Federal and State Nursing Home and Malpractice Statutes
A. District of Columbia Chapter 28, Medical Malpractice § 16–2802. Notice of intention to file suit.
Unlike Maryland and Virginia, the District of Columbia has no medical malpractice caps limiting recovery. The District does not require prior certificates of merit from experts, although, as a practical matter, the Plaintiff will need an expert in most cases to prove his case.
Prior to filing suit, a Plaintiff must provide pre-suit notice of claim, as set forth below:
(a) 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. Notice may be given by service on an intended defendant at his or her last known address registered with the appropriate licensing authority. 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.
(b) The notice required in subsection (a) of this section shall include sufficient information to put the defendant on notice of the legal basis for the claim and the type and extent of the loss sustained, including information regarding the injuries suffered. Nothing herein shall preclude the person giving notice from adding additional theories of liability based upon information obtained in court-conducted discovery or adding injuries or loss which become known at a later time.
(c) A legal action alleging medical malpractice shall not be commenced in the court unless the requirements of this section have been satisfied.
B. District of Columbia – Chapter 28, Medical Malpractice, Subchapter II. Mediation. § 16–2821. Requirement for Mediation.
After an action is filed in the court against a healthcare provider alleging medical malpractice, the court shall require the parties to enter into mediation, without discovery or, if all parties agree with only limited discovery that will not interfere with the completion of mediation within 30 days of the Initial Scheduling and Settlement Conference (“ISSC”), prior to any further litigation in an effort to reach a settlement agreement. The mediation schedule shall be included in the scheduling conference order following the ISSC. Unless all parties agree, the stay of discovery shall not be more than 30 days after the ISSC.
C.§ 16–2701. Liability; damages; prior recovery as precluding action.
(a) When, by an injury done or happening within the limits of the District, the death of a person is caused by the wrongful act, neglect, or default of a person or corporation, and the act, neglect, or default is such as will, if death does not ensue, entitle the person injured, or if the person injured is married or domestic partnered, entitle the spouse or domestic partner, either separately or by joining with the injured person, to maintain an action and recover damages, the person who or corporation that is liable if death does not ensue is liable to an action for damages for the death, notwithstanding the death of the person injured, even though the death is caused under circumstances that constitute a felony.
(b) The damages shall be assessed with reference to the injury resulting from the act, neglect, or default causing the death, to the spouse or domestic partner and the next of kin of the deceased person; and shall include the reasonable expenses of last illness and burial. Where there is a surviving spouse or domestic partner, the jury shall allocate the portion of its verdict payable to the spouse or domestic partner and next of kin, respectively, according to the finding of damage to the spouse or domestic partner and next of kin. If, in a particular case, the verdict is deemed excessive, the trial judge or the appellate court, on appeal of the cause, may order a reduction of the verdict. An action may not be maintained pursuant to this chapter if the party injured by the wrongful act, neglect, or default has recovered damages therefor during his life.
(c) For the purposes of this section, the term “domestic partner” shall have the same meaning as provided in § 32-701(3).
D. § 16–2702. Party plaintiff; statute of limitations.
An action pursuant to this chapter shall be brought by and in the name of the personal representative of the deceased person, and within 2 years after the death of the person injured.
The Statute of Limitations in DC is 3 years for survivorship pain and suffering and two years for wrongful death. It is important to note that The District of Columbia does not allow for non-economic damages in wrongful death cases.
E. § 50–2204.52. Contributory negligence limitation
(a) The negligence of a pedestrian, bicyclist, or other non-motorized user of a public highway involved in a collision with a motor vehicle shall not bar the plaintiff’s recovery in any civil action unless the plaintiff’s negligence is:
(1) A proximate cause of the plaintiff’s injury; and
(2) Greater than the aggregated total amount of negligence of all of the defendants that proximately caused the plaintiff’s injury.
F. § 44-1004.03 Civil action for damages.
1) Any resident or resident’s representative may bring an action in court to recover actual and punitive damages for any injury that results from a violation of subsection (b) of this section, subchapter III of this chapter, any rule issued by the Mayor pursuant to subchapter III of this chapter, or any standard or resident’s right established pursuant to § 44-504(a)(3).
