Brown v. District of Columbia

Before GLICKMAN and WASHINGTON, Judges, and Associate KING, Judge. Senior.

WASHINGTON, Judge: Associate case,, upon we are called to deter- purposes mine when an occurs for pursuant of notice D.C.Code (2001) where the District of Columbia al- an inmate’s med- legedly failed Brown, appellant ical condition. William son, Prophetess A. 'Brown’s died five months after he was transferred to Vir- ginia prison from the District of Columbia Lorton Correc- Department Corrections (Lorton). claims Facility Appellant tional was incarcerated at that while Mr. Brown Lorton, given proper he medical treatment, symptoms he suffered severe result, he from the died (DOC) failure Department Corrections’ * Attorney the District appeal pending, the title of the General for of Columbia. While this 2004-92, Mayor’s Reg- attorney changed. Order No. 51 D.C. chief District’s 26, 2004). (May Corporation now known as the ister 6052 Counsel is relatives, Mr. to his According sia.” treat his condition. with Maalox. primarily treated and Brown was dismissing appellant’s -wrongful death claims, the trial court found survival Brown was trans- On timely notice to provided had not appellant Depart- Virginia ferred from Lorton § pursuant District to 12-309 because II State at Sussex ment of Corrections more than six months after gave she (Sussex) At Virginia.1 Waverly, in Prison ap- injury. Appellant now Sussex, experi- continued to Mr. Brown peals this decision. ap- symptoms. According ence severe to the Dis- § 12-309 notice letter pellant’s that, today hold cases We trict, following occurred after events brought against the District of Columbia Mr. transfer to Sussex. 12-309, §to that re pursuant 17, 1999, and August ill on Brown became negligent a physician’s sults from he to the clinic because was taken occurs when diagnose a medical condition abdomi- vomiting experiencing and severe a condition worsens as result a short He was released after pain. nal negligence. light physician’s again infirmary. Mr. Brown stay holding, we conclude that Mr. Brown’s 1999, 28, September ill very became on to his point prior occurred some clinic on an and was taken to the Sussex death. Because notice to the District was days, few emergency basis. Over the next until after Mr. provided six months nausea, Mr. Brown suffered from severe death, appellant’s notice to the pain, vomiting. and On October abdominal untimely. Accordingly, District was 2, 1999, Mr. Brown was sent to the South- affirm. emergen- Regional side Medical Center hospital, At the Mr. cy medical treatment. I. lobe Brown was treated for “left lower Mr. Brown was incarcerated the Dis- dehydra- hiccups, continuous pneumonia, trict of Columbia from March 1997 to tion, failure, hyperglycemia, acute renal 15,1999. April During his incarceration His vomit and stool hypokelima.” and Lorton, complained Mr. Brown of abdomi- positive tested for blood. nal pain pain and chest on several occa- Mr. Brown died symptoms sions. He communicated his letter, According appellant’s staff, mother, the medical and sister autopsy revealed that he had preliminary Cynthia Ms. Allen. Allen testified Ms. hernia, diaphragmatic suffered from a that, Lorton, while at Mr. Brown lost sev- of a probably developed as result which vomited, pounds, frequently eral and often cage in his rib stab wound he sustained ulti- confessed that he believed he would incarceration at Lorton. The prior to his mately die as a result of the substandard cause of death was autopsy stated Brown Although medical treatment. transdia- “sepsis due to left intrathoracic District, x-rayed by the the medical herniation of the small phragmatic condition from which he died large bowel.” diagnosed. was