Court of Appeals Holds that Notice Requirement Applicable to Medical Malpractice Actions May Be Excused in the Interests of Justice

ByDouglas C. Melcher

On October 3, 2013, the District of Columbia Court of Appeals decided Lewis v. Washington Hospital Center, No. 12-CV-1178, slip op. (D.C. Oct. 3, 2013), in which it considered the scope of a trial court’s authority to excuse a plaintiff in a medical malpractice action for failing to provide a defendant with prior notice of intent to sue. Id. at 1-2. By way of background, Section 16-2802(a) of the D.C. Code provides that, in general, “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.” Id. at 1 (citing D.C. Code § 16-2802(a) (2012 Repl.)). It further provides that a plaintiff’s failure to provide notice may be excused by a trial court “‘[u]pon a showing of a good faith effort to give the required notice.'” Id. at 5 (quoting D.C. Code § 16-2802(a)). This case presented the issue of whether, pursuant to Section 16-2804(b), such failure may also be excused “‘if the interests of justice dictate.'” Id. at 2, 5 (quoting D.C. Code § 16-2804(b) (2012 Repl.)). In considering this issue, the Court of Appeals concluded that “the language, logic, and structure” of the aforementioned statutes does not provide a clear answer. Id. at 8. Relying on legislative history, however, it concluded that a trial court may, in the interests of justice, excuse a failure to comply. Id. at 10-11. As a result of this holding, a plaintiff now has at least two, potential avenues for seeking to be excused for failing to comply with the notice requirement; specifically, a plaintiff may seek to be excused on the grounds that (1) it made a good faith effort to comply, or (2) the interests of justice would be served by excusing the failure to comply.

Douglas C. Melcher

I am a licensed attorney with about twenty years of experience in the private practice of law. I focus my practice on advising and representing individuals, small businesses, and non-profits in civil litigation, including trial court proceedings, appeals, administrative hearings, mediation, and arbitration. I have written numerous articles for D.C. Law Blog and other publications, and am the author of Tort Claims and Defenses in the District of Columbia, which is a handbook for lawyers about civil claims for injury to persons, property, reputation, and commercial interests. Please feel free to contact me if you would like to inquire about assistance with a legal matter. I can be reached at dmelcher@melcherlaw.com or 202-427-5753. For further information about my background, click here.