UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
REGINALD L. DIFFENDERFER ) ) Plaintiff ) ) v. ) Civil Case No. 08-1338 (RJL) ) UNITED STATES OF AMERICA, et al., ) ) Defendants. )
<;+ MEMORANDUM OPINION (September 2..( ,2009) [# 12, 19]
Before the Court is a Motion to Dismiss filed by a subset of the defendants in
this medical malpractice suit: Verne Betlach, Custom RX Compounding and Natural
Pharmacy, and Custom RX Compounding Pharmacy, Inc. ("Pharmacy Defendants").
The Pharmacy Defendants argue that the plaintiff's suit must be dismissed because
he failed to comply with a mandatory notice provision of the District of Columbia
Medical Malpractice Proceedings Act of 2006 ("MMPA,,).l Plaintiff, not
surprisingly, contends that he was not required to comply with the MMPA provision.
Having reviewed the relevant briefs, the caselaw, and the entire record herein, the
Court concludes the plaintiff was required to provide that notice and therefore
GRANTS the Pharmacy Defendants' Motion to Dismiss.
I The MMPA was enacted March 14,2007 and is codified D.C. Code § 16-2801 et seq. (2008 Supp.). BACKGROUND
This case arises out of a surgical procedure which ultimately resulted in
Diffenderfer losing the use of his left eye. In August 2005, Diffenderfer checked into
the Veterans Administration Medical Center ("Veterans Hospital"), in Washington,
DC, for cataract surgery. (Compi. ~ 8.) During the operation, a solution named
"Trypan Blue" was injected into Diffenderfer's left eye. (Jd. ~ 25.) The Trypan Blue
used in Diffenderfer's surgery was allegedly compounded and distributed by the
Pharmacy Defendants. (ld. ~ 70.)
While there was nothing unusual about the way the Trypan Blue was used by
the physicians who performed Diffenderfer's surgery, Diffenderfer alleges that the
particular Trypan Blue they applied to his eye was tainted with the bacteria
Pseudomonas aeruginosa. (ld. ~ 68-69.) As a result, he contends, his left eye
became infected within a few days of his surgery. (ld. ~ 28-33.) The infection
caused Diffenderfer to return to Veterans Hospital shortly thereafter for follow-up
treatment. While there, he received antibiotic injections, and after his discharge, he
continued with topical antibiotic treatments. (Jd. ~ 29-30.) Despite these treatments,
Diffenderfer suffered sufficient damage to cause complete blindness in his left eye.
(ld. ~ 72-73.) He now wears an artificial replacement for that eye. (ld. ~ 73.)
Diffenderfer filed this lawsuit on August 4, 2008, nearly three years after the
date of his surgery. On September 4,2008, the Pharmacy Defendants moved to
dismiss his claims against them based on his failure to comply with the mandatory
notice provision of the MMP A. Diffenderfer opposes the motion.
2 ANALYSIS
The Pharmacy Defendants essentially argue that Diffenderfer has failed to state
an actionable claim against them. Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, dismissal is warranted if a plaintiff fails to comply with a statutorily
mandated prerequisite to bringing suit in federal court. See Hallinan v. United States,
498 F. Supp. 2d 315, 316 (D.D.C. 2007). Unfortunately for Diffenderfer, he has
failed to comply with the MMPA's notice requirement, and is thus legally barred
from proceeding against the Pharmacy Defendants in this case.
The MMP A imposes a mandatory notice requirement on plaintiffs who bring
medical malpractice suits. Specifically, D.C. Code § 16-2802(a) states, in relevant
part, that "[a]ny 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." This affirmative
requirement is coupled with an unmistakable enforcement provision: "[a] legal action
alleging medical malpractice shall not be commenced in the court unless the
requirements of this section have been satisfied." D.C. Code § 16-2802(c) (emphasis
added).
Clearly, under the MMPA, a plaintiff who has not complied with the notice
requirement of § 16-2802(a) has not stated a claim upon which relief can be granted.
