Washington D.C. Medical Malpractice Laws

When you go to see a doctor you expect that doctor to to make the correct diagnosis, order the correct tests, and generally, to be competent and knowledgeable with regard to the medical information he or she is imparting to you. We also trust that other medical professionals such as nurses, surgeons, anesthesiologists, and pharmacists are performing their jobs to the best of their ability and are taking all the proper precautions when taking care of us. Unfortunately, patients are not always provided with proper and competent care. When a doctor or other medical professional makes a mistake or is careless when treating a patient, the injured patient can suffer significant long-term health consequences and even death. The failure to provide the appropriate standard of care can be considered medical malpractice and patients and their families may choose to seek compensation from a negligent doctor.

If you or a loved one has been injured due to the negligence of a doctor or other medical professional it is a good idea to contact an attorney to discuss your case. There is a lot to consider when filing a lawsuit for medical malpractice in the District of Columbia including what law applies, who can be held responsible, what court has jurisdiction, the statute of limitations, and what procedural requirements may apply, among other things. An experienced and knowledgeable attorney can help you as you navigate through the complex, and sometimes confusing, legal process.

Suing for Medical Malpractice In The District Of Columbia

Medical malpractice can be defined as “[a] doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances.” [1] Medical malpractice is a form of negligence. In the District of Columbia in order to show negligence the “plaintiff must prove ‘the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiffs injury.'” [2]

In a medical malpractice case, “[e]stablishing the standard of care is essential to a prima facie case of negligence because physicians are not expected to be perfect and ‘do not and cannot guarantee results’ . . . they are liable in negligence only when their behavior falls below that which would be undertaken by a reasonably prudent physician, and there is a causal link between this behavior and the injury suffered.” [3] In order to establish the standard of care the plaintiff must show “through expert testimony the course of action that a reasonably prudent doctor with the defendant’s specialty would have taken under the same or similar circumstances.” [4] The standard of care doctors are measured against is a national standard of care. [5]

How Long Do I Have To File A Medical Malpractice Lawsuit In The District Of Columbia?

Statute of Limitations

The law gives plaintiffs a set amount of time within which they can file a lawsuit. This time frame is called the statute of limitations. The amount of time a plaintiff has varies depending on the type of claim that the plaintiff is seeking to bring. In addition, there are exceptions to the statute of limitations that can extend the time period a plaintiff has to sue.

Medical Malpractice And The Discovery Rule

In the District of Columbia, a plaintiff has three years to file a medical malpractice claim. [6] However, in these types of cases an injury due to medical negligence may not show up right away. If a doctor makes a blatant error such as removing the wrong kidney or prescribing a patient a medication the patient’s charts state he or she is allergic to, the patient’s injury will be readily apparent. Sometimes a medical mistake is not so obvious and is only discovered years later. A patient in this instance may still be able to bring a claim as the District of Columbia follows the discovery rule.The discovery rule extends the amount of time a person has to bring a personal injury claim as the rule provides that “a particular cause of action accrues ‘when the plaintiff knows or through the exercise of due diligence should have known of the injury.'” [7] The statute of limitations only begins to run once the patient has discovered the injury.

Exceptions To The Rule

In addition, there are other exceptions that can toll, or pause, the statute of limitations. For example, in the District of Columbia, if a person is a minor, has been adjudicated to be not mentally competent or is in prison “at the time the right of action accrues . . . he or his proper representative may bring action within the time limited after the disability is removed.” [8]

There are other circumstances not listed here that may extend or excuse the statute of limitations as well, it largely depends on the facts and circumstances of the case. If you or a loved one has been injured due to medical malpractice, it is important to note that you can still contact an attorney to discuss your case even if you think you are over the applicable statute of limitations, because, as was discussed above, there are many things that can extend the time frame in which a claim can be brought.

