                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

NORA CARMICHAEL,
as Mother and Next Friend of John Doe Minor
Child

                       Plaintiff,                     Civil Case No. 11-1513 (BAH)

                       v.                             Judge Beryl A. Howell

THREVIA WEST,

                       Defendant.


                                    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


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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. 1 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
1
    Sheila Moody, minor John Doe’s natural mother, is since deceased. Compl. ¶ 12.

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“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



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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

authority.” Yueh-Lan Wang ex rel. Wong v. New Mighty U.S. Trust, 841 F. Supp. 2d 198, 201

(D.D.C. 2012) (internal quotation marks omitted). When a court lacks subject matter




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jurisdiction, it must dismiss the case. See Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 48

(D.D.C. 2011).

III. DISCUSSION

       The defendant contends that this case is a simple one: The plaintiff failed to comply with

the statutory notice requirements, and therefore her complaint must be dismissed. Def.’s Mem.

at 1. The plaintiff offers four separate arguments in rebuttal. Pl.’s Mem. at 5. First, she argues

that D.C. CODE § 16-2802 does not apply to actions brought in federal courts. Id. at 6. Second,

she argues that she has fully complied with § 16-2802. Id. at 7–8. Third, she argues that she

made good-faith efforts to notify the defendant, which excuses any failure on her part to give

notice under § 16-2802. Id. at 9. Finally, she argues that, in any event, the Court should waive

strict compliance with § 16-2802 in the interests of justice. Id. at 10–11. For the reasons

discussed below, the plaintiff’s arguments are unavailing, and the Complaint must be dismissed

for lack of subject-matter jurisdiction.

       A. D.C. CODE § 16-2802 Applies to This Court.

       D.C. CODE § 16-2802 provides: “Any person who intends to file an action in the court

alleging medical malpractice against a healthcare provider 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

MMA defines “court” as “the Superior Court of the District of Columbia.” Id. § 16-2801(1).

       According to Section 2802, the required pre-filing notice must “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.” Id. § 16-2802(b). The statute further provides that “[a] legal action

alleging medical malpractice shall not be commenced in the court unless the requirements of this

section have been satisfied.” Id. § 16-2802(c). The notice and related requirements set forth in



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Section 2802 are “part of an overarching statutory scheme intended to govern medical

malpractice suits in the District of Columbia and to control the costs associated with such suits.”

Davis v. Grant Park Nursing Home LP, 639 F. Supp. 2d 60, 71 (D.D.C. 2009).

“[F]or example, once such a suit is properly noticed and filed, the parties must participate in

mediation before litigating further.” Id. (citing D.C. CODE § 16-2821).

       The MMA contains two safety valves that appear to guard against strict application of the

pre-filing notice requirement in all cases. One portion of the statute states that “[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.” D.C. CODE § 16-2802(a). Another portion of the statute

instructs courts that “[n]othing indicated herein 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).

       Although the plaintiff argues that § 16-2802 does not apply in cases filed outside D.C.

Superior Court, this argument is unavailing. The plaintiff’s narrow reading of the statute has

been rejected in numerous instances. For example, the court in Davis held that § 16-2802 must

be applied by this Court because “the District of Columbia statute at issue here cannot be

construed to allow [the plaintiff] to avoid its pre-litigation requirements ‘merely by filing a

diversity action in federal court.’” 639 F. Supp. 2d at 72 (quoting Bledsoe v. Crowley, 849 F.2d

639, 643 (D.C. Cir. 1988)). Similarly, in Diffenderfer v. United States, the court found that

failing to enforce the “mandatory notice requirement in a diversity jurisdiction case in federal

court would subvert Erie’s twin aims—reducing forum-shopping and avoiding the inequitable

administration of laws.” 656 F. Supp. 2d 137, 139 (D.D.C. 2009) (citing Hanna v. Plumer, 380

U.S. 460, 468 (1965); accord Brashear v. United States, No. 11-1026, 2012 WL 759620, at *3–4



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(D.D.C. Mar. 9, 2012) (finding D.C. CODE § 16-2802 applicable in federal court); Coleman v.

Wash. Hosp. Ctr. Corp., 734 F. Supp. 2d 58, 62 (D.D.C. 2010) (same). The Court agrees with

the reasoning of other courts that have considered this issue and holds that D.C. CODE § 16-2802

is applicable to actions filed pursuant to the diversity jurisdiction of federal courts.

