Notice Requirement for Malpractice Claims in Washington, DC
Medical malpractice plaintiffs in the District of Columbia must first comply with the statutory notice provision set forth in D.C. Code, § 16-2802, which require that “[a]ny person who intends to file an action in the court alleging medical malpractice shall notify the intended defendant of his or her action not less than 90 days prior to filing the action.” Section 16-2804 provides exceptions to this requirement, one of which states 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.”
Recently, the District of Columbia Court of Appeals held that trial courts have the discretion to essentially overlook this notice requirement “in the interests of justice.” In Lewis v. Wash. Hosp. Ctr., 2013 D.C. App. LEXIS 646, the appellate court reversed a trial court order dismissing a medical malpractice claim where the plaintiff failed to give any pre-suit notice to the defendant hospital. Observing that the “language, logic, and structure of § 16-2802 (a) and § 16-2804 (b) leaves [the court] quite uncertain as to how best to reconcile the provisions”, the Court ultimately held “we conclude that § 16-2804 (b) is properly read to authorize trial courts to waive § 16-2802 (a)’s notice requirement whenever such a waiver is in the interests of justice.”
Finding such broad discretion under the statutory framework, the appellate court went on to find that because the plaintiff was unaware of the notice requirement, there was no prejudice to the defendant, and the plaintiff would be “incurably prejudiced” by a dismissal because the statute of limitations had expired, dismissal was inappropriate and the case reinstated against the hospital.
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While ignorance of the law should never be an excuse, Lewis significantly erodes the notice requirement for medical malpractice plaintiffs in the District of Columbia. In essence, enforcement of the notice requirement will likely turn largely on what prejudice, if any, a health care provider can demonstrate by a lack of pre-suit notice. In the Lewis case, the only prejudice asserted by the hospital was a lost opportunity for pre-suit mediation. The District of Columbia Court of Appeals was not swayed by that claim. Other forms of prejudice may, however, exist on a case-by-case basis depending upon the circumstances. For more information on the medical malpractice notice requirement in the District of Columbia, and how to enforce it, please contact the attorneys at Walker, Murphy & Nelson, LLP.
Disclaimer: This article is for general informational purposes only. Nothing contained herein constitutes legal advice, nor does it create an attorney-client relationship. All persons reviewing this should consult counsel for advice regarding any specific legal questions and any unauthorized use of this information is expressly prohibited.