On January 26, 2010, Appellant Kwaco Atiba filed a medical malpractice action against appellees Washington Hospital Center (“the Hospital”) and Michelle Grant-Ervin, M.D., relating to services rendered between October 27 and November 2, 2006. The trial court granted the Hospital’s motion for summary judgment based on appellant’s failure to file the complaint within the period allowed by the aрplicable statute of limitations. Before filing a medical malpractice action, a plaintiff must give “not less than” ninety days’ advance notice to the intended defendants. D.C.Code § 16-2802 (2009 Supp.). If, as was the case with appellant, such notice is given within ninety days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action is “extеnded 90 days from the date of the service of the notice.” D.C.Code § 16-2803 (2009 Supp.). Appellant filed his complaint on the ninety-first day after service of the notice was effected on October 27, 2009, which thе trial court ruled was one day too late. Appellant
We begin with the statute of limitations period itself. For medical malpractice actions, the period of limitations is the default period of three years. D.C.Code § 12-301(8) (2009 Supp.);
see, e.g., Burns v. Bell,
We turn then to the notice statute. Appellant’s case rests on his interpretation of the statutory provision requiring advance notice of the intention to file a medical malpractice action. In pertinent part, D.C.Code § 16-2802(a) reads: “Any person who intends to file an action in the court alleging medical malpractice agаinst a healthcare provider shall notify the intended defendant of his or her action not less than 90 days prior to filing the action.” Appellant argues that D.C.Code §§ 16-2802 and -2803 could not both be satisfied because the statute of limitations expired on day ninety, while the earliest he could file his action and be in compliance with the notice statute was the day after ninety full days had passed. Appellant argues that since he was required to serve the intended defendant “not less than 90 days prior to filing the action,” he was precluded from filing his complaint on day ninety. D.C.Code § 16-2802.
The problem that is presentеd is sometimes called the “clear day” issue.
See Mayor of Oakland v. Mayor of Mountain Lake Park,
We hold that ninety clear days are not required to pass prior to the filing of the law suit. To require ninety clear days would сreate a square conflict between the two statutory provisions, a conflict the Council of the District of Columbia could
The presumed intent of thе Council is amply supported by case law here and elsewhere. We have previously had occasion to address the “clear day” issue in Belton v. United States, 580 A.2d 1289, 1292 & n. 5 (D.C.1990). There, we noted with approval the maxim that
[i]n thе absence of anything showing an intention to count only ‘clear’ or ‘entire’ days, it is generally held that in computing the time for performance of an act or event which must take place a сertain number of days before a known future day, one of the terminal days is included in the count and the other is excluded.
Id.
(quoting 74 Am.JuR. 2d
Time
§ 15, at 598 (1974));
see also
J.A. Bock, Annotation,
Inclusion or Exclusion of First and Last Days in Computing the Time for Performance of an Act оr Event Which Must Take Place a Certain Number ■ of Days Before a Known Future Date,
The Maryland Court of Appеals recently provided a thorough discussion of a similar “not less than” time period computation in
Mayor of Oakland v. Mayor of Mountain Lake Park,
Nothing in the legislative history that is cited to us gives any indication of a desire to impose a “clear day” notice requirement. The addition of phrases such as “at least” and “not less than” in front of a stated time period would be naturally read as intending no more than to clarify that the required action may be taken prior to the designated minimum date. Most importantly, to construe the notice statute as requiring ninety clear days prior to the filing of the law suit would create the square conflict discussed supra between the two statutory provisions. In this case, the ninetieth day, January 25, 2010, did not fall on a Saturday, Sunday, or legal holiday, nor does appellant contend that the court was closed for any rеason, and so it must be included in the computation. Id. Appellant, therefore, could have complied with both §§ 16-2802 and -2803 by filing his lawsuit on January 25, 2010.
It may be true that filing the complaint on any date prior to January 25 would have violated the 90-day notice requirement of § 16-2802, and any date after January 25 was untimely. However, this court has previously noted that such an interpretation of the statute is not unreasonable.
Lacek v. Washington Hosp. Ctr. Corp.,
The trial court’s order granting summary judgment is
Affirmed.
Notes
. No argument is made that the discovery rule extended the period of limitations in this case.
. Thus, appellant’s argument that somehow, this provision can be construed to extend the period not from the date of service of the notice, but instead from the date when the statute of limitations would otherwise expire, is without any merit. We also reject appellant’s alternative argument that the filing of the notice “tolled” the statute of limitations for 90 dаys.
. A line of older cases in our jurisdiction may, at first blush, appear to conflict with the holding in
Belton. See Camalier & Buckley-Madison, Inc. v. Madison Hotel, Inc.,
168 U.S.App. D.C. 149, 158-59 & n. 63,
. In Belton, we cited to Super. Ct.Crim. R. 45(a) as providing guidance in the interpretаtion of the statute, noting that while the language of the rule did not precisely cover the situation, the "rationale” of the rule was applicable in light of the obvious purpose of the statute. Thе same may be said here with respect to the comparable Super. Ct. Civ. R. 6(a).
. Involved in the decision was another Maryland statute that set forth a general method for calculating a time period similar to that contained in Super. Ct.Crim. R. 45 and Super. Ct. Civ. R. 6(a). See supra note 4. The Maryland court interpreted that general statutory provision as rejecting the clear day rule.