       B. The Plaintiff Has Not Complied with the Notice Requirement.

       The plaintiff contends that, even if the notice requirement is applicable in this Court, she

fully complied with its provisions. The plaintiff argues that the defendant was on notice because

the defendant is represented in this action by the District of Columbia, which “received oral and

written notice of the lawsuit against Dr. West during the negotiation and settlement of the

Medicaid lien” in plaintiff’s prior action. Pl.’s Mem. at 8. The Court, however, does not agree

that notice to the District of Columbia in a previous case fulfills the required notice to the

individual defendant in this one. Section 16-2802 plainly requires notice be given to “the

intended defendant,” D.C. CODE § 16-2802(a), and since the District of Columbia was never the

“intended defendant” of the instant action, the plaintiff’s provision of notice to the District was

insufficient with respect to Dr. West.

       Even assuming for the sake of argument that notice to the District complied with § 16-

2802’s requirement of notice to the “intended defendant,” the plaintiff’s notice to the District of

Columbia of her claims against the defendant did not occur until she executed the Medicaid lien

with the District on July 15, 2011, which “specifically refers to claims against the obstetricians

involved in John Doe’s birth.” See Pl.’s Mem. at 11. The plaintiff initiated the instant lawsuit,

however, on August 22, 2011, which was a mere thirty-eight days following the alleged notice—

well shy of the ninety days’ notice required by § 16-2802.




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       C. The Plaintiff Did Not Make a Good-Faith Effort to Comply With the Notice
          Requirement.

       The plaintiff argues that if the Court concludes that she did not comply with D.C. CODE

§ 16-2802, the Court should excuse any noncompliance based “‘[u]pon a showing of good faith

effort to give the required notice.’” See Pl.’s Mem. at 9 (quoting D.C. CODE § 16-2802(a)). The

plaintiff states that “[t]he purpose behind D.C. CODE § 16-2802 was fulfilled prior to the filing of

this lawsuit when months earlier the Medicaid lien was negotiated with the District through its

Attorney General’s Office which specifically reference obstetricians involved in John Doe’s

delivery.” Id. at 10. The plaintiff further states in support of her argument that she made a good-

faith effort to comply with § 16-2802 because, after filing suit, she voluntarily submitted

medical records and expert reports to the District of Columbia and provided written notice

directly to the defendant in order to aid resolution of her claims. Id. As noted supra, however,

the signing of the settlement agreement on July 15, 2011 and the filing of the lawsuit on August

22, 2011 were only thirty-eight days apart and thus necessarily insufficient to satisfy the

requirements of § 16-2802.

       Even if negotiations over the Medicaid lien agreement occurred prior to July 15, 2011,

the record is insufficient to establish whether the negotiations began at least ninety days prior to

the filing of the Complaint or whether the substance of those negotiations on behalf of a party

other than the defendant here addressed the prerequisites for suit set out in § 16-2802. Moreover,

the plaintiff’s written notice to the defendant and submission of expert records and medical

reports all occurred after the plaintiff’s Complaint was filed in the instant action. See id. This

does not indicate a good-faith effort to comply with a statute designed to encourage pre-litigation

resolution of medical malpractice claims. See Davis, 639 F. Supp. 2d at 71 (discussing the

purpose of D.C. CODE § 16-2802).

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       D. The Interests of Justice Cannot Excuse Non-Compliance.

       The MMA allows a court to excuse noncompliance with the notice requirement “if the

interests of justice dictate.” D.C. CODE § 16-2804(b); see also Lacek v. Wash. Hosp. Ctr. Corp.,

978 A.2d 1194, 1199 (D.C. 2009) (describing D.C. CODE § 16-2804(b) as “a safety net that

would permit the trial court to waive the notice requirement ‘if the interests of justice dictate.’”);

see also Brashear, 2012 WL 759620, at *5 (stating in dictum that the “interests of justice”

provision should be read narrowly and “applie[d] only to circumstances similar to those

enumerated in § 16–2804(a) (such as circumstances where the plaintiff lacks the information

necessary to give the required notice)”).

       In the instant action, the interests of justice for the plaintiff are undoubtedly strong. The

harm alleged is both grave and permanent. Consideration of the “interests of justice” requires a

broader focus than just the circumstances of the plaintiff, however. The MMA is designed to

ensure that the defendant in a medical malpractice action has critical pre-litigation information

about the case and an opportunity for mediation before suit is filed.

       Here, the District of Columbia is defending Dr. West, and the plaintiff asserts that

“[d]efendant’s counsel knew as early as July 15, 2011, when the Medicaid lien was negotiated,

that Plaintiff was considering bringing a claim against Dr. West.” See Pl.’s Mem. at 11. Thus,

the plaintiff argues that the defendant was likely aware at least since July 2011, and possibly

earlier given the previous litigation in this matter, that the plaintiff “was considering” suing for

medical malpractice. See id. Even assuming such awareness on the part of the defendant, it falls

short of the statutory requirements that the defendant be provided notice of the precise claim at

issue and “the type and extent of the loss sustained” that is attributed to the defendant’s actions.

