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Waugh v. MedStar Georgetown University Hospital

A recent decision of the D.C. Court of Appeals illustrates the need for great care in filing a medical malpractice action in D.C. on time.

The case arose from allegations by Brian Keith Waugh that on September 7-8, 2014, two nurses and a technician at MedStar Georgetown University Hospital botched a phlebotomy, causing pain and numbness in his hand.  On November 22, 2017, Mr. Waugh filed in D.C. Superior Court a multi-count complaint against the hospital.  On the hospital’s motion, the trial court judge dismissed the action because Mr. Waugh filed his complaint out of time and because he failed to give the hospital statutorily required presuit notice.  Mr. Waugh appealed that ruling to the D.C. Court of Appeals, which affirmed.

The court explained that, before bringing a medical-malpractice action in D.C., a plaintiff must satisfy two procedural requirements.  First, under the Medical Malpractice Reform Act of 2006, the plaintiff must give the defendant notice of intention to sue “not less than 90 days prior to filing the action.”  D.C. Code § 16-2802(a).  Second, the plaintiff must file the complaint within D.C.’s three-year limitations period.  D.C. Code § 12-301(8).  If the presuit-notice “is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the date of the service of the notice.”  D.C. Code § 16-2803.

The court held that Mr. Waugh failed to give the hospital the required presuit notice.  The court rejected his argument that his lawsuit itself serves as the required notice.  That would be inconsistent with the requirement that notice be served “prior to filing the action.”  D.C. Code § 16-2802(a) (emphasis added).  The court also rejected his argument that he satisfied the notice requirement by sending a fax in October 2014 to the D.C. Department of Health outlining the facts underlying his complaint.  The statute required service of the notice on “the intended defendant” (that is, the hospital) at its “last known address.”  D.C. Code § 16-2802(a).

The court also held that Mr. Waugh’s action was time-barred because it was filed after the expiration of the limitations period.  Mr. Waugh argued that his complaint, filed seventy-five days past the three-year limitations period, complied with the statutory language, “within 90 days of the expiration of the applicable statute of limitations,” because it was filed “within 90 days” after the expiration of the statute of limitations.  The court turned aside this argument, explaining that construing the statutory language to mean “within 90 days” before the expiration of the statute of limitations was more consistent with the underlying policies and objectives of the statute.

The takeaways from this case and prior precedent are as follows:

  1. Presuit notice of a medical malpractice action must be served on the intended defendant at its last known address less than three years after the action accrues and at least ninety days before filing suit.
  2. The complaint cannot constitute the notice.
  3. The action must be filed in court no more than three years after the action accrues, unless the presuit notice is given less than ninety days before the expiration of the three-year limitations period, in which case the action must be filed exactly ninety days after service of the presuit notice. See Lacek v. Washington Hosp. Ctr. Corp., 978 A.2d 1194, 1199 (D.C. 2009).

The case is Waugh v. MedStar Georgetown Univ. Hosp., App. No. 18-CV-329.  It was decided on March 14, 2019 by a unanimous panel, was authored by Senior Judge Ruiz, and is available at https://www.dccourts.gov/sites/default/files/2019-03/18-CV-329.pdf.