The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiffs Jeanetta and James Hartley originally sued defendants John Dombrowski, M.D. ("Dr. Dombrowski"), John Dombrowski, M.D., PC ("Dombrowski, PC"), and Massachusetts Avenue Surgery Center, LLC ("MASC"), for medical malpractice as a result of the allegedly negligent implantation of a spinal cord modulator in Mrs. Hartley's lumbar area when she was a patient at MASC on March 5, 2007.*fn1 The motions before the Court are (1) plaintiffs' Motion to Amend the Complaint to add informed consent and post-surgery malpractice claims; (2) Dr. Dombrowski and Dombrowski, PC's Motion to Dismiss for failure to comply with Maryland's statutory pre-filing requirements for malpractice claims; (3) Dr. Dombrowski and Dombrowski, PC's Motion to Transfer pursuant to 28 U.S.C. § 1404(a); and (4) MASC's Motion to Dismiss for lack of personal jurisdiction. As explained herein, the Court will grant plaintiffs' Motion to Amend and grant in part Dr. Dombrowski and Dombrowski, PC's Motion to Dismiss. It will deny Dr. Dombrowski and Dombrowski, PC's Motion to Transfer and deny as moot MASC's Motion to Dismiss.
Plaintiffs, residents of Pennsylvania, allege that Mrs. Hartley received negligent medical treatment from Dr. Dombrowski, a physician licensed in Maryland and the District of Columbia; Dombrowski, PC, a professional corporation doing business in the District; and MASC, a Maryland corporation that does business in Maryland and is owned by physicians practicing in Maryland, Virginia, and the District. (Amended Complaint ["Am. Compl."] at 2.) According to plaintiffs, Mrs. Hartley was referred to Dr. Dombrowski by her pain management physician as a candidate for implantation of a spinal cord modulator to treat her chronic pain. (Id. ¶ 1.) After being informed that the procedure was low risk, Mrs. Hartley agreed to have the modulator temporarily implanted in her lumbar area for a trial period. (Id. ¶ 2.) Dr. Dombrowski scheduled the procedure to occur at MASC, a surgery center that he had an ownership interest in, without offering Mrs. Hartley any alternative locations. (Id. ¶ 4.) The temporary modulator was implanted on January 23, 2007, but it failed to reduce Mrs. Hartley's pain. (Id. ¶ 5.) On January 31, 2007, Mrs. Hartley met with Dr. Dombrowski at his District office, where he adjusted the device in hopes of improving its pain management. (Id. ¶ 6.) These adjustments were not effective, and Mrs. Hartley repeatedly telephoned Dr. Dombrowski's office to tell him so. However, he assured her that the device was safe and effective, and thus, Mrs. Hartley agreed to have it permanently implanted. (Id. ¶ 8.)
On March 5, 2007, Dr. Dombrowski implanted a permanent spinal cord modulator in Mrs. Hartley's lumbar area. (Complaint ["Compl."] ¶ 1.) The operation took place in Bethesda, Maryland at MASC and was performed with the assistance of MASC employees. (Id.) Following the operation, Mrs. Hartley complained of difficulty walking and pain in her back and lower extremities. (Id. ¶ 2.) Nevertheless, Dr. Dombrowski did not attempt to diagnose her ailments, and MASC employees discharged her without alerting any physicians to her condition or obtaining physician approval. (Id. ¶¶ 3-4, 14.)
The following day, plaintiffs telephoned Dr. Dombrowski's office to inform him that Mrs. Hartley could not lift her left foot and was numb in her buttocks, reproductive, and perineal areas. (Compl. ¶ 6.) In response, Dr. Dombrowski prescribed a steroidal medication, but it did not result in any improvement. (Id. ¶¶ 6-7.) Plaintiffs then conferred with physicians in Pennsylvania, one of whom telephoned Dr. Dombrowski on March 12, 2007, to discuss Mrs. Hartley's condition. Two days after that conversation, Dr. Dombrowski removed the spinal cord modulator. (Id. ¶¶ 7-9.) However, even after the device was removed, the neurological damage to Mrs. Hartley's lumbar area and lower extremities persisted. Mrs. Hartley was diagnosed with permanent neurological damage in those areas. (Id. ¶¶ 10-11.)
