Brown v. District of Columbia, No. 02-CV-756.

• Decision Date: 15 July 2004
• Docket Number: No. 02-CV-756.
• Parties: Prophetess BROWN, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

853 A.2d 733

Prophetess BROWN, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 02-CV-756.

District of Columbia Court of Appeals.

Argued June 17, 2003.

Decided July 15, 2004.

Jonathan Zucker, Washington, DC, with whom Steven R. Kiersh, was on the brief, for appellant.

James C. McKay, Jr., Senior Assistant Corporation Counsel, with whom Arabella W. Teal, Interim Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel at the time the brief was filed, were on the brief, for appellee.¹

Before GLICKMAN and WASHINGTON, Associate Judges, and KING, Senior Judge.

WASHINGTON, Associate Judge:

In this case, we are called upon to determine when an injury occurs for purposes of notice pursuant to D.C.Code § 12-309 (2001) where the District of Columbia allegedly failed to diagnose an inmate's medical condition. William Brown, appellant Prophetess A. Brown's son, died five months after he was transferred to a Virginia prison from the District of Columbia Department of Corrections Lorton Correctional Facility (Lorton). Appellant claims that while Mr. Brown was incarcerated at Lorton, he was not given proper medical treatment, he suffered severe symptoms as a result, and he ultimately died from the Department of Corrections' (DOC) failure to diagnose and treat his condition. In dismissing appellant's wrongful death and survival claims, the trial court found that appellant had not provided timely notice to the District pursuant to § 12-309 because she gave notice more than six months after Mr. Brown's injury. Appellant now appeals this decision.

We hold today that, in cases brought against the District of Columbia pursuant to § 12-309, an injury that results from a physician's negligent failure to diagnose a medical condition occurs when the patient's condition worsens as a result of the physician's negligence. In light of this holding, we conclude that Mr. Brown's injury occurred at some point prior to his death. Because notice to the District was not provided until six months after Mr. Brown's death, appellant's notice to the District was untimely. Accordingly, we affirm.

I.

Mr. Brown was incarcerated in the District of Columbia from March 11, 1997 to April 15, 1999. During his incarceration at Lorton, Mr. Brown complained of abdominal pain and chest pain on several occasions. He communicated his symptoms to the medical staff, his mother, and sister Ms. Cynthia Allen. Ms. Allen testified that, while at Lorton, Mr. Brown lost several pounds, frequently vomited, and often confessed that he believed he would ultimately die as a result of the substandard medical treatment. Although Mr. Brown was x-rayed by the District, the medical condition from which he ultimately died was not diagnosed. Rather, Mr. Brown was diagnosed as suffering from "indigestion," "musculoskeletal pain," and "dyspepsia." According to his relatives, Mr. Brown was treated primarily with Maalox.

On April 15, 1999, Mr. Brown was transferred from Lorton to the Virginia Department of Corrections at Sussex II State Prison (Sussex) in Waverly, Virginia.² At Sussex, Mr. Brown continued to experience severe symptoms. According to appellant's § 12-309 notice letter to the District, the following events occurred after Mr. Brown's transfer to Sussex. Mr. Brown became ill on August 17, 1999, and was taken to the clinic because he was vomiting and experiencing severe abdominal pain. He was released after a short stay in the infirmary. Mr. Brown again became very ill on September 28, 1999, and was taken to the Sussex clinic on an emergency basis. Over the next few days, Mr. Brown suffered from severe nausea, abdominal pain, and vomiting. On October 2, 1999, Mr. Brown was sent to the Southside Regional Medical Center for emergency medical treatment. At the hospital, Mr. Brown was treated for "left lower lobe pneumonia, continuous hiccups, dehydration, acute renal failure, hyperglycemia, and hypokelima." His vomit and stool tested positive for blood.