Wrongful Death

If a plaintiff is suing on behalf of a deceased family member there is a different time frame within which a claim must be filed. The District of Columbia code provides that a wrongful death claim must filed within two years of the loved one’s death. [9]

Notice Provisions

In General

The District of Columbia has pre-suit notice requirement in medical malpractice cases. [10] The law states that if you are planning on filing a lawsuit for medical malpractice against a health care provider then you must notify that health care provider of your intention to file suit at least 90 days prior to filing your complaint. If notice is not given, then a court may not permit a lawsuit to proceed. [11] Some important things to note about this requirement:

• Section § 16-2802(a) states that “[n]otice may be given by service on an intended defendant at his or her last known address registered with the appropriate licensing authority.”
• If the plaintiff makes a good faith effort to notify the intended defendant of the lawsuit, then the court “may excuse the failure to give notice within the time prescribed.” Id.
• The notice is needs to include “sufficient information to put the defendant on notice of the legal basis for the claim and the type and extent of the loss sustained, including information regarding the injuries suffered.” [12]
• Section § 16-28023 states that “If the notice required under § 16-2802 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.”
• Section § 16-2802 doesn’t apply to unknown defendants, unlicensed defendants, defendants who are identified by a misnomer, and a claim that is “unknown to the person at the time of filing his or her notice.” [13]
• In addition, the notice requirement may be waived “upon a showing of good faith effort to comply or if the interests of justice dictate.” [14]
• In addition, the District of Columbia decided a case in 2013 that addressed whether or not trials courts had the authorization to waive the notice provision in the interests of justice and the court concluded that the trial courts did have that power. [15]

Federal

If you are seeking to recover damages from the federal government you must first file an administrative claim with the federal agency at fault within two years of the cause of action accruing. [16] If the agency fails to respond within six months that lack of response can be considered a denial of a claim. [17] If the agency denies a claim, then the plaintiff has six months from “the date of mailing” of the denial of his or her claim to file a lawsuit. [18]

District of Columbia

The District of Columbia has a more limited notice period. If you are seeking to hold the District liable for damages you have to file a Notice of Claim with the Mayor of D.C within six months of the date of injury. [19] The District of Columbia’s Office of Risk Management has been authorized to accept Notices of Claim for the Mayor. To learn more details click here.

A competent and knowledgeable medical malpractice attorney will be familiar with the various pre-suit notice requirements and can help you navigate the potentially complicated process of giving proper notice.

In The District of Columbia Medical Malpractice Cases, Who Can Be Held Responsible?

If you or a loved one has been injured because of the carelessness of a medical professional you may wonder who can be held responsible for your injuries. The answer is that it will depend on what happened in your case. A person who was injured during surgery will be seeking redress from different people or institutions than a person who was injured due to a wrongly prescribed medication.

The District of Columbia defines a health care provider as “an individual or entity licensed or otherwise authorized under District law to provide healthcare service.” [20] Included in the list are:

• hospitals
• nursing facilities
• comprehensive outpatient rehabilitation facilities
• home health agencies
• hospice programs
• renal dialysis facilities
• ambulatory surgical centers
• pharmacies
• physician or health care practitioner’s offices
• long-term care facilities
• behavior health residential treatment facilities
• health clinics
• birth centers
• clinical laboratories
• health centers
• physicians
• physician’s assistants
• nurse practitioners
• clinical nurse specialists
• certified registered nurse anesthetists
• certified nurse midwifes
• psychologists
• certified social workers
• registered dietitians or nutrition professionals
• physical or occupational therapists
• pharmacists
• other individual health care practitioners

In addition, a person can file suit against government entities such as the federal government or the District of Columbia if there is cause to do so. Again, who may be named in a lawsuit will depend on the particular facts and circumstances that occurred in the case. So in the example above, a person who was injured during surgery may file suit against the surgeon, the nurses, the hospital, or the government if it was a state hospital. If the person was injured because their primary care doctor prescribed a medication they are allergic to because the doctor failed to check their chart, then the person injured may choose to file suit against the doctor and the practice.

What If I Am Partially At Fault? Can I Still Recover Damages For Medical Malpractice In The District of Columbia?

Sometimes in a medical negligence case there can be fault on both the part of the doctor who made a mistake in his or or her treatment of a patient and the patient who is bringing the lawsuit. For example, if the plaintiff filed a lawsuit because the doctor was negligent during surgery but the plaintiff did not take the post-surgery medications properly thereby aggravating his or her condition, then there could potentially be fault on both sides.