Upon proof of a violation and subject to subsection (c) of this section, the resident shall be awarded 3 times the actual damages or $100, whichever is greater, and may be awarded punitive damages of up to $5,000.
b) No owner, licensee, administrator, or employee of a facility shall take any action that adversely affects a resident’s rights, privileges, or living arrangement in retaliation for that resident, his or her representative, or the Long-Term Care Ombudsman having exercised a right conferred by District or federal law, court order, or order of the Mayor. In any action brought under subsection (a) of this section alleging retaliation, there shall be a presumption, rebuttable by a showing of clear and convincing evidence, that conduct is retaliatory if an owner, licensee, administrator, or facility employee attempts to discharge, transfer, or relocate a resident within 6 months after that resident or his or her representative:
Files an action for relief under this subchapter;
Files a petition for the appointment of a receiver or monitor under subchapter II of this chapter or otherwise participates in receivership or monitor proceedings against the facility;
Exercises a right to a hearing under subchapter III of this chapter; or
Makes an oral or written complaint against the facility or its owner, licensee, administrator, or staff to an agency or official of the District government, a representative from the Long-Term Care Ombudsman program, the owner, licensee, or administrator of the facility, or an employee of the facility.
c) The defendant in an action brought under this section may plead as an affirmative defense that he, she, or it exercised reasonable care to prevent the injury for which liability is asserted; provided, however, that the adoption of policies and procedures to effect compliance with District law shall not alone be sufficient evidence to show the exercise of reasonable care.
d) The first $3,000 of a damages award recovered by a resident in any action brought under this section shall be excluded from consideration when determining that resident’s eligibility for Medicaid, the amount of assistance he or she is entitled to under Medicaid, or his or her assets that the District may subject to a lien, setoff, or other legal process for the purpose of satisfying any indebtedness created by the receipt of Medicaid or other public assistance payments.
G.§ 50–2204.52. Contributory negligence limitation.
(a) The negligence of a pedestrian, bicyclist, or other non-motorized user of a public highway involved in a collision with a motor vehicle shall not bar the plaintiff’s recovery in any civil action unless the plaintiff’s negligence is:
(1) A proximate cause of the plaintiff’s injury; and
(2) Greater than the aggregated total amount of negligence of all of the defendants that proximately caused the plaintiff’s injury.
(b) Nothing in this subchapter shall be construed to:
(1) Change or affect the doctrine of joint and several liability or the last clear chance doctrine; or
(2) Reduce the legal protections provided to pedestrians and cyclists under:
(A) § 7-1004; or
(B) § 50-1606.
H. § 14.03 Survival Action (Where Accompanied by Wrongful Death Action)
[1] Instruction 14-3 (Jury Instruction)
Survival Action (Accompanied by Wrongful Death Action) (D.C. Std. Civ. Jury Instr. No. 14-3)
The Plaintiff, [name], brings this action under the Survival Statute as the legal representative of the deceased individual, [name of the deceased]. This action is not for the benefit of [the plaintiff] or another particular individual. The action is brought on behalf of [the deceased’s] estate, and asserts the legal claim that arose prior to [his] [her] death.
If you find for [the plaintiff], then you must make an award for any conscious pain and suffering experienced by [the deceased] between the time of injury and the time of [his] [her] death, and for the financial loss suffered by [the deceased] as a result of [his] [her] injuries, including the value of reasonable and necessary medical and hospital expenses that were paid by [the deceased] or [his] [her] estate. Your award must include reasonable compensation for any bodily injuries, mental anguish, disabilities, disfigurement and/or deformities, and inconvenience and discomfort experienced by the deceased between the time of the injury and the time of [his] [her] death.
In addition, the estate is entitled to receive the amount of money [the deceased] would have accumulated over the course of [his] [her] normally expected lifetime. In determining this amount, you should consider [the deceased’s] potential future earnings. In this regard, you should consider [the deceased’s] age, health, occupation, work and educational background, earning capacity, size of [the decedent’s] estate to date, and any other factors concerning the deceased that might reasonably guide you in determining the deceased’s future income. You may also take into account the effect of inflation on future income.