not Mr. Brown 3, 2000, provided no- diagnosed suffering “indiges- appellant as On tion,” to the District of Mr. Brown’s pain,” “dyspep- “musculoskeletal tice pendent for the District of Colum- DOC had a with the VDOC contractors contract bia. whereby some inmates from the District Virginia would be facilities. transferred brief, principal appellant explains in her 2. As Virginia facilities were to act as inde- Those herniated into his Mr. Brown’s "intestines II. wrong- and thereafter filed a survival against ful death claim the District. The A. of Review Standard District filed a to dismiss or for motion “Compliance with 12-309 is a summary judgment, claiming appel- question of law that we de novo.” review comply lant had failed to with the notice Ross, District 697 A.2d requirement of D.C.Code 12-309. The (D.C.1997). “[Compliance 12- [§ with agreed, granting appellee’s trial court mo- mandatory prerequisite 309] is summary judgment, tion for and dismiss- . filing suit the District.” Gross v. trial ing Specifically, the case. court Brown], injured noted that “if it [Mr. DOC (D.C.1999) (quoting District of custody.” had to he in do so while was its (D.C. Dunmore, v. 662 A.2d Thus, 12-309, § purposes of the court 1995)) (internal omitted). quotation marks found that to have period the notice provides: D.C.Code 12-309 of last of commenced least as may An action not be maintained incarceration at Lorton. Be- the District of Columbia for un- against cause the District received notice eleven liquidated damages person proper- to or months after Mr. Brown’s transfer unless, ty six within months after the Lorton, the court found that notice was -sustained, damage or addition, untimely. the court found claimant, agent, attorney giv- or has period that the notice was not tolled be- writing Mayor en notice in of the cause of the decedent’s incarceration at appropriate District of Columbia of the Lorton. cause, time, place, and circumstances of trial Appellant contends that the court damage. report or A in writ- granting summary judgment erred Police ing by Metropolitan Depart- untimely the District on notice be- based ment, regular duty, course of is a (1) triggered cause: that sufficient notice under this section. (2) death; period notice was Mr. Brown’s derogation it is in of the com- “[B]eeause period during the notice tolled principle sovereign immunity, mon law regard- time Mr. Brown was incarcerated narrowly section 12-309 is to be construed (3) occurred; less of when the and not, claimants. Section is 12-309 genuine there was a of material fact issue as, and does not function a statute of limi- regarding knowledge of his imposes it a notice re- tations. injury. Despite appellant the fact that everyone on with a tort claim quirement argument parts, into several all divides against the District of Columbia.” Dun- arguments depend upon of her our con- more, 662 A.2d at 1359. Unlike statute cluding limitations, which,can through tolled be began to run at the time of Mr. Brown’s rule,4 § discovery 12-309 starts death.3 however, chest, they entrapped Appellant, did not advance became there ... claim. [t]he off, argument appeal. supply blood to the intestines was cut tissue infection set in which caused died and Mr. Brown’s death.” that the cause of 4. The rule states plaintiff accrue "until the action does not of reasonable dili- complaint, appellant knows or the exercise In her also raised argued oppo- gence its cause in wrongful in her should know death claim wrongdoing.” evidence of summary judgment motion that fact and some sition to the Mezzanotte, (D.C. 818 A.2d as to that Hardi v. she had not violated plain- that the Contending damage is diverticulitis. at the or

