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Lacek v. Washington Hospital Center Corp.

August 27, 2009


Appeal from the Superior Court of the District of Columbia. (C-4351-07) (Hon. Geoffrey M. Alprin, Trial Judge).

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

Argued February 10, 2009

Before RUIZ, THOMPSON and OBERLY, Associate Judges.

Appellant Anne C. Lacek filed a complaint in the Superior Court against Washington Hospital Center ("the Hospital"), alleging that, while a patient at the Hospital from June 21 to July 19, 2004, she sustained injuries as a result of the Hospital's negligence.*fn1 On October 26, 2007, the Superior Court granted the Hospital's motion to dismiss the complaint for lack of subject matter jurisdiction, finding that Lacek filed suit without first having given the Hospital the 90-day notice required by the Medical Malpractice Amendment Act of 2006 ("the Act"). We affirm the trial court's order.


The Act, set forth in D.C. Code § 16-2801 et seq. (2008 Supp.), requires "[a]ny person who intends to file an action in the [Superior Court] alleging medical malpractice against a healthcare provider" to "notify the intended defendant of his or her action not less than 90 days prior to filing the action." Id. § 16-2802 (a). It further provides that "[i]f the notice required under § 16-2802 is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the date of the service of the notice." Id. § 16-2803. "A legal action alleging medical malpractice shall not be commenced in the court unless the [90-day notice] requirement[] ha[s] been satisfied." Id. § 16-2802 (c). However, notwithstanding that general prohibition, "[u]pon a showing of a good faith effort to give the required notice, the court may excuse the failure to give notice within the time prescribed." Id. In addition, "[n]othing . . . shall prevent the court from waiving the requirements of § 16-2802 upon a showing of good faith effort to comply or if the interests of justice dictate." Id. § 16-2804 (b).

The parties agree that the Act became effective on March 14, 2007.*fn2 Lacek filed her complaint against the Hospital on June 25, 2007. On June 29, 2007, she faxed a copy of the complaint to a Hospital representative, stating on the facsimile cover sheet that "enclosed" was a "courtesy copy of suit, now filed, not served. Let me know how much time you need." By letter dated July 11, 2007, the Hospital's claims manager "acknowledge[d] receipt of what seems to be your 90 day notice of intent to sue." The letter stated that the Hospital was "conducting an investigation and will advise you of our position as soon as it is completed." On August 20, 2007, Lacek served the complaint on the Hospital. On September 10, 2007, the Hospital moved to dismiss the complaint, citing, inter alia, Lacek's failure to comply with the Act by giving notice to the Hospital at least 90 days prior to filing her complaint.

In opposing the motion to dismiss on September 24, 2007, Lacek argued that "it was agreed that the Defendants' position on liability would be forthcoming before a need to serve the suit within sixty (60) days" and that "dismissal and the inevitably prompt refiling of suit seems [sic] a waste of time for both the parties and the court." The court granted the Hospital's motion, however, finding that the requirements of the Act "clearly were not satisfied" since Lacek did not give the Hospital notice until four days after filing her suit (rather than 90 days before filing suit, as the Act requires). The court found that "[t]o the extent that [Lacek] seems to suggest that she made a good faith effort to give the required notice, . . . the post-filing notice she gave was not the 90-day pre-filing notice mandated by the statute." Rather, the court found, the June 29 post-filing notice "seems . . . to have been the traditional courtesy notice given by one lawyer to another, when a complaint has just been filed or is about to be filed." Lacek timely appealed to this court on November 19, 2007.*fn3


Lacek's first argument on appeal is that the 90-day-prior-notice requirement "did not apply to her claim, which clearly predated the effective date of March 14, 2007." Citing authorities for the principle that a new legislative enactment must operate only prospectively unless the legislature clearly indicated its intent that the enactment have retroactive effect, Lacek contends that the "clear legislative intent [of the Act] is to affect causes of action that might expire some three (3) years after the effective date of the new notice requirement." Otherwise, Lacek urges, (1) there is no "grace period," and (2) Lacek and similarly situated plaintiffs were placed in a position where they "could only file suit on [the] exact ninetieth (90th) day" after giving notice, a result which, Lacek asserts, is "certainly . . . bizarre and unintended."