See D.C. CODE § 16-2802(b). The public interest in the remedial purposes of the MMA must



                                                  9
also be considered, namely fostering resolution of medical malpractice claims through mediation

before triggering the commitment of judicial resources by the filing of a lawsuit.

       The plaintiff relies heavily on an opinion from the D.C. Superior Court, in which the

court declined to dismiss a case for failure to comply with the notice requirement. See Powell v.

Batipps, 2010 CA 001260 M, slip op. at 7 (D.C. Super. Ct. Jan. 5, 2011), ECF No. 8-7. That

case, however, is inapposite to the circumstances currently before the Court. Principally, the

Powell court held that the plaintiff had in fact complied with D.C. CODE § 16-2802 by properly

notifying the defendant prior to filing an earlier lawsuit involving the same parties and arising

out of the same events. Id. Additionally, although the court did discuss the “interests of justice”

in dicta, it discussed considerations not present here, such as the possibility that a defendant

would “dodg[e] service of the notice,” that requiring plaintiffs to file suit “on exactly the 90th

day” is “very exacting,” and that the defendants “made no effort to meet the purpose of the Act

by engaging in discussions that were required by the Act.” Id. at 7–8.

       Thus, considering the totality of the circumstances presented in this case—the interests of

the plaintiff and the defendant, as well as the public interest reflected in the remedial purposes of

the MMA to foster pre-litigation resolution of medical malpractice claims—the interests of

justice tip in favor of the defendant. Because this is a case in which the plaintiff possessed all of

the information necessary to give the required notice, and because there is only the scantest

indication that the plaintiff engaged in good-faith attempts to provide timely notice or engage in

the pre-litigation mediation required under § 16-2801, the Court will not apply § 16-2804(b)’s

“interests of justice” exception to waive compliance with § 16-2802.




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        E. Failure to Comply with D.C. CODE § 16-2802 Deprives the Court of Subject-
           Matter Jurisdiction

        Although the defendant implies that her motion to dismiss is based on FED. R. CIV. P.

12(b)(6), see Def.’s Mem. at 2–3, the defendant also clearly states that “based on Plaintiff[‘s]

failure to comply with D.C. CODE § 16-2802 this Court lacks subject matter jurisdiction,” see id.

at 6 (emphasis added). Courts interpreting § 16-2802 have held that non-compliance with the

notice provision is a defect in subject-matter jurisdiction, rather than a defect in the plaintiff’s

claim, and thus does not require dismissal with prejudice. Indeed, the D.C. Court of Appeals

recently affirmed the principle that failure to comply with § 16-2802 deprives a court of subject-

matter jurisdiction. See Lacek, 978 A.2d at 1196 (affirming Superior Court’s dismissal for lack

of subject-matter jurisdiction because plaintiff failed to comply with § 16-2802); see also

Coleman, 734 F. Supp. 2d at 63 (“[Plaintiff’s] failure to notify defendants timely deprives this

Court of subject matter jurisdiction.”); Davis, 639 F. Supp. 2d at 72 (dismissing complaint for

failure to comply with § 16-2802 without prejudice because “[n]othing in Section 2802 requires

or supports dismissal with prejudice” (collecting cases)). But see Diffenderfer, 656 F. Supp. 2d

at 138-39 (“[A] plaintiff who has not complied with the notice requirement of § 16-2802(a) has

not stated a claim upon which relief can be granted.”)

        Under FED. R. CIV. P. 41(b), a dismissal for lack of jurisdiction does not operate as an

adjudication on the merits and thus does not bar the claim from being re-filed in the future if the

jurisdictional defect is cured. See FED. R. CIV. P. 41(b) (“[A]ny dismissal not under this rule—

except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—

operates as an adjudication on the merits.”). In the instant case, the Court agrees with the

majority of courts to have considered this issue and holds that non-compliance with § 16-2802(a)

is a defect in subject-matter jurisdiction. Accordingly, the Court grants the defendant’s motion

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to dismiss the Complaint without prejudice and with leave to re-file if the jurisdictional defect is

cured.

IV. CONCLUSION

         For the foregoing reasons, the defendant’s Motion to Dismiss the Complaint or, in the

Alternative for Summary Judgment, ECF No.7, is GRANTED. An Order consistent with this

Memorandum Opinion will be issued.



DATE: July 27, 2012

                                                       /s/ Beryl A. Howell
                                                      BERYL A. HOWELL
                                                      United States District Judge




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