John DOE, Appellant, v. MEDLANTIC HEALTH CARE GROUP, INC., Appellee.
Nos. 00-CV-247, 00-CV-275
District of Columbia Court of Appeals
Decided Jan. 16, 2003
814 A.2d 939
Argued Oct. 3, 2001.
We must conclude that Herndon‘s claims are barred by the FRSA. Accordingly the order of the trial court granting summary judgment in favor of Amtrak is
Affirmed.
Leo A. Roth, Jr., with whom Albert D. Brault, Washington, DC, was on the brief, for appellee.
Before RUIZ and REID, Associate Judges, and BELSON, Senior Judge.
A jury awarded a verdict to John Doe against Medlantic Health Care Group, Inc (“Medlantic“) in the amount of $250,000 for breach of confidential relationship.1 The trial court subsequently granted Medlantic‘s motion for judgment notwithstanding the verdict on the grounds that Doe‘s action was filed outside the one-year statute of limitations. On appeal, Doe claims the trial court erred in granting judgment to Medlantic because it substituted its own view for that of the jury on the question of when the cause of action accrued, and erroneously applied a one-year statute of limitations to the tort of breach of confidential relationship, which he claims is governed by a three-year limitations period. Medlantic filed a cross-appeal, asserting that the trial court improperly admitted certain hearsay statements, and should have granted Medlantic‘s motion for judgment because Doe failed to prove a prima facie case of breach of confidentiality. In addition, Medlantic claims it was entitled to a new trial because the verdict was against the weight of the evidence and based on the misconduct of plaintiff‘s counsel. We conclude that the trial court erred in directing a verdict on the issue of accrual and find no merit to the cross-appeal. Thus, we reverse the entry of judgment for appellee and remand with instructions that the jury‘s verdict for appellant be reinstated and judgment entered for appellant.
I.
Facts
In the spring of 1996, Doe held two jobs: by day he worked for a federal agency and at night he worked as a janitor for a company that contracted to clean the Department of State. Although Doe had been diagnosed with HIV in August of 1985, he had not told anyone at his janitorial job that he was HIV positive. One of Doe‘s co-workers in the evenings at the State Department was Tijuana Goldring, who also held a day position at the Washington Hospital Center (“WHC“) 2 as a temporary receptionist. On April 13, 1996, Doe went to WHC‘s emergency room suffering from severe headaches, nausea and high fever. He was discharged on April 16, 1996, but was unable to return to work for approximately two weeks because of these health problems.
On April 23, 1996, while still absent from work, Doe returned to WHC for a follow-up clinic visit after his discharge from the hospital. Knowing that Goldring worked at WHC, Doe stopped by the receptionist‘s desk to pay her a “courtesy call.” After a brief conversation, Goldring asked him for the correct spelling of his uncommon last name because she wanted to send him a get well card. Doe testified that he did not think Goldring‘s request was odd and complied with the request as it was not unusual to get such a card from co-workers after having been out sick. Doe never received a card from Goldring, but did receive a card from fellow co-workers at the State Department with $50 enclosed.
Sometime in April of 1996, before Doe returned to work, Goldring told another co-worker at the State Department, Donnell Fuell, that John Doe “had that shit,” meaning HIV or AIDS. When Fuell questioned her veracity, Goldring replied that it was “for real,” and told Fuell she “got it from the hospital.” Fuell knew that Goldring worked at WHC during the day.
On Monday, April 29, 1996, when Doe returned to work at the State Department, he confronted Goldring “one on one” and asked her if she was responsible for spreading the rumors about him. When confronted with what Fuell had said, she didn‘t seem surprised, and told him “I wouldn‘t do you like that” in a serious manner. Doe testified at trial that he believed Goldring because he had a “good relationship” with her and considered her a friend. Later that same day, when Doe saw Fuell and Goldring together, he told Fuell that Goldring “said she didn‘t say that.” Looking at Goldring, Fuell asked “What‘s he talking about?” Goldring responded “I don‘t know what he‘s talking about,” and they “brushed it off” and went back to work. Because of Fuell‘s and Goldring‘s denials, Doe concluded it was “a Donnell Fuell joke,” and “left it alone.”
Edward Coles, a friend of Doe for twenty-five years, testified at trial that Doe called him about the incidents at work “right after he got out of the hospital” in April of 1996. The following exchange took place between Doe‘s counsel and Coles at trial:
Q: Did you learn about—did there come a time when you learned about [Doe‘s] problem with Tijuana Goldring and Washington Hospital Center?
A: He told me about the incident. When it first occurred, in the sense of after having come back to work from the illness and being approached by different innuendoes and people approaching him.
Q: You don‘t have to tell us sort of a blow-by-blow what he told you, but did he describe to you the problems he had with the Washington Hospital Center and Tijuana Goldring?
A: Yes, he did.
According to Coles, while Doe did not go into a lot of detail about his feelings about what was happening to him “he was angry about what happened.”
Doe testified that his time at work after April 25, was “like a living hell,” as he was teased, ridiculed, pitied and scorned. Co-workers who had previously eaten with him now shunned him, and he was the object of snide remarks, stares, and unwanted attention. This included crass comments such as, Doe has “that faggot thing,” and “[don‘t] eat [Doe‘s] food.”
