January 26, 2013

Medical Malpractice Suit Dismissed by Washington DC Court for Non-Compliance with Notice Requirement

by Lebowitz & Mzhen

Stethoscoop.jpgThe U.S. District Court for the District of Columbia dismissed a medical malpractice suit without prejudice for non-compliance with the notice requirement in the DC Official Code. The court held in Carmichael v. West, No. 11-1513, slip op. (D.D.C., Jul. 27, 2012), that the plaintiff’s failure to give notice to the defendant deprived the court of subject matter jurisdiction. It also held that the plaintiff did not prove that she made a good-faith effort to comply with the notice requirement, nor that the “interests of justice” merited a waiver of the requirement.

Sheila Moody was admitted to D.C. General Hospital for obstetric care on August 30, 1998. She received treatment from the defendant, Dr. Threvia West, M.D. According to the plaintiff’s complaint, West knew that Moody was HIV positive, and that a vaginal delivery would expose the unborn fetus to a serious risk of infection. The plaintiff alleged that West still performed a vaginal delivery, resulting in the child, identified as John Doe, becoming infected with HIV. The child has suffered from HIV encephalopathy, a condition that resulted in severe pain and brain damage. Moody later died, and the child came into the care of the plaintiff, Nora Carmichael.

Carmichael filed suit against West for medical malpractice on August 22, 2011. She claimed that three actions by West directly contributed to the child’s injuries: performing a vaginal delivery instead of a caesarean section, delaying delivery until the child was exposed to ruptured membranes in the womb, and using a fetal scalp electrode that broke the skin and exposed the child directly to the HIV virus. The lawsuit claimed $80 million in damages. On September 21, 2011, the plaintiff sent the defendant a “Notice of Intention to File Suit” in accordance with DC Code § 16-2802. The defendant, with representation provided by the District of Columbia, moved to dismiss the lawsuit, or for summary judgment, based on lack of notice. The DC Code requires a plaintiff to send notice to a defendant at least ninety days before filing a lawsuit, unless the plaintiff can show a “good faith effort” to give notice.

The plaintiff asserted that she made a good faith effort to provide notice to the defendant. She further argued that the court had the authority to excuse noncompliance if it was in the “interests of justice.” An earlier lawsuit, filed in 2009, sought to recover damages from two corporations that allegedly provided medical services to John Doe around the time of his birth. That suit resulted in a settlement, which included negotiation of a Medicaid lien with the District in July 2011. The plaintiff claimed that she made the District aware then that she was planning further lawsuits against West and others, and that her notice of a forthcoming medical malpractice suit was contained in the Medicaid lien. She also asserted that she voluntarily provided medical records and other documents to the District after filing suit. The court ruled that she did not provide notice directly to West within the time prescribed by the statute, and that sending medical records to the District did not mitigate her non-compliance because she sent them after filing suit. It dismissed her suit without prejudice, giving her an opportunity to cure any defects.

At Lebowitz & Mzhen, we help people in the Washington, DC area recover their just compensation when they have suffered injuries due to medical malpractice. For a free and confidential consultation, contact us today online or at (800) 654-1949.

More Blog Posts:

Washington DC Court of Appeals Affirms Summary Judgment in Favor of Hospital in Medical Malpractice Case, Based on Statute of Limitations, Washington DC Injury Lawyer Blog, August 30, 2012

Wrongful Death Lawsuit Alleges Medical Negligence and Intentional Torts Against Doctor, Washington DC Injury Lawyer Blog, August 16, 2012

"Failure to Warn" Claim Against Pharmaceutical Company Dismissed by Washington DC Judge, Washington DC Injury Lawyer Blog, July 12, 2012

Photo credit: By Harmid (Own work) [Public domain], via Wikimedia Commons.