A woman filed a medical malpractice suit against a hospital. She did not provide notice of intent to sue at least ninety days before filing suit. The hospital filed a motion to dismiss for failure to comply with D.C.Code § 16–2802(a), which provided that 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.
The Superior Court of the District of Columbia initially ruled that it had the authority to waive the notice requirement in the interests of justice pursuant to D.C. Code § 16–2804(b). Section 16–2804 provides:
(a) Section 16–2802 shall not apply to:
- Any intended defendant whose name is unknown or who was not licensed at the time of the alleged occurrence or is unlicensed at the time notice is given;
- Any claim that is unknown to the person at the time of filing his or her notice; or
- Any intended defendant who is identified in the notice by a misnomer.
(b) Nothing 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.
The court found that a waiver of the notice requirement would be in the interests of justice under the circumstances of this case. Specifically, the trial court ruled that a waiver of the notice requirement was in the interests of justice for three reasons: (1) the woman failed to provide the 90-day notice due to understandable ignorance of the requirement, (2) the hospital did not claim any prejudice from the lack of advance notice, and (3) the woman would be incurably prejudiced by dismissal for failure to comply with the notice requirement because the three-year statute of limitations on medical malpractice actions had run.
Subsequently, the trial court granted the hospital's motion to reconsider, concluded that it lacked authority to grant a waiver, and dismissed the action. In concluding it lacked authority to grant an interests-of-justice waiver, the court interpreted the D.C. law narrowly. The court held that the interests of justice exception from § 2804(b) applied only in cases implicating one or more of the special circumstances identified in § 2804(a). As this case did not involve an unknown or unlicensed defendant or a misnomer as identified in § 2804(a), the court concluded that it did not have authority to grant an interests-of-justice waiver.
The District of Columbia Court of Appeals reversed holding that the trial court had authority to waive the notice requirement in the interests of justice, pursuant to D.C. Code § 16–2804(b). The court noted that the legislative history of the statute clearly indicated that the District of Columbia Council understood § 16–2804(b) broadly, permitting waiver of the notice requirement by the court upon the finding of a good faith effort or if the interests of justice dictate. The court concluded that § 16–2804(b) was properly read to authorize trial courts to waive the notice requirement whenever such a waiver is in the interests of justice.
The hospital’s sole argument on appeal was that the woman's failure to provide pre-suit notice deprived the hospital of an opportunity for pre-suit mediation. The court determined that the hospital provided no particular reason to believe that pre-suit mediation would have altered the course of this litigation. More importantly, the court reasoned that, if the mere loss of the opportunity for pre-suit mediation always foreclosed a finding that a waiver would be in the interests of justice, then the waiver provision would essentially be a dead letter, because the failure to provide pre-suit notice would in most if not all cases lead to a loss of the opportunity for pre-suit mediation. The court concluded that the hospital failed to establish that the trial court abused its discretion by finding that a waiver of the notice requirement was in the interests of justice under the circumstances of this case.
Because the hospital challenged the trial court's interests-of-justice finding solely on the ground that the hospital was prejudiced by the loss of the opportunity for pre-suit mediation, the court expressly did not address the question of whether the factors the court cited in finding that a waiver was warranted in the interests of justice were sufficient to support such a finding.
The Court of Appeals agreed with the trial court's initial ruling and reversed.
See: Lewis v. Washington Hosp. Center, 2013 WL 5477247 (D.C., October 3, 2013) (not designated for publication).