In an appellate court case decided on May 17, 2012, the District of Columbia Court of Appeals affirmed the trial court’s granting judgment in favor of the medical malpractice defendants because the plaintiff was one day late in filing his medical malpractice case. As the Court of Appeals stated in its written decision, “…if a plaintiff had any doubt or difficulty with the notice period, he could ask for a waiver in filing the suit on the ninetieth day…In any event, virtually all plaintiffs should be able to give the notice much earlier than ninety days prior to the expiration of the statute of limitations and will have no need to rely on D.C. Code §16-2803.”
In the District of Columbia, a medical malpractice plaintiff must give advance notice to the intended medical malpractice defendants not less than 90 days before filing a medical malpractice case (“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.” D.C. Code § 16-2802(a) (2009 Supp.)). However, if the required advance notice is given within 90 days prior to the expiration of the three year statute of limitations for medical malpractice claims in the District of Columbia (D.C. Code § 12-301 (8) (2009 Supp.)), the time for filing a medical malpractice claim is “extended 90 days from the date of the service of the notice.” (D.C. Code § 16-2803 (2009 Supp.)).
In the case before the Court of Appeals, the medical malpractice plaintiff filed his medical malpractice claim on the 91st day after service of the required notice and the filing of the claim was thus found to be untimely.
What Is The “Clear Day” Rule?
The Court of Appeals posed the following question: Where a certain action is required to take place a given amount of time before another action may take place (for example, five days), must five full (that is, “clear”) days elapse between the two actions, thus constituting, in effect, a period of five full days and a fraction, or is the first or last day included in the period of computation, thus effectively reducing the period to four days and a fraction?
In answering the question, the Court of Appeals referred to its previous holding that “[i]n the 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 certain number of days before a known future day, one of the terminal days is included in the count and the other is excluded.”
In the present case before it, the Court of Appeals stated “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 create a square conflict between the two statutory provisions…it is apparent by the construction of the statutes that the Council did not intend to require ninety clear days to pass prior to the filing of a law suit…Nothing in the legislative history that is cited to us gives any indication of a desire to impose a “clear day” notice requirement.”
The Court of Appeals went on to state “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 reason, and so it must be included in the computation. 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…any harshness from such a rule was reduced, because if a plaintiff had any doubt or difficulty with the notice period, he could ask for a waiver in filing the suit on the ninetieth day…In any event, virtually all plaintiffs should be able to give the notice much earlier than ninety days prior to the expiration of the statute of limitations and will have no need to rely on D.C. Code §16-2803.”
You can read this District of Columbia Court of Appeals decision in full by clicking here.
What’s the lesson to be learned from this case? Something your parents told you while you were growing up: Don’t wait to the last moment to do what you need to do!
If you have been injured or suffered substantial losses as a result of medical malpractice in the District of Columbia (D.C.) or in a state in the United States, you should promptly consult with a local medical malpractice attorney with regard to your potential medical malpractice case.
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