Different states have different ways of dealing with fault in negligence cases. If the plaintiff is partially at fault for his or her injury, then the person being sued may raise a defense of contributory or comparative negligence. Most states follow either pure comparative negligence or a form of modified comparative negligence.

With pure comparative negligence the fault is apportioned between the two parties and the plaintiff’s damages are reduced based on the percentage of fault allocated to him or her. So in the example above, the jury or judge would determine how much the doctor was at fault and how much the plaintiff was at fault for the plaintiff’s injuries. Let’s say that jury decided that the plaintiff’s fault was 15% for failing to take her medication correctly and the doctor’s was 85% at fault for his or her surgical negligence. If the plaintiff received a $100,000 award, then the award would be reduced by 15% because the plaintiff was 15% at fault, bringing the plaintiff’s total award down to $85,000.

Other states follow a modified form of comparative negligence. In some states, this permits plaintiff to recover only if his or her fault is less than that of the defendant. In other states, this permits a plaintiff to recover if his or her fault is less than or equal to that of the defendant’s.

Washington, D.C. is one of five jurisdictions that still follows an older doctrine called contributory negligence. This doctrine is much more harsh than comparative negligence. With contributory negligence a plaintiff cannot recover if he or she is partially at fault for his or her injuries. This means that if a plaintiff is even 1% at fault for an accident then the plaintiff cannot recover damages from the defendant.

Are There Medical Malpractice Recovery Caps In The District Of Columbia?

Damages are meant to compensate the plaintiff for losses that he or she suffered from the injury. There are three main categories of damages that can be available in personal injury case. These categories are economic damages, non-economic damages and punitive damages.

Economic Damages: These types of damages are meant to compensate the plaintiff for monetary losses. Economic damages typically include things like the past and future medical bills as well as past and future wages.

Non-Economic Damages: These damages are meant to compensate an injured plaintiff for less tangible aspects of the injury. Non-economic damages include things such as pain and suffering and loss of consortium.

Punitive Damages:Unlike economic or non-economic damages which are meant to compensate the plaintiff for losses, punitive damages are intended to punish the defendant for his or her behavior and to deter any similar behavior in the future.

There are no damage caps for medical malpractice in the District of Columbia. However, if the plaintiff has brought a lawsuit against the United States for tort damages the plaintiff cannot recover punitive damages from the federal government. [21]

Expert Witness Reporting and Testimony

An expert witness is a person who is “qualified by knowledge, skill, experience, training, or education to provide scientific, technical, or other specialized opinion about the evidence or a fact issue.” [22] Expert witnesses are often used at trial by both sides. The plaintiffs use experts to testify to the injuries that the plaintiff suffered while the defense uses experts for the opposite reason, to show that the doctor met the appropriate standard of care.

The rules governing experts and expert testimony are laid in the court’s rules of civil procedure. The rules vary depending on the court that the case is filed in. In the District of Columbia, the Superior Court Rules require that each side disclose experts they intend to use at trial to the other side as well as a report that gives certain information including the expert’s qualifications and opinions. [23] An attorney who has experience practicing in the District of Columbia will be able to help navigate the civil procedure rules of the various courts in the District.

Are Some Parties Immune From Medical Negligence Liability?

Who is named as a defendant in a medical malpractice case largely depends on the facts and circumstances of the case. A lawyer will help his or her client conduct an evaluation of what happened in a particular medical negligence incident to determine who the appropriate defendant or defendants are.

There are some instances where a person or entity may be immune from liability. One such instance is with governments. Governments are typically immune from liability. However, most governmental bodies in the United States have waived their sovereign immunity in certain instances. For example, the United States passed the Federal Tort Claims Act which permits citizens to bring certain negligence claims against the federal government.

An example of immunity would be if a person decided to file suit against a health center that is part of the HRSA Health Center Program. These centers and certain employees are immune from medical malpractice actions. However, a patient still has recourse in this instance. These centers are covered under the FTCA are and a patient who has suffered malpractice can still file suit against the federal government. [24]

Settling Medical Malpractice Cases In The Nation’s Capitol (4P)

It is much more common nowadays for a civil case to be settled prior to going to trial. In fact a 2008 New York Times article reported that between 80 and 92 percent of cases will reach a settlement before reaching the trial phase. [25] Some states have programs in place to facilitate settlement and the District of Columbia is no exception.

