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Coleman v. Washington Hospital Center Corp.

August 27, 2010

LARRY COLEMAN, PLAINTIFF,
v.
WASHINGTON HOSPITAL CENTER CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendants' motions to dismiss. For the reasons discussed below, the motions will be granted.

I. BACKGROUND

United States District Court for the District of Columbia Plaintiff, a Maryland resident, Compl. ¶ 1, brings this diversity action, see id. ¶ 32, arising from medical treatment rendered in or about 2006 at the Washington Hospital Center ("WHC") by Pamela Randolph, M.D. ("Dr. Randolph"), a radiologist, see id. ¶¶ 3-5, and "a host of other medical staff and radiology technicians," id. ¶ 6, in Washington, D.C.

Upon his diagnosis for nasopharyngeal carcinoma, plaintiff received "combined chemotherapy and radiation treatment." Compl. ¶ 7. According to plaintiff, he was told that "this treatment has a high rate of cure" and Dr. Randolph "convinced [plaintiff] and his wife that nothing would go wrong from his radiation treatment." Id. ¶ 9. Plaintiff allegedly was not warned that cervical radiation myelitis was a potential side effect of radiation treatment. Id. ¶ 8. Shortly after one of his radiation treatments, plaintiff "experienced severe pain throughout his entire body," id. ¶ 10, paralysis in his right arm and leg, id. ¶ 11, and "a burning sensation from his head to his hip, all about his spinal area," id. ¶ 14. Dr. Randolph allegedly "refused to believe that his condition could be due to cervical radiation myelitis." Id. ¶ 18. Test results, however, allegedly revealed that the radiation "had . . . 'burnt his spine,' and that he was suffering from cervical radiation myelitis secondary to radiation therapy for nasopharyngeal carcinoma." Id. ¶ 20. This condition required additional medical treatment, id. ¶ 23, and plaintiff was admitted to WHC on December 12, 2006, id. ¶ 22. Plaintiff was rendered "totally disabled and unable to work," id. ¶ 25, suffering among other effect "recurring problems urinating," id. ¶ 26, and he continues to experience severe back pain, id. ¶ 30, as well as physical and emotional distress, id. ¶ 17.

In this medical malpractice action, see Compl. ¶¶ 37-45, plaintiff demands a declaratory judgment and an award of $7 million as compensation for pain and suffering, lost wages and "enjoyment of life as a result of [defendants'] negligence," id. ¶ 48.

Review of the docket reveals that plaintiff submitted the instant complaint to the Clerk of Court on November 27, 2009.*fn1 On December 16, 2009, the Clerk issued summonses and caused service of process to be effected on the defendants. See 12/16/2009 Docket Entry. Dr. Randolph was served on December 22, 2009, Mem. of P. & A. in Supp. of Prelim. Mot. to Dismiss Pl.'s Compl. on Behalf of Def. Pamela Randolph, M.D. ("Randolph Mem."), Ex. B ("Randolph-Jackson Aff.") ¶ 2, and counsel filed a motion to dismiss on her behalf [Dkt. #3] on December 29, 2009. WHC's agent was served on December 28, 2009, Mem. of P. & A. in Supp. of Prelim. Mot. to Dismiss Pl.'s Compl. on Behalf of Def. Wash. Hosp. Ctr. ("WHC Mot."), Ex. B (Service of Process Transmittal), and a motion to dismiss was filed on WHC's behalf [Dkt. #5] on January 8, 2010.

Civil Action No. 2009 CA 008925 M

Superior Court of the District of Columbia On December 2, 2009, plaintiff filed an identical complaint in the Superior Court of the District of Columbia. See Randolph Mem., Ex. C (Complaint, Coleman v. Wash. Hosp. Ctr., Civil Action No. 8925-09 (Dist. of Columbia Super. Ct. Dec. 2, 2009)). Dr. Randolph was served on December 7, 2009, Randolph-Jackson Aff. ¶ 1, and WHC's agent was served on December 17, 2009, WHC Mem., Ex. C (Service of Process Transmittal). Counsel entered an appearance and filed a motion to dismiss on behalf of both defendants on December 22, 2009. WHC Mem. at 2; see id., Ex. E (electronic proof of service).

On February 23, 2010, the Superior Court granted defendants' motion to dismiss. In relevant part, its dismissal order read:

Pursuant to the Medical Malpractice Proceedings Act of 2006, D.C. Code § 16-2801, et seq. (hereinafter the "Act"), a person intending to bring an action against a health care provider alleging medical malpractice must provide notice to the intended defendant not less than ninety days before filing the Complaint. D.C. Code § 16-2802(a).

The aim of the Act is to bar suits when proper notice is not given, although nothing "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." D.C. Code § 16- 2804(b). The Court of Appeals recently held that the trial court must dismiss a case for lack of subject matter jurisdiction when a plaintiff does not provide the 90-day notice as required by the Act. See Lacek v. Wash. Hosp. Ctr. Corp., 978 A.2d 1194, 1201 (D.C. 2009) (affirming dismissal of Complaint for plaintiff's failure to comply with the 90-day notice requirement of the Act). The notice requirement of the Act places a straightforward and minimal burden on all plaintiffs bringing medical malpractice suits. Plaintiff has not demonstrated a good faith effort to comply, nor that the interests of justice dictate waiver of the notice requirement in this case, and therefore the Court lacks subject matter jurisdiction over plaintiff's Complaint and it must be dismissed.

Reply to the Pl.'s Resp. to the Defs.' Motion to Dismiss [Dkt. #8], Ex. 1 (Order Granting Preliminary Motion to Dismiss Plaintiff's Complaint on Behalf of Defendants Washington Hospital Center Corp. and Pamela Randolph, M.D. and Denying Counter-Motion to Waive the 90-Day Requirement, Civil ...


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