On May 20, 1996, as Doe approached the time clock at the State Department where a number of co-workers, including Goldring, were waiting to process their time
Prior to that point, for all I know, it could have been a Donnell Fuell joke. It could have been cause he‘s known to be a jokester. I confronted Tijuana. She said she didn‘t do that, and I left it alone. But the ongoing abuse and joking and general teasing of me, I was trying to get a handle on this thing, and it wasn‘t until the 20th [of May] that it was confirmed to me in my mind that this woman actually did this.
The following day, on May 21, 1996, Doe called WHC and spoke with the vice president of personnel and human resources to ask if the hospital had a policy on employees who disseminate confidential medical information. Doe explained what had happened and gave Goldring‘s name. The vice-president said she would talk to Goldring and told Doe that this type of dissemination was against hospital policy and the laws of the
Doe filed a complaint against Medlantic and Goldring on May 20, 1997, alleging tort claims of invasion of privacy based on Goldring‘s disclosure and breach of confidential relationship based on WHC‘s negligence in permitting Goldring‘s access to confidential patient information. After Goldring was dismissed from the case, it proceeded to trial against Medlantic. The jury found Medlantic liable for breach of confidential relationship and awarded damages in the amount of $250,000. The jury found against Doe on the invasion of privacy claim because Goldring‘s disclosure was not within the scope of Goldring‘s employment with WHC. The jury was instructed on the statute of limitations and accrual of actions. The verdict form had a separate question on the statute of limitations,3 and in answering this question, the jury explicitly found that the lawsuit was filed within the one-year limitations period.
Medlantic then filed a motion for judgment as a matter of law, alleging, among other assertions, that Doe‘s breach of confidentiality claim was time-barred by the applicable one-year statute of limitations. The trial court concluded that the statute of limitations expired for both claims before the suit was filed, even with application of the discovery rule, reasoning that the limitations period commenced on April 25, 1996, when Fuell first told Doe that Goldring started the rumors. According to the trial court, “[t]hat Fuell‘s credibility may have been suspect does not forestall inquiry; instead, it demanded inquiry because it was ‘possible’ that Fuell was correct.” Moreover, the court noted that “plaintiff‘s own evidence unequivocally demonstrates that Fuell was convincingly corroborated at the very time he told plaintiff of Goldring on April 25,” because only Goldring was connected to the hospital where Doe had been treated, Goldring had access “albeit unauthorized” to the general medical records, and Goldring‘s request for Doe‘s name was a “transparent
Doe filed a motion for reconsideration pursuant to
II.
Statute of Limitations
A claim usually accrues for statute of limitations purposes when injury occurs, but in cases where “the relationship between the fact of injury and the alleged tortious conduct [is] obscure,” this court determines when the claim accrues through application of the discovery rule, i.e., the statute of limitations will not run until plaintiffs know or reasonably should have known that they suffered injury due to the defendants’ wrongdoing.” Mullin v. Washington Free Weekly, Inc., 785 A.2d 296, 298-99 (D.C. 2001) (quoting Colbert v. Georgetown Univ., 641 A.2d 469, 472-73 (D.C. 1994) (en banc)). When the discovery rule applies, a cause of action accrues when the claimant knows or by the exercise of reasonable diligence should know of (1) the injury, (2) its cause in fact, and (3) some evidence of wrongdoing. See Bussineau v. President & Dirs. of Georgetown College, 518 A.2d 423, 435 (D.C. 1986). “The law of limitations requires only that the plaintiff have inquiry notice of the existence of a cause of action.” Hendel v. World Plan Executive Council, 705 A.2d 656, 661 (D.C. 1997). We have explained that a cause of action accrues for statute of limitations purposes when the plaintiff is deemed to be on inquiry notice, “because if she had met her duty to act reasonably under the circumstances in investigating matters affecting her affairs, such an investigation, if conducted, would have led to actual notice.” Diamond v. Davis, 680 A.2d 364, 372 (D.C. 1996) (per curiam). Thus, inquiry notice is “that notice which a plaintiff would have possessed after due investigation.” Id. (emphasis added).
Although what constitutes the accrual of a cause of action is a question of law, when accrual actually occurred in a particular case is a question of fact for the fact finder. See Cevenini v. Archbishop of Washington, 707 A.2d 768, 770-71 (D.C. 1998). This is particularly so where the discovery rule applies because “[t]he critical question in assessing the existence vel non of inquiry notice is whether the plaintiff exercised reasonable diligence under the circumstances in acting or failing to act on whatever information was available to him.” Ray v. Queen, 747 A.2d 1137, 1141-
Even where a plaintiff might know, or be deemed to know, of wrongdoing on the part of one defendant, accrual of his action against another, unknown defendant responsible for the same harm is not automatic, “unless the two defendants were closely connected, such as in a superior-subordinate relationship.” Diamond, 680 A.2d at 380. Whether the relationship of the defendants is sufficiently close to cause accrual is also a question of fact, and notice may be imputed to the plaintiff by the same standard of reasonable diligence under the circumstances. See id. In some circumstances, the relationship of the defendants along with other facts may establish as a matter of law that “a reasonable plaintiff with knowledge of misconduct of one would have conducted an investigation as to the other.” Id.
