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11/13/90 KAISER FOUNDATION HEALTH PLAN MID-ATLANTIC

November 13, 1990

KAISER FOUNDATION HEALTH PLAN OF MID-ATLANTIC STATES, INC., AND CAPITAL AREA PERMANENTE MEDICAL GROUP, P.C., APPELLANTS
v.
MARGARET M. ROSE, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Richard S. Salzman, Trial Judge

Belson, Schwelb, and Wagner, Associate Judges.

The opinion of the court was delivered by: Schwelb

Kaiser Foundation Health Plan of the Mid-Atlantic States (Kaiser) and Capital Area Permanente Medical Group (CAPMG) appeal from an order of the trial court, Honorable Richard S. Salzman presiding, denying their motion to dismiss a medical malpractice complaint filed by Margaret M. Rose in connection with the death of her late husband, Joseph Rose, allegedly as a result of appellants' negligence. Rose v. Kaiser Found., et al., 117 Daily Wash. L. Rptr. 2101 (Super. Ct. D.C. 1989). The motion was based on the doctrine of forum non conveniens, and appellants contended below, and now maintain in this court, that there was no significant nexus between this case and the District of Columbia. Because we agree that this action has substantial and virtually exclusive connections with Virginia but almost none with the District, we vacate the trial court's order and remand with directions to dismiss the action. The order of dismissal shall, however, be conditioned on a waiver in any action Mrs. Rose may bring in Virginia of any defense based on the Virginia statute of limitations, so long as Mrs. Rose proceeds with reasonable expedition to institute such an action in that jurisdiction.

I

The essential facts relevant to this appeal are undisputed. Kaiser is a District of Columbia corporation engaged solely in the business of operating a health maintenance organization (HMO). Kaiser offers health care services to its members in Virginia, Maryland and the District of Columbia, and does a majority of its business outside the District. CAPMG is a medical professional corporation with which Kaiser contracts to provide physician services to persons enrolled in Kaiser.

On April 1, 1982, Joseph Rose, who lived in Alexandria, Virginia, enrolled in the Kaiser health plan through his employer, the National Lime Association. That company was based in Arlington, Virginia. Mr. Rose originally designated Kaiser's facility in Reston, Virginia as his primary medical center. He later transferred his designation to Falls Church, Virginia, when Kaiser opened a center in that community in 1985.

The complaint alleges that between February 22, 1988 and March 1, 1988, Mr. Rose visited Kaiser's Falls Church medical center on three occasions, complaining of severe back pain. Three CAPMG-affiliated physicians, all licensed by and practicing in Virginia, treated him on an outpatient basis. On March 1, 1988, Mr. Rose collapsed and died in Virginia from a ruptured abdominal aortic aneurysm. Mrs. Rose claims that her husband's death was caused by the failure of three Virginia physicians to examine, diagnose, treat and advise him properly.

Mrs. Rose continues to live in Alexandria, Virginia. The sole connection between the District and the events which precipitated this lawsuit is that Kaiser and CAPMG are incorporated in the District of Columbia.

On May 17, 1989, Mrs. Rose filed her complaint in the Superior Court, alleging medical malpractice by Kaiser and CAPMG. She grounded her action on the District's wrongful death and survival statutes. D.C. Code §§ 16-2701, et seq., 12-101, et seq. (1989). Kaiser and CAPMG filed a Motion to Dismiss on Forum Non Conveniens Grounds or Partially Dismiss for Failure to State a Claim. Judge Salzman dismissed the wrongful death claim, but declined to invoke the doctrine of forum non conveniens to dismiss the entire complaint. The Judge recognized that this litigation has a far greater connection with Virginia than with the District, *fn1 but reluctantly *fn2 denied appellants the relief they sought because he believed he was required to do so by this court's decision in Kaiser-Georgetown Community Health Plan, Inc. v. Stutsman, 491 A.2d 502 (D.C. 1985) ("Stutsman I"). In that case, this court affirmed the denial of a motion to dismiss, on forum non conveniens grounds, a medical malpractice action brought by a Virginia resident who worked in the District of Columbia and who had obtained Kaiser coverage through her District of Columbia employer, primarily on the ground that District of Columbia law would apply. Kaiser and CAPMG now appeal, contending that the motion to dismiss ought to have been granted. *fn3

II

The doctrine of forum non conveniens is part of the statutory law of the District of Columbia.

When any District of Columbia court finds that in the interest of substantial Justice the action should be heard in another forum, the court may stay or dismiss such civil action in whole or in part on any conditions that may be just.

D.C. Code § 13-425 (1989). The word "may" is permissive rather than mandatory, and

decisions on questions of forum non conveniens are committed to the sound discretion of the trial court and will be upset on appeal only upon a clear showing of an abuse of that discretion. . . . This broad discretion is not unlimited, however, and this court must examine the trial court's action in light of ...


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