clock instant barred, defendant time Kelton v. District Co- tiffs action was sustained. See (D.C.1980). lumbia, plaintiff’s argued 413 A.2d that the generally misdiag- the defendant occurred when are: of the statute purposes held, however, nosed her condition. We “(1) investigate the District to allow could neither knew nor that the potential claims so evidence surgeon injury until her have known of her available, example while still gathered infection her colon discovered the paved sidewalk is over before the relevant diver- that her condition was informed her (2) fixed, to enable the or the meter cover Thus, limitations the statute of ticulitis. conditions, to correct defective plaintiff discovered began to run when the (3) increasing public safety, thus injured by physi- had been she claims facilitate settlement meritorious negligence.5 cian’s Hardy and resistance of frivolous ones.” District of rejected the no (D.C.1992). discovery rule applied tion that Id., § brought cases under B. Discussion Hardi, Therefore, unlike in A.2d at 1356. question ap The central in this rule, the applied where we the § peal—when peri does the 12-309 notice the injury date of 12-309 is not when begin od to run where a claimant sues the or should have known of his claimant knew of alleged negligence District based on the injury that was injury, but rather when physicians failing diagnose of in to one its pa the actually sustained. impres a of first medical condition—is one negligent treatment tient had received ad Although previously sion. we have that culmi physician from his limitations dressed when the statute leg. Al amputation in the of his nated run in begins malprac similar medical until much though patient did not learn cases, cases, our in those tice decisions negligence that neces physician’s later be helpful, while do not resolve the issue found that the amputation, sitated the we Hardi, supra For in example, fore us. claim time barred. reach was plaintiff physician note sued her decision, acknowledged that the ing our diverticulitis, diagnose failure to an infec § 12-309 was to policy purpose behind tious condition that the colon. Al affects liability general tort limit the District’s though plaintiff, who had been treated notice only adequate those cases where earlier, years for diverticulitis few sus Consequently, we held timely given. experiencing that she a recur pected notice under that the six-month clock for condition, incor rence began plaintiffs to run when the rectly diagnosed suffering her as from sus injury (amputation leg) of his Relying on her gynecological condition. tained, plaintiff knew or not when the under physicians’ diagnosis, physician’s negli of his could have known surgery reproductive went to remove her gence. During surgery, general sur organs. that Having previously determined conducting operation discovered geon begins was, indeed, under six-month clock plaintiffs that the condition Morton, Enters., 2003) supra 725 A.2d (citing also note v. National Med. Morton (holding plaintiffs’ claims accrued that (D.C.1999)). 725 A.2d injured they they were knew that when negligence). some evidence of defendant’s injury an was Mr. Brown’s death or that run when a claimant sustains must determine was sus- was tolled while the dece- in tained this case. We note the outset was incarcerated. dent physician’s stemming that an argues inju- Appellant an illness or condition is ry from the District’s failure to inherently than more difficult ascertain his was his actual death on condition Octo- such as the one sustained “[njeither argues ber She cases, negligence Dunmore. In most in Mr. diaphragm the hole Brown’s nor the physical there is either an immediate man- migration of his intestines and out of his (ie., negligence ifestation of an cavity the injury” chest were because that concurrently injury) occurs with the or the sought condition existed before Mr. Brown obviously victim’s condition is worsened the defendant’s medical attention. She See, specific negligent e.g., conduct. Doe argues that the could not also Columbia, by Fein v. District symptoms which caused Brown (D.C.1997) (burning injury after failure great pain such while he was incarcerated neglect investigate of District to child at Lorton and Sussex. child); protect Johnson-El (D.C.1990) (de- Columbia, 579 A.2d 168 hand, Appellee, argues the other nial of medical treatment resulted in hair occurred before loss); Gwinn v. District imprisoned death either while he was (D.C.1981) (eye injury A.2d 1376 after Specifically, appellee Lorton or Sussex. fight negligent a result of school as weight that Mr. contends loss and supervision by personnel). school clearly pain abdominal at Lorton indicate cases, however, diagnose In failure to injury at that that he sustained an time. injury by point the at which the caused the that, if Appellee argues also even we con- negligence is sustained is more difficult clude that Mr. Brown did not sustain an determine. This is so because the Lorton, incarcerated at the while already suffering is from some detrimental emergency treatment Mr. Brown received medical condition for which he or she is Regional at while Sussex Southside Therefore, the seeking treatment. result- clearly indicate that he Medical Center injury from ing physician’s negligent the 4, an prior sustained diagnose failure to the illness not deciding competing 1999. In between the significant apparent peri- become for some arguments, we find three cases from other appointment. od of time after the medical jurisdictions particularly persuasive to be case, appellant provided In this notice to determining when an is sustained 2000, 3, day the District on one short the diagnose in a failure to case such as after Mr. Brown’s death. of six months present one.6 that notice requires Because Brown, Ariz. In DeBoer v. given within six months of the date of the (1983) (en banc), Supreme the P.2d the injury, appellant’s suit in a that either of Arizona reasoned that failure will be barred unless we find Court out,' discovery appellee