Doe argues that the trial court erred in substituting its credibility determinations for those of the jury and refused to draw reasonable inferences favorable to him from the evidence. In particular, he contends that the trial court reached conclusions contrary to those of the jury in considering his testimony, as well as that of Coles and Fuell. Medlantic responds that the rumors at work of Doe‘s medical condition were enough to put Doe on inquiry notice; and, as such, the trial court was correct in ruling that there were ample circumstances to put a reasonable person on notice as to Goldring‘s and, therefore, WHC‘s, culpability before May 20, 1996.
We begin our consideration by recognizing that we review the grant of directed verdict de novo, applying the same standards as the trial court. See Breezevale Ltd. v. Dickinson, 759 A.2d 627, 633 (D.C. 2000), op. adopted, 783 A.2d 573 (D.C. 2001) (en banc).
It is only in the unusual case, in which only one conclusion could reasonably be drawn from the evidence, that the court may properly grant judgment notwithstanding the verdict. Moreover, it is the responsibility of the jury (and not the judge) to weigh the evidence and to pass upon the credibility of witnesses. If impartial triers of fact could reasonably find the plaintiff‘s evidence sufficient, the case may not be taken from the jury. Id. (quoting Homan v. Goyal, 711 A.2d 812, 817-18 (D.C. 1998)). In considering a judgment for defendant notwithstanding a jury verdict for the plaintiff, the evidence must be viewed “in the light most favorable to the plaintiff, who is entitled to
Doe no doubt began to experience injury on April 25, when he returned to work and a co-worker harassed him about having AIDS, and thereafter, as he candidly testified, his time at work was “like a living hell.” He must have known that in some way the privacy he had sought to maintain concerning his medical condition had been violated. That is not enough, however, to put him on inquiry notice. Whether Doe is deemed to be on inquiry notice depends on whether he met his duty to act reasonably under all the circumstances to investigate the source of the AIDS rumors. See Diamond, 680 A.2d at 372. Viewing the evidence in the light most favorable to the plaintiff, we think that a jury could conclude that Doe‘s actions show that he did so. Doe confronted Goldring on the first day of his return to work on April 29, only four days after Fuell had identified her as the source of rumors concerning Doe‘s medical condition. Goldring denied having spread these rumors, and the jury could credit that Doe believed her because they had a “good relationship” and he considered her a friend. Doe was not complacent, however, and later that same day, sought to confirm Goldring‘s denials by questioning Fuell in front of Goldring. Based on their responses, he was led to believe that the April 25 comments had been a “Donnell Fuell joke,” given that Fuell was known to be a jokester. Moreover, in light of Goldring‘s denials, the jury could reasonably find that Doe acted with reasonable diligence under the circumstances and was not on notice until May 20, 1996, when he was again confronted by Fuell‘s comments and observed Goldring‘s attempts to silence Fuell. In context the jury could find that Doe reasonably concluded only then that Goldring was indeed the source of the rumors and to further suspect she had gained access to his medical records at the hospital. See Ezra Co., 687 A.2d at 593 (noting that whether defendant‘s fraudulent concealment precluded plaintiff from exercising due diligence in identifying possible causes of action is a factual question for the jury). As part of its consideration of Doe‘s circumstances, the jury could take into account evidence that a person in Doe‘s condition, facing serious health problems at the time, would not necessarily make an immediate connection between the disclosure of his condition and the hospital. If Doe reasonably believed that Goldring was not the source of the rumors until May 20, 1996, the jury could have found that he was not required to investigate the hospital‘s involvement before then. Because “impartial triers of fact could reasonably find the plaintiff‘s evidence sufficient, the case may not be taken from the jury.” Breezevale Ltd., 759 A.2d at 633.
