Hartley v. John Dombrowski, M.D., Pc ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
JEANETTA HARTLEY, et al., )
)
Plaintiffs )
)
v. ) Civil Action No. 10-0343 (ESH)
)
JOHN DOMBROWSKI, M.D., et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
Plaintiffs Jeanetta and James Hartley originally sued defendants John Dombrowski, M.D.
(“Dr. Dombrowski”), John Dombrowski, M.D., PC (“Dombrowski, PC”), and Massachusetts
Avenue Surgery Center, LLC (“MASC”), for medical malpractice as a result of the allegedly
negligent implantation of a spinal cord modulator in Mrs. Hartley’s lumbar area when she was a
patient at MASC on March 5, 2007.1 The motions before the Court are (1) plaintiffs’ Motion to
Amend the Complaint to add informed consent and post-surgery malpractice claims; (2) Dr.
Dombrowski and Dombrowski, PC’s Motion to Dismiss for failure to comply with Maryland’s
statutory pre-filing requirements for malpractice claims; (3) Dr. Dombrowski and Dombrowski,
PC’s Motion to Transfer pursuant to 28 U.S.C. § 1404(a); and (4) MASC’s Motion to Dismiss
for lack of personal jurisdiction. As explained herein, the Court will grant plaintiffs’ Motion to
Amend and grant in part Dr. Dombrowski and Dombrowski, PC’s Motion to Dismiss. It will
deny Dr. Dombrowski and Dombrowski, PC’s Motion to Transfer and deny as moot MASC’s
Motion to Dismiss.
1
Mr. Hartley’s claim is for loss of consortium.
BACKGROUND
Plaintiffs, residents of Pennsylvania, allege that Mrs. Hartley received negligent medical
treatment from Dr. Dombrowski, a physician licensed in Maryland and the District of Columbia;
Dombrowski, PC, a professional corporation doing business in the District; and MASC, a
Maryland corporation that does business in Maryland and is owned by physicians practicing in
Maryland, Virginia, and the District. (Amended Complaint [“Am. Compl.”] at 2.) According to
plaintiffs, Mrs. Hartley was referred to Dr. Dombrowski by her pain management physician as a
candidate for implantation of a spinal cord modulator to treat her chronic pain. (Id. ¶ 1.) After
being informed that the procedure was low risk, Mrs. Hartley agreed to have the modulator
temporarily implanted in her lumbar area for a trial period. (Id. ¶ 2.) Dr. Dombrowski scheduled
the procedure to occur at MASC, a surgery center that he had an ownership interest in, without
offering Mrs. Hartley any alternative locations. (Id. ¶ 4.) The temporary modulator was
implanted on January 23, 2007, but it failed to reduce Mrs. Hartley’s pain. (Id. ¶ 5.) On January
31, 2007, Mrs. Hartley met with Dr. Dombrowski at his District office, where he adjusted the
device in hopes of improving its pain management. (Id. ¶ 6.) These adjustments were not
effective, and Mrs. Hartley repeatedly telephoned Dr. Dombrowski’s office to tell him so.
However, he assured her that the device was safe and effective, and thus, Mrs. Hartley agreed to
have it permanently implanted. (Id. ¶ 8.)
On March 5, 2007, Dr. Dombrowski implanted a permanent spinal cord modulator in
Mrs. Hartley’s lumbar area. (Complaint [“Compl.”] ¶ 1.) The operation took place in Bethesda,
Maryland at MASC and was performed with the assistance of MASC employees. (Id.)
Following the operation, Mrs. Hartley complained of difficulty walking and pain in her back and
lower extremities. (Id. ¶ 2.) Nevertheless, Dr. Dombrowski did not attempt to diagnose her
2
ailments, and MASC employees discharged her without alerting any physicians to her condition
or obtaining physician approval. (Id. ¶¶ 3-4, 14.)
The following day, plaintiffs telephoned Dr. Dombrowski’s office to inform him that
Mrs. Hartley could not lift her left foot and was numb in her buttocks, reproductive, and perineal
areas. (Compl. ¶ 6.) In response, Dr. Dombrowski prescribed a steroidal medication, but it did
not result in any improvement. (Id. ¶¶ 6-7.) Plaintiffs then conferred with physicians in
Pennsylvania, one of whom telephoned Dr. Dombrowski on March 12, 2007, to discuss Mrs.
