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Etchebarne-Bourdin v. Radice

October 22, 2009

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



Appeal from the Superior Court of the District of Columbia (CA-12359-93) (Hon. Noël Anketell Kramer, Trial Judge).

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

Argued April 4, 2007

Before RUIZ and BLACKBURNE-RIGSBY, Associate Judges,and SCHWELB, Senior Judge.

This case, now before us for a second time, requires us to interpret the District of Columbia's "long-arm" statute, D.C. Code § 13-423 (2001). The issues before us concern two subsections of the statute which authorize District of Columbia courts to exercise jurisdiction over non-resident defendants who "transact[] any business" in the District of Columbia, D.C. Code § 13-423 (a)(l); or who "caus[e] tortious injury in the District of Columbia by an act or omission outside of the District of Columbia if [they] regularly do[] or solicit[] business, engage[] in any other persistent course of conduct, or derive[] substantial revenue from goods used or consumed, or services rendered, in the District of Columbia." Id. at § (a)(4). When the conduct of a defendant satisfies either one of these sections, the court may exercise personal jurisdiction only if "a claim for relief aris[es] from acts enumerated in [the statute]." Id. at § (b). Specifically, we address for the first time whether all of the requirements set out in subsection (a)(4) must be linked to the claim for relief in a particular case, to permit the exercise of personal jurisdiction. We hold that the nexus requirement under subsection (b), as applied to the basis for jurisdiction set out in subsection (a)(4), does not require that the claim arise from what we consider to be independent "plus factors." These factors (e.g., a "persistent course of conduct" in the District of Columbia), are required for the purpose of ensuring that exercising jurisdiction over a defendant where the claim for relief is based on conduct outside the forum comports with due process. Because the trial court thought otherwise, and on the basis that there was no nexus between the defendant's persistent course of conduct in the District and the medical malpractice action, dismissed the complaint for lack of jurisdiction over appellees, we reverse the judgment and remand the case for further proceedings.

I. Factual Background

This action arises from a complaint for medical malpractice filed by appellants, Alicia Etchebarne-Bourdin and, her husband, Mauricio Bourdin. They claim that appellees, Drs. Luis Radice and Edward Gahres, and their practice, Gahres and Radice, M.D.s, Ltd., provided negligent medical care to Ms. Etchebarne-Bourdin that resulted in the death en ventre sa mere of her unborn child.

The facts of the case relevant to the question of jurisdiction are, for the most part, undisputed. At the time of the complaint, appellants were both domiciled in Virginia, and worked at the International Monetary Fund ("IMF"), located in the District. In 1990, Ms. Etchebarne-Bourdin became Dr. Radice's patient. Although Dr. Radice was listed in a directory of local physicians made available at the IMF Health Center, Ms. EtchebarneBourdin did not consult the directory in choosing Dr. Radice as her physician; rather, she was referred to the doctor by her sister, who had been his patient in the past.

Drs. Radice and Gahres specialized in obstetrics and gynecology and their office was located in Virginia at the time Ms. Etchebarne-Bourdin became their patient. Their practice, Gahres and Radice M.D.s, Ltd., is a Virginia professional corporation. The doctors had maintained a practice in the District of Columbia, from 1970 until 1988, two years before Ms. Etchebarne-Bourdin became their patient. In 1988, the doctors, at the urging of their medical malpractice insurance carrier, closed their office in the District and relinquished their admitting privileges at D.C. hospitals.