D.C. has a mandatory mediation program in medical malpractice cases. Mediation is “[a] method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.” [26] During a mediation the parties typically first meet in the same room and each party is given the opportunity to explain their side of the case. One party is then moved to a different room and the mediator goes back and forth between the rooms attempting to help the parties reach an agreement.

The required mediation in the District of Columbia occurs fairly early on in the litigation process and little to no discovery is conducted before the mediation. The people required to attend the mediation are: all the parties in the case or the representatives of the parties, an insurance company representative with the authority to settle the case if an insurance company is involved, and the attorneys for the parties are also required to attend. [27] One distinct advantage of mediation is that it is confidential. Another advantage is that statements made at mediation are generally inadmissible at trial. After the mediation occurs, the mediator who conducted it is required to submit a report to the court. The report outlines what settlement was reached, if any.

In addition, the report will outline if the parties were able to any agreements in the case. Mediation can also be used to narrow down the issues to be litigated or reach other agreements between parties as well as reach a settlement in the entire case. There are other kinds of dispute resolution methods as well that are available to plaintiffs such as arbitration or simple negotiation between parties.

Litigating A Medical Malpractice Case In The District Of Columbia

Initiating The Case

Once you or a loved one has decided to pursue a medical malpractice case the first thing you will likely do is contact an attorney to determine if you have a viable legal claim. This is where the facts and other things such as the statute of limitations (discussed above) come into play. If you do have a case then the first step, as mentioned above will likely be to give notice to the appropriate person or persons who will be named as defendants. As previously mentioned, the District has a pre-suit notice provision which requires that the plaintiff give the health care provider they are planning on filing against notice at least 90 days before filing suit. If there is a government entity involved, then the applicable notice provisions for these entities must also be complied with.

Once proper notice is given, a medical malpractice case in the District of Columbia, like with other personal injury cases, is begun by filing a complaint with the proper court. In order to determine which court is the correct one to file a lawsuit in a medical malpractice attorney will look at which court has jurisdiction. Different courts have jurisdiction over different issues, people, and places. If, for example, you were filing a claim against a doctor in private practice in Washington, D.C. then the District of Columbia Superior Court would likely have jurisdiction. By contrast, if you were filing a claim against a federal hospital, then the proper venue may be federal court instead.

If the case is filed in the Superior Court in the District, then the court will likely order mediation early on in the litigation process. This early mediation gives both parties a chance to settle the lawsuit without having to go through the oft-times lengthy process of discovery and trial. However, if no agreement is reached at mediation then the case will proceed to the discovery phase.

Preparing For Litigation

Discovery is the process by which each side in a lawsuit collects information. This process can be quite lengthy, depending on the complexity of the case and the amount of opposition to requests. The most common forms of discovery in a civil case are interrogatories, requests for production, requests for admission, and depositions. Interrogatories are questions that each side sends to the other. The questions must be answered under oath and there are usually a limited number that each side can ask in a given case. Requests for production are used to gather relevant documents and other things from the opposing party. Requests for admissions are also under oath and are used to narrow down the issues for trial. Finally, depositions are conducted so that each party has the opportunity to interview witnesses and parties. Those being deposed are giving sworn testimony, with the oath being administered by a court officer, usually a court reporter who is there to make a transcript of the deposition. Attorneys are typically present for depositions and may make objections to questions being asked. In addition, in a medical malpractice case a plaintiff can be requested by the defense to undergo a medical exam.

Once discovery is completed, the case then moves to trial. During this the discovery process, both sides of the case can continue to work towards a settlement through negotiations. If a settlement is reached the case would settle at this phase.

