District of Columbia v. Dunmore, 92-CV-754.

• Decision Date: 24 July 1995
• Docket Number: No. 92-CV-754.,92-CV-754.
• Citation: 662 A.2d 1356
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Reginald DUNMORE, Appellee.
• Court: D.C. Court of Appeals

662 A.2d 1356

DISTRICT OF COLUMBIA, Appellant, v. Reginald DUNMORE, Appellee.

No. 92-CV-754.

District of Columbia Court of Appeals.

Argued May 11, 1994.

Decided July 24, 1995.

James C. McKay, Jr., Asst. Corp. Counsel, with whom John Payton, Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, were on the brief, for appellant.

Marc Fiedler, with whom Patrick M. Regan and Lisa R. Riggs, Washington, DC, were on the brief, for appellee.

Before TERRY and FARRELL, Associate Judges, and GALLAGHER, Senior Judge.

TERRY, Associate Judge:

We are called upon in this case to decide whether the discovery rule adopted in Burns v. Bell, 409 A.2d 614 (D.C.1979), applies to the notice requirement of D.C.Code § 12-309 (1989)¹ in suits brought against the District of Columbia. The trial court ruled that the six months within which a plaintiff, under the statute, must give notice to the Mayor of a claim against the District did not begin to run until that plaintiff discovered that a claim had accrued. We hold, to the contrary, that the legislative purpose and the plain language of section 12-309 are incompatible with the discovery rule. We therefore reverse the trial court's judgment against the District and remand the case with directions to dismiss appellee's claim for failure to comply with section 12-309. We also reverse the court's ancillary order directing the District to reimburse appellee for his attorney fees and related expenses.²

I

On June 6, 1987, appellee Reginald Dunmore, a diabetic, went to the Howard University Hospital emergency room complaining of pain in his left groin. Upon examining Mr. Dunmore, a doctor prescribed some pain pills and insulin and released him.

Mr. Dunmore's discomfort worsened over the next two weeks, and on June 22 he was admitted to District of Columbia General Hospital ("D.C. General") through its emergency room. A physician at D.C. General examined Mr. Dunmore and discovered that he had a heart murmur and was suffering from malnutrition. This initial examination of Mr. Dunmore also revealed a golf-ball-sized lump in his left groin. To combat the apparent infection in the groin area, the physician prescribed Erythromycin, a low-level antibiotic; however, for reasons undisclosed by the record, no antibiotic of any kind was administered that day.

The next day, Dr. Cuthbert Simpkins, the supervising physician in charge of Mr. Dunmore's treatment, ordered various tests, including an arteriogram and a sonogram. The sonogram was inconclusive, but the arteriogram revealed a blockage in Mr. Dunmore's left femoral artery, a major supplier of blood to the leg. The blockage was not complete, however; some blood was still flowing to Mr. Dunmore's left leg and foot. In light of these tests and examinations, Dr. Simpkins concluded that Mr. Dunmore had a mycotic aneurysm in his left femoral artery,³ and that as a result his artery had become weakened, infected, and enlarged. Dr. Simpkins prescribed intravenous treatment with a series of more potent antibiotics, Vancomycin, Gentamycin, and Flagyl.⁴ The first antibiotic treatment was given at approximately 9:00 p.m. on June 23, roughly thirty hours after Mr. Dunmore first came to the D.C. General emergency room.⁵

At approximately 1:00 a.m. on June 24, Dr. Simpkins and another surgeon operated on Mr. Dunmore to remove the infected portion of his femoral artery and the surrounding tissue. Dr. Simpkins testified that he had intended to perform a bypass procedure that would re-establish the circulation of blood to the leg. However, he did not attempt this procedure because the infection had not abated, and because the region of the artery where the bypass was to be performed was covered with pus. According to Dr. Simpkins' testimony, at this stage "the leg was doomed."

Dr. Luis Queral, a vascular surgeon and one of Mr. Dunmore's expert witnesses, testified that the bypass procedure could have been performed by removing a saphenous vein from Mr. Dunmore's other leg and then grafting it in such a manner as to avoid the infected region altogether, thereby restoring the flow of blood to the infected leg. According to Dr. Queral, the failure of Mr. Dunmore's physicians to perform this procedure at some point, either before or soon after the resection of the aneurysm, was a breach of the applicable standard of care.⁶

After the operation, Mr. Dunmore began to have serious circulatory difficulties in his left leg. The pulse in the leg was greatly diminished. The leg itself became pale and caused him serious pain, and eventually he developed paralysis of the foot. After some time he noticed large black marks on his shin, and later on his toes and heel, which were not present before the surgery. His leg then began to turn purple and was cool to the touch, symptoms indicating a severe lack of oxygen to the leg. His groin infection also persisted. Finally, as a result of the circulatory failure, some of the tissues in Mr. Dunmore's left leg died and became gangrenous. As a consequence of the gangrene, a separate infection developed in his lower leg.