Even after they moved their office to Virginia, the doctors maintained ties to the District of Columbia. The doctors are individually licensed in the District as well as in Virginia. They maintained a listing for their office, with their Virginia address, in the District of Columbia Yellow Pages. The doctors regularly attended Grand Rounds of George Washington University Hospital -- more than once a month -- and were members and attended meetings of the Washington Gynecological Society, which met in the District of Columbia approximately eight times a year.*fn1 The trial court found that 5.5% of the doctors' patients were residents of the District.*fn2

On October 29, 1990, while driving in the IMF parking lot in the District, appellants were "rear-ended" in an automobile collision. Ms. Etchebarne-Bourdin was then seven months pregnant. Later that day, Ms. Etchebarne-Bourdin telephoned Dr. Radice's office in Virginia from her office at the IMF in the District. She explained what had happened to the receptionist who answered the telephone; the receptionist advised her to keep her regular appointment on November 2nd, four days later.*fn3

According to appellants' complaint, at her next two appointments, on November 2nd and November 9th, Ms. Etchebarne-Bourdin complained to Dr. Radice that she continued to feel general discomfort and expressed concern of "decreased intrauterine movement." No tests were conducted at either visit, but at both times she was assured that nothing was wrong. On November 9th, Dr. Gahres ascribed Ms. Etchebarne-Bourdin's complaints to the fact that "you women all get crazy during your last weeks of pregnancy."

On November 16, 1990, Ms. Etchebarne-Bourdin felt pain and had an unusual vaginal discharge. She immediately went to appellees' office for an examination. During the examination, Dr. Radice could not detect any fetal movement. He rushed her to Alexandria Hospital, where he delivered a still-born baby.

Appellants filed a complaint in D.C. Superior Court for medical malpractice. They alleged that appellees breached the standard of care by failing to advise Ms. EtchebarneBourdin, after she notified them that she had been in a car accident, that she should be examined immediately for signs of fetomaternal injury and that they failed to do so during her office visits. As appointed legal representatives of the child's estate, appellants brought a survival action under D.C. Code § 12-101 (1981), seeking damages in the amount of $12,003,500, reflecting $12 million for the estate of the child had she lived her expected life span, and $3,500 for medical and funeral expense. Appellants also claimed on their own behalf. In connection with that claim, appellants sought combined damages of $6 million: $4 million for Ms. Etchebarne-Bourdin's physical injury, emotional distress, and loss of wages, and $2 million for her husband's loss of consortium. Appellees moved to dismiss for lack of jurisdiction under Superior Court Civil Rule 12 (b)(2), or, in the alternative, on the grounds of forum non conveniens. The trial court granted appellees' motion to dismiss for lack of personal jurisdiction, and did not rule on the alternative motion.

The trial court concluded that it did not have personal jurisdiction over appellees, and granted their motion to dismiss. On appeal, we reversed and remanded the case for renewed consideration in light of our then-recent decision in Shoppers Food Warehouse v. Moreno, 746 A.2d 320 (D.C. 2000) (en banc), cert. denied, 530 U.S. 1270 (2000). See EtchebarneBourdin v. Radice, 754 A.2d 322 (D.C. 2000) ("Etchebarne-Bourdin I").

On remand, the trial court again dismissed the suit for lack of personal jurisdiction, determining that appellees had neither transacted business in the District of Columbia within the meaning of subsection (a)(1) of the long-arm statute, nor did their "persistent course of conduct" in the District sufficiently relate to appellant's claimed injury, as the trial court interpreted subsection (a)(4) to require. We agree with the trial court's analysis that appellees did not "transact business" under D.C. Code § 13-423 (a)(1), but conclude that the trial court erred in its analysis of the nexus required by subsection (a)(4). We, therefore, reverse and remand the case for further proceedings.

II. Analysis

When reviewing an order of dismissal for lack of personal jurisdiction where there has not been an evidentiary hearing, the court "must resolve in . . . favor of [the party asserting jurisdiction] all disputes concerning relevant facts presented in the record." Reuber v. United States, 242 U.S. App. D.C. 370, 383, 750 F.2d 1039, 1052 (1985) (quoting Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir. 1983)). See Super Ct. Civ. R. 12 (c) (providing that motion for judgment on the pleadings is converted to motion for summary judgment if "matters outside pleadings are presented to and not excluded by" the trial court). We review de novo the trial ...


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