical care. Carmichael alleged that West knew Sheila Moody to be HIV positive at the time of delivery and that West knew or should have known that performing a vaginal delivery, rather than a caesarian section, made the risk that the unborn fetus would be infected with HIV “50 times greater.” Yet, Carmichael alleged that West performed a vaginal delivery anyway, and minor John Doe became infected with HIV. As a result of his infection with HIV, the child developed HIV encephalopathy, as a result of which he “has suffered, and will continue to suffer, great and severe mental pain and suffering by virtue of the brain damage inflicted by the HIV virus [sic], and by virtue of embarrassment and humiliation in his personal relationships.”
A prior action against two (2) corporations—alleged to have provided medical services to the child both before and after birth—was resolved through a settlement, as part of which the plaintiff negotiated a Medicaid lien with the District of Columbia on July 15, 2011. Carmichael averred that, prior to July 15, 2011, she and the District “had been in negotiations and discussions regarding the fact that additional lawsuits would be filed against the doctors, including Dr. West, who were involved with the birth of John Doe.” Carmichael also stated that she “memorialized her intention to file lawsuits against the doctors involved in John Doe’s birth in the Medicaid Lien Agreement itself. Carmichael filed her instant Complaint on August 22, 2011, and on September 21, 2011, the plaintiff sent a “Notice of Intention to File Suit” to West that was “given pursuant to the provisions of § 16-2802.” On November 21, 2011, West moved to dismiss the Complaint, or in the alternative for summary judgment.
Before the District Court, West contended that Carmichael failed to comply with the statutory notice requirements and, therefore, her complaint must be dismissed. Carmichael, however, offered four separate arguments in rebuttal: first, she argued that the Medical Malpractice Act (“MMA”), D.C. CODE § 16-2802, does not apply to actions brought in federal courts; second, she claimed to have fully complied with § 16-2802; third, she argued that she made good faith efforts to notify the defendant, which excuses any failure on her part to give notice under § 16-2802; and fourth, she posited that the Court should waive strict compliance with § 16-2802 in the interests of justice. The United States District Court for the District of Columbia found Carmichael’s arguments unavailing and ruled to dismiss the Complaint for lack of subject matter jurisdiction.
The Court began by examining D.C. CODE § 16-2802, which provides: “Any person who intends to file an action in the Court alleging medical malpractice against a healthcare provider shall notify the intended defendant of his or her action not less than 90 days prior to filing the action. . . ,” D.C. CODE § 16-2802(a), where “court” is “the Superior Court of the District of Columbia.” Id. § 16-2801(1). One portion of the statute states that “[u]pon a showing of a good faith effort to give the required notice, the Court may excuse the failure to give notice within the time prescribed.” D.C. CODE § 16-2802(a). Another portion of the statute instructs courts that “[n]othing indicated herein shall prevent the Court from waiving the requirements of § 16-2802 upon a showing of good faith effort to comply or if the interests of justice dictate.” Id. § 16-2804(b).
In finding that the MMA was applicable to the District Court, the Court cited to several instances in which § 16-2802 applied to cases filed outside D.C. Superior Court. E.G. Bledsoe v. Crowley, 849 F.2d 639, 643 (D.C. Cir. 1988); Diffenderfer v. United States, 656 F. Supp. 2d 137, 139 (D.D.C. 2009). The Court also disagreed with Carmichael’s contention that notice to the District of Columbia in a previous case fulfilled the required notice to the individual defendant in this one. Rather, the Court found that § 16-2802 plainly requires notice be given to “the intended defendant,” D.C. CODE § 16-2802(a), and since the District of Columbia was never the “intended defendant” of the instant action, Carmichael’s provision of notice to the District was insufficient with respect to Dr. West. The District Court also found no indication of Carmichael’s good-faith effort to comply with a statute designed to encourage pre-litigation resolution of medical malpractice claims. Rather, in the instant case, the signing of the settlement agreement on July 15, 2011, and the filing of the lawsuit on August 22, 2011, were only thirty-eight (38) days apart and thus necessarily insufficient to satisfy the requirements of § 16-2802. Moreover, the plaintiff’s written notice to the defendant and submission of expert records and medical reports all occurred after the plaintiff’s Complaint was filed in the instant action.
Finally, the Court addressed Carmichael’s “interest of justice” argument, which it found to be the strongest of the four (4) arguments. The harm alleged was both grave and permanent. Consideration of the “interests of justice,” however, requires a broader focus than just the circumstances of the plaintiff. The Court noted that the Medical Malpractice Act is designed to ensure that the defendant in a medical malpractice action has critical pre-litigation information about the case and an opportunity for mediation before suit is filed. Considering the totality of the circumstances presented in this case—the interests of the plaintiff and the defendant, as well as the public interest reflected in the remedial purposes of the MMA to foster pre-litigation resolution of medical malpractice claims—the Court concluded that the interests of justice tipped in favor of West where Carmichael possessed all of the information necessary to give the required notice. Thus, the Court refused to apply § 16-2804(b)’s “interests of justice” exception to waive compliance with § 16-2802 and dismissed Carmichael’s Complaint for lack of subject matter jurisdiction.
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