The only question here, then, is whether the MMP A required Diffenderfer to notify
the Pharmacy Defendants prior to this suit. Diffenderfer, not surprisingly, claims it
does not: (1) because the MMPA intended the phrase "the court" in § 16-2802(a) to
3 be limited only to the Superior Court of the District of Columbia, and (2) because his
suit is not a "medical malpractice" suit as that term is used in the legislation. I
disagree.
Diffenderfer's first argument is frivolous at best! Jurisdiction exists in this
case for his claims against the Pharmacy Defendants based on the federal diversity
statute, 28 U.S.C. § 1332. When federal courts sit in diversity actions, "the law to be
applied ... is the law of the state." Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78
(1938). Here, Diffenderfer's surgery occurred in the District of Columbia, and the
parties effectively concede that the state law that applies here is the District's.
Indeed, to not enforce the MMP A's mandatory notice requirement in a diversity
jurisdiction case in federal court would subvert Erie's twin aims-reducing forum-
shopping and avoiding the inequitable administration of laws. See Hanna v. Plumer,
380 U.S. 460,468 (1965).
Not surprisingly, our Circuit Court made this very point many years ago. In
Bledsoe v. Crowley, 849 F.2d 639 (D.C. Cir. 1988), the Circuit Court considered
whether Maryland's medical malpractice law, which required plaintiffs to submit to
mandatory arbitration before bringing suit, applied to a diversity case brought in our
District Court. Noting that plaintiffs could otherwise easily avoid the arbitration
requirement if it did not apply in federal diversity cases, the Bledsoe Court held that
the Maryland arbitration provision was the type of "substantive" law that must be
applied for Erie purposes. See id. at 643-44. More recently, a judge of this Court
reached that very same conclusion with respect to the MMPA's notice statute. See
4 Davis v. Grant Park Nursing Home LP, --- F.Supp. 2d ---,2009 WL 2386101 at 9
(D.D.C.) (Friedman, J.). In Davis, Judge Friedman rejected an argument identical to
Diffenderfer's and held that "[the MMPA] cannot be construed to allow [the
plaintiff] to avoid its pre-litigation requirements 'merely by filing a diversity action
in federal court.'" Id at 9 (quoting Bledsoe, 849 F.2d at 643).
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
REGINALD L. DIFFENDERFER ) ) Plaintiff ) ) v. ) Civil Case No. 08-1338 (RJL) ) UNITED STATES OF AMERICA, et al., ) ) Defendants. )
<;+ MEMORANDUM OPINION (September 2..( ,2009) [# 12, 19]
Before the Court is a Motion to Dismiss filed by a subset of the defendants in
this medical malpractice suit: Verne Betlach, Custom RX Compounding and Natural
Pharmacy, and Custom RX Compounding Pharmacy, Inc. ("Pharmacy Defendants").
The Pharmacy Defendants argue that the plaintiff's suit must be dismissed because
he failed to comply with a mandatory notice provision of the District of Columbia
Medical Malpractice Proceedings Act of 2006 ("MMPA,,).l Plaintiff, not
surprisingly, contends that he was not required to comply with the MMPA provision.
Having reviewed the relevant briefs, the caselaw, and the entire record herein, the
Court concludes the plaintiff was required to provide that notice and therefore
GRANTS the Pharmacy Defendants' Motion to Dismiss.
I The MMPA was enacted March 14,2007 and is codified D.C. Code § 16-2801 et seq. (2008 Supp.). BACKGROUND
This case arises out of a surgical procedure which ultimately resulted in
Diffenderfer losing the use of his left eye. In August 2005, Diffenderfer checked into
the Veterans Administration Medical Center ("Veterans Hospital"), in Washington,
DC, for cataract surgery. (Compi. ~ 8.) During the operation, a solution named
"Trypan Blue" was injected into Diffenderfer's left eye. (Jd. ~ 25.) The Trypan Blue
used in Diffenderfer's surgery was allegedly compounded and distributed by the
Pharmacy Defendants. (ld. ~ 70.)