Hartley’s condition. Two days after that conversation, Dr. Dombrowski removed the spinal cord
modulator. (Id. ¶¶ 7-9.) However, even after the device was removed, the neurological damage
to Mrs. Hartley’s lumbar area and lower extremities persisted. Mrs. Hartley was diagnosed with
permanent neurological damage in those areas. (Id. ¶¶ 10-11.)
On March 3, 2010, plaintiffs sued the three defendants for medical malpractice, res ipsa
loquitur, and loss of consortium for negligently operating on and discharging Mrs. Hartley.
(Compl. ¶¶ 12-22.) In response, Dr. Dombrowski and Dombrowski, PC have moved to dismiss
the complaint because plaintiffs had not complied with the pre-filing requirements set forth in
Maryland’s Health Care Malpractice Claims Act, Md. Code Ann., Cts. & Jud. Proc. §§ 3-2A-01
to 09 (“Maryland’s Act”). (Defs. Dr. Dombrowski and Dombrowski, PC’s Mot. to Dismiss
[“Dombrowski Mot. to Dismiss”] at 1.) Plaintiffs oppose this motion, or, in the alternative, they
request that the action be stayed for 150 days while plaintiffs complete these pre-filing
requirements. (Pls.’ Mem. in Opp’n. to Dombrowski Mot. to Dismiss [“Pls.’ Opp’n.”] at 7.)
Defendants have also moved to transfer the case to the Southern Division of the United States
District Court for the District of Maryland pursuant to 28 U.S.C. § 1404(a). (Defs. Dr.
Dombrowski and Dombrowski, PC’s Mot. to Transfer at 1.) Finally, defendant MASC has
3
moved to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure
12(b)(2). (Mem. P. & A. in Supp. of Def. MASC’s Mot. to Dismiss at 1.)
On July 21, 2010, plaintiffs moved to amend their original complaint. Plaintiffs sought to
add a claim against Dr. Dombrowski and Dombrowski, PC for lack of informed consent. (Am.
Compl. ¶¶ 22-24.) In support of this claim, plaintiffs’ Amended Complaint alleges that Dr.
Dombrowski never informed Mrs. Hartley that the procedure could leave her lower extremities
paralyzed, and that the only warnings she received were in the Informed Consent Form that was
given to her on the day of the surgery along with numerous other documents. (Id. ¶¶ 9-10.)
Plaintiffs also sought to add a claim for post-surgical malpractice against Dr. Dombrowski and
Dombrowski, PC for prescribing steroidal medication to treat Mrs. Hartley’s numbness and
paralysis. (Id. ¶¶ 29-31.)2 Dr. Dombrowski and Dombrowski, PC oppose plaintiffs’ Motion to
Amend, arguing that the statute of limitations for these new claims has run, and the claims do not
relate back to the filing of the original Complaint. (Defs. Dr. Dombrowski and Dombrowski,
PC’s Opp’n. to Pls.’ Mot. to Amend [“Dombrowski Opp’n. to Pls.’ Mot. to Amend”] ¶¶ 3-8.)
The Court will now turn to each of these motions.
ANALYSIS
I. MOTION TO AMEND
Under District law, the statute of limitations for medical malpractice and informed
consent claims is three years.3 D.C. Code § 12-301(8). As more than three years have lapsed
2
Plaintiffs seek $5,000,000 for each claim alleged in their original and amended complaints
except for loss of consortium, for which they seek $250,000. (Am. Compl ¶¶ 22-42.)
3
The District’s choice of law rules treat statutes of limitations as procedural rather than as
substantive, and thus, the District’s statute of limitations applies in this case. A.I. Trade Fin.,
Inc. v. Petra Int’l. Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir. 1995).
4
since the surgery took place, plaintiff’s proposed informed consent claim is time barred. Thus,
the Court must evaluate whether the claim relates back to plaintiffs’ original complaint, which
alleged negligence in operating on Mrs. Hartley and discharging her from the MASC.