In granting judgment, the trial court erred in several respects. First, the court‘s findings indicate that it found what it considered reasonable under the circumstances without deferring to the jury‘s reasonable conclusions on the issue of accrual. Further, in making its findings, the trial court mischaracterized or ignored the testimony of Fuell, Coles and Doe, and failed to draw reasonable inferences favorable to Doe. Nothing in the record before us indicates that, in addition to telling Doe on April 25, 1996, that Goldring was the source of the rumors, Fuell “had confided in [Doe] that her information came from the hospital” as the trial court recalled. In fact, Doe testified that Fuell did not tell him of the source of Goldring‘s information until the fall of 1996. The court also seems to have drawn its own inferences—contrary to those of the jury—in concluding that Coles testified that “[p]laintiff was
The trial court also erred in applying the discovery rule in this case. The court concluded that because Goldring worked at the hospital, that relationship was sufficiently close to establish as a matter of law that Doe should have known or investigated the hospital‘s wrongdoing once he became aware that Goldring was the source of the rumors. The trial court ruled that “even were we to concede plaintiff‘s justification in doubting Fuell, the limitations period would nevertheless commence on April 25, when Fuell told him it was Goldring who started the rumors.” While it is true that accrual of the statute of limitations requires only inquiry notice, see Hendel, 705 A.2d at 661, the court disregarded Doe‘s efforts to investigate the source of the rumors and the effect of Goldring‘s subsequent denial of responsibility, contrary to our holding in Diamond. See Ezra Co., 687 A.2d at 592. (“Given our ruling in Diamond, the question is whether Ezra filed its claim within three years of the time it knew, or through the exercise of reasonable diligence should have known, of its claim.“) The reasonableness analysis considers the “confidential or fiducial relationship between the plaintiff and the defendant.” Diamond, 680 A.2d at 376. Doe was entitled to presume that WHC would honor the confidential relationship between hospital and patient, before assuming that Goldring‘s actions were, beyond her own wrongdoing, evidence of the hospital‘s negligence. That Doe relied on such a presumption is evidenced by the fact that the day after he realized Goldring was the source of the rumors, he immediately called WHC to complain about her improper behavior. As the two claims in this case made clear to the jury, one theory of liability against the hospital, invasion of privacy, was solely dependent on Goldring‘s wrongdoing; if Goldring was liable, Medlantic would also be liable if she acted as its agent, i.e., within the scope of her employment. The jury found for Medlantic on that claim, as it considered that Goldring had not acted as Medlantic‘s agent. The claim of breach of confidential relationship, on the other hand, was based on the hospital‘s own negligence in allowing Goldring to access Doe‘s medical records. Although inquiry notice is not dependent on knowledge of all aspects of a claim, the discovery rule requires knowledge of some wrongdoing. See Bussineau, 518 A.2d at 435. The jury reasonably
III.
Cross-Appeal
A. Hearsay Statements
Medlantic claims that the trial court erred in admitting Fuell‘s statement that when Goldring told him of Doe‘s medical condition, she also told him that she “got [the information] from the hospital.” Medlantic argues that this testimony was inadmissible hearsay evidence which prejudiced appellee because it was allegedly the only evidence produced by Doe which linked Goldring‘s disclosure of Doe‘s medical condition to the hospital‘s medical records, and therefore, should have been excluded.6
The trial court noted that Medlantic‘s position on this issue “involves a basic inconsistency ... [w]hile it abjures these out-of-court statements on the issue of liability, it embraces them on the issue of statute of limitations.” The trial judge first opined that the contested statement was “admissible to show plaintiff‘s knowledge, which was the operative issue on the defense of the statute of limitations.” While the court admitted the testimony at trial under the exception to the hearsay rule for statements against interest, it recognized in its post-trial ruling that because Goldring appeared as a witness, such an exception was inapplicable. See Laumer v. United States, 409 A.2d 190, 199 (D.C. 1979) (requiring unavailability of declarant for hearsay exception for statements against interest). The court then asserted two alternative grounds under which the evidence was admissible: that the statement that “she got it from the hospital” was inextricably tied in a single conversation to the statement that Doe had AIDS, and was admissible as an integral part of the verbal act that Doe had AIDS, and that the out-of-court statement was admissible for the truth of the matter asserted because Goldring appeared as a witness, was observed by the jury and was subject to direct and cross-examination concerning her out-of-court statement.
Even if these grounds are doubtful, any error by the trial court in admitting Goldring‘s out-of-court statement was harmless. Other evidence properly admitted at trial made it obvious that Goldring had acquired the information about Doe‘s medical
B. Motion for Judgment—Sufficiency of the Evidence
Medlantic asserts that Doe failed to prove a prima facie case of breach of confidentiality because there allegedly was no evidence that WHC disclosed confidential information. Specifically, Medlantic claims there was no direct proof of how Goldring was able to obtain the confidential information, no evidence of actual breaches by the hospital of its protocols concerning intra-department access to medical records, and that no evidence was presented as to the standard of care for similarly situated hospitals. With respect to this last point, Medlantic contends that Doe‘s failure to present expert testimony on a hospital‘s duty as a fiduciary with respect to record-keeping improperly led the jury to speculate that WHC “breached its own policies, or that such policies were, in and of themselves, deficient.”
The trial court stated that Medlantic had failed to object on sufficiency grounds at trial and was, therefore, precluded from raising such a claim in its post-trial motion, but went on to discuss the issue under the assumption that timely objections were made.7 It disagreed with Medlantic‘s position that expert testimony was required, and pointed to evidence introduced at trial through two witnesses—Larry Crockett and Betty Ward—which demonstrated that the hospital had established protocols for requesting medical records and that the “departure in practice from the system‘s safeguards was dramatic.” Since there was “abundant evidence” of careless practices which would provide numerous ways for an insider at the hospital to get information, “[a]ll the jury had to believe is that the insider, Goldring, in fact [did] so,” and the court concluded that the evidence was more than sufficient for a jury to believe that she did.