points cases involve does contain a rule for medical 6. As these limitations, cases, malpractice Skemp, the court in Paul v. accrual of claims under statute of (2001) de- statutes such as 242 Wis.2d 625 N.W.2d 860 not notice-of-claim plaintiffs’ based posture our case and these cases is cided the timeliness of claims The accrual,” similar, however, "three-year injury upon rule of because neither Arizona nor the discovery Virginia apply a rule in medical not on the rule of accrual. Id. malpractice cases and while Wisconsin law time that her case, or at the “injury” ruptured is not the vessel diagnose or the problem longer no be treated. condition could problem in “mere continuance of the same Virginia Similarly, Supreme Court ” substantially the same state .... Id. Pariser, 253 Va. George held in St. held, court occurs 914. The (1997), S.E.2d “into a problem develops when the medical misdiagnosis is not the stemming from great- poses more serious condition which condition, original detrimental patient’s requires danger patient er or which later occurs rather “the which but Thus, more extensive treatment.” Id. misdiagnosis and failure to because patient’s court concluded that the George, In treat.” Id. at 891. St. misdiagnosis not his doctor’s of his from a cancerous condi- patient suffered as a the court found lesion wart. physician misdiagnosed her first tion which patient’s injury occurred when the that, benign. The court reasoned be- “wart,” actually malignant which was case, every misdiagnosis cause “[I]n tumor, body began grow inside his patient type problem has some of medical life Id. at 915. expectancy. threaten his consulted,” is the time the Paul, supra Supreme note detri- patient’s injury in this case was the Court of Wisconsin faced this same issue of her condition caused mental alteration and reached a similar conclusion. In The in- by misdiagnosis. doctor’s Id. her case, patient persistent suffered from said, jury, point was the at which the court headaches, sought for which she treatment “altered its status” patient’s melanoma physicians. physi- from her None of her malignant condition to a benign from a condition, accurately diagnosed cians cancer. Id. which was malformed blood vessel seeking brain. months after treat- Several Although these cases are bind headaches, ment for her the malformation court, employed ing on this the rationale ruptured caused brain determining these courts hemorrhaging. patient extensive died in a failure to injury occurs determining rupture. one after the We, thus, adopt the rationale is sound. occurred, injury Supreme the when the apply in these cases and them expressed stated that misdi- “[a] Court Wisconsin § 12-309. diagnose failure to cases under not, cannot, itself, agnosis, in and of is of cases patients types Because in these injury.” be an actionable Id. at 867. ailment when generally suffer from an Thus, court held that the “actionable the treatment, we hold that the they first seek misdiagnosis arises when the causes worsening or injury in these cases is the at the time of greater harm than existed plaintiffs of the condition deterioration Paul, misdiagnosis.” the Id. In the court physician’s results from the patient’s pur- found that the medical condition.7 diagnose patient’s did not poses of the statute of limitations case, present to the we first Turning occur on the her condition was mis- to make a that the trial court failed note diagnosed. occurred date respect precise finding with patient’s either at the time that the blood 108, French, 113 424 S.E.2d holding 333 N.C. is consistent with our decision This Waas, Washington (1993)). patient’s inju- George Univ. v. in The Our discussion of (D.C.1994), suggested patient A.2d 178 where ry case involved whether in that cancer, involving in failure bringing contributorily negligent about spread "operative” injury was the of the diagnosis. delayed his (citing McGill cancer. Id. injured. Having In- determined that at latest upon which Mr. Brown was stead, injured “if the court found that DOC Mr. October Brown sustained Brown], he was it had to do so while [Mr. remaining contentions appellant’s custody.” light in its of our discussion summarily. Appellant first be addressed above, however, analysis court’s is trial period contends that the notice should injury resulting insufficient because during peri- have been tolled from the District’s failure to argues that od of incarceration. She next could have sustained well after Mr. been summary improper because judgment was transferred from Lorton to Brown was of material fact genuine there was a issue Therefore, in Sussex. order to determine Mr. Brown knowl- regarding whether whether the trial court’s decision was cor- injury. As for whether the edge of his rect, we must review1the record to deter- tolled, have period notice should been mine whether as a matter of law Mr. “tolling prin- already have determined prior Brown’s condition worsened to Octo- to statutes limitations ciples applicable not, If 12- filing ber Gross, cases.” apply do not timely. notice Fein, (citing Doe 734 A.2d at 1081 Our de novo review of the record leads 29). to the second respect A.2d at With ulti- us to conclude that the trial court’s issue, spe- knew the whether ruling mate on our was correct. Based irrelevant to injury or not is cifics of his record, review of the we are satisfied that begins. spe- More the notice condition worsened the six-month held that cifically, we have latest on October 1999 when he was the instant begins clock under emergency Specifi- admitted to the room. of wheth- regardless is sustained cally, undisputed evidence revealed injury. aware of er the claimant was 2, 1999, that on Mr. Brown was that, Kelton, (holding A.2d at 921 suffering from several other ailments until several did not learn patient where nausea, vomiting, addition to the and chest had conduct- years later that originally he had com- pains which on her without ligation ed a tubal date, plained. By this Mr. Brown was also began clock knowledge, six-month acute renal