On March 3, 2010, plaintiffs sued the three defendants for medical malpractice, res ipsa loquitur, and loss of consortiumfor negligently operating on and discharging Mrs. Hartley. (Compl. ¶¶ 12-22.) In response, Dr. Dombrowski and Dombrowski, PC have moved to dismiss the complaint because plaintiffs had not complied with the pre-filing requirements set forth in Maryland's Health Care Malpractice Claims Act, Md. Code Ann., Cts. & Jud. Proc. §§ 3-2A-01 to 09 ("Maryland's Act"). (Defs. Dr. Dombrowski and Dombrowski, PC's Mot. to Dismiss ["Dombrowski Mot. to Dismiss"] at 1.) Plaintiffs oppose this motion, or, in the alternative, they request that the action be stayed for 150 days while plaintiffs complete these pre-filing requirements. (Pls.' Mem. in Opp'n. to Dombrowski Mot. to Dismiss ["Pls.' Opp'n."] at 7.) Defendants have also moved to transfer the case to the Southern Division of the United States District Court for the District of Maryland pursuant to 28 U.S.C. § 1404(a). (Defs. Dr. Dombrowski and Dombrowski, PC's Mot. to Transfer at 1.) Finally, defendant MASC has moved to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). (Mem. P. & A. in Supp. of Def. MASC's Mot. to Dismiss at 1.)
On July 21, 2010, plaintiffs moved to amend their original complaint. Plaintiffs sought to add a claim against Dr. Dombrowski and Dombrowski, PC for lack of informed consent. (Am. Compl. ¶¶ 22-24.) In support of this claim, plaintiffs' Amended Complaint alleges that Dr. Dombrowski never informed Mrs. Hartley that the procedure could leave her lower extremities paralyzed, and that the only warnings she received were in the Informed Consent Form that was given to her on the day of the surgery along with numerous other documents. (Id. ¶¶ 9-10.) Plaintiffs also sought to add a claim for post-surgical malpractice against Dr. Dombrowski and Dombrowski, PC for prescribing steroidal medication to treat Mrs. Hartley's numbness and paralysis. (Id. ¶¶ 29-31.)*fn2 Dr. Dombrowski and Dombrowski, PC oppose plaintiffs' Motion to Amend, arguing that the statute of limitations for these new claims has run, and the claims do not relate back to the filing of the original Complaint. (Defs. Dr. Dombrowski and Dombrowski, PC's Opp'n. to Pls.' Mot. to Amend ["Dombrowski Opp'n. to Pls.' Mot. to Amend"] ¶¶ 3-8.) The Court will now turn to each of these motions.
Under District law, the statute of limitations for medical malpractice and informed consent claims is three years.*fn3 D.C. Code § 12-301(8). As more than three years have lapsed since the surgery took place, plaintiff's proposed informed consent claim is time barred. Thus, the Court must evaluate whether the claim relates back to plaintiffs' original complaint, which alleged negligence in operating on Mrs. Hartley and discharging her from the MASC.
An amendment to a complaint that raises otherwise time barred claims may yet be timely if the amendment "relates back" to the date of the original complaint under Federal Rule of Civil Procedure 15(c). Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009). Rule 15(c)(1)(B) provides that an amendment relates back when it "asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Fed. R. Civ. P. 15(c)(1)(B). This is "not simply an identity of transaction test." 6A Charles Alan Wright et al., Fed. Prac. & Proc. Civ. § 1497 (3d ed. 2010). Rather, the underlying inquiry is whether the original complaint put defendant on notice of the basis for liability that would be asserted in the amended complaint. Meijer, Inc. v. Biovail Corp.,533 F.3d 857, 866 (D.C. Cir. 2008). An amended claim does not relate back when it "'asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.'" Jones, 557 F.3d at 674 (quoting Mayle v. Felix, 545 U.S. 644, 650 (2005)). But "the fact that an amendment changes the legal theory on which the action initially was brought is of no consequence if the factual situation upon which the action depends remains the same and has been brought to defendant's attention by the original pleading." Wright et al., supra § 1497.
Other courts that have examined whether an informed consent claim relates back to claims of surgical negligence are split on the issue. See, e.g., Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546, 558 (D.C. 2001) (informed consent claim related back to claim of negligence during surgery); Azarbal v. Medical Ctr. of Del., Inc., 724 F. Supp. 279, 283 (D. Del. 1989) (same); Neeriemer v. Superior Court of Maricopa County, 477 P.2d 746, 750 (Ariz. Ct. App. 1970) (same); Bigay v. Garvey, 575 N.W.2d 107, 110 (Minn. 1998) (negligent nondisclosure claim did not relate back to claim of negligent care during surgery); Jolly v. Russell, 203 A.D.2d 527, 529 (N.Y. App. Div. 1994) (same); Moore v. Baker, 989 F.2d 1129, 1132 (11th Cir. 1993) (claim for surgical negligence did not relate back to informed consent claim). Those that do not find relation back tend to apply the reasoning of Moore, which held that a claim that defendant negligently performed brain surgery did not relate back to a claim that plaintiff did not give informed consent to that surgery, as the conduct underlying the claims "occurred at different times and involved separate and distinct conduct," and plaintiff would have to prove different facts to recover under each claim. Id.
By contrast, those courts that find relation back generally view the surgery as a whole as the "occurrence" out of which both the malpractice and informed consent claims arose. See, e.g., ...