We are not persuaded by Lacek's arguments. To begin, although neither the text of the Act nor its legislative history specifies that the Council of the District of Columbia intended the 90-day notice requirement to apply to causes of actions that accrued prior to the Act's effective date, section 16-2803 clearly reflects the legislature's intent not to impair the rights of potential plaintiffs whose contemplated lawsuits were governed by limitations periods that would expire before a 90-day pre-filing notice could be given. Plaintiffs such as Lacek whose causes of actions accrued prior to passage of the Act are among the persons who stood most obviously to benefit from the "Extension of statute of limitations" effected by D.C. Code § 16-2803.

Further, although there is a "presumption against retroactive legislation [that] is deeply rooted in our jurisprudence," Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994), new legislation is truly retroactive only if it "changes the legal consequences of acts completed before its effective date." Id., 511 U.S. at 269 n.23 (citation and internal quotation marks omitted). Thus, there is a presumption that legislation that affects substantive rights will operate only prospectively. Id. By contrast, "laws which provide for changes in procedure may properly be applied to conduct which predated their enactment." Duvall v. United States, 676 A.2d 448, 450 (D.C. 1996); see also Landgraf, 511 U.S. at 285 n.37 (citing the principle that a new remedial statute, like a new procedural one, should presumptively apply to pending cases); Edwards v. Lateef, 558 A.2d 1144, 1147 (D.C. 1989) (citing with approval cases from other jurisdictions holding that statutes that relate to remedies or to the modes of procedure apply retrospectively unless a vested right is destroyed); Moore v. Agency for Int'l Dev., 994 F.2d 874, 879 (D.C. Cir. 1993) (explaining that "[w]here a statute deals only with procedure, prima facie it applies to all actions -- to those which have accrued or are pending, and to future actions," and holding that a December 1990 amendment to the federal statute governing venue applied to a pending suit filed in April 1990) (quoting NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 41.04, at 349 (4th ed. 1986)); 82 C.J.S. STATUTES § 421 (1953) ("As a general rule statutes relating to remedies and procedure are given retrospective construction.").

The legislative history of the Act leaves little doubt that the 90-day pre-filing notice requirement was intended as remedial, procedural legislation, to "improve the legal process in the area of civil justice" by "encourag[ing] early settlements and facilitat[ing] the parties' ability to reach a settlement." Committee on the Judiciary, Report on Bill 16-418, the "Medical Malpractice Reform Act of 2006," April 28, 2006 ("Committee Report"), at 1, 2. The Council observed that "[s]ettlements, especially ones accomplished early in the litigation process, lower each party's individual costs . . . and promote judicial economy by decreasing the time and money spent by the court on these complicated and contentious issues." Committee Report at 2. Given the express goals underlying the Council's adoption of the 90-day notice provision, we conclude, even in the absence of a clear articulation of the Council's intent about whether to apply the notice provision to causes of action that accrued before the Act's effective date, that the notice provision did apply to Lacek's suit.*fn4

We note, too, that when Lacek served her complaint on the Hospital on August 20, 2007, she forced the Hospital to incur the expense of either answering or filing a motion to dismiss within the 20 days that ended on September 10, 2007*fn5 -- whereas, had a 90-day pre-filing notice period been allowed to run, at least possibly a settlement could have been achieved and litigation costs avoided. "Ultimately," the reach of a remedial statute "becomes a matter of judgment made upon review of the legislative goal." CFCU Cmty. Credit Union v. Hayward, 552 F.3d 253, 262 (2d Cir. 2009) (citation and internal quotation marks omitted). The fact that Lacek's failure to comply with the statute may have impeded the legislative goal of ...

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