An amendment to a complaint that raises otherwise time barred claims may yet be timely
if the amendment “relates back” to the date of the original complaint under Federal Rule of Civil
Procedure 15(c). Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009). Rule 15(c)(1)(B)
provides that an amendment relates back when it “asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original
pleading.” Fed. R. Civ. P. 15(c)(1)(B). This is “not simply an identity of transaction test.” 6A
Charles Alan Wright et al., Fed. Prac. & Proc. Civ. § 1497 (3d ed. 2010). Rather, the underlying
inquiry is whether the original complaint put defendant on notice of the basis for liability that
would be asserted in the amended complaint. Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 866
(D.C. Cir. 2008). An amended claim does not relate back when it “‘asserts a new ground for
relief supported by facts that differ in both time and type from those the original pleading set
forth.’” Jones, 557 F.3d at 674 (quoting Mayle v. Felix, 545 U.S. 644, 650 (2005)). But “the
fact that an amendment changes the legal theory on which the action initially was brought is of
no consequence if the factual situation upon which the action depends remains the same and has
been brought to defendant's attention by the original pleading.” Wright et al., supra § 1497.
Other courts that have examined whether an informed consent claim relates back to
claims of surgical negligence are split on the issue. See, e.g., Wagner v. Georgetown Univ. Med.
Ctr., 768 A.2d 546, 558 (D.C. 2001) (informed consent claim related back to claim of negligence
during surgery); Azarbal v. Medical Ctr. of Del., Inc., 724 F. Supp. 279, 283 (D. Del. 1989)
(same); Neeriemer v. Superior Court of Maricopa County, 477 P.2d 746, 750 (Ariz. Ct. App.
5
1970) (same); Bigay v. Garvey, 575 N.W.2d 107, 110 (Minn. 1998) (negligent nondisclosure
claim did not relate back to claim of negligent care during surgery); Jolly v. Russell, 203 A.D.2d
527, 529 (N.Y. App. Div. 1994) (same); Moore v. Baker, 989 F.2d 1129, 1132 (11th Cir. 1993)
(claim for surgical negligence did not relate back to informed consent claim). Those that do not
find relation back tend to apply the reasoning of Moore, which held that a claim that defendant
negligently performed brain surgery did not relate back to a claim that plaintiff did not give
informed consent to that surgery, as the conduct underlying the claims “occurred at different
times and involved separate and distinct conduct,” and plaintiff would have to prove different
facts to recover under each claim. Id.By contrast, those courts that find relation back generally view the surgery as a whole as
the “occurrence” out of which both the malpractice and informed consent claims arose. See, e.g.,
Wagner, 768 A.2d at 557; Neeriemer, 477 P.2d at 749.
The Court prefers the latter approach as it recognizes that defendants in these cases are,
as a practical matter, on notice of plaintiffs’ new informed consent claims even if the original
complaints did not allege the specific facts of the claims. Here, defendants knew from the
original complaint that plaintiffs sought to recover damages for injuries caused by defendants’
medical treatment of Mrs. Hartley. (Compl. at 1.) “Reasonably prudent” defendants would
expect that plaintiffs might assert other theories of recovery for those injuries, including that
Mrs. Hartley did not give informed consent to the surgery that caused them. Wagner, 768
A.2d at 557 (quoting Wright, et al., supra §1497 (2d ed. 1990)). Indeed, “[w]hen a suit is
filed . . . defendant knows that the whole transaction described in it will be fully sifted, by
amendment if need be, and that the form of the action or the relief prayed or the law relied on
will not be confined to their first statement.” Barthel v. Stamm, 145 F.2d 487, 491 (5th Cir.
6
1944); see also Zagurski v. American Tobacco Co., 44 F.R.D. 440, 443 (D. Conn. 1967) (a claim
for negligent failure to warn about the dangers of cigarette smoking related back to claims of
negligent manufacture and breach of implied warranty of fitness because defendant had notice
from original complaint that plaintiff was trying to enforce a claim for damages sustained from
smoking [defendant’s] cigarettes, and “[i]t is not unreasonable to require [defendant] to
anticipate all theories of recovery and prepare its defense accordingly”).