After you arrive at this amount, then you should subtract the amounts [the deceased] would have spent on [his] [her] own living expenses, and for the living expenses of the individual beneficiaries under the Wrongful Death claim, and whatever taxes it is reasonably certain [he] [she] would have been required to pay. When you have finished these calculations, you have arrived at a figure which is the amount of [the deceased’s] estate’s probable net future earnings or accumulations.
Next, you must discount this amount, the net future earnings, to present cash value. Here is how you make the calculation: You must figure the amount, which if invested at a particular rate of interest today over the number of years [the decedent] would have been expected to live, would return an amount equal to the net future earnings.
The statute of limitations in the District of Columbia is 3 years for survivorship and pain and two years for wrongful death.
I. JURY INSTRUCTION FOR DC Code § 13.01 – DAMAGES—ELEMENTS
If you find that [Defendant’s] [negligence/wrongful conduct] caused [Plaintiff] to suffer injury, then you must consider whether [he/she] is entitled to any damages. You may award damages for any of the following harms that you find [Defendant’s] negligence or wrongful conduct caused:
- the extent and duration of any physical injuries sustained by [Plaintiff];
- the effects that any physical injuries have on the overall physical and emotional well-being of [Plaintiff];
- any physical pain and emotional distress that [Plaintiff] has suffered in the past or may suffer in the future;
- any disfigurement or deformity suffered by [Plaintiff], as well as any humiliation or embarrassment associated with the disfigurement or deformity;
- any inconvenience [Plaintiff] has experienced in the past or may experience in the future;
- any medical expenses incurred by [Plaintiff] in the past or may incur in the future;
- any loss of earnings that [Plaintiff] has incurred in the past or may incur in the future; and;
- any damage or loss to [Plaintiff’s] personal property. [You should not adjust the amount of damages you award, if any, based on whether or not those damages are subject to taxation.]
This Instruction states the general law of personal injury damages [see, Federal Jury Practice and Instructions §§ 128.01–128.03 (6th ed. 2015)]. Language appropriate for emotional distress arising from personal injury or from violation of anti-discrimination laws appears in Jury Instruction 13-9 [§ 13.01[1]]. Depending on the character of the damages alleged, some of the factors listed in this Instruction may not apply and may be excluded as appropriate.
Due to concern about the jury speculating as to whether damages are subject to income taxation and improperly computing damage awards as a result, the trial court should, upon request, instruct the jury that any damage award will not be subject to income taxation Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 627 (D.C. 1986); see also Schleier v. Kaiser Foundation Health Plan, 876 F.2d 174, 180, 277 U.S. App. D.C. 415 (1989) (followed in federal courts)]. This Instruction previously stated only that any award may or may not be subject to income taxation. The revised Instruction is intended to clarify that the jury should not adjust its award based on any belief about whether damages awards can be taxed.
Individual elements of damages are treated in more detail in other Jury Instructions in this chapter. Of course, a jury instruction should not be given if there is no evidence to support it [Vector Realty Group, Inc. v. 711 Fourteenth Street, Inc., 659 A.2d 230, 233 (D.C. 1994)]. The compensatory damages instruction needs to be tailored to the elements of damages for which there is evidence presented at trial [Wingfield v. Peoples Drug Store, Inc., 379 A.2d 685, 688 (D.C. 1977) (a party is entitled to an instruction on any theory of damages supported by the evidence)].
The “collateral source” rule applies in D.C. “[A]n injured person may usually recover in full from a wrongdoer regardless of anything he may get from a ‘collateral source’ unconnected with the wrongdoer” [Hudson v. Lazarus, 217 F.2d 344, 346, 95 U.S. App. D.C. 16 (1954) (footnote omitted); accord, Jacobs v. H. L. Rust Co., 353 A.2d 6, 7 (D.C. 1976); District of Columbia v. Jackson, 451 A.2d 867, 870 (D.C. 1982)].