“The tort of breach of confidential relationship is generally described as consisting of the unconsented, unprivileged disclosure to a third party of nonpublic information that the defendant has learned within a confidential relationship.” Vassiliades v. Garfinckel‘s, Brooks Bros., 492 A.2d 580, 591 (D.C. 1985) (internal quota-
We agree with the trial court that the evidence, viewed in the light most favorable to the plaintiff, sufficed to permit the jury to find that WHC breached its duty to “observe the utmost caution,” see note 8 supra, in protecting the confidentiality of Doe‘s medical records. First, we reject the suggestion that expert testimony was necessary to establish the applicable standard of care in this case. In the negligence context, we have “refused to require expert testimony when the issue
Substantial evidence was presented concerning the hospital‘s protocols and the routine failure of employees to comply with them. Crockett, a former medical records supervisor at WHC, and Ward, a worker for thirty-five years in the medical records department, testified as to the departures in practice from the established protocols. Crockett stated that while persons requesting medical records were supposed to give certain information, including their name, where they were calling from, and the purpose of the request for the record, in practice it did not always happen. The hospital‘s protocols were followed less often in the Employee Health department where Goldring worked as a receptionist. Ward similarly testified about lax enforcement of the protocols. As examples, she said that if a person called from the Employee Health department and merely gave his or her first name, that person‘s request for records would be processed without independent verification, and that individuals wearing a badge from a known department in the hospital could request medical records “stat” for emergencies and be given the records without further inquiry if the need was considered urgent. Moreover, although Employee Health staff did not have authority to request charts of persons who were not hospital employees, if a person with a hospital department badge asked for a record, staff at the records control desk would accept what the person requesting the record said, without independently verifying if the record requested pertained to an employee.
Evidence was also presented showing that Goldring was a receptionist at the Employee Health department in April 1996 and that, of all Doe‘s co-workers, she alone could have had access to his medical records at WHC. She was identified by Fuell and others as the source of the rumors about Doe‘s condition, and it was she who asked for the spelling of Doe‘s last name, allegedly for the purpose of sending a card, which she never did. Finally, nei-
C. Motion for New Trial—Misconduct of Plaintiff‘s Counsel
Medlantic contends that Doe‘s counsel‘s conduct during trial was so improper as to require a new trial. This conduct included counsel offering his personal opinion during closing argument that Goldring lied and that WHC should have had a different computerized software system, deliberately ignoring the trial court‘s order prohibiting mention of part of a Washington Post article about unauthorized disclosure of other WHC medical records, continually voicing of asides to the jury, and suggesting that defense witnesses had destroyed evidence. Although the trial court described counsel‘s conduct as “reprehensible” and “deplorable to the extreme,” it concluded that a new trial was not warranted in the case under the totality of circumstances involved.
“An attorney must not accuse a witness of lying on the witness stand.” Psychiatric Inst. of Washington v. Allen, 509 A.2d 619, 628 (D.C. 1986). The isolated suggestion that Goldring was lying, however, certainly was not likely to mislead, improperly influence, or prejudice the jury where proper instructions were given as to the jury‘s role as the sole arbiter of the facts. See id. Even in conjunction with the other examples of plaintiff‘s counsel‘s misconduct, counsel‘s actions do not compel us to require a new trial, particularly where Medlantic failed to object to such conduct or request a mistrial. Cf. District of Columbia v. Bethel, 567 A.2d 1331, 1337 (D.C. 1990) (failure of party to object to trial court‘s curative instruction or demand a mistrial following opposing counsel‘s misstatements in closing argument precluded appellant from seeking a new trial on appeal). “[I]t is our function to review the record for legal error or abuse of discretion by the trial judge, not by counsel.” Id. (quoting Irick v. United States, 565 A.2d 26, 33 (D.C. 1989)). The trial court properly instructed the jury and admonished plaintiff‘s counsel for various improprieties. We find neither error nor abuse of discretion by the trial court here.9
IV.
For the foregoing reasons, the trial court‘s entry of judgment for appellee is reversed, and the case is remanded with instructions that the jury verdict be reinstated and judgment entered in favor of appellant.
So ordered.
Respectfully, I submit that the majority opinion plainly misapplies this jurisdiction‘s law on the issue of notice of a cause of action for purposes of commencement of the period of limitations. Judge Braman applied the law correctly. Before discussing the majority opinion, I will quote briefly from our controlling precedents and then set forth the most salient facts.
I.
Recently, we summarized the relevant principles of law regarding limitations of actions in Mullin v. Washington Free Weekly, Inc., 785 A.2d 296, 298-99 (D.C. 2001), as follows:
As a general rule, “where the fact of an injury can be readily determined, a claim accrues for purposes of the statute of limitations at the time the injury actually occurs.” Colbert v. Georgetown University, 641 A.2d 469, 472 (D.C. 1994) (en banc). But when “the relationship between the fact of injury and the alleged tortious conduct [is] obscure,” this court determines when the claim accrues through application of the discovery rule, i.e., the statute of limitations will not run until plaintiffs know or reasonably should have known that they suffered injury due to the defendants’ wrongdoing. Id. at 472-73. [Footnote omitted.]
We have made it clear that “for a cause of action to accrue where the discovery rule is applicable, one must know or by the exercise of reasonable diligence should know (1) of the injury, (2) its cause in fact, and (3) some evidence of wrongdoing.” East v. Graphic Arts Industry Joint Pension Trust, 718 A.2d 153, 157 (D.C. 1998) (quoting Bussineau v. President & Dirs. of Georgetown College, 518 A.2d 423, 435 (D.C. 1986)).
