Appeal from the Superior Court of the District of Columbia (CA-3873-95) (Hon. Peter H. Wolf, Trial Judge)
Before Wagner, Chief Judge, and Steadman and Reid, Associate
The opinion of the court was delivered by: Reid, Associate Judge
This case presents a challenge to the trial court's post-trial indemnification and contribution ruling relating to a million dollar jury verdict in a medical malpractice case. The trial court decided that: (1) the defendants (here the appellees) were entitled to indemnification from the settling defendants, even though the jury found appellees liable for the injury to the appellant; and (2) the appellant could take no more than the $500,000 she received from the settling defendants.
Finding error, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion. Furthermore, we conclude that: (1) in trying equitable claims of indemnification and contribution following a medical malpractice liability and damages trial, where other potential tortfeasors have settled with the plaintiff prior to trial, the trial court may not make factual findings inconsistent with the jury's findings, unless they are made in response to an appropriate and timely post-trial motion designed to set aside the jury's verdict; (2) non-contractual indemnification is inappropriate where, as here, joint tortfeasors are guilty of active negligence and their negligence concurs in causing the injury; (3) to resolve the contribution issue in this case, the trial court must determine the respective status of Dr. David King, the Southwest Neighborhood Clinic ("the Southwest Clinic"), and the District of Columbia ("the District"), specifically, whether Dr. King and the District constitute a single tortfeasor or two tortfeasors, and whether the Southwest Clinic may properly be considered a joint tortfeasor when it was not impleaded; and (4) under D.C. Code § 12-309 (2001 Official Code), notice to the District of an equitable claim of contribution is not required until the entity seeking contribution has suffered injury, that is, has been sued or served with a plaintiff's summons and complaint for damages.
The testimony presented at trial in this case reveals the following facts. On January 25, 1993, appellant Virginia Hubbard was referred to the Greater Southeast Community Hospital ("GSECH") by her primary care physician, settling defendant Dr. King, to undergo a mammogram screening. Dr. King worked for the Southwest Clinic operated by the District, also a settling defendant. On March 5, 1993, Ms. Hubbard reported to GSECH for her mammogram. After reviewing the mammogram, appellee Dr. Ira W. Chidel, a radiologist, noted the following:
suspicious 1.2 cm mass-type density beneath the nipple on the left. Additional studies are recommended for further evaluation. Dr. King has been notified of these findings.
Although Dr. Chidel claimed that he notified Dr. King of his findings, *fn1 Dr. King denied ever being informed of the suspicious mass. *fn2 Consequently, Ms. Hubbard did not learn about the mass until approximately one year later, in July 1994. *fn3 Subsequent tests confirmed that the mass was cancerous. Ms. Hubbard had a mastectomy around September 1994.
Later, on May 17, 1995, Ms. Hubbard filed a complaint against GSECH, Dr. Chidel, and Dr. King alleging medical malpractice. In her complaint she maintained that:
[GSECH] acting through its radiology department and its employee physicians in said department, including its radiologist physician defendant Dr. Chidel,  failed to exercise reasonable medical care with respect to [mammograms taken in January 1992 and March 1993] including: (a) failing to detect and report the presence of a suspicious finding of possible mass in [her] left breast . . ., and; (b) failing to use reasonable care in communicating both orally and in writing the abnormal findings of the 1993 mammogram to defendant Dr. King.
In addition, in 1993, defendant Dr. King failed to exercise reasonable medical care in that he either failed to follow the radiologist's recommendations, and failed to otherwise initiate any further diagnostic steps when he received the mammogram report from defendant [GSECH] or, alternatively, if he did not receive said report, defendant Dr. King (and/or his medical or support staff employees in his office) failed to realize the fact that the report was missing/had not been received, and failed to communicate with defendant Southeast or otherwise take any steps to secure or locate the missing report.
On January 25, 1996, Ms. Hubbard requested leave to file an amended complaint to add Wener, Boyle & Associates, P.A. ("Wener") as a defendant. Wener was Dr. Chidel's employer and the corporation with which GSECH contracted to provide diagnostic radiology reports. *fn4 The trial court granted Ms. Hubbard's request in early April 1996.
In response to Ms. Hubbard's amended complaint, claims for contribution or indemnity were made as follows: (1) on May 2, 1996, a cross-claim by GSECH against Dr. King; (2) on May 3, 1996, a third-party complaint by Wener against the District as an employer of Dr. King, after Wener served notice of its claim on the District on May 1, 1996; (3) on May 3, 1996, a cross-claim by Dr. Chidel and Wener against Dr. King; and (4) on August 27, 1996, separate cross-claims by the District and Dr. King against Dr. Chidel and Wener.
Prior to trial, Ms. Hubbard entered into a settlement and release agreement with Dr. King and the District of Columbia in the amount of $500,000. The release stated, in relevant part:
As further consideration for payment of said sum and waivers, I hereby agree to indemnify and hold harmless the District of Columbia, its officers, agents, servants, independent contractors and employees, and Dr. David King, from any and all claims of indemnity and/or contribution brought by the remaining defendants  including  Chidel,  Wener,  and [GSECH], and any others.
As further consideration for payment of said sum and waivers, I hereby agree to indemnify and save harmless the said Dr.  King and the District of Columbia, its officers, agents, independent contractors and employees, against any and all further claims for damages, costs and expenses arising out of injuries to myself from the said incident. . . .
In light of the pre-trial settlement agreement, the remaining parties agreed that the trial judge would try the cross-claims and the third party claim relating to indemnification and contribution following the jury trial. Consequently, the trial judge instructed the jury during trial:
Your job in this case will still be to decide whether the plaintiff and her attorney proved by a preponderance of the evidence that these defendants who are on trial were negligent.
Of course, it may be possible that some of Dr. King's actions are relevant to that decision; and that's why he has testified and been present for cross examination. But your job is still going to be to decide whether these defendants have been proved by a preponderance of the evidence, as I shall instruct you when the trial is concluded, negligent.
The presence or absence of Dr. King for any such determination is something ...