Given that the original complaint should have put defendants on notice of plaintiffs’
informed consent claim, relation back is not precluded by the fact that plaintiffs will have to
prove different facts to recover on this claim. Such a reading of Rule 15(c)(1)(B) would
“prohibit relation back even where plaintiff alleged an additional specific act of negligence
during the operation itself, unless the newly alleged act was related to the previously alleged
specific acts.” Neeriemer, 477 P.2d at 749. Rather, notice is the issue underlying the Rule
15(c)(1)(B) inquiry. Meijer, 533 F.3d at 866. Therefore, the Court concludes that plaintiffs’
informed consent claim relates back to the original complaint and it will deny defendants’
Motion to Dismiss this claim.
The Court also finds that plaintiff’s newly added medical malpractice claim based on Dr.
Dombrowski’s post-surgery prescription of steroidal medication relates back to the original
complaint. That complaint specifically alleged that Dr. Dombrowski had prescribed steroidal
medication to treat Mrs. Hartley’s post-operative paralysis and numbness. (Compl. ¶ 6.) The
Amended Complaint merely asserts a new claim for malpractice based on that conduct. This is
precisely the sort of amendment contemplated by Rule 15(c), which provides for relation back
where the amended pleading asserts a claim arising out of the conduct set forth in the original
pleading. Fed. R. Civ. P. 15(c)(1)(b). Thus, this claim relates back and is not time barred.
7
II. MOTION TO DISMISS FOR FAILURE TO COMPLY WITH MARYLAND’S ACT
Dr. Dombrowski and Dombrowski, PC have moved to dismiss plaintiffs’ complaint
because plaintiffs failed to comply with the pre-filing requirements for medical malpractice
claims set forth in Maryland’s Act. (Dombrowski Mot. to Dismiss at 1). Maryland’s Act
provides that as a precondition to filing suit, medical malpractice claims alleging damages in
excess of a specified jurisdictional amount (i.e., $30,000)4 must be submitted for arbitration,
along with a certificate from a qualified expert attesting to the alleged malpractice. Md. Code
Ann., Cts. & Jud. Proc. §§ 3-2A-01 to 09. The Act also places a cap on non-economic damages.
Id. at § 11-108. It is uncontested that plaintiffs have not complied with the Maryland Act’s
preconditions. (See Pls.’ Opp’n. at 7.) Plaintiffs, however, argue that District law, rather than
Maryland law, applies. (Id. at 6.) The District requires only that plaintiffs send a Notice of
Intent to Sue to defendants at least 90 days prior to filing suit. D.C. Code Ann. § 16-2802(a).
The Court must resolve this dispute by reference to D.C.’s choice of law rules.
A. Choice of Law
When determining the applicable law in a diversity case, a federal court applies the
choice of law rules of the forum state. Bledsoe v. Crowley, 849 F.2d 639, 641 (D.C. Cir. 1988)
(citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). The District uses
“governmental interest analysis,” which requires a court to evaluate the governmental policies
underlying the applicable conflicting laws, and determine which jurisdiction’s policies would be
most advanced by having its law applied to the facts of the case under review. Id. This inquiry
includes consideration of the following factors from the Restatement (Second) of Conflict of
4
The jurisdictional amount is the limit of the Maryland District Court’s concurrent jurisdiction
with Maryland trial courts of general jurisdiction, Md. Code Ann., Cts. & Jud. Proc. § 3-2A-
02(a)(1), which is currently $30,000. Id. §§ 4-401(1), -402(d)(1)(i).
8
Laws §145: (1) the place where the injury occurred, (2) the place where the conduct causing the
injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of
business of the parties, and (4) the place where the relationship is centered. Jaffe v. Pallotta
Teamworks, 374 F.3d 1223, 1227 (D.C. Cir. 2004). Finally, choice of law analysis is performed
for each issue adjudicated, therefore a different law can apply to different issues. Id.The governmental policies underlying the malpractice laws in Maryland and in the
District differ significantly. Maryland’s Act is aimed at reducing the cost of malpractice
insurance and overall health care costs for Maryland residents. Specifically, in making
arbitration a precondition to filing suit, “[t]he goal . . . was to establish a mechanism to screen
malpractice claims prior to the filing of suit. . . . [T]his would reduce the cost of defense by
ferreting out unmeritorious claims which, in turn, would lower the cost of malpractice insurance
and, potentially, overall health care costs.” Group Health Assoc. v. Blumenthal, 453 A.2d 1198,
1204 (Md. 1983) (citation omitted). Similarly, the purpose behind capping non-economic
damages was to “‘assure the availability of sufficient liability insurance, at a reasonable cost, in
order to cover claims for personal injuries to members of the public.’” Groover v. Burke, 917
A.2d 1110, 1118 (D.C. 2007) (quoting Murphy v. Edmonds, 601 A.2d 102, 114-15 (Md. 1992)).
