In the course of nursing home abuse and negligence cases, there are several procedural requirements that must be met in order to ensure that your case is in compliance with relevant state and federal laws. For example, in medical malpractice cases, the District of Columbia requires that you serve the defendant with notice of your intention 90 days prior to filing a claim. Failure to file this notice could result in your case being dismissed.
In a recent case case, Lewis v. Washington Hospital Center, DC: Court of Appeals 2013, the D.C. Court of Appeals discussed the proper standards of review and standard for allowing a case to move forward when the requirement that the defendant in a medical malpractice claim be given 90 days notice was not met. Although the facts in the case were not discussed, the plaintiff was attempting to sue a hospital on malpractice grounds, and apparently failed to serve adequate notice of her lawsuit to the hospital.
The hospital filed a motion arguing that the court should not allow for a waiver of the notice requirement, because in its opinion, a waiver is only proper when the lawsuit involves, “an otherwise unknown or unlicensed defendant, or a misnomer.” Since the plaintiff was not suing an unknown defendant, the hospital argued that the “interests of justice” waiver was not proper. Additionally, the hospital argued that a separate waiver for notice, when a showing of good faith has been made regarding attempts to give notice, was also unavailable, because that was not the case either. The hospital argued, therefore, that the case should be dismissed for failing to meet the standard.
The language of the requirement itself, states that: “Nothing 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.”
The court reviewed the legislative history, and the interpretation of the requirement in several cases. It cited to a nursing home case, Davis v. Grant Park Nursing Home LP, 639 F. Supp. 2d 60 – Dist. Court, Dist. of Columbia 2009, for the premise that, “A court may waive the requirements of Section 2802 `upon a showing of good faith effort to comply or if the interests of justice dictate.’
In that case, a wrongful death action was brought following an altercation between a man and his roommate, who was allegedly known to have psychological issues, and a history of violence and territorialism towards roommates. Accordingly, within a few days of being assigned to the room, the victim was pushed by the roommate, causing the victim to fall and hit his head, and suffer severe injuries. Although the victim was hospitalized, he died the next day.
In this case, the court agreed with the trial court’s decision to grant the wavier, because the plaintiff in the case did not know about the requirement, there was no resulting prejudice to the defendant, and the plaintiff would be, “incurably prejudiced by dismissal for failure to comply with [the requirement] because the three-year statute of limitations on medical malpractice actions has now run.”
The court further concluded that the hospital’s claim of prejudice, in that notice could have led to pretrial mediation was not dispositive, and therefore did not amount to prejudice. The waiver was therefore affirmed.
While the plaintiff in this case was fortunate that the court upheld the waiver of the notice requirement, courts are not always so benevolent. This illustrates the importance of hiring a law firm that knows the procedural requirements related to filing your case.
If your elderly friend or relative living in a nursing home or assisted living facility within the Maryland or the Washington D.C. has been a victim of suspected neglect, abuse, or medial malpractice, contact the experienced nursing home abuse and neglect attorneys at Lebowitz & Mzhen, LLC immediately. We will vigorously investigate and pursue any potential claims on behalf of your loved one, and fight for the compensation that they deserve. Contact us today in order to schedule your complimentary and confidential initial consultation. You can reach us by calling (800) 654-1949 or contact us through our website.
More Blog Posts:
Abuse of 86 Year Old Alzheimer’s Patient Suspected in Alleged “Fall” Case, Maryland Nursing Home Lawyer Blog, published November 12, 2013
Nursing Home Abandons Patients, Leaves Them to Fend for Themselves, Maryland Nursing Home Lawyer Blog, published November 5, 2013