Appeal from the Superior Court of the District of Columbia (CA-6406-98) (Hon. Judith Retchin, Trial Judge)
Before Ruiz and Washington, Associate Judges, and King, Senior
The opinion of the court was delivered by: Ruiz, Associate Judge
Helen Smith, the personal representative of the estate of Elizabeth Ferguson, brought a medical malpractice survival action seeking compensatory and punitive damages alleging that the nursing and medical care provided to Ms. Ferguson while she was a patient at Medlantic Manor in Silver Spring, Maryland, was below the standard of care and proximately caused her death in the District of Columbia. Appellants filed a motion to dismiss on the grounds of forum non conveniens, *fn1 which was denied "for the reasons stated in plaintiff's opposition." Appellants claim that the denial of their motion was an abuse of discretion because the trial court did not consider the interest of the state of Maryland in deciding an action that involves the standard of conduct to be expected of Maryland health care practitioners in treating a patient residing in a Maryland nursing home. Appellants further argue that the complaint should be dismissed because they should not have to defend a lawsuit in the District of Columbia, when the personal representative also filed a wrongful death action in Maryland against them, which involves the same case facts and alleged negligence. We affirm.
Elizabeth Ferguson died at D.C. General Hospital on June 2, 1997. For many years and until her death, she maintained a residence at 1706 T Street, NW, Washington, D.C. During the last year of her life, from July 1, 1996 to May 21, 1997, Ms. Ferguson resided at Medlantic Manor, a nursing home licensed to provide non-acute in-patient care in Silver Spring, Maryland. Appellant Medlantic Long Term Care Corporation ("MLTC"), which operates Medlantic Manor, is authorized to do business in the District of Columbia and operates a nursing home in the District as well as in Maryland. Appellant Medlantic Healthcare Group ("MHCG"), the shareholder and parent company of MLTC, is a Delaware corporation, with its corporate headquarters in the District of Columbia.
The complaint alleges that Ferguson was admitted to Medlantic Manor with a medical history of "a cerebrovascular accident [stroke] with left hemiparesis [paralysis on one side] and mental changes, diabetes mellitis [sugar diabetes], hypertension, and hyperthyroidism." The complaint further alleges she also had "a slight left knee flexure contracture [abnormal permanent shortening or withering of a muscle] and complete range of motion in her other three extremities, and was void of decubitus ulcers [bed sores] or other skin lesions."
On May 22, 1997, after eleven months at Medlantic Manor, Ms. Ferguson was removed from the Maryland Nursing Home. The complaint alleges that, at that time, she had "profound flexion contractures of all four extremities and multiple, large, grade IV decubitus ulcers." Ms. Ferguson died eleven days later in the District of Columbia from septic shock [a severe infection causing drop in blood pressure] and metabolic acidosis [abnormally low bicarbonate in the body through deprivation or loss of fluids (e.g., through diarrhea, vomiting)], secondary to decubitus ulcers.
A petition for probate was filed with the Superior Court for the District of Columbia, and on February 26, 1998, Helen Smith was appointed personal representative of the estate of Elizabeth Ferguson. She filed a wrongful death action on behalf of Ms. Ferguson's two dependent grandchildren in Maryland and this survival action on behalf of the Estate in Superior Court. Analysis
The authority to dismiss a case for forum non conveniens "in the interest of substantial justice" is conferred by statute. See D.C. Code § 13-425 (2001). *fn2 The decision whether to dismiss an action for forum non conveniens is entrusted to the sound discretion of the trial court and will be reversed on appeal only upon a clear showing of abuse of discretion. See Coulibaly v. Malaquias, 728 A.2d 595, 601 (D.C. 1999). *fn3 We have interpreted that standard to mean that "first, we apply `close scrutiny' to the specific factors identified and evaluated by the trial court; once we are satisfied that the trial court took the proper factors into account, we adopt a deferential approach in determining whether the trial court's decision falls within the `broad discretion' committed to it." Smith v. Alder Branch Realty Ltd., 684 A.2d 1284, 1287 (D.C. 1996).
We begin with the proposition that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Coulibaly, 728 A.2d at 601 (quoting Mills v. Aetna Fire Underwriters Ins. Co., 511 A.2d 8, 10 (D.C. 1986); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). Thus, in most cases, a defendant who invokes the doctrine of forum non conveniens bears the burden of demonstrating why dismissal is warranted. See Coulibaly, 728 A.2d at 601. Here, appellants seek to shift the burden to appellee to justify bringing suit in the District of Columbia on the ground that the District is a "clearly inappropriate forum," citing Ott v. Kaiser-Georgetown Cmty. Health Plan, Inc., 689 F. Supp. 9, 11 (D.D.C. 1988) ("plaintiff must show some reasonable justification for bringing suit the inappropriate forum rather than in a forum that has more significant connections with the defendant or the res, act, or event in suit").
We have agreed with the reasoning and result in Ott in Ussery v. Kaiser Found. Health Plan, 647 A.2d 778, 781 (D.C. 1994), but we did not there adopt, and have not adopted, the burden-shifting language cited by appellants. Nor do we now. To the contrary, although we have rejected any per se rule which would prohibit the application of the doctrine of forum non conveniens whenever one of the parties is a District of Columbia resident, see Carr v. Bio-Medical Applications of Wash., Inc., 366 A.2d 1089, 1093 (D.C. 1976) ("[s]uch an immutable rule is unwarranted and would severely undermine the trial court's broad discretion in such matters"), plaintiff's residency in the District is "an extremely significant factor favoring the exercise of jurisdiction by the courts of the District." Jimmerson v. Kaiser Found. Health Plan, 663 A.2d 540, 544 (D.C. 1995). Only where neither party resides in the District and the plaintiff's claim has arisen in another jurisdiction which has more substantial contacts with the cause of action, does the burden normally allocated to the defendant to demonstrate why dismissal is warranted for forum non conveniens shift to the plaintiff. See Neale v. Arshad, 683 A.2d 160, 163 (D.C. 1996); accord Dunkwu v. Neville, 575 A.2d 293, 295 (D.C. 1990); Mills, 511 A.2d at 10-11.
The concept of "residence" in forum non conveniens analysis is used to indicate the nature of the claimant's connection with the forum. In a survival action, the personal representative "has the same standing" as the decedent had "immediately prior to death." D.C. Code § 20-701 (c) (2001). Although at the time of the alleged negligence Ms. Ferguson, the decedent, was temporarily living at a nursing home in Maryland, she died in the District of Columbia and was a domiciliary of the District, as evidenced by the fact that she maintained a residence at 1706 T Street, NW, Washington, D.C., and that the Superior Court appointed a personal representative of her Estate in response to a petition for probate in the District. "[A] domicile once existing continues until another is acquired." Heater v. Heater, 155 A.2d 523, 524 (D.C. 1959). In order for domicile to change, the person must be ...