Mr. Brown died on October 4, 1999. According to appellant's § 12-309 letter, a preliminary autopsy revealed that he had suffered from a diaphragmatic hernia, which probably developed as a result of a stab wound he sustained in his rib cage prior to his incarceration at Lorton. The autopsy stated that the cause of death was "sepsis due to left intrathoracic transdiaphragmatic herniation of the small and large bowel."³

On April 3, 2000, appellant provided notice to the District of Mr. Brown's injury and thereafter filed a survival and wrongful death claim against the District. The District filed a motion to dismiss or for summary judgment, claiming that appellant had failed to comply with the notice requirement of D.C.Code § 12-309. The trial court agreed, granting appellee's motion for summary judgment, and dismissing the case. Specifically, the trial court noted that "if DOC injured [Mr. Brown], it had to do so while he was in its custody." Thus, for purposes of § 12-309, the court found that the notice period had to have commenced at least as of the last day of Mr. Brown's incarceration at Lorton. Because the District received notice eleven months after Mr. Brown's transfer from Lorton, the court found that notice was untimely. In addition, the court found that the notice period was not tolled because of the decedent's incarceration at Lorton.

Appellant contends that the trial court erred in granting summary judgment to the District based on untimely notice because: (1) the injury that triggered the notice period was Mr. Brown's death; (2) the notice period was tolled during the time Mr. Brown was incarcerated regardless of when the injury occurred; and (3) there was a genuine issue of material fact regarding Mr. Brown's knowledge of his injury. Despite the fact that appellant divides her argument into several parts, all of her arguments depend upon our concluding that the § 12-309 notice period began to run at the time of Mr. Brown's death.⁴

II.

A. Standard of Review

"Compliance with § 12-309 is a question of law that we review de novo." District of Columbia v. Ross, 697 A.2d 14, 17 (D.C.1997). "[C]ompliance with [§ 12-309] is mandatory as a prerequisite for filing suit against the District." Gross v. District of Columbia, 734 A.2d 1077, 1081 (D.C.1999) (quoting District of Columbia v. Dunmore, 662 A.2d 1356, 1359 (D.C.1995)) (internal quotation marks omitted). D.C.Code § 12-309 provides:

An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the appropriate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.

"[B]ecause it is in derogation of the common law principle of sovereign immunity, section 12-309 is to be construed narrowly against claimants. Section 12-309 is not, and does not function as, a statute of limitations. Rather, it imposes a notice requirement on everyone with a tort claim against the District of Columbia." Dunmore, 662 A.2d at 1359. Unlike a statute of limitations, which can be tolled through the discovery rule,⁵ § 12-309 starts the clock at the instant an injury or damage is sustained. See Kelton v. District of Columbia, 413 A.2d 919, 921 (D.C.1980).

The purposes of the statute are: "(1) to allow the District to investigate potential claims so that evidence may be gathered while still available, for example before the relevant sidewalk is paved over or the meter cover fixed, (2) to enable the District to correct defective conditions, thus increasing public safety, and (3) to facilitate settlement of meritorious claims and resistance of frivolous ones." Hardy v. District of Columbia, 616 A.2d 338, 340 (D.C.1992).

B. Discussion

The central question in this appeal — when does the § 12-309 notice period begin to run where a claimant sues the District based on the alleged negligence of one of its physicians in failing to diagnose a medical condition — is one of first impression. Although we have previously addressed when the statute of limitations begins to run in similar medical malpractice cases, our decisions in those cases, while helpful, do not resolve the issue before us. For example, in Hardi, supra note 4, the plaintiff sued her physician for failure to diagnose diverticulitis, an infectious condition that affects the colon. Although the plaintiff, who had been treated for diverticulitis a few years earlier, suspected that she was experiencing a recurrence of the condition, her physician incorrectly diagnosed her as suffering from a gynecological condition. Relying on her physicians' diagnosis, the plaintiff underwent surgery to remove her reproductive organs. During surgery, the general surgeon conducting the operation discovered that the plaintiff's condition was, indeed, diverticulitis. Contending that the plaintiff's action was time barred, the defendant generally argued that the plaintiff's injury occurred when the defendant misdiagnosed her condition. We held, however, that the plaintiff neither knew nor could have known of her injury until her surgeon discovered the infection in her colon and informed her that her condition was diverticulitis. Thus, the statute of limitations began to run when the plaintiff discovered that she had been injured by her physician's negligence.⁶

In Dunmore, we rejected the notion that the discovery rule applied to cases brought under § 12-309. Id., 662 A.2d at 1356. Therefore, unlike in Hardi, where we applied the discovery rule, the date of injury for § 12-309 is not when the claimant knew or should have known of his injury, but rather when that injury was actually sustained. In Dunmore, the patient had received negligent treatment from his physician...