In Hendel v. World Plan Executive Council, 705 A.2d 656, 661 (D.C. 1997), we explained that the discovery rule does not allow the plaintiff to “defer legal action indefinitely if she knows or should know that she may have suffered injury and that the defendant may have caused her harm,” stating:
[A] right of action may accrue before the plaintiff becomes aware of all of the relevant facts. “It is not necessary that all or even the greater part of the damages ... occur before the [right] of action arises.” Knight v. Furlow, 553 A.2d 1232, 1235 (D.C. 1989) (citation omitted). Any “appreciable and actual harm flowing from the [defendant‘s] conduct” is sufficient. Id. “[T]he law of limitations requires only that [the plaintiff] have inquiry notice of the existence of a cause of action....” Colbert, supra, 641 A.2d at 473 (emphasis added) (quoting Baker v. A.H. Robins Co., 613 F. Supp. 994, 996 (D.D.C. 1985)).
Hendel held that, as a matter of law, the court had to ascertain whether “Ms. Hendel was placed on inquiry notice prior to September 1, 1986, of the possibility that she had suffered appreciable harm as a result of the wrongful conduct of the defendants.” Id. (emphasis added). Hendel also pointed out that a plaintiff‘s actual or constructive knowledge of the relevant facts must be assessed under an objective “reasonable person” standard. Id.
II.
Since the majority opinion sets forth the relevant facts and procedural history extensively, I will summarize only the facts that bear on the question whether appellee Medlantic Healthcare Group (the hospital) was entitled to judgment as a matter of law. The hospital established that Doe should have reasonably inferred on April 25, 1996, that he had suffered an injury
- In April of 1996, appellant Doe and witness Tijuana Goldring were part-time evening employees of a company that provided cleaning services at the United States Department of State (State).
- Appellant, who had not disclosed to his coworkers at State that he was HIV positive, was hospitalized at the Washington Hospital Center (operated by Medlantic) on April 13-16, 1996, and returned there for an outpatient follow-up on April 23, 1996.
- While at the hospital on April 23, he paid a “courtesy call” on Tijuana Goldring, who was a part-time receptionist there during the day. During their conversation, Goldring asked Doe to spell his unusual last name, ostensibly so that she could send him a card. Doe never received such a card from Goldring.
- Doe received the customary card and cash gift given to all ill employees from his coworkers at State. Since he had informed a supervisor at State on April 13 that he was entering the hospital and would be on sick leave, his coworkers knew he was ill. He did not disclose the nature of his illness to his supervisor.
- On April 25, Doe returned to State while still on sick leave to pick up his paycheck. Before entering the building, he encountered two coworkers, Derek Nelson and Gordon Bannister, who were laughing. When Nelson “stunned” Doe by stating, “Hey motherfucker, I hear you‘re dying of AIDS,” Bannister had a smile on his face.
- After Doe entered the building, he encountered coworker Donnell Fuell, who greeted him with “Hey, Tom, Tijuana [Goldring is] going around here telling everyone you got AIDS.” Fuell did not tell Doe at that time that Goldring had also informed him that she obtained the information from the hospital. According to Doe, “When Donnell told me that Tijuana was spreading rumors, he wasn‘t joking with me, he was serious....”
- Over the ensuing weekend, Doe called a coworker and friend, Ms. Willie Jones, to inquire whether she had heard the rumor that Doe had AIDS. When Jones acknowledged that she had, Doe failed to ask her how she learned of the rumor and whether the source was Goldring, as Fuell had told him.
- On April 29, 1996, Doe‘s first day back at work, he approached Goldring “one on one” and asked her if she was spreading the rumors .... ” She denied it but, Doe acknowledged, did not appear surprised when he told her Fuell had informed him that she was spreading the rumors.
- Later that day, Doe approached Fuell and Goldring while they were together and told Fuell that “Tijuana said she did not say that.” Notwithstanding his statement to Doe four days before, Fuell looked at Goldring and asked “What‘s he talking about?” She replied, despite having spoken about the matter earlier in the day with Doe, “I don‘t know what he talking about.” Fuell and Goldring immediately left and went about their work.
Doe testified that after April 25, 1996, his experience at his job was a “living hell” because he was teased, scorned, and made fun of in numerous ways. Some coworkers became nicer to him and treated him with pity, but he did not “want their pity.” - Between April 29 and May 20, 1996, Doe failed to ask Fuell to explain why on April 29 in front of Goldring he feigned ignorance as to what Doe was talking about, in light of what he had told Doe on April 25.
- Between April 29 and May 20, 1996, Doe also neglected to ask Goldring further about the matter, and also failed to ask Nelson, Bannister, or any of his other taunters the source of their information. Prior to May 20, Bannister had learned from Donnell that Goldring‘s source was the hospital. Finally, Doe also neglected to ask Ms. Willie Jones before May 20, 1996, whether she was aware of the source of the rumor.