While previous Instructions provided options [in brackets] to use “injury,” “detriment,” “loss,” or “harm,” the current version uniformly uses “harm” for consistency and clarity. There may be instances in which another term may be more appropriate in light of the facts of a particular case. Similarly, the current Instructions uniformly use the term “damages” to mean monetary compensation.
Contributory Negligence
In Robinson v Washington Internal Medicine Assocs., PC., The Judgement was in favor of medical associates and a doctor was proper in a medical malpractice claim where the administratrix had every opportunity to request a special verdict and failed to adequately preserve the issue.
J. Civil Jury Instructions for DC § 13.02 (2020)
This Instruction is appropriate only when the court deems that the evidence of the case satisfies the exceptions to the general rule requiring expert testimony.
Expert testimony is generally required to prove a causal connection between an accident and an injury. However, there are three exceptions to the general rule: (1) when the injury develops within a reasonable time after the accident; (2) when causation is clearly apparent; or (3) when the cause of the injury relates to matter of common experience, knowledge, or observation of lay persons. The court decides in each case whether any of these three exceptions apply [Lewis v. Washington Metropolitan Area Transit Authority, 19 F.3d 677, 679, 305 U.S. App. D.C. 238 (1994)].
Establishing permanency of an injury also generally requires expert testimony. The trial court should ordinarily “requir[e] the testimony of medical witnesses to establish both the fact of a permanent aggravation and causation attributable to the defendant,” because “such permanency in the aggravation setting, especially where the natural progression of the preexisting condition must be taken into account, will ordinarily not be obvious” [Williams v. Lucy Webb Hayes Nat’l Training Sch. For Deaconesses and Missionaries, 924 A.2d 1000, 1004–1005 (D.C. 2007) (quoting M. Minzer, et al., Damages in Tort Actions, Vol. 2 § 15.33[1], at 15-80); see also Williams v. Patterson, 681 A.2d 1147, 1150 (D.C. 1996)]. Similarly, where there are complicated medical questions, such as the interplay of pre-existing conditions, medical expert testimony is required [Gray Line, Inc. v. Keaton, 428 A.2d 360, 362 (D.C. 1981); Baltimore v. B.F. Goodrich Co., 545 A.2d 1228, 1231 (D.C. 1988)].
On the other hand, if there is evidence that a plaintiff has suffered the “bad effects of an injury” for years after the injury, and there is no expert medical testimony that the plaintiff’s injuries are temporary, then the jury may infer that the plaintiff is entitled to damages for future pain and suffering [Estate of Underwood v. National Credit Union Administration, 665 A.2d 621, 643 (D.C. 1995); see also Alamo v. Del Rosario, 98 F.2d 328, 330, 69 App. D.C. 47 (1938) (finding that a trier of fact may infer the permanency of injury from the duration of the effects of the injury)]. Absent medical testimony that injuries are temporary, a plaintiff’s testimony concerning continuing pain and suffering will be sufficient to send the issue of permanency to the jury [Davis v. Abbuhl, 461 A.2d 473, 476 n.5 (D.C. 1983)]. When expert evidence is not required, the lack of medical testimony may be called to the attention of the jury; “the weight of the evidence and the credibility of the witnesses are matters for the jury and not for the court” [Garner v. Sam S. Bevard & Sons, 342 A.2d 52, 54 (D.C. 1975)].
If, however, physicians testify without contradiction that an injury is temporary, reasonable laymen are in no position to say that the injury is permanent [American Marietta Co. v. Griffin, 203 A.2d 710, 712 (D.C. 1964)].
When an injured party’s own physician does not corroborate a claim of permanence, the jury may not infer permanence of the injury [Green v. LaFoon, 173 A.2d 212, 213–214 (D.C. 1961)].
Determination of the causes of emotional disturbance is particularly complex: “[t]o allow a jury of laymen, unskilled in medical science to answer such a question, would permit the rankest kind of guesswork, speculation, and conjecture” [Baltimore v. B.F. Goodrich Co., 545 A.2d 1228, 1231 (D.C. 1988) (citation omitted)].
See Comment to Jury Instruction 12-1 concerning changes to lessen the potential ambiguity concerning the terms “damage” and “damages” [see § 12.01[2]].
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