George v. Dade

• Decision Date: 22 March 2001
• Docket Number: No. 97-CV-1127.,97-CV-1127.
• Parties: Theodore R. GEORGE, M.D., Appellant, v. Lyannette DADE, Appellee.
• Court: D.C. Court of Appeals

769 A.2d 760

Theodore R. GEORGE, M.D., Appellant, v. Lyannette DADE, Appellee.

No. 97-CV-1127.

District of Columbia Court of Appeals.

Argued December 3, 1999.

Decided March 22, 2001.

Donna M. Murasky, Assistant Corporation Counsel, with whom Jo Anne Robinson, Interim Corporation Counsel at the time the brief was filed, and Charles L. Reischel, were on the brief, for appellant.

Wayne M. Willoughby, with whom Zev T. Gershon and Robin R. Smith, Baltimore, MD, were on the brief, for appellee.

Before WAGNER, Chief Judge, and REID and GLICKMAN, Associate Judges.

REID, Associate Judge:

In this case, appellant Theodore R. George, M.D., an employee of the District of Columbia General Hospital, challenges the trial court's decision not to grant him judgment as a matter of law in a medical malpractice matter where the jury returned judgment in excess of $1.2 million in favor of appellee Lyannette Dade. He contends that the trial court erred in failing to dismiss the action against him, since Ms. Dade did not provide requisite notice of her claim to the District of Columbia under D.C.Code § 12-309 (1995). We affirm the judgment of the trial court, concluding that Ms. Dade was not required to give notice to the District under § 12-309, with respect to her claim against Dr. George in his individual capacity, even though the District must indemnify him, as a medical employee under D.C.Code § 1-1215(b) (1999), if he is "not covered by appropriate insurance purchased by the District."

FACTUAL SUMMARY

The record before us shows that on November 23, 1993, one week after giving birth at the D.C. General Hospital, Ms. Dade returned there, complaining of a headache. Her pressure was elevated. Dr. George, the attending physician, prescribed two anti-hypertensive medications, and instructed Ms. Dade to report to the Georgetown Medical Clinic two weeks later for a follow-up visit. On November 24, 1993, Ms. Dade suffered a massive stroke and related complications, including a coma. After care and rehabilitation at the Greater Southeast Community Hospital, Ms. Dade was discharged on February 24, 1994.

On May 23, 1995, Ms. Dade filed suit against Dr. George, alleging medical negligence; but she did not notify the District of her claim within the six month statutory period set forth in § 12-309 which 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 approximate 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.

On August 3, 1995, Dr. George, through his attorney, an Assistant Corporation Counsel, filed a motion to dismiss the complaint or for summary judgment, on the ground of Ms. Dade's alleged failure to comply with the requirements of § 12-309.¹ In his memorandum of points and authorities in support of his motion, Dr. George stated, in part: "Because Dr. George has a statutory right to indemnification for damages resulting from personal injury caused by his negligence, see D.C.Code § 1-1215(b), the District of Columbia is the real party in interest in this case." Section 1-1215(b) provides:

Whenever in a case in which the District of Columbia is not a party, a final judgment and order to pay money damages is entered against a medical employee of the District of Columbia on account of personal injury or death caused by the negligent act or omission of the medical employee within the scope of his employment and performance of professional responsibilities, the District of Columbia shall, to the extent the medical employee is not covered by appropriate insurance purchased by the District of Columbia, indemnify the employee in the amount of said money damages.

On February 23, 1996, the Honorable Judith E. Retchin filed a pre-trial order denying Dr. George's motion to dismiss. The order stated: "Plaintiff is not required to sue the District of Columbia to maintain her action against defendant." After trial, in considering Dr. George's motion for judgment as a matter of law, Judge Retchin again concluded that Ms. Dade did not violate § 12-309. She stated, in part:

[I]f the legislature intended that notice be served on the District when indemnification is required, it could have included such a requirement in either section 12-309 or section 1-1215(b). In the meantime, this Court is obliged to interpret section 12-309 as it is written, and it does not require that notice be given to the District when an individual employee is sued.

