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Etchebarne-Bourdin v. Radice

June 01, 2000

ALICIA M. ETCHEBARNE-BOURDIN, ET AL., APPELLANTS,
v.
LUIS C. RADICE, M.D., ET AL., APPELLEES.



Before Steadman, Ruiz and Reid, Associate Judges.

The opinion of the court was delivered by: Ruiz, Associate Judge

Appeals from the Superior Court of the District of Columbia (Hon. Noel A. Kramer, Trial Judge)

Argued January 26, 1998

Opinion for the court by Associate Judge Ruiz.

Concurring opinion by Associate Judge Steadman at p. ___.

This appeal raises the issue of the trial court's jurisdiction pursuant to D.C. Code §13-423 (a)(1) (1995 Repl.), which provides personal jurisdiction over a person who "transacts any business in the District of Columbia," and section 13-423 (a)(4), which provides personal jurisdiction over a person "causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if [the person] regularly does or solicits business, [or] engages in any other persistent course of conduct . . . in the District of Columbia." To assert personal jurisdiction under these subsections, the claim asserted must "aris[e] from" either the "transact[ion] [of] business" or a "persistent course of conduct" in the District of Columbia. See D.C. Code §13-423 (b) ("When jurisdiction over a person is based solely upon [D.C. Code § 13-423 (a)], only a claim for relief arising from acts enumerated in this section may be asserted against him.")

In this case against two individual doctors who practice in Virginia and their medical practice firm, a Virginia professional corporation, the trial court concluded that whereas the individual doctors engaged in a "persistent course of conduct" in the District of Columbia, the court lacked personal jurisdiction because they did not "cause[] tortious injury" here as required by section 13-423 (a)(4). The trial court also concluded that whereas the individual doctors "transacted business" in the District, the plaintiff's claims did not "arise from" the defendants' business transactions in the District. We remand the case for the trial court's reconsideration of the issues in light of our recent opinion in Shoppers Food Warehouse v. Moreno, 746 A.2d 320 (D.C. 2000).

I.

Plaintiffs-appellants, Alicia Etchebarne-Bourdin and Mauricio Bourdin, Baby Girl Bourdin ("Stephanie Bourdin"), and the Estate of Stephanie Bourdin, filed suit against defendants-appellees, Dr. Luis Radice and Dr. Edward Gahres and Gahres and Radice, M.D.s, Ltd., a Virginia professional corporation ("G & R"). Their complaint alleges two counts. In Count I, the parents, as the appointed legal representatives of the child's estate, bring a survival action under D.C. Code § 12-101 (1995 Repl.), alleging that the negligent acts of defendants caused the death en ventre sa mere of Stephanie, who otherwise would have been born a healthy, normal and productive child. Count I claims damages in the amount of $12 million as the present value of the amount that Stephanie would have accumulated if she had lived out her life expectancy of 72 years, and $3500 in medical and funeral expenses charged to the estate.

Count II is an action for medical malpractice in which plaintiffs allege that defendants breached their duty of care by failing to inform Ms. Bourdin, after she notified them that she had been in a car accident, that she should be monitored for signs of fetomaternal injury. The mother claims damages in the amount of $4 million for injuries she sustained as a result of the defendants' negligent acts. The father demands $2 million for what is, in essence, a claim for the loss of his wife's consortium.

In response to the plaintiffs' complaint, defendants filed a motion to dismiss for lack of jurisdiction, or, in the alternative, for forum non conveniens. After extensive pleadings and an oral argument on the motion, the trial court issued a 60-page Summary Judgment Order granting summary judgment to all the defendants solely on the ground of lack of personal jurisdiction. *fn1 Shortly after the court issued its Summary Judgment Order, defendants' counsel suggested to the trial court that the proper disposition was dismissal, not summary judgment. The trial court agreed, and subsequently issued a 62-page Amended Order, dismissing the complaint for lack of personal jurisdiction. The parties agree that the Amended Order is substantially identical to the prior Summary Judgment Order, with the exception of one additional footnote (note seven) and a revision of its discussion of the plaintiff's burden of proof. Appellants do not challenge the procedural modification of the order and note that, in effect, this court now has before it a single appeal from the trial court's final Amended Order dismissing the complaint for lack of personal jurisdiction over the defendants.

II.

The facts of the underlying case related to the question of personal jurisdiction are, for the most part, undisputed. The parties disagree over the legal consequences of those facts with respect to personal jurisdiction.

Ms. Bourdin was referred to Dr. Radice by her sister, who previously had been a patient of Dr. Radice when his practice was located in the District of Columbia. At the time of her first appointment with Dr. Radice on May 5, 1990, she was seven-weeks pregnant, with a due date of December 5, 1990. *fn2 Ms. Bourdin subsequently kept regular pre-natal appointments and her pregnancy continued without complications. At noon on October 29, 1990, Ms. Bourdin was the front-seat passenger in a car that was hit from the rear, as she and Mr. Bourdin exited a parking lot on G Street, N.W., in the District of Columbia. As a result of the impact, she was thrown forward with great force. That same day, Ms. Bourdin complained of severe back and neck pains to her co-workers at the headquarters of the International Monetary Fund ("IMF") in the District of Columbia. One of her co-workers, concerned that the pregnancy might be at risk, advised her to contact the doctor. Ms. Bourdin telephoned Dr. Radice from her office in the District to his office in Virginia that same afternoon. She spoke to the office receptionist and informed her that she had been in a car accident and was in pain: her neck and hip hurt, her back was "kind of numb," and she had a headache. According to Ms. Bourdin, as she talked on the phone, the receptionist relayed ...


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