On July 14, roughly three weeks after the initial operation, Dr. Simpkins and his team once again tried to perform the bypass procedure. However, because of the infection in Mr. Dunmore's lower leg, the surgeons had to abort the procedure. Consequently, the flow of blood was never restored, and on August 11 the surgeons were forced to amputate Mr. Dunmore's left leg above the knee. Mr. Dunmore was discharged from D.C. General on August 27, 1987.

Through his sister, Mildred Dunmore, Mr. Dunmore first sought legal representation on November 19, 1987, in contemplation of bringing a lawsuit. On that day Mildred Dunmore met with an attorney, Charles Smith, and asked him to "investigate the possibility of legal action against Howard University Hospital." Ms. Dunmore made no suggestion during this meeting that D.C. General had improperly treated her brother.⁷ On January 12, 1988, Mr. Smith requested Mr. Dunmore's medical records from Howard University Hospital, which he received on March 15. These records shed little light on the case, however, prompting Mr. Smith to request Mr. Dunmore's medical records from D.C. General on March 22.⁸

D.C. General mailed the records to Mr. Smith on or about April 8. After receiving the records on April 14, Mr. Smith reviewed them and "saw some things that indicated that Mr. Dunmore had not received the proper attention that he should have." The very next day, April 15, 1988, pursuant to D.C.Code § 12-309, Smith gave notice to the Mayor that Mr. Dunmore was seeking legal recourse against the District and D.C. General for medical malpractice. On November 2, 1988, Mr. Smith filed a negligence action on Mr. Dunmore's behalf against the District and D.C. General, asking for four million dollars in damages.⁹

Before the first of two jury trials, the District filed a motion for summary judgment, arguing that Mr. Dunmore's case was time-barred under D.C.Code § 12-309. The District contended that the statutory six-month period within which a plaintiff must notify the Mayor of a claim against the District begins when the alleged injury occurs, not when the plaintiff has reason to believe that the District is or may be liable. Consequently, the District argued, the time within which Mr. Dunmore was required to give notice expired no later than February 11, 1988, six months after his leg was amputated; the notice sent by Mr. Smith on April 15, 1988, was more than two months too late, and thus the case should be dismissed. The court denied the motion, and the case proceeded to trial.

After the second trial,¹⁰ the jury found the District liable for medical malpractice because of the doctors' failure to administer the antibiotics in a timely fashion and their failure to perform the bypass operation. The jury awarded Mr. Dunmore $850,000 in damages. The District filed a motion for judgment n.o.v. or a new trial in which it reasserted, inter alia, its contention that Dunmore's action was time-barred under D.C.Code § 12-309. After a hearing, the court denied the motion and entered judgment for Mr. Dunmore.

II

In Burns v. Bell, supra, this court held that in medical malpractice cases, a cause of action "accrues" for purposes of compliance with the statute of limitations "when the plaintiff knows or through the exercise of due diligence should have known of the injury." 409 A.2d at 617. The question before us in this case is whether the discovery rule applies to the notice requirement of D.C.Code § 12-309. We hold that it does not.

Our case law has firmly established that, because it is in derogation of the common law principle of sovereign immunity, section 12-309 is to be construed narrowly against claimants. E.g., Hardy v. District of Columbia, 616 A.2d 338, 340 (D.C.1992); Romer v. District of Columbia, 449 A.2d 1097, 1101 (D.C.1982); Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C.1981). 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, and compliance with its terms is "mandatory as a prerequisite to filing suit against the District." Hardy, supra, 616 A.2d at 340; see Gwinn, supra, 434 A.2d at 1378 ("Unless timely notice is given, no `right of action' or `entitlement to maintain an action' accrues"). As we explained in Pitts v. District of Columbia, 391 A.2d 803, 807 (D.C.1978):

The rationale underlying the Section 309 notice requirement is (1) to protect the District of Columbia against unreasonable claims and (2) to give reasonable notice to the District of Columbia so that the facts may be ascertained and, if possible, deserving claims adjusted and meritless claims resisted.

The statutory predecessor of section 12-309 was enacted in 1933 to deal with cases in which suits were filed against the...