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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, has no bearing on this case because Stutsman has nothing to do with forum non conveniens; it is solely and explicitly a choice of law case and cannot be read as stating any rules applicable to forum non conveniens issues.

A. Appellant's Place of Employment

The fact that a plaintiff is employed in the District of Columbia, insofar as it is relevant to a motion to dismiss on the ground of forum non conveniens, carries very little weight when it is not related to the alleged injury. This point was made clear in Herskovitz v. Garmong, supra, where we said that "appellant's employment in the District, although 'a factor' in the equation, is not one of 'overriding significance.'" 609 A.2d at 1131 (citation omitted). *fn4 What we said in Herskovitz is pertinent here. All of the alleged malpractice occurred in Maryland, where Ms. Ussery elected to receive -- and actually did receive -- her medical care from Kaiser. The injuries that Ms. Ussery alleges were in no way related to her employment in the District, except for the fact that she enrolled in Kaiser's health plan through her employer.

When confronted with a similar set of facts, the court in Ott v. Kaiser-Georgetown Community Health Plan, Inc., 689 F. Supp. 9 (D.D.C. 1988), concluded that the plaintiff's complaint should be dismissed. Ott was a medical malpractice action brought in the District of Columbia by Maryland residents for an alleged injury that occurred in Maryland. In Ott, as in this case, "the sole connections this action has with the District of Columbia are that Kaiser is incorporated in the District of Columbia and Mr. Ott, who works in the District of Columbia, receives Kaiser medical insurance for himself and his family as an employment benefit." Id. at 10. The court held that these ties established "only the most tenuous connections with the District of Columbia," connections that were "not sufficient to cause [the District of Columbia] to be the appropriate forum in which to maintain this action." Id. at 12 (citing Gulf Oil, supra, 330 U.S. at 506-507). Although the District had an interest in protecting a member of its work force, the court concluded that Maryland's interest in protecting its residents was greater and more compelling. Id. at 13 (citing Allstate Insurance Co. v. Hague, 449 U.S. 302, 314, 66 L. Ed. 2d 521, 101 S. Ct. 633 (1981)).

We agree with both the reasoning and the result in Ott, and we adopt its holding here. In both this case and Ott, "the primary relationship between the parties to the instant litigation centered on Maryland, where [the plaintiffs] routinely received health care; [the plaintiffs'] status as third-party beneficiaries of a contract hardly dominated their more direct relationship as Kaiser patients." 689 F. Supp. at 14. Because Ms. Ussery's alleged injuries were not connected with her employment, the fact that she was a member of the District of Columbia's work force was not sufficient to defeat Kaiser's motion to dismiss on the ground of forum non conveniens.

B. Lack of Jurisdiction Over All Potential Defendants

Another important factor in the trial court's assessment of the case was the fact that some of the potential defendants are beyond the jurisdictional reach of the District of Columbia courts. Kaiser asserts -- and Ms. Ussery concedes -- that the District of Columbia courts lack jurisdiction over both Southern Maryland Hospital, where Ms. Ussery's emergency hysterectomy was performed, and the doctors who performed the hysterectomy. Ms. Ussery suggests that Kaiser can overcome this jurisdictional hurdle by filing a separate suit for contribution or indemnity in Maryland. We see no reason whatever to require Kaiser to do so, however, when there is a readily available alternative remedy: dismissal of the instant action so that all the potential claims, cross-claims, and third-party claims can be resolved in one proceeding.