While there was nothing unusual about the way the Trypan Blue was used by
the physicians who performed Diffenderfer's surgery, Diffenderfer alleges that the
particular Trypan Blue they applied to his eye was tainted with the bacteria
Pseudomonas aeruginosa. (ld. ~ 68-69.) As a result, he contends, his left eye
became infected within a few days of his surgery. (ld. ~ 28-33.) The infection
caused Diffenderfer to return to Veterans Hospital shortly thereafter for follow-up
treatment. While there, he received antibiotic injections, and after his discharge, he
continued with topical antibiotic treatments. (Jd. ~ 29-30.) Despite these treatments,
Diffenderfer suffered sufficient damage to cause complete blindness in his left eye.
(ld. ~ 72-73.) He now wears an artificial replacement for that eye. (ld. ~ 73.)
Diffenderfer filed this lawsuit on August 4, 2008, nearly three years after the
date of his surgery. On September 4,2008, the Pharmacy Defendants moved to
dismiss his claims against them based on his failure to comply with the mandatory
notice provision of the MMP A. Diffenderfer opposes the motion.
2 ANALYSIS
The Pharmacy Defendants essentially argue that Diffenderfer has failed to state
an actionable claim against them. Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, dismissal is warranted if a plaintiff fails to comply with a statutorily
mandated prerequisite to bringing suit in federal court. See Hallinan v. United States,
498 F. Supp. 2d 315, 316 (D.D.C. 2007). Unfortunately for Diffenderfer, he has
failed to comply with the MMPA's notice requirement, and is thus legally barred
from proceeding against the Pharmacy Defendants in this case.
The MMP A imposes a mandatory notice requirement on plaintiffs who bring
medical malpractice suits. Specifically, D.C. Code § 16-2802(a) states, in relevant
part, that "[a]ny 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." This affirmative
requirement is coupled with an unmistakable enforcement provision: "[a] legal action
alleging medical malpractice shall not be commenced in the court unless the
requirements of this section have been satisfied." D.C. Code § 16-2802(c) (emphasis
added).
Clearly, under the MMPA, a plaintiff who has not complied with the notice
requirement of § 16-2802(a) has not stated a claim upon which relief can be granted.
The only question here, then, is whether the MMP A required Diffenderfer to notify
the Pharmacy Defendants prior to this suit. Diffenderfer, not surprisingly, claims it
does not: (1) because the MMPA intended the phrase "the court" in § 16-2802(a) to
3 be limited only to the Superior Court of the District of Columbia, and (2) because his
suit is not a "medical malpractice" suit as that term is used in the legislation. I
disagree.
Diffenderfer's first argument is frivolous at best! Jurisdiction exists in this
case for his claims against the Pharmacy Defendants based on the federal diversity
statute, 28 U.S.C. § 1332. When federal courts sit in diversity actions, "the law to be
applied ... is the law of the state." Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78
(1938). Here, Diffenderfer's surgery occurred in the District of Columbia, and the
parties effectively concede that the state law that applies here is the District's.
Indeed, to not enforce the MMP A's mandatory notice requirement in a diversity
jurisdiction case in federal court would subvert Erie's twin aims-reducing forum-
shopping and avoiding the inequitable administration of laws. See Hanna v. Plumer,
380 U.S. 460,468 (1965).
Not surprisingly, our Circuit Court made this very point many years ago. In
Bledsoe v. Crowley, 849 F.2d 639 (D.C. Cir. 1988), the Circuit Court considered
whether Maryland's medical malpractice law, which required plaintiffs to submit to
mandatory arbitration before bringing suit, applied to a diversity case brought in our
District Court. Noting that plaintiffs could otherwise easily avoid the arbitration
requirement if it did not apply in federal diversity cases, the Bledsoe Court held that
the Maryland arbitration provision was the type of "substantive" law that must be
applied for Erie purposes. See id. at 643-44. More recently, a judge of this Court
reached that very same conclusion with respect to the MMPA's notice statute. See
4 Davis v. Grant Park Nursing Home LP, --- F.Supp. 2d ---,2009 WL 2386101 at 9
(D.D.C.) (Friedman, J.). In Davis, Judge Friedman rejected an argument identical to
Diffenderfer's and held that "[the MMPA] cannot be construed to allow [the
plaintiff] to avoid its pre-litigation requirements 'merely by filing a diversity action
in federal court.'" Id at 9 (quoting Bledsoe, 849 F.2d at 643).
