E-Alert Case Updates

D.C. Statutory Language, “Not Less Than 90 Days,” Does Not Invoke the “Clear Day” Rule Absent Clear Legislative Intent

Kwaco Atiba v. Washington Hosp. Ctr., et al.
Case No.: 10-CV-622 (D.C. Court of Appeals, May 17, 2012)
by Natalie Scurto, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Atiba v. Washington Hosp. Ctr., et al., Judge Steadman of the D.C. Court of Appeals affirmed the trial court’s grant of summary judgment in favor of Washington Hospital Center and Michelle Grant-Ervin, M.D. based on Plaintiff’s failure to file a medical malpractice complaint within the appropriate period allowed by the statute of limitations. The Court held that the statutory language in D.C. CODE § 16-2802, “not less than 90 days,” did not invoke the “clear day” rule.

On October 27, 2009, Atiba gave notice to Washington Hospital Center of his intent to file a medical malpractice claim relating to services rendered between October 27 and November 2, 2006. On January 26, 2010, ninety-one (91) days after the service of notice, Atiba filed a medical malpractice claim against Defendants. The trial court held that the Complaint was filed one day late and thus granted summary judgment in favor of Defendants.

The statute of limitations for a medical malpractice claim is three (3) years. D.C. CODE § 16-301(8) (2012). Pursuant to D.C. CODE § 16-2802, an individual who intends on bringing a medical malpractice claim against a healthcare provider must notify the intended defendant of his or her intended action no later than ninety (90) days prior to filing the claim. In the event that notice is not given until within ninety days of the expiration of the statute of limitations, D.C. CODE § 16-2803 states that the period of limitations will be extended ninety (90) days from the date of the service of notice. The “clear day” issue arises when a specific action is required to take place a certain amount of time before a following action can be taken. For example, when computing five (5) days between two (2) actions, the question becomes may the second action occur on the fifth day, or must the fifth day fully elapse before the second action is permitted to occur, in which case the second action would not technically take place until the sixth day. The total elapsed time in the former will be less than five full 24-hour days, whereas in the latter, more than five full 24-hour days will have elapsed.

Plaintiff argued that the statute required the ninetieth day after notice to fully elapse prior to the filing of the claim. Thus it was impossible to comply with both statutory provisions as the earliest day he could file a claim was on the ninety-first day after he gave notice, or one day after the extended period of limitations expired. The Court, in analyzing whether or not the Legislature intended that ninety “clear days” from the service of notice pass prior to the filing of the lawsuit, found that adopting Plaintiff’s interpretation would in fact render compliance with both statutes impossible. This was clearly not the intent of the Legislature as their intent was to create an operable extension of the statute of limitations period. The language, “not less than,” was used solely to clarify that action may be taken prior to a designated minimum date. When computing the ninety (90) days as required by D.C. CODE § 16-2802, one of the terminal days should be included in the count and the other should be excluded.

The Court also held that although in this instance Plaintiff was only able to file his Complaint on one specific day, January 25, 2010, to be in compliance with both statutes, the interpretation is not unreasonable. Plaintiff had another alternative to compliance, namely seeking a waiver to file his claim earlier. Furthermore, most plaintiffs should be able to give notice to their healthcare provider much earlier than ninety (90) days prior to the expiration of the statute of limitations.

For these reasons, the D.C. Court of Appeals found that Plaintiff’s medical malpractice claim was outside the statute of limitations period and affirmed the trial court’s grant of summary judgment in favor of Washington Hospital Center.