Allowing two substantially identical lawsuits to proceed on parallel tracks would place an unjustifiable burden on Kaiser. In comparable circumstances, the Supreme Court concluded in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 259, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981), that "it would be far more convenient . . . to resolve all claims in one trial." We said essentially the same thing in Crown Oil & Wax Co. v. Safeco Insurance Co., 429 A.2d 1376, 1381 (D.C. 1981): "Our regard for the convenience of the parties to this lawsuit compels the Conclusion that the matter should be tried in one action in one forum." See also Guevara v. Reed, 598 A.2d 1157, 1160 (D.C. 1991) (plaintiff's choice of District of Columbia as a forum "must . . . founder because [the District of Columbia court] lacks personal jurisdiction over one of the two defendants"). In the Ott case, although the court found this "judicial efficiency" factor "not dispositive in and of itself," it ruled nevertheless that it could not "justify the double expenditure of time necessitated by requiring two Judges and two juries to try this case." 689 F. Supp. at 14. Guided by these and similar precedents, we cannot discern any abuse of discretion on the record before us. We think the trial court was plainly correct in reasoning that separate civil actions in the District of Columbia and Maryland would be seriously inconvenient when all the likely defendants were amenable to suit only in the Maryland courts.


What we have said thus far could surely have been said in an unpublished memorandum opinion, for there is nothing novel or surprising in it. We write for publication, however, in order to make clear that our Stutsman decision, on which Ms. Ussery relies heavily, is not applicable at all to a forum non conveniens claim. Ms. Ussery maintains that, regardless of the case law we have cited so far, Stutsman required the trial court to deny Kaiser's motion to dismiss because her employment in the District and Kaiser's incorporation in the District establish that the parties' relationship was "centered in the District." Stutsman, supra, 491 A.2d at 508. In so contending, she plainly misreads Stutsman.

In Stutsman a health maintenance organization and a group of doctors who had been sued for medical malpractice argued on appeal that the trial court had erred in denying their motion to dismiss based "on several grounds, each premised on their contention that Virginia law should be applied to this action." Id. at 504. In affirming the trial court's decision, however, this court limited its holding to the "choice-of-law issue," as the very first sentence of the opinion makes clear. Id. Applying well established choice of law rules, we held that "the District of Columbia's law of negligence is the most appropriate rule of decision. . . ." Id. at 511. In so holding, we explicitly refrained from considering the appellants' forum non conveniens claim:

Appellants contend that the applicability of the Malpractice Act makes the courts of the State of Virginia the most appropriate forum for resolution of this controversy. They therefore conclude that this action should have been dismissed without prejudice because it was brought in an "inconvenient" forum. Since we conclude that District of Columbia law should be applied to this case, we need not reach this question.

Id. at 505 (emphasis added); see also id. at 511 n.13 ("in light of our Conclusion [as to choice of law], appellants' forum non conveniens argument needs no further Discussion"). Thus Stutsman resolved a choice of law question, and it did so using choice of law jurisprudence. Were this an appeal involving a choice of law issue, Stutsman might be authoritative. *fn5 But because we address a question of forum non conveniens, Stutsman is inapposite.

Turning once again to the Ott case, we note that the court in Ott found Stutsman inapplicable for the same reason. The court observed that, although it involved similar facts, "Stutsman was not decided on the basis of forum non conveniens only brushes aside the issue of forum non conveniens" by concluding, in part, that its choice of law holding made that issue moot. 689 F. Supp. at 10 n.1. Ott also concluded that Stutsman could not be followed in a forum non conveniens case because its "reasoning directly contradicts earlier District of Columbia Court of Appeals cases that deal with the issue of forum non conveniens. . . . Stutsman must be distinguished as deciding only a choice-of-law issue and not deciding a forum non conveniens issue." Id. at 11 n.1 (citations omitted). We agree. The reasoning of Stutsman, while it may be appropriate in the choice of law context, cannot be applied to a forum non conveniens claim because it is inconsistent with the holdings in such cases as Frost v. Peoples Drug Store, Inc., 327 A.2d 810, 815 (D.C. 1974), and Pitts v. Woodward & Lothrop, 327 A.2d 816, 817-818 (D.C. 1974), cert. denied, 420 U.S. 911, 42 L. Ed. 2d 841, 95 S. Ct. 832 (1975), both cited by the court in Ott. *fn6


Ms. Ussery's other contentions, based on the procedural history of the case, are without merit because the delay of which she complains was not Kaiser's fault. The cases on which she relies *fn7 are distinguishable on their facts. The order dismissing her complaint with prejudice is therefore


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