Prison Malpractice: Expert Need Not Cite Other Prisons to Establish National Standard

District of Columbia v. Wilson, __ A.2d __ (D.C. 1998). Opinion by Schwelb, joined by Terry and Reid.

FACTS: Brown, a severe asthmatic, was serving a sentence at the Lorton Youth Center. He suffered repeated episodes of asthma. After one episode, he was treated at D.C. General Hospital, where doctors recommended that Prednisone, a steroid, be added to his prior treatment with a bronchodilator. He never received the Prednisone. Two weeks later, he suffered a more severe asthma attack and was treated at the Youth Center infirmary by foreign medical graduates acting as unlicensed physicians' assistants. He collapsed and was transported to the DeWitt Army Hospital, where he died the same morning at age 23. At trial of his mother's medical malpractice case, Dr. Cohen testified as a pediatrician expert who also was familiar with prison medical care. He relied for the standard of care on asthma guidelines published by the U.S. Public Health Service, plus his own experience. After plaintiff's verdict, trial court denied District's motion for judgment.

OUTCOME: Judgment for plaintiff AFFIRMED.

HOLDING: (1) Expert's recitation of standard of care was sufficient for case to go to jury. Expert in prison medical malpractice case isn't required "to enumerate the facilities across the country at which that standard is in effect, or to identify every authority on which he relies, quoting chapter and verse." Relying on D.C. v. Mitchell, 533 A.2d 629 (D.C. 1987) and D.C. v. Watkins, 684 A.2d 395 (D.C. 1996), court says malpractice cases are different from cases alleging failure to protect an inmate from his own suicidal impulses or from criminal conduct of third parties, where more particular proof of standard of care is required.

(2) Court didn't err in instructing the jury that treatment by unlicensed physicians' assistants could be negligence per se, even though their practice at Lorton was outside D.C. and thus possibly not technically within the D.C. licensing statute. Internal operating procedures treated the D.C. statute as applicable to Lorton, and court orders had barred corrections officials from using unlicensed physicians' assistants.

Police Shooting: Public Duty Doctrine Bars Suit Where Shooting Is Criminal

Flemmings v. District of Columbia, 719 A.2d 963 (D.C. 1998). Opinion by Terry, joined by Reid and Pryor.

FACTS: Police officer shot and killed her boyfriend, also a police officer. Shooter was tried for first-degree murder but was acquitted (apparently on ground of self-defense). Decedent's mother sued District of Columbia nearly three years later under wrongful death and survival of actions statutes. Trial court dismissed for failure to state a claim.

OUTCOME: Judgment for defendant AFFIRMED.

HOLDING: (1) Public duty doctrine protects District of Columbia from liability for failure to protect against criminal acts, unless District government has made an "affirmative undertaking to protect a particular individual." No such special relationship exists just because both shooter and victim were police officers. See Morgan v. District of Columbia, 468 A.2d 1306 (D.C. 1983) (en banc) (no duty to protect wife from violent police officer husband, even where violent history was known to police superiors).

(2) Wrongful death aspect of suit is barred for failure to file within one year of death. Only "fraudulent concealment" of information "needed to determine if there is a litigable dispute" tolls the one-year period for wrongful death. Court cites with approval Emmett v. Eastern Dispensary & Casualty Hosp., 130 U.S. App. D.C. 50, 396 F.2d 931 (1967) (hiding medical records from malpractice plaintiff may consti-tute fraudulent concealment).

Rule 11 Sanctions Can Be Imposed for Filing Complaint Barred by Statute of Limitations

Cunningham v. Bathon, __ A.2d __ (D.C. 1998). Opinion by Ruiz, joined by Farrell and Belson.

FACTS: Cunningham, a lawyer and investor, bought an investment from Bathon, a stockbroker, in 1985. The investment went bad. In 1987, Cunningham agreed to release Bathon from personal liability in return for a third party taking on the debt to Cunningham. The third party then declared bankruptcy, and Cunningham was unable to collect. Cunningham sued Bathon on the original claim. His case was thrown out on summary judgment for being filed more than three years after he knew he had a claim against Bathon. After the Court of Appeals affirmed, the defendant moved for Rule 11 sanctions against Cunningham and his lawyer. Trial court granted $46,000 in sanctions against both plaintiff and his lawyer to reimburse defendant for defending against an action where the plaintiff had no reasonable basis for believing he could defeat a statute of limitations motion.

OUTCOME: Rule 11 sanctions against plaintiff and attorney AFFIRMED.

HOLDING: (1) Rule 11 sanctions are appropriate for filing an untimely lawsuit where a plaintiff had no factual basis for invoking any tolling principles such as estoppel or lulling, and it was undisputed that plaintiff knew more than three years before filing suit of the defendant's obligation to him. Plaintiff had no evidence that defendant misled him into making the agreement to transfer his liability to the third party, and no evidence that defendant knew of the third party's financial troubles that eventually led to bankruptcy. Sanctions were even more appropriate where plaintiff continued to oppose summary judgment even when he still had no basis to argue tolling of SOL.

(2) Trial court abused discretion in denying legal fees to defendant for costs of an associate who was not yet admitted to the bar and also for paralegals and librarians. Court was not entitled to deny paralegal and librarian fees on justification that those should be folded into law firm's overhead.

COMMENT: Court stresses that "in the great majority of cases barred by the statute of limitations," Rule 11 sanctions won't be appropriate, because the plaintiff will be able to point to some reasonable basis at the time of filing suit for believing that the statute of limitations could be defeated.

PRACTICE NOTE: Plaintiff could have avoided the problem at the outset when he agreed to release defendant, by insisting on waiver of statute of limitations until debt was fully paid.