By contrast, the District’s policy objective is to “[hold] its corporations liable for the full extent
of the negligence attributable to them,” as evidenced by the District’s refusal to cap malpractice
damages. Kaiser-Georgetown Community v. Stutsman, 491 A.2d 502, 509 (D.C. 1985). The
Court considers these competing interests, as well as the other choice of law factors, as they
pertain to each of plaintiffs’ claims.5
5
Plaintiffs advance another District interest. They argue that because a significant number of the
physicians who own MASC practice in the District, they will “undoubtedly” refer patients
9
1. Informed Consent: Dr. Dombrowski and Dombrowski, PC
Plaintiffs claim that Dr. Dombrowski and Dombrowski, PC failed to timely advise
Mrs. Hartley of the risks of having a spinal cord modulator implanted in her lumbar area, and
that she would not have undergone the procedure had she been so advised. (Am. Compl. ¶¶ 22-
24.) Both Maryland and the District have an interest in applying their laws to this claim because
these defendants do business in both jurisdictions. Thus, large malpractice liability would affect
insurance and health care costs in Maryland, while a cap on damages would prevent the District
from holding its practitioners fully liable for their negligence. As both jurisdictions’ policies are
implicated, the Court turns to the other choice of law factors.
The negligent conduct at issue occurred in both the District and Maryland. In the
District, Dr. Dombrowski failed to inform Mrs. Hartley of the risks of implantation at their pre-
operation consultations, including the one at which Mrs. Hartley agreed to have the modulator
permanently implanted. (Am. Compl. ¶¶ 8-9.) Nor did he adequately disclose these risks on the
day of the surgery, which took place in Maryland. (Am. Compl. ¶ 10.) Plaintiffs’ injuries were
suffered predominantly in Pennsylvania, where plaintiffs reside.6 (Compl. at 2.) The localities
seeking medical care in the District to MASC. Therefore, plaintiffs argue, the District has an
interest in ensuring that these patients receive competent medical care without getting “hauled
off” to Maryland where they lose the protection of District law. (Pls.’ Opp’n. at 3-4.) Even
assuming arguendo that such referrals “undoubtedly” occur, this interest would not be materially
undermined by the application of Maryland law. There is no suggestion that Maryland provides
less competent health care than the District, or that Maryland does not protect its patients. To the
contrary, “Maryland law does not prevent a defendant from being adjudged liable for substantial
damages.” Groover, 917 A.2d at 1119. Thus, only a false conflict exists with respect to this
interest. See Bledsoe, 849 F.2d at 641 (‘“When the policy of one state would be advanced by the
application of its law, and that of another state would not be advanced by application of its law, a
false conflict appears and the law of the interested state prevails.’”) (quoting Biscoe v. Arlington
County, 738 F.2d 1352, 1360 (D.C. Cir.1984)).
6
Arguably, a small portion of the injury was also suffered in Maryland, where Mrs. Hartley
experienced numbness and paralysis prior to being discharged. (Compl. ¶¶ 2-4.)
10
of the parties do not clearly favor either Maryland or the District. Plaintiffs reside in
Pennsylvania, Dr. Dombrowski is licensed in both Maryland and the District, and Dombrowski,
PC, does business in Maryland and the District through Dr. Dombrowski. Finally, the center of
the parties’ relationship favors neither jurisdiction. While both the temporary and permanent
modulators were implanted in Maryland, the consultations leading up to the surgery, the decision
to go forward with permanent implantation, and the post-operative consultations occurred in
Pennsylvania and the District. (Am. Compl. ¶¶ 5-10, 17-18.) See Jenkins v. Cowen, 1987 WL
14601, at *3 (D.D.C. July 17, 1987) (finding the District to be center of relationship as that was
where plaintiff first contacted defendant, initial consultation occurred, defendant agreed to treat
plaintiff, and billing and other record keeping occurred).
