UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

RENEE FEREBEE,
Plaintiff,
v. Civil Action No. l6-l9l6 (KBJ)
RETINA GROUP OF WASHINGTON, ‘

Defendant.

 

MEMORANDUM OPINION

This matter is before the Court on Defendant Retina Group of Washington’s
Motion for Summary Judgment, ECF No. 9. For the reasons discussed below, the Court
denies summary judgment and dismisses this matter for lack of subject matter

jurisdiction.

Plaintiff Renee Ferebee “was told by two optometrist[s] that she needed to see a
specialist” because one of the optometrists “noticed blood in plaintiff’s eyes[.]”
Compl. at l. In October 2015, Plaintiff allegedly underwent an eye examination at the
Retina Group of Washington, see generally id. at 1-2, “a large retinal and macular
practice with offices in Washington, DC, Virginia and Maryland[,]” Def. Reina Group
of Washington’s Reply to Pl.’s Opp’n to Def.’s Mot. for Summ. J., Ex. A (Neal Decl.) 1[

3. Plaintiff’s vision subsequently Worsened, see generally Compl. at 1-2, and she

brings this medical malpractice action against Retina Group, id. at l.l She “is seeking
five hundred million dollars, in negli[g]ence, wrong observation, tort [and] punitive

damages.” Id. at 2.

Under District of Columbia law, a plaintiff must notify the intended defendant to

a medical malpractice action at least 90 days before she files her lawsuit:

(a) Anyperson who intends tofile an action in the court alleging
medical malpractice against a healthcare provider shall notify
the intended defendant ofhis or her action not less than 90 days
prior to filing the action. Notice may be given by service on an
intended defendant at his or her last known address registered
with the appropriate licensing authority. Upon 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

(b) The notice required in subsection (a) of this section shall
include sufficient information to put the defendant on notice of
the legal basis for the claim and the type and extent of the loss
sustained, including information regarding the injuries suffered
Nothing herein shall preclude the person giving notice from
adding additional theories of liability based upon information
obtained in court-conducted discovery or adding injuries or loss
which become known at a later time.

(c) A legal action alleging medical malpractice shall not be
commenced in the court unless the requirements of this section

have been satisfied

D.C. Code § 16-2802 (emphasis added).2

 

‘ Plaintiff names “Dr. Bruce Goodman O.D.” as a defendant to this action. See Compl. at l (caption). Retina
Group explains that “Bruce Goodman, DO, is not and never has been, an agent or employee of The Retina Group of
Washington.” Def.’s Reply, Neal Decl. 1[ 5. This civil action proceeds against a single defendant, Retina Group.

2 Plaintiff appears to be a citizen of Maryland who is using a post office box in Temple Hills, Maryland, as her
mailing address. The Court finds that diversity jurisdiction is established, and that “D.C. Code § 16-2802 is
applicable to actions flled pursuant to the diversity jurisdiction of federal courts.” Carmichael v. West, 880 F. Supp.
2d 28, 33 (D.D.C. 2012).

Retina Group “did not learn of [this] litigation until it was served with the
Complaint on or about November l7, 2016.” Mem. of P. & A. in Support of Def.’s
Mot. for Summ. J., ECF No. 9 at 5. “At no time did . . . Plaintiff serve . . . Retina

Group . . . with a 90-day Notice of Intent to Sue.” Id.

Plaintiff makes no mention of the 90-day Notice in her Complaint. In her
opposition to Retina Group’s motion, she claims to have “met all requirements in doing
her lawsuit in a timely manner, court was given all information, and it was up to the
court to hand out plaintiff’s arguments to the opposing party.” Filing Opposing Mot.
Against Def.’S Summ. J., ECF No. ll at 2 (page numbers designated by ECF). Plaintiff
appears to be under the impression that the court must notify a health care provider of
potential litigation. She is mistaken. Plaintiff is the “person who intend[ed] to file an
action . . . alleging medical malpractice,” and she is obligated to notify “the intended
defendant of. . . her action not less than 90 days prior to filing the action.” D.C. Code

§2802(3).

Plaintiff neither alleges that she has complied with the mandatory 90-day notice
requirement nor has made a showing of a good faith effort to persuade the court that her
failure to give notice within the time prescribed should be excused. In these
circumstances, the Court is deprived of subject matterjurisdiction over this medical
malpractice case. See Ghee v. Howard Univ. Hosp., Inc., 879 F. Supp. 2d 96, 97
(D.D.C. 2012); Coleman v. Wash. Hosp. Center Corp., 734 F. Supp.2 d 58, 62 (D.D.C.
2010); Lacek v. Wash. Hosp. Ctr. Corp., 978 A.Zd 1194 (D.C. 2009) (afflrming

dismissal for lack of subject matter jurisdiction where Plaintiff filed a medical

malpractice action four days before notifying hospital of her intent to sue). Therefore,

the court will dismiss this action without prejudice.

KETANJI BEOWN JACKSON
DATE: Wz_, 2017 United States District Judge

An Order is issued separately.

