                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


                                              )
Larry Coleman,                                )
                                              )
                      Plaintiff,              )
                                              )
               v.                             )       Civil Action No. 09-2314 (EGS)
                                              )
Washington Hospital Center Corp., et al.,     )
                                              )
                      Defendants.             )
                                              )


                                   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

                                   Civil Action No. 09-2314
                    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


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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, 2009.1 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


       1
                The Clerk of Court received plaintiff’s pro se complaint [Dkt. #1] and his
application to proceed without prepayment of fees [Dkt. #2] on November, 27, 2009, as
evidenced by the “received” stamp in the lower left corner of the first page of each document.
The Court granted plaintiff’s application on December 3, 2009, and the documents were
officially entered onto the Court’s electronic docket as of December 7, 2009.

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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-

                                                3
               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 Action No. 2009 CA 008925 M (Dist. of Columbia Super. Ct. Feb.

23, 2010)) at 1-2.

                              Civil Action No. 2010 CA 004103 M
                           Superior Court of the District of Columbia

       Plaintiff “re-established duplicative litigation,” Supplement to Defs.’ Reply to the Pl.’s

Second Resp. to the Defs.’ Mot. to Dismiss [Dkt. #11] at 1, by filing yet another civil action

against these same defendants in the Superior Court on June 3, 2010, id., Ex. A (Complaint,

Coleman v. Wash. Hosp. Ctr., Civil Action No. 2010 CA 004103 M (Dist. of Columbia Super.

Ct. June 3, 2010). The Superior Court dismissed this action with prejudice because plaintiff’s

medical malpractice claim was barred by the statute of limitations, see D.C. Code § 12-301.

Second Supplement to Defs.’ Reply to the Pl.’s Second Resp. to the Defs.’ Mot. to Dismiss [Dkt.

#13], Ex. (Order, Coleman v. Wash. Hosp. Ctr., Civil Action No. 2010 CA 004103 M (Dist. of

Columbia Super. Ct. Aug. 2, 2010)) at 2.


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                                        II. DISCUSSION

       WHC and Dr. Randolph argue that “plaintiff must not be permitted to maintain two

identical lawsuits, which involve the same parties, same claims, same set of facts, and which

seek the same remedy, . . . in both this Court and in the Superior Court of the District of

Columbia.” WHC Mem. at 3; see Randolph Mem. at 3. They ask that this Court abstain from

exercising jurisdiction over plaintiff’s claims and move to dismiss the complaint in its entirety.

       Plaintiff counters that the first of his Superior Court suit was “dismissed for a procedural

issue, lack of subject matter jurisdiction.” Resp. to Mot. to Dismiss [Dkt. #9] ¶ 1; see Resp. to

Mot. to Dismiss [Dkt. #7] ¶¶ 1, 3. For this reason he argues not only that the defendants’

argument is irrelevant, Resp. to Mot. to Dismiss [Dkt. #9] ¶ 4, but also that their motion should

be denied as moot, id. ¶ 5; see Resp. to Mot. to Dismiss [Dkt. #7] ¶ 3.

       Generally, a federal district court is obliged “to adjudicate a controversy properly before

it,” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976) (citation

omitted), and should not “dismiss a suit merely because a State court could entertain it,” id.

(citation omitted). Under the doctrine of abstention, however, a district court “may decline to

exercise or postpone the exercise of its jurisdiction,” but may do so “only in the exceptional

circumstances where the order to the parties to repair to the state court would clearly serve an

important countervailing interest.” Id. “Countervailing interests identified by the Supreme

Court include . . . federalism and comity.” Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d

346, 351 (D.C. Cir. 2003).

       Now that both of plaintiff’s Superior Court actions have been dismissed, it appears that

abstention is no longer a valid basis for dismissal. The Court turns, then, to defendants’


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alternative argument. If the Court were to “find[] that duplicative litigation is not currently

proper grounds for dismissal,” Reply to the Pl.’s Resp. to Defs.’ Mot. to Dismiss [Dkt. #8] ¶ 6,

defendants argue that, applying District of Columbia law, this Court should dismiss plaintiff’s

suit for lack of subject matter jurisdiction, as did the Superior Court with respect to the first of

his two suits, Civil Action No. 2009 CA 008925 M, see id. ¶ 8.

       In this diversity action, the Court applies the law of the District of Columbia. See Erie R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“Except in matters governed by the Federal

Constitution or by acts of Congress, the law to be applied in any case is the law of the state.”);

Rogers v. Ingersoll-Rand Co., 144 F.3d 841, 843 (D.C. Cir. 1998) (applying law of the District

of Columbia in a diversity action and, “[w]hen interpreting the common law of the District of

Columbia, . . . follow[ing] the decisions of the District of Columbia Court of Appeals, which is,

for Erie doctrine purposes, treated as if it were the highest court of the state”); Davis v. Grant

Park Nursing Home LP, 639 F. Supp. 2d 60, 64 (D.D.C. 2009) (“Under the so-called ‘Erie

doctrine,’ federal courts sitting in diversity look to state law for rules of decision with respect to

substantive matters.”).

       District of Columbia law requires that “[a] person who intends to file an action in the

court alleging medical malpractice against a healthcare provider shall notify the intended

defendant of his . . . action not less than 90 days prior to filing the action.” D.C. Code § 16-

2802(a). The term healthcare provider “means an individual or entity licensed or otherwise

authorized under District law to provide healthcare service, including a hospital, . . . physician . .

., or other individual health care practitioner.” D.C. Code § 16-2801(2). “A legal action alleging

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


                                                   6
have been satisfied.” D.C. Code § 16-2802(c).

         Without question, plaintiff’s complaint alleges medical malpractice by heathcare

providers operating in the District of Columbia, and plaintiff therefore was obligated to notify

the defendants of his action at least 90 days prior to its filing. Plaintiff does not allege that he

has complied with the notice requirement, and he makes no showing of a good faith effort which

might persuade the Court to “excuse the failure to give notice within the time prescribed.” D.C.

Code § 16-2802(a). Nor is there a basis for the Court to “waiv[e] the requirements of §

16-2802,” such as a showing by plaintiff of a “good faith effort to comply or [that] the interests

of justice dictate” a waiver. D.C. Code § 16-2804(b). His failure to notify defendants timely

deprives this Court of subject matter jurisdiction. Lacek v. Wash. Hosp. Ctr. Corp., 978 A.2d

1194 (D.C. 2009) (affirming dismissal for lack of subject matter jurisdiction where plaintiff filed

a medical malpractice action just four days before notifying the hospital of her intent to sue);

Diffenderfer v. United States, 656 F. Supp. 2d 137 (D.D.C. 2009) (granting pharmacy

defendants’ motion to dismiss to a medical malpractice suit brought by a plaintiff who had not

given proper notice under D.C. Code § 16-2802); Davis, 639 F. Supp. 2d at 72-73 (dismissing

without prejudice medical malpractice claims against healthcare providers because plaintiff had

not complied with the notice requirements of D.C. Code § 16-2802). Plaintiff cannot avoid the

notice requirements of D.C. Code § 16-2802 “merely by filing a diversity action in federal

court.” Davis, 639 F. Supp. 2d at 72 (quoting Bledsoe v. Crowley, 849 F.2d 639, 643 (D.C. Cir.

1988).




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                                      III. CONCLUSION

      The Court will grant defendants’ motions and will dismiss this action for lack of subject

matter jurisdiction. An Order accompanies this Memorandum Opinion.



                            Signed:        EMMET G. SULLIVAN
                                           United States District Judge

                            Dated:         August 27, 2010




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