In sum, governmental interest analysis does not favor either Maryland or the
District. Where the interests of both jurisdictions are equally weighty, the law of the forum state
shall apply. Stutsman, 491 A.2d at 509 n.10 (noting that the forum state’s interest in the fair and
efficient administration of justice together with the saving that accrue to its judicial system when
its judges apply law with which they are familiar tilt the balance in favor of the forum state when
the interests of both jurisdictions are equally weighty). Thus, District law shall apply to
plaintiffs’ informed consent claim.
2. Medical Malpractice: Dr. Dombrowski and Dombrowski, PC
Plaintiffs claim that Dr. Dombrowski and Dombrowski, PC committed medical
malpractice while implanting the spinal cord modulator. (Am. Compl. ¶¶ 26-28.) For the
reasons explained above, both Maryland and the District have an interest in applying their laws
to this claim. And, as above, the place of the injury, the localities of the parties, and the center of
the relationship do not favor either jurisdiction. However, the negligent conduct underlying this
11
claim occurred entirely in Maryland, as that is where the surgery took place.7 (Compl. ¶ 1.) This
factor tips the scales decidedly in favor of Maryland, as “‘[t]he state where the defendant’s
conduct occurs has the dominant interest in regulating it.’” Bledsoe, 849 F.2d at 643 (quoting
Biscoe, 738 F.2d at 1361). Thus, Maryland law applies to this claim.
3. Res Ipsa Loquitur: Dr. Dombrowski, Dombrowski, PC, and MASC
Plaintiffs claim that under the doctrine of res ipsa loquitur, all three defendants
were either individually or collectively negligent during the device implantation, thereby causing
Mrs. Hartley’s injuries. (Am. Compl. ¶¶ 36-40.) Again, both Maryland and the District’s policy
interests are implicated by this claim. But with respect to defendant MASC, Maryland’s interest
clearly outweighs the District’s, as MASC is a Maryland corporation that conducts business in
Maryland (Mem. P. & A. in Supp. of Def. MASC’s Mot. to Dismiss at 2), and therefore, the
effects of large malpractice liability would be felt predominantly in Maryland.8 That MASC is a
Maryland corporation further diminishes the District’s interest, as the District is interested in
holding its corporations fully liable for their negligence. See Groover, 917 A.2d at 1119 (noting
7
Plaintiffs argue that the location of the conduct was “fortuitous” as Dr. Dombrowski, and not
Mrs. Hartley, selected it. (Pls.’ Opp’n. at 6.) However, this does not make the location
fortuitous. See, e.g., Ott v. Kaiser-Georgetown Cmty. Health Plan, Inc., 689 F. Supp. 9, 13 n.2
(D.D.C. 1988) (finding that Maryland was hardly a fortuitous situs for the medical malpractice
injury as defendant had designated a hospital in Maryland as one of the hospitals to be used by
patients located in the area where plaintiffs lived). Rather, “fortuitous” describes events such as
automobile accidents. See Vaughan v. Nationwide Mut. Ins. Co., 702 A.2d 198, 202 (D.C.
1997). Moreover, this case is clearly distinguishable from Hitchcock v. United States, 665 F.2d
354, 360 (D.C. Cir. 1981). In Hitchcock, the Court likened the government defendant to a
national corporation with headquarters in the District and a clinic in Virginia, and found that the
negligent medical treatment fortuitously occurred in Virginia because the treatment resulted from
policies developed in the District and therefore would have occurred regardless of where the
clinic was located. No such circumstances are present here.
8
Plaintiffs argue that because a significant number of MASC’s physician-owners have offices in
the District, MASC conducts business in the District. (Am. Compl. at 2) Assuming arguendo
that this is true, plaintiffs do not dispute that MASC’s principal place of business is in Maryland.
12
that while the District has a significant interest in “holding its corporations” fully liable for their
negligence, it does not have a similar interest with respect to Maryland corporations).
The analysis of the four Restatement factors is similar to the Restatement analysis
above, with the localities of the parties more strongly favoring Maryland due to MASC. Thus,
the Court finds that Maryland law applies to plaintiffs’ res ipsa loquitur claim.
