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Do Not File a D.C. Medical Malpractice Case on the 89th or 91st Day!

When the D.C. Council passed a medical malpractice reform law in 2006, it created a new procedural hurdle to filing a lawsuit that has had unintended consequences.  Case in point:  the D.C. Court of Appeals’ recent decision throwing out a medical malpractice case based on the hurdle.

The D.C. Council had laudable goals when it enacted a law that required patients to give health-care providers 90 days’ notice before filing a lawsuit against them (the “90-Day Rule”).  D.C. Code 16-2802.  In theory, this would allow the health-care providers’ insurance companies the ability to review a case and resolve it without a lawsuit, promoting early settlements.  In practice, it has not fostered settlements as insurance companies routinely claim that they do not have sufficient information with which to resolve the case within the 90 day window.

Worse, it has put certain patients in a situation where they must file their lawsuit one one specific day or risk having the case thrown out.  It works like this:

In the District of Columbia, a patient generally has three years to file a lawsuit based on medical negligence (called the “statute of limitations”).  (There are some exceptions, not relevant here).  Prior to enactment of the 90-Day Rule, the patient’s lawsuit could be filed on any day within that three-year period.  Since enactment of the 90-Day Rule,  if a patient comes to a lawyer and there is still plenty of time left on the statute of limitations, the lawyer simply issues the 90-day notice letter to the health-care provider and then files the lawsuit anytime after 90 days, but before the three-year statute of limitation.  No problem.

What happens, however, when the client comes to the lawyer with less than 90 days left to file a lawsuit?  How can the lawyer comply with both the 90-Day Rule and the three-year statute of limitation?  Well, the D.C. Council dealt with that issue by extending the statute of limitations in those circumstances to “90 days from the date of service of the [90-day] notice.”  D.C. Code 16-2803.  Problem solved, right?  Well, yes, but think of the situation that the patient is now in.  The law forbids the patient from filing the lawsuit until 90 days has elapsed from service of the letter, but at the same time, it only extends the statute of limitation for 90 days.  The result?  The patient now has only one day on which to file the law suit:  the 90th day.  If it is filed on the 89th day, it has been filed too soon because 90 days has not elapsed.  If it is filed on the 91st day, it has been filed too late because 91 days have elapsed.

Sure enough, the D.C. Court of Appeals (its highest court) recently ruled that a medical malpractice case filed on the 91st day is untimely.  InAtiba v. Washington Hospital Center, CAM-480-10 (May 17, 2012), the Court rejected the patient’s argument that the law was unclear.  The Court noted the conundrum the patient faced:  “It may be true that filing the complaint on any day prior to [the 90th day] would have violated the 90-day notice requirement . . . and any date after [the 90th day]was untimely.  However, this court has previously noted that such an interpretation of the statute is not unreasonable.”