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Harris v. Omelon

December 3, 2009

THEODORE P. HARRIS, APPELLANT,
v.
JERRY A. OMELON, M.D., APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAM6351-07) (Hon. Natalia M. Combs Greene, Trial Judge).

The opinion of the court was delivered by: Newman, Senior Judge

Argued October 28, 2009

Before RUIZ and OBERLY, Associate Judges, and NEWMAN, Senior Judge.

Concurring opinion by Associate Judge RUIZ at p. 10.

Holding that there was a lack of personal jurisdiction, the trial court dismissed this malpractice claim against a Virginia doctor whose only connection with the District of Columbia shown of record was a single phone call to a D.C. pharmacy to relay a prescription order for a patient. We affirm.

On the morning of September 20, 2004, Harris was at home in Washington, D.C. watching television when he saw an advertisement by The George Washington Medical Center seeking volunteers for a clinical research study on bipolar disorders. Harris called the Center to inquire about volunteering and was told he was not eligible to participate in the study. However, he came away from the phone call with the information that the study concerned the off-label treatment of bipolar disorders using the drug Abilify at a dosage of 15 mg per day. He was told to contact his own doctor concerning the use of the drug for this off-label purpose.

Harris then called Dr. Jerry Omelon, a general practitioner working at McLean Immediate Care in McLean, Virginia. He claimed to have "prior experience with" Dr. Omelon, although the record indicates no details about the nature of this experience. However, Harris does not allege that Dr. Omelon is licensed to practice medicine in the District of Columbia or has ever practiced medicine here. Instead, he is licensed in Virginia and has both his medical practice and his residence in that state. Harris also confirms that Dr. Omelon has never examined or treated him in the District. Subsequently, Dr. Omelon prescribed the drug Abilify for Harris and called in the prescription order to the CVS Pharmacy nearest to Harris' home in D.C.

After taking the prescription, Harris experienced medical complications which led to repeated hospitalizations, including three surgeries and multiple medical interventions. He was subsequently diagnosed with myasthenia gravis, a neuromuscular disorder that may have some connection to the drug Abilify. Harris then brought this action claiming that Dr. Omelon acted improperly in prescribing the drug Abilify and did not adequately inform him of the risks associated with the drug.

The trial court agreed with Dr. Omelon that Harris had not pleaded any facts sufficient to establish that the District of Columbia's long-arm statute or the Due Process Clause of the Fifth Amendment permitted it to exercise personal jurisdiction in this case. Harris requested additional time to file an opposition, which the court stated it would treat as a motion to reconsider. Harris filed his opposition asserting that the use of the "telephone wires to call in a prescription" constituted grounds for personal jurisdiction. The trial court disagreed and issued a final order dismissing the case.

We review the trial court's dismissal for lack of personal jurisdiction de novo. Holder v. Haarmann & Reimer Corp., 779 A.2d 264, 269 (D.C. 2001). The plaintiff bears the burden of proving that the court may establish personal jurisdiction over the defendant. Lott v. Burning Tree Club, Inc., 516 F. Supp. 913, 918 (D.D.C. 1980). In this case, appellant asks us to find personal jurisdiction based solely on a phone call across state borders, a call made not in the process of doing or soliciting business but one made for the convenience of the plaintiff in filling a prescription when there was no other contact shown between the doctor and the District of Columbia. We find that this is not sufficient to create personal jurisdiction over the defendant.

To establish personal jurisdiction for tortious injury under the District of Columbia's long-arm statute requires that the claim arise from the individual:

(1) transacting any business in the District of Columbia;

(2) contracting to supply services in the District of Columbia;

(3) causing tortious injury in the District of Columbia by an act or omission in ...


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