fail- suffering pneumonia, sustained). run at time the ure, dehydration, hiccups. and continuous Although we lack a sufficient record to reasons, the decision foregoing For the certainty precise state with medical of the trial court is con- date on which Mr. Brown’s untreated Affirmed. worsened, dition no such record is needed because his dire condition GLICKMAN, Judge, Associate clearly that his condition had indicates concurring: Indeed, at this point. worsened this Washington’s opinion join I Judge time, posed condition such only to separately the court and write great danger to him that he was raise, not appeal this does emphasize that con- to recover from it. Given our unable answer, im- two opinion and the does clusion, therefore, out- we reach similar (1) whether open questions: portant appel- trial court. Because come as the a claimant from § 12-309 bars D.C.Code provided § 12-309 notice was not lant’s District of where suing the Columbia until 2000—six months the District in the six- give claimant did not latest date on which day and one after the be- required by the statute period month no- sustained —her was unaware justifiably cause the claimant was untimely. tice was point this “[although we do not decide during period that that he or she (2) now, ambi- all, think it would be far less we any injury at and whether sustained as ‘injury1 in section 12-309 tious to read of be barred the District Columbia aware, an of which one is denoting a law- invoking from 12-309 to forestall injury* meaning ‘actionable rather than as suit where the claimant did not furnish discovery rule in incorporate the timely notice of conceal- so as to requisite because ment, wrong- or other toto.” Id.2 misrepresentation, of District’s part ful conduct on the still did question this but We revisited agents. suspect eventually I that not answer it District of presented court will be with a case that (D.C.1997). Ross, years Three questions. or the other of raises one these at a District ingested paint chips after she housing complex and questions might public the two arise in of Columbia While tandem, poi- treated for lead only hospitalized the first has been addressed was soning, court. the infant claimant Ross explicitly by past decisions of this diagnosed neuropsychological dam- In District Columbia v. with (D.C.1995), alleged age. Only then did she file a notice A.2d 1356 a case of holding District. that malpractice against medical at the District of Co- claim untimely, notice was we reasoned Hospital, lumbia General we held injury triggering “discovery apply so-called rule”1 does not the claimant “sustained” §of when her requirement period to the notice of 12-309. Id. the six-month 12-309,” light came to poisoning section we lead first “[UJnder —“at stated, entered begins “the six-month clock to run least the harmful material discovered, plaintiff body, from the moment the sustains the and resulted injury, procedures.” Id. significant not from the moment a cause of medical reason, we (emphasis supplied). action accrues.” Id. at 1359. In hold- For so differ- ing, expressly “significantly left “for another deemed the case to be involving] 12- the total lack of more difficult issue of whether section ent from [a injury] in” Dun- person filing 309 would bar a suit awareness envisioned [of more, judg- person the District when that on which we had “reserved full unaware that he or she had Id. at 18. “Lack of awareness suffered ment.” and, injury” is not suffi- consequence, had unknow- of the seriousness cient, stated, ingly give to “excuse failure to allowed the six-month injury” n. fact of at least once elapse.” Id. 13. We said that notice of the rule, fallopian discovery that her tubes 1. "Under the a cause of action the claimant learned knows, through when the or accrues open. She then waited an addition- were not diligence of reasonable months, however, the exercise know, should eight before she sent a al '(1) (2) its the existence of the of claim to the District of Co- formal notice fact, (3) cause in some evidence of lumbia. We held that because her ” Dunmore, wrongdoing.' 662 A.2d at 1359 "inquiry put notice that she the claimant on (citation omitted). n. 12 injury,” might have suffered an actionable untimely under claim notice was present 2. This issue seemed to itself in an assuming the dis- even that she could invoke case, earlier Kelton v. District of knew covery before she rule for (D.C.1980), we did not 413 A.2d 919 but injured. Id. at 921. As she had been A at D.C. General reach it there. explained our dis- subsequently Hospital performed unauthorized tubal li- adop- presage our in Kelton did not Kelton, cussion gation claimant unbe- on the her, of a rule for tion child knownst to when he delivered her passed 662 A.2d at 1361. by Caesarean section. Years before Dunmore any that fact is known. Id. at 19. Lack of realized,

awareness, may be a different

matter. present might

At first blush

thought present one or both I and that

questions that have identified yet by decided this court.

have been is, might appear

That it that the District’s

doctors misled the claimant here into

thinking any that he had not sustained potentially even attributable in Judge

them. For the reasons set forth however,

Washington’s opinion, that is not

so. The claimant here knew or should injured by

have known that he had been

possible misdiagnosis more than six given

months a notice of claim was before though

to the District Columbia. Harsh seem,

it that mandates under our

cases the result we reach. The court’s

opinion today signal therefore does not one

way or the other we would have decid- how

ed this case if it had been one in which the

claimant’s was concealed from him. SWANIGAN, Appellant,

Michael STATES, Appellee.

UNITED

No. 03-CO-449. Appeals. Columbia Court Feb.

Submitted July

Decided

Case Details

Case Name: Brown v. District of Columbia

Court Name: District of Columbia Court of Appeals

Date Published: Jul 15, 2004

Citation: 853 A.2d 733

Docket Number: 02-CV-756

Court Abbreviation: D.C.