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Santos v. George Washington University Hospital

September 3, 2009


Appeal from the Superior Court of the District of Columbia, (CA-4842-05), (Hon. Maurice A. Ross, Trial Judge).

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

Argued February 26, 2009


Plaintiff/appellant Manuel Santos, personal representative of the estate of Manuel Mbozo (appellant's father), sued defendants/appellees District Hospital Partners t/a George Washington University Hospital ("the Hospital"), The George Washington University ("the University"), and Dr. Karen Johnson ("Dr. Johnson") for medical malpractice in connection with injuries that Mr. Mbozo sustained, and that apparently led to his death, while he was a patient in the Hospital. The Superior Court granted summary judgment to all three defendants on the ground that appellant's claims were time-barred. We affirm the grant of summary judgment in favor of the University and Dr. Johnson, but reverse the judgment in favor of the Hospital, and remand for further proceedings consistent with this opinion.


On arrival at the Hospital's emergency room on June 17, 2002, Mr. Mbozo complained of stomach pain and heartburn. He was admitted to the Hospital, where appellant visited him on June 18, 19, and 20. When appellant next visited his father on June 22, he observed a change in his father's condition: Mr. Mbozo did not greet his son with his usual interest and happiness, he was "not able to communicate so effective as usual," and he was "not much responsive." Mr. Mbozo complained that his head was "aching strongly"*fn1 and told appellant that he had "had a fall trying to go to the bathroom" and had hit his head. When appellant informed the nursing staff what Mr. Mbozo had said and asked about medication for his father, they responded, "We are taking care of that. We know that."

The following day, June 23, Mr. Mbozo was "moaning and groaning" and did not converse, uttering only "um" or "uhn-uhn" to indicate "yes" or "no." Appellant alerted a nurse, who replied "he is having fever." On June 24, Mr. Mbozo was "moaning and groaning," was "physically incapacitated," would not eat, and would say only "headache." Appellant's last visit to his father began on the evening of June 25. Upon entering the hospital room, appellant discovered that his father was "99 percent dead"; Mr. Mbozo's eyes were "fixed open" and he was "breathing very deeply." Rushing to the nurses' station, Mr. Santos implored "my father he is dying," but the nurses assured him that Mr. Mbozo was just sleeping. After appellant insisted, the nurses summoned a doctor, who examined Mr. Mbozo and confirmed the gravity of his condition. Mr. Mbozo was moved to the intensive care unit but, hours later, appellant was informed that his father had massive intracranial bleeding and that nothing could be done for him. Mr. Mbozo died on June 26 after being removed from life support.

The Superior Court litigation proceeded as follows. On June 23, 2005, appellant filed his complaint against the Hospital and "Karin Johnson, M.D." There followed a succession of amended complaints in which appellant changed the designation of the Hospital from "George Washington University Hospital" to "George Washington University Medical Center" and added (and then subsequently dropped) as a defendant Pulmonary Critical Care Associates, P.C., the employer of "Karin Johnson, M.D." Not until January 31, 2006, did appellant file a complaint that named the University and Dr. Johnson ("Karen Johnson, M.D.") as defendants along with the Hospital. In substance, all versions of the complaint were virtually identical, alleging that defendants negligently caused injury to Mr. Mbozo, resulting in his death, by failing to employ fall restraints and to timely diagnose and treat Mr. Mbozo's subdural hematoma.

On June 26, 2007, the University and Dr. Johnson (who was a medical resident employed by the University when she saw Mr. Mbozo on June 22, 2002) moved for summary judgment on the ground that the suit against them was time-barred. The Hospital likewise moved for summary judgment on the ground that the complaint was barred by the statute of limitations, adopting, as its memorandum in support of the motion, applicable portions of the University's and Dr. Johnson's memorandum in support of their own motion for summary judgment. Appellant filed an opposition to the motion of the University and Dr. Johnson, and he served copies of the opposition on counsel for the Hospital as well as counsel for the University and Dr. Johnson, but he did not file a separate opposition to the Hospital's motion.*fn2 Finding that appellant's claims against all three defendants were time-barred, the trial court granted summary judgment to the University and Dr. Johnson on August 1, 2007, and to the Hospital on August 13, 2007. This appeal followed.


When reviewing a trial court's grant of a motion for summary judgment, we conduct an independent review of the record and apply the same standard the trial court was required to apply. See Scales v. District of Columbia, 973 A.2d 722 (D.C. 2009). Thus, even if a summary judgment motion has been unopposed, we, like the trial court, must "review the pleadings and other papers to determine whether the moving party is entitled to judgment." Milton Props., Inc. v. Newby, 456 A.2d 349, 353 (D.C. 1983). We view the evidence in the light most favorable to the non-moving party, and will affirm the trial court's decision only if "there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Super. Ct. Civ. R. 56 (c); see also Clawson v. St. Louis Post-Dispatch, LLC, 906 A.2d 308, 312 (D.C. 2006).


The parties agree that appellant's lawsuit is a survival action, pursuant to D.C. Code § 12-101 (2001),*fn3 which has a limitations period of three years from the date when the cause of action accrued. See Strother v. District of Columbia, 372 A.2d 1291, 1296 n.8 (D.C. 1977), superseded by statute on other grounds as stated in Dickens v. District of Columbia, 502 F. Supp. 2d 90, 93 (D.D.C. 2007). Appellees -- the Hospital, the University and Dr. Johnson -- contend that Mr. Mbozo's cause of action, and hence appellant's survival cause of action, accrued at the latest on June 22, 2002 (when Mr. Mbozo fell and appellant learned of his father's fall and injury), and that the three-year limitations period therefore expired on June 22, 2005. See Arrington v. District of Columbia, 673 A.2d 674, 677-78 (D.C. 1996) ("Because the [Survival] Act . . . concerns itself with a right of action which accrued prior to the decedent's death, it does not create a new one. Accordingly, the applicable period of limitations is the period that governs the underlying claim . . . [and thus] a survival action generally accrues on the date of the decedent's injury, and not on the date of the decedent's death"). All three appellees thus argue that because appellant did not file his original complaint until June 23, 2005, the action against them is time-barred. In addition, the University and Dr. Johnson argue that, because they were not sued until January 31, 2006, even if arguably the cause of action accrued somewhat after June 22, 2002, the suit is clearly time-barred as to them.

In general, a "claim . . . accrues for statute of limitations purposes when injury occurs." Doe v. Medlantic Healthcare Group, Inc., 814 A.2d 939, 945 (D.C. 2003).*fn4 However, when "the relationship between the fact of injury and the alleged tortious conduct is obscure," the so-called "discovery rule" applies, such that the claim does not accrue until "the claimant knows or by the exercise of reasonable diligence should know of (1) the injury, (2) its cause in fact, and (3) some evidence of wrongdoing." Id. (citing Bussineau v. President & Dirs. of Georgetown Coll., 518 A.2d 423, 435 (D.C. 1986)). "[T]he quantum of knowledge sufficient to put one on notice of [his] claims against another" will vary depending on the facts of a case, Brin v. S.E.W. Investors, 902 A.2d 784, 793 (D.C. 2006), including, for example, "the conduct and misrepresentations of the defendant, and the reasonableness of the plaintiff's reliance on the defendant's conduct and misrepresentations," Diamond v. Davis, 680 A.2d 364, 379 (D.C. 1996). However, while the running of the ...

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