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

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,

(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,

(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."

(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,

. When federal courts sit in diversity actions, "the law to be

applied ... is the law of the state." Erie Railroad Co. v. Tompkins,

(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,

(1965).

Not surprisingly, our Circuit Court made this very point many years ago. In

Bledsoe v. Crowley,

(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

. 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 ---,

(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,

).

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

.

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,

(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,

.

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.

7