Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ussery v. Kaiser Foundation Health Plan of Mid-Atlantic States

September 19, 1994


Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Trial Judge)

Before Terry, Schwelb, and King, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: Appellant brings this appeal from an order dismissing, on the ground of forum non conveniens, her medical malpractice suit against appellee for injuries allegedly resulting from negligent treatment at a Maryland hospital. All of the allegedly tortious conduct occurred in Maryland, and appellant was a Maryland resident when that conduct occurred. The trial court dismissed the case because its only connections with the District of Columbia were the fact that appellant was enrolled in appellee's health plan through her employment in the District and the fact that appellee was incorporated in the District. Finding no abuse of discretion, we affirm.


Appellee, Kaiser Foundation Health Plan ("Kaiser"), is a health maintenance organization. At all relevant times appellant, Ernestine Ussery, was a resident of Maryland who worked in the District of Columbia for the American Pharmaceutical Association. Ms. Ussery had enrolled in Kaiser's health plan through her employer, designating Kaiser's facility in Camp Springs, Maryland, as the place where she wished to receive her health care. Kaiser is incorporated in the District, but renders 88 percent of its member services outside of the District.

In 1988, after she became pregnant, Ms. Ussery received all of her prenatal care at Kaiser's medical center in Landover, Maryland. On February 2, 1989, she gave birth to a baby girl by caesarean section at Holy Cross Hospital in Silver Spring, Maryland; physicians affiliated with Kaiser treated her there and performed the caesarean. Ms. Ussery remained at the hospital until February 10, when she was discharged. On February 21 she began to experience hemorrhaging and went to the emergency room at Southern Maryland Hospital in Clinton, Maryland, where a doctor not affiliated with Kaiser performed an emergency hysterectomy.

Ms. Ussery then brought this suit against Kaiser, alleging that Kaiser and its agents had been negligent in their treatment of her at Holy Cross Hospital, and that their negligence had been the proximate cause of the hemorrhaging that ultimately required a hysterectomy. A short time later, she filed a claim against Kaiser with Maryland's Health Claims Arbitration Office. *fn1 She also brought a separate action in a Maryland court against Southern Maryland Hospital and the doctors who performed the hysterectomy there.

The trial court dismissed Ms. Ussery's complaint on the ground of forum non conveniens, concluding in a memorandum opinion that dismissal was "in the interest of substantial Justice." *fn2 Weighing the "public" and "private" interests as required by Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), the court ruled that the private interests supported dismissal because the relevant medical records were located in Maryland, and because most of the witnesses worked or lived in Maryland "and thus subject to the Maryland court's subpoena power." Another factor which the court deemed significant was that the "ease, expedition, and expense of a trial also favored Maryland." The court noted that there were already two lawsuits pending in two different jurisdictions, both arising from Ms. Ussery's claim. Because the District of Columbia courts lacked jurisdiction over other possible tortfeasors -- Southern Maryland Hospital and the doctor or doctors who performed the hysterectomy -- Kaiser would be unable to pursue a third-party claim against them *fn3 if the case were to be tried in the District. "To proceed to trial in the District while an almost identical action is pending in Maryland would at least double the expense, time, and effort incurred by both parties." If the instant case were tried in Maryland, however, "all the parties are available for suit in Maryland, and plaintiff could join Kaiser, Southern Maryland Hospital, and the Maryland doctors in a single action." Furthermore, even if Kaiser alone were sued in Maryland, Kaiser could bring in the hospital and the doctors as third-party defendants. As for the public interest, the court observed that there was no "substantial factual nexus" between the District and the incidents and parties involved in the litigation, so that keeping the case in the District "would burden both the citizens of the District of Columbia [who would have to serve as jurors] and the staff and resources of the Superior Court. . . . Moreover, Maryland has a local interest in adjudicating medical malpractice controversies which occur within its borders."


In appeals involving forum non conveniens issues, we apply a somewhat unusual standard of review. In general, we review the trial court's decision for abuse of discretion, but at the same time we conduct our own independent analysis of the public and private interests involved in the case. As we explained in Jenkins v. Smith, 535 A.2d 1367, 1369 (D.C. 1987) (en banc):

Trial court rulings on forum non conveniens motions are entitled to receive considerable deference from this court. We will not reverse such a ruling unless presented with clear evidence that the trial court abused its broad discretion. . . .

This deference, however, does not amount to carte blanche. Unlike our review of most acts of judicial discretion, our review of rulings on forum non conveniens includes an independent evaluation of the "private" and "public" factors enumerated in Gulf Oil Corp. v. Gilbert . . . . The private factors include potential obstacles to a fair trial, including the relative ease of access to proof, the availability and cost of compulsory process, the enforceability of any judgment obtained, and evidence of vexatiousness or harassment. . . . The public factors are those affecting the District's own interests, including the congestion of its court dockets with foreign litigation, the imposition of jury duty on District residents for litigation in which the District has no concern, and the inappropriateness of calling on District of Columbia courts to construe the law of another jurisdiction.

[Citations omitted.] One factor operating against dismissal is "the principle that 'unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.'" Cohane v. Arpeja-California, Inc., 385 A.2d 153, 156 (D.C.) (citation omitted), cert. denied, 439 U.S. 980, 58 L. Ed. 2d 651, 99 S. Ct. 567 (1978). On the other hand, a plaintiffs choice of forum "deserves less deference when the plaintiff is [a resident of] another jurisdiction." Herskovitz v. Garmong, 609 A.2d 1128, 1130 (D.C. 1992) (citations omitted). "The rule is not that jurisdiction should be denied unless such denial would work an inJustice, but rather that jurisdiction should be taken unless to do so would work an inJustice." Wilburn v. Wilburn, 192 A.2d 797, 799 (D.C. 1963) (footnote omitted). Ultimately, however, there is no set formula for determining when dismissal is warranted because the inquiry is highly fact-specific. See Gulf Oil, supra, 330 U.S. at 508 ("wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy").

At issue here is whether the dismissal of Ms. Ussery's complaint on forum non conveniens grounds was an abuse of discretion when the only contacts between the District of Columbia and this litigation are the fact that Ms. Ussery works here and the fact that Kaiser is incorporated here. For two reasons, we find no abuse of discretion. First, the fact that Ms. Ussery is employed in the District of Columbia carries very little weight because there is no connection between her injuries and her work or workplace. Second, because some of the potential co-defendants are not amenable to suit in the District, additional litigation in Maryland would almost certainly be necessary before Ms. Ussery's claim could be finally resolved. Finally, we hold that Kaiser-Georgetown Community Health Plan, Inc. v. Stutsman, 491 A.2d 502 (D.C. 1985), on which Ms. Ussery places great reliance, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.