Pre-Trial Litigation

All during the discovery process and prior to the case going to trial there may be hearings conducted on various motions that may be submitted by either party. For instance, if the defense does not believe that the plaintiff has a case at all, early on in the litigation the defense may file a motion to dismiss the case. Another motion that a party may submit could relate to discovery. If, for example, the defense objected to a request for production from the plaintiff and the parties could not resolve the matter themselves, then the plaintiff may file a motion to compel the defense to produce the requested material. A judge would then listen to the arguments from both parties and rule on how to proceed. Motions are also used to determine the admissibility of certain evidence or witnesses prior to trial. In addition, a motion that is commonly filed at the end of discovery is a motion for summary judgment.

Another event that takes place prior to trial is the pre-trial settlement conference. [28] At this conference all parties and their attorneys meet and attempt to settle the case. The conference is usually conducted by the trial judge. If a settlement cannot be reached then the judge will set a date for trial as well as go over any pertinent “pretrial filings.” [29]

Trial

Trials generally follow the same format. After the jury is selected and empaneled then each party is given the opportunity to make an opening statement. The plaintiff then presents his or her evidence supporting the imposition of liability on the defendant. Once the plaintiff rests it is the defense’s opportunity to present evidence. The defendant will put on witnesses and exhibits that tend to show that he or she should not be held liable for the plaintiff’s injuries. After the defense rests, the plaintiff can rebut some of the defense testimony and vice versa. Closing arguments are conducted at the end of the presentation of evidence and then the jury is instructed on the applicable law by the presiding judge. The jury then takes the evidence that has been presented and makes a decision on whether the defendant is liable or not liable.

In a civil case, a plaintiff must prove his or her case by a preponderance of the evidence. This means that the “greater weight of the evidence” must be in the plaintiff’s favor in order for the jury to find the defendant liable. [30]

Appeal

If the plaintiff or defense does not feel the jury or judge has reached the right decision, either after trial or on a pre or post trial motion, then that party can appeal the case to a higher court. An appellate court decides matters of law. In Washington that court would be the District of Columbia Court of Appeals. [31] There are nine judges on the D.C. appellate court, however, cases are usually heard and decided by a panel of three judges unless a case is en banc.

How To Find The Best Medical Malpractice Attorney For Your Case In The District Of Columbia

There are a lot of things to consider when deciding what attorney to hire to represent you or a loved one in your medical malpractice case. Here are some things to keep in mind as you decide on the right attorney to take your case:

• How long the attorney has been practicing law
• The attorney’s experience with medical malpractice cases
• The attorney’s knowledge of medical malpractice law
• The attorney’s experience with practicing law in the courts of the District of Columbia
• The resources available to the attorney

In addition to finding an attorney who is properly qualified and experienced to represent clients in the District of Columbia, there are other things you may wish to consider when deciding on which attorney to help you seek compensation for your injuries. It is important to work with an attorney you trust and feel comfortable with as medical malpractice cases can involve intimate details about your health or the health of a loved one. Legal cases can also take time, especially if they are complex, so you could be working with the attorney for quite a while before your case is resolved.

Many medical malpractice attorneys offer a free initial consultation to potential clients. During this meeting, take the time to learn about the attorney’s experience and qualifications, in addition to discussing your case.

Some Notable Medical Malpractice Law Decisions from The District of Columbia

These cases represent awards to plaintiffs in medical malpractice cases in The District of Columbia. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Morrison v. MacNamara

In 1979, the appellant, Richard Morrison’s doctor sent him to get a urethral smear test at appellee Oscar B. Hunter Memorial Laboratories, Inc. Tom MacNamara, the second appellee in the case, had worked at the lab for seven months when he administered the test on Morrison. The test was administered while Morrison was standing. After the first test Morrison said he felt faint and MacNamara told him to sit down but did not offer any medical assistance. A few minutes later MacNamara asked Morrison if he wanted to take the second test and Morrison agreed. The test was again administered while Morrison was standing. During the second test, Morrison fainted, “striking his head on a metal blood pressure stand and on the tile covered floor.” He was taken to the hospital. Morrison permanently lost his sense of smell and partially lost his sense of taste, as well as suffering other injuries, as a result of his fall. He filed a malpractice claim against MacNamara and the lab. He took issue with “the manner in which they conducted the test and for proceeding with the test despite the fact that appellant had complained of feeling faint.”

