Court of Appeals Rules that Medical Malpractice Action Was Filed One Day Too Late
On May 17, 2012, the District of Columbia Court of Appeals decided Atiba v. Washington Hospital Center, No. 10-CV-622, slip op. (D.C. May 17, 2012) in which it considered whether a medical malpractice claim was timely filed. By way of background, pursuant to statute, medical malpractice claims generally must be filed within a three-year limitations period. Id. at 2-3 (citing D.C. Code § 12-301(8)). Additionally, “[b]efore filing a medical malpractice action, a plaintiff must give ‘not less than’ ninety days’ advance notice to the intended defendants.” Id. at 2 (quoting D.C. Code § 16-2802). “If . . . such notice is given within ninety days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action is ‘extended 90 days from the date of the service of the notice.'” Id. (quoting D.C. Code § 16-2803). In this case, the relevant medical services were provided to the plaintiff during the period October 27 to November 2, 2006. Id. at 1-2. The plaintiff served the required notice on October 27, 2009, and filed her complaint on January 26, 2012 — the ninety-first day after giving notice. Id. at 2. The trial court dismissed the plaintiff’s complaint on the grounds that the plaintiff filed one day too late, and the Court of Appeals affirmed. Id. In affirming, the Court specifically rejected the plaintiff’s argument that the notice statute required the plaintiff to wait until ninety “clear days” had passed prior to filing the complaint. Id. at 5. The Court further stated that “[i]t may be true that filing the complaint on any date prior to January 25 would have violated the 90-day notice requirement . . ., and any date after January 25 was untimely,” but that such an interpretation of the relevant statutes was reasonable and consistent with legislative intent. Id. at 8. In light of the foregoing, a plaintiff in a medical malpractice case should beware of giving notice within ninety days of the expiration of the limitations period and relying on the 90-day extension of the limitations period as doing so would have the effect of giving the plaintiff only a one-day window for timely filing a complaint. In any instance, great care should be taken in determining the required filing date.