E-Alert Case Updates

D.C. Court of Appeals Holds that Trial Courts Have Authority to Waive 90-Day Notice Requirement in Medical Malpractice Cases “In the Interests of Justice”

Lewis v. Washington Hospital Center
No. 12-CV-1178 (District of Columbia Court of Appeals, October 3, 2013)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Generally, one who intends to file a medical malpractice suit against a healthcare provider is required to provide notice of intent to sue at least ninety days before filing suit under D.C. Code § 16-2802 (a). Plaintiff did not comply with that requirement. This case presented the question of whether the trial court had the authority to waive the notice requirement “in the interest of justice,” pursuant to D.C. Code § 16-2804 (b). The trial court initially ruled that it had such authority, and found that a waiver of the notice requirement would be in the interest of justice under the circumstances of this case. Subsequently, though the trial court granted Defendant Washington Hospital Center’s motion to reconsider, and concluded that it lacked authority to grant such a waiver, and dismissed the action. The Court of Appeals agreed with the trial court’s initial ruling, and therefore reversed and remanded the case.

In initially denying the hospital’s motion to dismiss, the trial court ruled that D.C. Code § 16-2804(b) allowed a waiver of the notice requirement in D.C. Code § 16-2802(a) “if the interest of justice dictate.” The trial court also found that the interest of justice dictated a waiver in the circumstances of this case. The hospital filed a motion to reconsider. In its motion, the hospital argued that § 16-2804(b) permits waiver only in cases involving “an otherwise unknown or unlicensed defendant, or a misnomer.” Because this case did not involve an unknown or unlicensed defendant or a misnomer, the hospital contended that an “interest of justice” waiver was not available. Rather, according to the hospital, this case was governed by §16-280 Q2(a), which permits a waiver of the notice requirement only “[u]pon a showing of a good-faith effort to give the required notice . . . .” Because no such showing had been made in this case, the hospital contended that dismissal was required. The trial court granted reconsideration and dismissed the action. The trial court concluded that the more reasonable reading of §§ 2802(a) and 2804(b) is that the first provision creates only a “good faith effort” exception and that the “interest[s] of justice” exception in the second provision applies only in cases implicating one or more of the special circumstances identified in § 2804(a)(1)-(3).”

In the absence of any clear case law precedent, the Court of Appeals referred to the legislative history of the Rules, and concluded that §16-2804(b) was read properly to authorize trial courts to waive §16-2802(a)’s notice requirement whenever such a waiver was in the interest of justice. At the trial level, the trial court initially ruled that a waiver of the notice requirement was in the interest of justice for three (3) reasons: (1) Plaintiff failed to provide the 90-day notice due to understandable ignorance of the requirement, (2) the hospital did not claim prejudice from the lack of advance notice; and (3) Plaintiff would be incurably prejudiced by dismissal for failure to comply with § 16-2802(a) because the three (3) year statute of limitations on medical malpractice actions had run. The Court of Appeals was not persuaded by the hospital’s argument that the Plaintiff’s failure to provide it with pre-suit notice deprived it of the opportunity for pre-suit mediation. Therefore, the Court of Appeals reversed the trial court’s judgment and remanded the medical malpractice case for further proceedings.