Brown v. District of Columbia

GLICKMAN, Associate Judge,

concurring:

I join Judge Washington’s opinion for the court and write separately only to emphasize that this appeal does not raise, and the opinion does not answer, two important open questions: (1) whether D.C.Code § 12-309 bars a claimant from suing the District of Columbia where the claimant did not give notice in the six-month period required by the statute because the claimant was justifiably unaware *741during that period that he or she had sustained any injury at all, and (2) whether the District of Columbia may be barred from invoking § 12-309 to forestall a lawsuit where the claimant did not furnish the requisite timely notice because of concealment, misrepresentation, or other wrongful conduct on the part of the District’s agents. I suspect that eventually this court will be presented with a case that raises one or the other of these questions.

While the two questions might arise in tandem, only the first has been addressed explicitly by past decisions of this court. In District of Columbia v. Dunmore, 662 A.2d 1356 (D.C.1995), a case of alleged medical malpractice at the District of Columbia General Hospital, we held that the so-called “discovery rule”1 does not apply to the notice requirement of § 12-309. Id. at 1360-62. “[UJnder section 12-309,” we stated, “the six-month clock begins to run from the moment the plaintiff sustains the injury, not from the moment a cause of action accrues.” Id. at 1359. In so holding, we expressly left “for another day the more difficult issue of whether section 12-309 would bar a person from filing suit against the District when that person was unaware that he or she had suffered an injury and, as a consequence, had unknowingly allowed the six-month period to elapse.” Id. at 1360 n. 13. We said that “[although we do not decide this point now, we think it would be far less ambitious to read ‘injury1 in section 12-309 as denoting an injury of which one is aware, rather than as meaning ‘actionable injury* so as to incorporate the discovery rule in toto.” Id.2

We revisited this question but still did not answer it in District of Columbia v. Ross, 697 A.2d 14 (D.C.1997). Three years after she ingested paint chips at a District of Columbia public housing complex and was hospitalized and treated for lead poisoning, the infant claimant in Ross was diagnosed with neuropsychological damage. Only then did she file a notice of claim against the District. In holding that the notice was untimely, we reasoned that the claimant “sustained” injury triggering the six-month period of § 12-309 when her lead poisoning first came to light — “at least when the harmful material entered her body, was discovered, and resulted in significant medical procedures.” Id. at 18 (emphasis supplied). For that reason, we deemed the case to be “significantly different from [a case involving] the total lack of awareness [of injury] envisioned in” Dun-more, on which we had “reserved judgment.” Id. at 18. “Lack of full awareness of the seriousness of injury” is not sufficient, we stated, to “excuse failure to give notice of the fact of injury” at least once *742that fact is known. Id. at 19. Lack of any awareness, we realized, may be a different matter.

At first blush the present case might be thought to present one or both of the questions that I have identified and that have not been decided yet by this court. That is, it might appear that the District’s doctors misled the claimant here into thinking that he had not sustained any injury even potentially attributable to them. For the reasons set forth in Judge Washington’s opinion, however, that is not so. The claimant here knew or should have known that he had been injured by a possible misdiagnosis more than six months before a notice of claim was given to the District of Columbia. Harsh though it may seem, that mandates under our cases the result we reach. The court’s opinion today therefore does not signal one way or the other how we would have decided this case if it had been one in which the claimant’s injury was concealed from him.

. This issue seemed to present itself in an earlier case, Kelton v. District of Columbia, 413 A.2d 919 (D.C.1980), but we did not reach it there. A physician at D.C. General Hospital performed an unauthorized tubal ligation on the claimant in Kelton, unbeknownst to her, when he delivered her child by Caesarean section. Years passed before the claimant learned that her fallopian tubes were not open. She then waited an additional eight months, however, before she sent a formal notice of claim to the District of Columbia. We held that because her discovery put the claimant on "inquiry notice that she might have suffered an actionable injury,” her claim notice was untimely under § 12-309 even assuming that she could invoke the discovery rule for the period before she knew she had been injured. Id. at 921. As we subsequently explained in Dunmore, our discussion in Kelton did not presage our adoption of a discovery rule for § 12-309. See Dunmore 662 A.2d at 1361.