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Nora Carmichael, As Mother and Next Friend of John Doe Minor Child v. Threvia West

July 27, 2012

NORA CARMICHAEL, AS MOTHER AND NEXT FRIEND OF JOHN DOE MINOR CHILD
PLAINTIFF,
v.
THREVIA WEST,
DEFENDANT.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff Nora Carmichael, mother and next friend of minor child John Doe, brings this action against Dr. Threvia West, M.D., for medical malpractice arising out of Dr. West's delivery of minor John Doe on August 30, 1998. See Compl., ¶¶ 1, 9, 13, 14, ECF No. 1. The plaintiff alleges that Dr. West's negligent conduct caused minor John Doe to become infected with human immunodeficiency virus (HIV) and to suffer from HIV encephalopathy, causing permanent brain damage. Id. ¶¶ 6, 17, 19. The plaintiff seeks recovery of $80,000,000 in compensatory damages, plus interest and costs. Id. at 5.

Pending before the Court is the defendant's motion to dismiss, in which the defendant argues that the plaintiff failed to comply with the notice requirement of the District of Columbia's Medical Malpractice Amendment Act ("MMA"), D.C. CODE § 16-2802 (2012). See Mem. of P&A in Supp. of Def.'s Mot. to Dismiss the Compl. or, in the Alternative, for Summ. J. ("Def.'s Mem."), at 1, ECF No. 7-1. This provision provides that "[a]ny person who intends to file an action alleging medical malpractice . . . shall notify the intended defendant of his or her action not less than 90 days prior to filing the action." D.C. CODE § 16-2802(a). The defendant contends that this failure requires the Court to dismiss the case. See Def.'s Mem. at 5. The plaintiff responds, in the alternative, that either the MMA does not apply in federal court, she complied with the requirements of the statute, or her failure to comply with the statute should be excused or waived. See Mem. in Supp. of Pl.'s Opp'n to Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. ("Pl.'s Mem.") at 6--13, ECF No. 8-2.

For the reasons discussed below, the Court concludes that D.C. CODE § 16-2802 is applicable to the plaintiff's claims, that the plaintiff failed to comply with the notice requirement prior to initiating suit, and that the plaintiff's failure to comply with the notice requirement cannot be excused based on good-faith efforts to comply or waived in the interests of justice. Failure to comply with the statutory notice requirement deprives the Court of its subject-matter jurisdiction to hear this case, and therefore the defendant's Motion to Dismiss must be GRANTED. The plaintiff's Complaint, however, shall be dismissed without prejudice and with leave to re-file in compliance with D.C. CODE § 16-2802(a).

I. BACKGROUND

Plaintiff Nora Carmichael brought this diversity action as mother and next friend of John Doe, a minor child, against Threvia West, M.D., for medical malpractice arising out of Dr. West's medical care of minor John Doe. Compl. ¶ 17. The plaintiff is a resident of Fort Washington, Maryland, and the defendant resides in Washington, D.C. Id. ¶¶ 1-3.

On August 30, 1998, Sheila Moody, pregnant with minor John Doe, was admitted to D.C. General Hospital, where the defendant provided her with obstetric medical care.*fn1 Id. ¶¶ 8-9. The plaintiff alleges that the defendant knew Sheila Moody to be HIV positive at the time of delivery and that the defendant knew or should have known that performing a vaginal delivery, rather than a caesarian section, made the risk that the unborn fetus would be infected with HIV "50 times greater." Id. ¶¶ 12--13. Yet, the plaintiff alleges, the defendant performed a vaginal delivery anyway, and minor John Doe is now infected with HIV. Id. ¶¶ 11, 14.

The plaintiff alleges two additional specific actions that the defendant took during the delivery that increased the risk the child would be infected with HIV. Id. ¶ 17. First, she alleges that the defendant "fail[ed] to deliver the fetus in a timely manner, in particular, prior to the rupture of the membranes." Id. Second, she alleges that the plaintiff "fail[ed] to avoid using a fetal scalp electrode for monitoring, thereby breaching the skin and exposing the fetus's blood to the HIV virus [sic]." Id.

As a result of his infection with HIV, the child has suffered from HIV encephalopathy, as a result of which he "has suffered, and will continue to suffer, great and severe mental pain and suffering by virtue of the brain damage inflicted by the HIV virus [sic], and by virtue of embarrassment and humiliation in his personal relationships." Id. ¶ 6.

The plaintiff filed a prior action in 2009 relating to these same events against two corporations alleged to have provided medical services to the child both before and after birth. See Carmichael v. Corrs. Corp. of Am., No. 09-383 (D.D.C. filed Feb. 26, 2009). That action was resolved through a settlement, as part of which the plaintiff negotiated a Medicaid lien with the District of Columbia on July 15, 2011. See Pl.'s Mem. at 1. The plaintiff avers that, prior to July 15, 2011, she and the District "had been in negotiations and discussions regarding the fact that additional lawsuits would be filed against the doctors, including Dr. West, who were involved with the birth of John Doe." Id. at 2. The plaintiff also avers that she "memorialized her intention to file lawsuits against the doctors involved in John Doe's birth in the Medicaid Lien Agreement itself." Id. The plaintiff argues that "[t]he District anticipated a possible lawsuit against Dr. West because the Medical [sic] Lien agreement referenced a potential recovery from third parties, in particular the obstetricians involved in John Doe's birth, such as Dr. West." Id.

The plaintiff filed her instant Complaint on August 22, 2011, and on September 21, 2011, the plaintiff sent a "Notice of Intention to File Suit" to the defendant that was "given pursuant to the provisions of § 16-2802." See id. at 3; Def.'s Mem. at 2; see also Notice of Intention to File Suit, at 1 (dated Sept. 21, 2011), ECF No. 8-5. The defendant moved to dismiss the Complaint, or in the alternative for summary judgment, on November 21, 2011. See Def.'s Mem. at 6.

II. STANDARD OF REVIEW

On a motion to dismiss for lack of subject-matter jurisdiction, the party claiming jurisdiction has the burden of demonstrating that it exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008); Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). As the Supreme Court has explained, the "district courts of the United States . . . are 'courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.'" Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552 (2005) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see also Micei Int'l v. Dep't of Commerce, 613 F.3d 1147, 1151 (D.C. Cir. 2010) ("[T]wo things are necessary to create jurisdiction in an Article III tribunal other than the Supreme Court. The Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it." (emphasis, citations, and internal quotation marks omitted)). For this reason, a federal district court "has an affirmative obligation to ensure that it is acting within the scope of its jurisdictional ...


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