Finally, Diffenderfer's alternative argument that the MMPA does not apply in
this case because his is a product liability suit, not a medical malpractice suit, must
also fail. (PI. 's Opp'n at 4.) Indeed, Diffenderfer's interpretation of the "medical
malpractice" phrase in the MMP A is an unreasonably narrow and hopelessly
formalistic definition that is at odds with the MMPA's statutory scheme. How so?
While the MMPA does not define "medical malpractice," the fact that both
"pharmacies" and "pharmacists" are explicitly included in the MMP A's definition of
"health care provider[ s]" is, to say the least, insightful. See D.C. Code § 16-2801.
Surely, if the legislature intended the MMP A to apply to actions brought against
pharmacies and pharmacists in their capacity as "health care provider[ s]," they must
have contemplated suits of this type as falling within the scope of the statute.
Indeed, the Pharmacy Defendants here were sued based on their professional
medical services-compounding and dispensing the Trypan Blue solution used in
Diffenderfer's surgery. Other states who have had to consider whether
"compounding and dispensing medicine" falls within similar medical malpractice
statutes have easily found that it does. For example, the Georgia legislature included
in its statutory definition of a "medical malpractice action" any claim for damages
5 arising out of prescription services rendered by professionals authorized by law to
perform such services. O.C.G.A. § 9-3-70. Similarly, an appellate court in Indiana
held that an allergist's compounding and dispensing medicine fell within the practice
of medicine, and was thus covered by the state's malpractice statute rather than
product liability laws. See Dove by Dove v. Ruff, 558 N.E. 2d 836, 837 (Ind. ct. App.
1990).
To date, Diffenderfer has cited no contrary legal authority to suggest that
actions against pharmacies and pharmacists for harmful compounding and dispensing
are not covered by this "malpractice" provision. It is not surprising! The MMP A
was enacted as part of a greater statutory scheme meant to control and reduce costs
associated with medical malpractice suits. See Davis, 2009 WL 2386101 at 8.
Diffenderfer's restrictive reading of "medical malpractice" would allow plaintiffs to
avoid the MMPA's requirements, and thus thwart the District's reform efforts,
simply by recasting the nature of their suits. Given the MMP A's inclusion of
pharmacies and pharmacists in its definition of "health care providers," the law of
other states, and the purpose of the MMPA, the Court rejects Diffenderfer's attempt
to impose this limit on the MMPA's scope. His failure to comply is therefore
dispositive of this case as to the Pharmacy Defendants. 2
2 Diffenderfer also argues that even if the MMP A applies, its notice requirement should be waived in his case. (PI. Mot. to Waive [Dkt. 19] at 2.) Section 16-2804(b) of the MMPA allows the notice requirement to be waived "if the interests of justice dictate," but they do not here. Diffenderfer's core contention is that it is unfair to subject him to the notice requirement because the statute's definition of "court" left it unclear whether it would be applied in this Court. But as discussed already, his reading of the MMPA is so at odds with the Erie doctrine, the law of this Circuit, Bledsoe, and the purpose of the MMP A, that he
6 Thus, for all these reasons, the Pharmacy Defendants' motion to dismiss is
GRANTED. An appropriate order will accompany this motion.
United States District Judge
should have reasonably anticipated the statute would apply here. Furthermore, Diffenderfer knew the identity of the Pharmacy Defendants as early as August 2005, so there is no question whether, once the MMP A became effective, he could have complied with its terms and given the Pharmacy Defendants sufficient notice.