- In April of 1996, Doe telephoned a friend, Edward Coles, who knew of his condition. When asked by Doe‘s counsel whether Doe had described the “problems he had with the Washington Hospital Center and Tijuana Goldring,” Cole responded “[y]es, he did,” and that Doe was “angry about what happened ... he told me he was angry about what happened....”
- On May 20, Fuell questioned Doe about his health in the presence of a group of coworkers gathered at the time clock. Doe answered “I‘m fine.” Fuell asked Goldring “What‘s up with that, T (Goldring‘s nickname)“? Doe testified that Goldring‘s silence together with a hand motion she made “confirmed to [him] in [his] mind that [Goldring] actually [looked at his file and spread the rumor].”
- Doe testified that once he concluded that Goldring had spread the rumor, he inferred that she had obtained the information from the hospital records.
- The next day, May 21, Doe telephoned the hospital and spoke with a vice-president who informed him that the type of dissemination of information that Doe said had occurred was against hospital policy and the laws of the
District of Columbia .
III.
Following the jury‘s verdict, which included inter alia a finding against the hospital on the one-year statute of limitations issue that was framed in terms of the discovery rule, the hospital filed a post-trial motion for judgment as a matter of law and/or for a new trial. One of the hospital‘s bases for its motions was that the statute of limitations barred appellant‘s action as a matter of law. Several weeks later, the court issued a twenty-four page opinion, the first nine pages of which set forth the trial judge‘s reasons for granting judgment as a matter of law on the limitations issue.
In rejecting Judge Braman‘s reasoning and reversing, the majority states that “the trial court erred in several respects. First, the court‘s findings indicate that it found what it considered reasonable under the circumstances without deferring to the jury‘s reasonable conclusions on the issue of accrual.” (
To the contrary, I submit, the trial judge demonstrated that he was well aware of the respective roles of judge and jury, and correctly stated that it is true “that in most cases involving a discovery rule, the issue of when the statute begins to run is a jury question. But there are cases, like Hendel, supra, 705 A.2d 656, and Colbert, supra, 641 A.2d 469, where reasonable
Further, with respect to the asserted trial court error, the majority states that in making his findings, Judge Braman “mischaracterized or ignored the testimony of Fuell, Coles and Doe, and failed to draw reasonable inferences favorable to Doe.” (
One criticism is that the trial judge “seems to have drawn his own inferences, contrary to those of the jury—in concluding that Coles testified” that in April of 1996 Doe told him he was angry with Goldring and the hospital. (
The majority opinion offers that even if Coles’ testimony was as Judge Braman interpreted it, the judge ignored the testimony of Doe who stated that he did not come to believe that Goldring and Washington Hospital Center were responsible until May 20, 1996. (
The majority also states that the trial judge “found that Doe knew Goldring had access to the hospital‘s medical records of non-employees” (
The majority also faults the trial court for characterizing Goldring‘s request for Doe‘s last name as a “transparent ploy” (
The only factual reference by the trial judge cited by the majority that is not fully consistent with the transcript was to the effect that on April 25, Fuell not only told Doe of the rumor that Goldring was spreading, but also stated the hospital was the source of her information. Significantly, however, the trial judge did not repeat that misstatement in the two subsequent passages of his opinion in which he stated his reasons for concluding, that Doe, had ample notice on April 25 to trigger the statute and that Doe did not diligently pursue inquiry notice. In the first such subsequent passage, the trial judge referred only to Goldring‘s being the one who started the rumor (not to where Fuell said she got the information); in the second, the trial judge correctly noted that Doe based his lack of knowledge argument
The majority‘s essential conclusion is that Doe exercised reasonable diligence by engaging in the two conversations with Goldring and Fuell on April 29, and then being satisfied by them that Fuell was just joking on April 25 and that Goldring‘s denials could reasonably be accepted. Due diligence, the majority concludes, required no more, and was satisfied despite Doe‘s remaining passive until the fortuitous events of May 20.
To the contrary, I submit, Doe could not reasonably have been satisfied with Fuell‘s response on April 29 when in Goldring‘s presence Doe told Fuell of Goldring‘s denial, i.e., his saying, “What‘s he talking about” to Goldring and then returning to his duties with no further explanation. Clearly, due diligence required that Doe ask Fuell further about the matter outside the presence of Goldring as soon as his daily work at State permitted, and that he ask Fuell about the inconsistency between Fuell‘s April 25 statement and his evasive answer of April 29. A reasonable inquiry of Fuell could have been expected to bring out the fact that Goldring had already informed Fuell that she obtained the information from the hospital.
Likewise, Goldring‘s answer that she didn‘t know what Doe was talking about could not have been reasonably satisfactory to Doe, not only because Goldring clearly knew what he was talking about, but also because Doe had had his conversation with Goldring at the hospital just before the damaging leak of medical information was spread among his coworkers. Doe also failed to inquire further of his friend Ms. Willie Jones, to ask her what she could tell him about the source of the rumors once life became a “living hell” for him at his job. Likewise, he could have inquired of other coworkers—Bannister, for example, who testified that he knew before May 20 that Goldring was the source of the rumor and that she had told Fuell that she obtained the information from the hospital.
