Generally, one who intends to file a medical malpractice suit against a healthcare provider is required to provide notice of intent to sue at least ninety days before filing suit. D.C.Code § 16-2802(a) (2012 Repl.). Appellant Sylvia Lewis did not comply with that requirement. This case presents the question whether the trial court had authority to waive the notice requirement “in the interests of justice,” pursuant to D.C.Code § 16 — 2804(b) (2012 Repl.). The trial court initially ruled that it had such authority, and found that a waiver of the notice requirement would be in the interests of justice under the circumstances of this case. Subsequently, the trial court granted appellee Washington Hospital Center’s motion to reconsider, concluded that it lacked authority to grant such a waiver, and dismissed the action. We agree with the trial court’s initial ruling and therefore reverse.
I.
In initially denying the hospital’s motion to dismiss, the trial court ruled that D.C.Code § 16-2804(b) allowed a waiver of the notice requirement in D.C.Code § 16-2802(a) “if the interests of justice dictate.”
The hospital filed a motion to reconsider. In its motion, the hospital argued that § 16-2804(b) permits waiver only in cases involving “an otherwise unknown or unlicensed defendant, or a misnomer.” Because this ease did not involve an unknown or unlicensed defendant or a misnomer, the hospital contended that an “interests of justice” waiver was not available. Rather, according to the hospital, this case was governed by § 16-2802(a), which permits a waiver of the notice requirement only “[u]pon a showing of a good-faith effort to give the required notice....” Because no such showing had been made in this case, the hospital contended that dismissal was required.
The trial court granted reconsideration and dismissed the action. The trial court concluded that “the more reasonable reading of §§ 2802(a) and 2804(b) is that the first provision creates only a ‘good faith effort’ exception and that the ‘interest[s] of justice’ exception in the second provision applies only in cases implicating one or more of the special circumstances identified in § 2804(a)(l)-(3).”
II.
We review de novo an order granting a motion to dismiss. Chamberlain v. American Honda Fin. Corp.,
In interpreting § 16-2802(a) and § 16 — 2804(b), we seek to make sense of the provisions taken together. See, e.g., Adgerson v. Police & Firefighters’ Ret. & Relief Bd.,
The difficulty arises when § 16-2804(b) enters the picture. As previously noted, § 16-2804(b) provides: “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.” Read most narrowly, § 16-2804(b) does not affirmatively grant authority to excuse compliance with the notice requirement, but rather (a) assumes that some other provision grants authority to waive the notice requirement if there is a good-faith effort to comply or if the interests of justice dictate, and (b) provides that nothing indicated “herein” precludes the exercise of that authority.
Under the somewhat broader reading that the trial court adopted, § 16-2804(b) is understood as affirmatively granting trial courts the authority to waive the notice requirement in the interests of justice, but that authority is limited to cases in which “a plaintiff almost, but not quite, fits in one [of the] three situations [enumerated in § 16-2804(a)].” This reading also presents difficulties. The text of
A third approach — the one originally adopted by the trial court — is to read § 16-2804(b) as generally authorizing waiver of the notice requirement of § 16-2802(a) in the interests of justice. Such a reading avoids the difficulties presented by the two alternative readings previously considered. Moreover, such a reading is linguistically tenable. Taking as a given that § 16-2804(b) affirmatively confers authority in at least some circumstances to grant an “interests of justice” waiver of the notice requirement, the text does not identify a clear limit to that authority. On the other hand, reading § 16-2804(b) as creating a generally applicable waiver provision would make superfluous the “good faith effort” waiver language in § 16-2802(a), because § 16-2804(b) refers not only to the interests of justice but also to “good faith effort.”
Consideration of the language, logic, and structure of § 16-2802(a) and § 16-2804(b) leaves us quite uncertain as to how best to reconcile the provisions. Our prior case law does not provide a definitive answer, either. Without squarely deciding the issue, the court' has in passing suggested that it viewed § 16-2804(b) as creating a generally applicable “interests of justice” exception to the notice requirement. See Atiba v. Washington Hosp. Ctr.,
We find substantial assistance, however, from the legislative history of § 16-2804(b). See generally, e.g., Burke v. Groover, Christie & Merritt, P.C.,
In sum, we conclude that § 16-2804(b) is properly read to authorize trial courts to waive § 16-2802(a)’s notice requirement whenever such a waiver is in the interests of justice.
III.
The trial court ruled that a waiver of the notice requirement was in the interests of justice in this case for three reasons: “(a) [Ms.] Lewis failed to provide the 90-day notice due to understandable ignorance of the requirement, (b) [the hospital] does not claim any prejudice from the lack of advance notice ..., and (c) [Ms.] Lewis would be incurably prejudiced by dismissal for failure to comply -with § 16-2802(a) because the three-year statute of limitations on medical malpractice actions has now run.”
In contending that a waiver of the notice requirement would not be in the interests of justice, the hospital makes a single argument: Ms. Lewis’s failure to provide pre-suit notice deprived the hospital of an opportunity for pre-suit mediation. The hospital does not appear to have raised this claim of prejudice in the trial court, but in any event we are not persuaded by the hospital’s argument. The hospital provides no particular reason to believe that pre-suit mediation would have altered the course of this litigation. Moreover, if the mere loss of the opportunity for pre-suit mediation always foreclosed a finding that a waiver would be in the interests of justice, then the waiver provision would essentially be a dead letter, because the failure to provide pre-suit notice would in most if not all cases lead to a loss of the opportunity for pre-suit mediation. We therefore conclude that the hospital has failed to establish that the trial court
For the foregoing reasons, we reverse the judgment and remand for further proceedings.
So ordered.
Notes
. Section 16-2802(a) provides:
Any person who intends to file an action in the court alleging medical malpractice against a healthcare provider shall notify the intended defendant of his or her action not less than 90 days prior to filing the action.... Upon a showing of a good faith effort to give the required notice, the court may excuse the failure to give notice within the time prescribed.
Section 16-2804 provides:
(a) Section 16-2802 shall not apply to:
(1)Any intended defendant whose name is unknown or who was not licensed at the time of the alleged occurrence or is unlicensed at the time notice is given;
(2) Any claim that is unknown to the person at the time of filing his or her notice; or
(3) Any intended defendant who is identified in the notice by a misnomer.
(b) 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.
. We note that the meaning of the word “herein” in § 16-2804(b) is far from clear. See generally, e.g., Black's Law Dictionary 795 (9th ed.2009) ("herein” “is inherently ambiguous”); Adams v. City of Hobart,
. Section 16-2804 is titled “Unknown defendant or unlicensed defendant.” Although the title of a provision can be considered in resolving ambiguity, see Mitchell v. United States,
. Because the hospital challenges the trial court’s interests-of-justice finding solely on the ground that the hospital was prejudiced by the loss of the opportunity for pre-suit mediation, we need not and do not address the question whether the factors the court cited in finding that a waiver was warranted in the interests of justice were sufficient to support such a finding.