4. Medical Malpractice: MASC
Plaintiffs claim that MASC committed medical malpractice by discharging Mrs.
Hartley after the operation without first seeking physician approval. (Am. Compl. ¶¶ 33-35.)
Maryland clearly has the greater interest in this claim as it concerns a Maryland corporation, the
negligent conduct occurred in Maryland, the injury was suffered in Pennsylvania and arguably
also in Maryland (see supra note 6), and the parties’ localities are in Maryland and Pennsylvania.
Thus, Maryland law applies to this claim.
5. Medical Malpractice: Dr. Dombrowski and Dombrowski, PC
Plaintiffs allege that Dr. Dombrowski and Dombrowski, PC committed medical
malpractice by prescribing Mrs. Hartley steroidal medication in response to her complaints of
numbness and paralysis post-operation. (Am. Compl. ¶¶ 29-32.) The choice of law analysis for
this claim is the same as for the informed consent claim against these defendants, except that
here, the negligent conduct occurred in the District. Thus, this “dominant interest” tips the scales
in favor of the District, and District law applies to this claim. Bledsoe, 849 F.2d at 643 (quoting
Biscoe, 738 F.2d at 1361).
6. Loss of Consortium: Dr. Dombrowski, Dombrowski, PC, and MASC
Finally, plaintiffs allege that all three defendants are liable for Mr. Hartley’s loss
of consortium due to Mrs. Hartley’s condition. (Am. Compl. ¶¶ 41-42.) For loss of consortium
13
claims, the District applies the law of the state where the marriage is domiciled. Long v. Sears
Roebuck & Co., 877 F. Supp. 8, 13 (D.D.C.1995) (citing Stutsman v. Kaiser Foundation Health
Plan, 546 A.2d 367 (D.C. 1988)); Parnigoni v. St. Columba's Nursery School, 681 F. Supp. 2d 1,
13 (D.D.C. 2010); see also Felch v. Air Fla., Inc., 562 F. Supp. 383, 386 (D.D.C. 1983) (noting
that under governmental interest analysis, an action for loss of consortium is typically governed
by the law of the state of marital domicile rather than the law of the state where the wrong
occurred). Thus, plaintiffs’ loss of consortium claim is governed by Pennsylvania law, as that is
where plaintiffs’ marriage is domiciled and the injury to the marital relationship is suffered. See
Long, 877 F. Supp. at 13.
B. Dismissal of Claims Governed by Maryland Law
The Court has found that Maryland law applies to three of plaintiffs’ six claims: medical
malpractice for surgical negligence against Dr. Dombrowski and Dombrowski, PC, res ipsa
loquitur against all three defendants, and medical malpractice against MASC. Plaintiffs
requested that if the Court found Maryland law applicable, that it stay the action for 150 days to
allow for arbitration to be completed. (Pls.’ Opp’n. at 7.) Dr. Dombrowski and Dombrowski,
PC seek dismissal of the claims instead. (Dr. Dombrowski and Dombrowski, PC’s Reply to Pls.’
Opp’n. ¶ 7.) Other courts deciding whether to stay or dismiss claims for failure to comply with
pre-filing requirements have dismissed without prejudice. See, e.g., Davis v. Grant Park
Nursing Home LP, 639 F. Supp. 2d 60, 73 (D.D.C. 2009) (dismissing claim where plaintiff had
failed to give notice of intent to file suit as required by District law); Davison v. Sinai Hospital,
462 F. Supp. 778, 781 (D. Md. 1978), aff'd, 617 F.2d 361 (4th Cir. 1980) (dismissing complaint
where plaintiffs failed to arbitrate as required by Maryland law); Stanley v. United States, 321 F.
Supp. 2d 805, 809 (N.D.W.Va. 2004) (dismissing complaint where plaintiff failed to comply
14
with West Virginia’s pre-filing requirements). Though the D.C. Circuit had found dismissing
rather than staying to be an abuse of discretion where plaintiff had requested a stay and
arbitration proceedings were already underway, Bledsoe, 849 F.2d at 645-46, there is no
indication that arbitration has ever been initiated here. Thus, the Court shall dismiss without
prejudice the claims as to which Maryland law applies. See Davis, 639 F. Supp. 2d at 73(dismissing for failure to complete pre-filing requirements where Bledsoe circumstances not
present); see also Lewis v. Waletzky, 576 F. Supp. 2d 732, 738 (D. Md. 2008) (noting that
Maryland’s policy of requiring arbitration prior to filing suit is “‘so strong’” that a court will
“‘sua sponte . . . order an action dismissed where the litigants have not followed the special
statutory procedure’”) (quoting Oxtoby v. McGowan, 447 A.2d 860, 864-65 (Md. 1982)).
