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George v. Dade

March 22, 2001


Before Wagner, Chief Judge, and Reid and Glickman, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Judith E. Retchin, Trial Judge)

Argued December 3, 1999

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."


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. *fn1 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 ...

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