A reading of Judge Braman‘s opinion also refutes the majority‘s statement that he “disregarded Doe‘s efforts to investigate the source of the rumors and the effect of Goldring‘s subsequent denial of responsibility, contrary to our holding in Diamond” (citation omitted) (
The majority‘s statement that “summary judgment is improper where there is a disputed question about plaintiff‘s diligence in investigating a possible cause of action” (
The majority suggests that Doe was entitled to presume that the hospital would honor its confidential relationship with him before assuming that actions of Goldring were evidence of the hospital‘s negligence. (
The essential weakness in Doe‘s case is that under the undisputed facts, viewed in the light most favorable to him, he simply failed to pursue the matter with reasonable diligence after he was first informed that Goldring was indeed the culprit. The trial judge‘s ruling was correct and the judgment as a matter of law for the hospital should be affirmed.5
In re Christopher TRIKERIOTIS, Respondent. A Member of the Bar of the District of Columbia Court of Appeals. No. 02-BG-18.
District of Columbia Court of Appeals.
Submitted Jan. 3, 2003. Decided Jan. 16, 2003.
Before STEADMAN, SCHWELB, and GLICKMAN, Associate Judges.
PER CURIAM:
Respondent Christopher Trikeriotis entered a plea of guilty in the United States District Court for the District of Maryland to one count of felony bank fraud in violation of
As a result of his conviction, the Court of Appeals of Maryland disbarred respondent by consent. Bar Counsel filed a certified copy of the disbarment order, and this court temporarily suspended respondent on January 30, 2002, pursuant to
Notes
Similarly, in beginning its discussion of the application of the discovery rule, the majority writes that “Doe no doubt began to experience injury on April 25 when he returned to work and a coworker harassed him about having AIDS....” (
(Emphasis added).Q. Did you learn about—did there come a time when you learned about his problem with Tijuana Goldring and Washington Hospital Center?
A. He told me about the incident. When it first occurred, in the sense of after having come back to work from the illness and being approached by different innuendoes and people approaching him.
Q. You don‘t have to tell us sort of a blow-by-blow what he told you, but did he describe to you the problems he had with the Washington Hospital Center and Tijuana Goldring?
A. Yes, he did.
Q. And when he told you those problems, were you aware —
THE COURT: When did he do that, sir? THE WITNESS: When did he? The exact date, I‘m thinking, is right after he got out the hospital.
So I think it was in ‘96 sometime.
THE COURT: Pardon me.
THE WITNESS: In April of ‘96, I believe.
Q. So it‘s your testimony he did not convey his feelings to you?
A. Well, his feelings—He was angry about what happened. I could detect that and, you know, he told me he was angry about what happened, but that‘s basically—
[t]o be entitled to your verdict on the claim of breach of confidential relationship, the Plaintiff must prove by a preponderance of the evidence the following four elements: One, that the Plaintiff‘s hospital records contained nonpublic information that the Plaintiff had AIDS; two, that Tijuana Goldring obtained unauthorized access to that information; three, that this disclosure amounted to a violation of the hospital‘s duty to protect the confidentiality of that relationship. I should say to protect the confidentiality of that information; that is, the information contained in the hospital record. And the fourth and final element is that this disclosure was without the Plaintiff‘s consent.
The court then went on to further explain the hospital‘s duty as a fiduciary to protect the medical records:
Since the hospital has custody of its patient‘s medical records as a fiduciary it owes a special duty to the patient to preserve the confidentiality of his or her records and to safeguard them against disclosure. The hospital‘s duty, therefore, is to conform to the standards of a reasonable fiduciary. That is the standard, a reasonable fiduciary.
Now, ladies and gentlemen, a reasonable fiduciary is required to observe the utmost caution characteristic of a careful, prudent person in protecting the confidentiality of the records the fiduciary holds in trust. The fiduciary is required to exercise the same caution, attention and skill that a reasonable fiduciary would use under similar circumstances. And we‘re talking about the period April, 1996.
However, ladies and gentlemen, the hospital is not a guarantor nor is it an insurer if confidentiality. Its duty is to act as a reasonable fiduciary, not a guarantor, not an insurer. The mere fact that a third person has gained unauthorized access to hospital records does not by itself establish that the hospital was at fault or that it failed to exercise the utmost caution and prudence.
In determining whether the hospital has met this standard of due care you must consider all of the evidence bearing on this matter. Your evaluation of the evidence will shape what a reasonably careful and prudent fiduciary should do under the circumstances.
You may consider the system utilized by the Defendant hospital. You may consider the inspection and approval of that system by the joint hospital accreditation commission which is a national body that reviews all hospitals.
You may consider the extent to which ... the Defendant hospital system is or is not followed in practice. You may consider the extent to which the system was successful historically in preventing unauthorized disclosure. And you may consider all other circumstances that you determine to be relevant.
The burden of proof rests upon the Plain-tiff to prove by a preponderance of the evidence that the Defendant breached its duty of confidentiality of its records. If the Plaintiff has failed to do so, your verdict should be for the Defendant on this claim.
On the other hand, if the Plaintiff has proved such a breach by a preponderance of the evidence and has also proved all of the other elements of this claim, your verdict should be for the Plaintiff on this claim.