III. MOTION TO TRANSFER
Dr. Dombrowski and Dombrowski, PC have moved to transfer the case to the Southern
Division of the United States District Court for the District of Maryland pursuant to 28 U.S.C. §
1404(a). (Defs. Dr. Dombrowski and Dombrowski, PC’s Mot. to Transfer at 1.) This statute
allows a district court to transfer a case to another district where the case might have been
brought “[f]or the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. §
1404(a). In deciding whether to transfer, a court is to consider several private and public interest
factors. The private interest factors include (1) the plaintiff's choice of forum, (2) the defendant's
choice of forum, (3) where the claim arose, (4) the convenience of the parties, (5) the
convenience of the witnesses, particularly if important witnesses may actually be unavailable to
give live trial testimony in one of the districts, and (6) the ease of access to sources of proof.
Montgomery v. STG Intern., Inc., 532 F. Supp. 2d 29, 32-34 (D.D.C. 2008). The public interest
15
factors include (1) the transferee's familiarity with the governing laws, (2) the relative congestion
of each court, and (3) the local interest in deciding local controversies at home. Id.Given the proximity of Maryland to the District, public, rather than private, interest
factors predominate. See Medlantic Long Term Care Corp. v. Smith, 791 A.2d 25, 31 (D.C.
2002) (“Where the plaintiff’s choice of forum is between the District of Columbia and one of the
counties in the Washington, D.C. metropolitan area . . . the public interest factors predominate
for the obvious reason that the relative ease or difficulty in getting to a D.C. court and a
metropolitan court outside D.C. is usually the same.”). Here, public interest factors disfavor
transfer, as Maryland law is not applicable to the remaining claims. Rather, District law applies
to plaintiffs’ informed consent and post-surgical malpractice claims, and Pennsylvania law
applies to plaintiff’s loss of consortium claim. Thus, the District is more familiar with the
governing laws than is Maryland. Additionally, most of the conduct underlying the remaining
claims occurred in the District, while the injury was suffered in Pennsylvania. (Am. Compl. ¶¶
8-10, 17.) Thus, the local interest in deciding local controversies also favors the District over
Maryland. In light of these factors and the deference that is given to plaintiffs’ initial forum
choice, Robinson v. Eli Lilly and Co., 535 F. Supp. 2d 49, 52 (D.D.C. 2008), the Court will deny
defendants’ Motion to Transfer.9
IV. Motion to Dismiss for Lack of Personal Jurisdiction
As all claims against MASC have been dismissed, the Court will deny MASC’s Motion
to Dismiss for lack of personal jurisdiction as moot.10
9
Note that plaintiff's choice of forum would receive even more deference if it were their home
forum. Robinson, 535 F. Supp. 2d at 52.
10
Although plaintiffs’ loss of consortium claim remains, there remain no underlying claims of
negligence against MASC. Thus, there can be no loss of consortium claim against MASC as a
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CONCLUSION
The Court will grant plaintiffs’ Motion to Amend and it will grant in part Dr.
Dombrowski and Dombrowski, PC’s Motion to Dismiss. As a result, all claims against MASC
shall be dismissed. The remaining claims against Dr. Dombrowski and Dombrowski, PC for
informed consent, medical malpractice for the post-surgery prescription of steroidal medication,
and loss of consortium shall remain in this Court, which will apply District law to the informed
consent and medical malpractice claims, and Pennsylvania law to the loss of consortium claim.
/s/ _____________
ELLEN SEGAL HUVELLE
United States District Judge
DATE: October 18, 2010
spouse may only recover for loss of consortium against a defendant who has tortiously caused
injury to the other spouse. See 21 George L. Blum, Standard Pennsylvania Practice § 116:31
(2d ed.).
17