Appeal from the Superior Court of the District of Columbia. (CA-7278-00). (Hon. Rhonda Reid Winston, Trial Judge).
Before Glickman and Washington, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Washington, Associate Judge
Concurring opinion by Associate Judge GLICKMAN at p. 14.
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.
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. At Sussex, Mr. Brown*fn2 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."*fn3
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 ...