As support for her conclusion, Judge Retchin referenced a memorandum opinion issued by the Honorable A. Franklin Burgess, Jr. of the Superior Court of the District of Columbia in Peters v. Reid, Civ. No. 92-8309 (Super.Ct.D.C. Aug. 10, 1993). Judge Burgess declared:

The Court sees the policy arguments advanced by the District but believes that it is constrained by the plain words of the statute to rule against the District's position. It is basic that the plain words of a statute must be followed unless the clearly expressed intent of the legislature reveals ambiguities or the plain language leads to absurd or plainly unjust results. Further, a court may depart from the plain meaning if examination of the legislative history or the statute shows a truly discernible purpose which departure from the plain meaning will serve. Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 754-55 (D.C.1983) (en banc). The District has not pointed to any legislative history of either statute under consideration indicating an ambiguity in the language or showing that the legislature intended that "maintained against the District" be construed to include actions not maintained against the District but having the effect, if maintained successfully, of requiring the District to indemnify the person against whom judgment is entered. The plaintiff appropriately points to § 1-1215(a) as suggesting that the intent was actually as expressed in the plain wording of the statute. In § 1-1215(a) the legislature chose to allow a plaintiff, suing for damages for a tort arising out of use of a vehicle, to sue only the District, thereby requiring the notice under § [12-]309. In the section under consideration, by contrast, the legislature recognized that an action could be brought against the individual only.

Id. at 3-4.

Dr. George filed a timely appeal from the trial court's judgment.

ANALYSIS

Relying primarily on Doe by Fein v. District of Columbia, 697 A.2d 23 (D.C. 1997), and two cases from New York courts, Dr. George contends that: "An action for damages against District of Columbia employees for conduct within the scope of their employment is barred if the complainant fails to give notice of his claim pursuant to D.C.Code § 12-309." Ms. Dade argues that, based upon the "express language" of § 12-309, cases from other jurisdictions, and the provisions of § 1-1215(a),² in contrast to those of § 1-1215(b), she was not required to notify the District of her claim against Dr. George.

We review this matter de novo. See District of Columbia v. Arnold & Porter, 756 A.2d 427, 436 (D.C.2000)

("`Compliance with § 12-309 is a question of law that we review de novo.'") (quoting District of Columbia v. Ross, 697 A.2d 14, 17 (D.C.1997) (other citation omitted)). "[C]ompliance with [the] terms [of § 12-309] is `mandatory as a prerequisite to filing suit against the District.'" Id. (quoting District of Columbia v. Dunmore, 662 A.2d 1356, 1359 (D.C.1995) (quoting Hardy v. District of Columbia, 616 A.2d 338, 340 (D.C.1992))). "Moreover, [b]ecause it is in derogation of the common law principle of sovereign immunity, section 12-309 is to be construed narrowly against claimants." Id. (quoting Gross v. District of Columbia, 734 A.2d 1077, 1081 (D.C. 1999) (quoting Doe by Fein, supra, 697 A.2d at 29) (quoting Dunmore, supra, 662 A.2d at 1359)) (internal quotations omitted).

Before examining §§ 12-309 and 1-1215, we set forth pertinent principles of statutory construction. Long ago, the Supreme Court of the United States said in Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917): "Where the language [of a statute] is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion." Id. at 485, 37 S.Ct. 192 (citation omitted); see also Luck v. District of Columbia, 617 A.2d 509, 512 (D.C. 1992)

. However, in Peoples Drug Stores, Inc., supra,

470 A.2d at 754, we said that: "[E]ven where the words of a statute have a `superficial clarity,' a review of the legislative history or an in-depth consideration of alternative constructions that could be ascribed to statutory language may reveal ambiguities that the court must resolve." (citations omitted).

Where two or more statutes relate to the same subject area, we construe them together. See Harman v. United States, 718 A.2d 114, 117 (D.C.1998)

. "If statutes conflict, our task is to reconcile them if possible." Id. (referencing Gonzalez v. United States, 498 A.2d 1172, 1174 (D.C.1985)) ("[W]e have a duty to make every effort to reconcile allegedly conflicting statutes and to give effect to the language and intent of both.") (citation and internal quotation omitted). "`[W]here one statute is not irreconcilable with another statute but both statutes can have coincident operation, the court should interpret them so that they are both effective.'" Id. (citation omitted).

The plain language of neither § 12-309, nor § 1-1215, states that a claimant must give notice of the claim to the District within six months after an injury or damage was sustained where, as here, suit is brought against a...