The main issue in the case was whether the local or national standard of care applied to the lab and the technician’s actions. It was acceptable locally to conduct the test at issue while the patient was standing, but nationally the standard, as attested to by the plaintiff’s expert witness, was for the patient to be in a “prone or sitting position.” In addition, the plaintiff’s expert testified that if the patient was feeling faint then the national standard is to “use more objective criteria such as pulse or blood pressure, to evaluate the patient medically.” Two of the defendant’s experts testified that they would also medically evaluate the s patient who “complained of feeling faint,” while a third stated it as “a matter of judgment.”

The parties submitted competing jury instructions over the standard of care. The plaintiff submitted instructions “based on the national standard of care,” while the defense argued for a local standard. The trial judge agreed with the defense and the jury was instructed on the local standard of care. The jury subsequently returned a verdict for the defendants and Morrison appealed.

The appellate court decided the case in Morrison’s favor, ruling that a national standard of care was the appropriate standard for medical professionals to be held to. The locality rule was developed in the late 1800’s and “was premised on the notion that the disparity in education and access to advances in medical science between rural and urban doctors required that they be held to different standards of care.” However, the court found this doctrine to no longer relevant in D.C. It stated, “[e]ven a cursory analysis of the policy behind the locality doctrine reveals that whatever relevance it has to the practice of medicine in remote rural communities, it has no relevance to medical practice in the District of Columbia.” The District is a major metropolitan area with excellent hospitals and medical schools, modern “medical education has been standardized throughout the nation through a system of national accreditation,” and there are many national medical journals that D.C. medical professionals can get to learn about new developments.

The court stated that the national standard could be applied to medical labs, holding that “at least as to board certified physicians, hospitals, medical laboratories, and other health care providers, the standard of care is to be measured by the national standard.” The court then stated that the jury instruction on the local standard was erroneous. The court also found that Morrison had not assumed the risk when he took the test.

The District of Columbia Court of Appeals vacated the trial court’s judgment and ordered a new trial for Morrison.

Footnotes

[1] Black’s Law Dictionary 1044 (9th ed. 2009)

[2] Bruno v. Western Union Financial Servs., 973 A.2d 713 (D.C. 2009)

[3] Burke v. Scaggs, 867 A.2d 213 (D.C. 2005)

[4] Meek v. Shepard, 484 A.2d 579 (D.C. 1984)

[5] Rhodes v. United States, 967 F. Supp. 2d 246, 298 (D.D.C. 2013) (“The law in this jurisdiction . . . establishes that the conduct of a health care provider, whether a physician or institution, should be measured against the national standard of care, which in turn depends on the course that is followed nationally by physicians or institutions in the same field as the defendant.”)

[6] D.C. Code § 12-301

[7] Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192 (D.C. 1984)

[8] D.C. Code § 12-302

[9] D.C. Code § 16-2702

[10] D.C. Code § 16-2802

[11] D.C. Code § 16-2802(c)

[12] D.C. Code § 16-2802(b)

[13] D.C. Code § 16-2804

[14] Id.

[15] See, Lewis v. Wash Hosp. Ctr., 77 A.3d 378 (D.C. 2013) ([W]e conclude that § 16–2804(b) is properly read to authorize trial courts to waive § 16–2802(a)’s notice requirement whenever such a waiver is in the interests of justice.)

[16] 28 U.S. Code § 2401

[17] 28 U.S. Code § 2675

[18] 28 U.S. Code § 2401

[19] D.C. Code § 12-309

[20] D.C. Code § 16-2801

[21] 28 U.S. Code. § 2674

[22] Black’s Law Dictionary 1740 (9th ed. 2009)

[23] SCR Rule 26

[24] http://bphc.hrsa.gov/about/what-is-a-health-center/index.html

[25] http://www.nytimes.com/2008/08/08/business/08law.html

[26] Black’s Law Dictionary 1070 (9th ed. 2009)

[27] D.C. Code § 16-2824

[28] SCR Rule 16

[29] SCR Rule 16

[30] Black’s Law Dictionary 1301 (9th ed. 2009)

[31] http://www.dccourts.gov/internet/appellate/main.jsf