ELLEN SEGAL HUVELLE, 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.
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
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 consortium for 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.)
Under District law, the statute of limitations for medical malpractice and informed consent claims is three years.
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, Arthur R. Miller & Mary Kay Kane, 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, 125 S.Ct. 2562, 162 L.Ed.2d 582 (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, 13 Ariz.App. 460, 477 P.2d 746, 750 (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, 611 N.Y.S.2d 232 (N.Y.App.Div.1994) (same); Moore v. Baker, 989 F.2d 1129, 1132 (11th
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., Wagner, 768 A.2d at 557; Neeriemer, 477 P.2d at 749.
The Court prefers the latter approach as it recognizes that defendants in these cases are, as a practical matter, on notice of plaintiffs' new informed consent claims even if the original complaints did not allege the specific facts of the claims. Here, defendants knew from the original complaint that plaintiffs sought to recover damages for injuries caused by defendants' medical treatment of Mrs. Hartley. (Compl. at 1.) "Reasonably prudent" defendants would expect that plaintiffs might assert other theories of recovery for those injuries, including that Mrs. Hartley did not give informed consent to the surgery that caused them. Wagner, 768 A.2d at 557 (quoting Wright, et al., supra § 1497 (2d ed. 1990)). Indeed, "[w]hen a suit is filed ... defendant knows that the whole transaction described in it will be fully sifted, by amendment if need be, and that the form of the action or the relief prayed or the law relied on will not be confined to their first statement." Barthel v. Stamm, 145 F.2d 487, 491 (5th Cir.1944); see also Zagurski v. American Tobacco Co., 44 F.R.D. 440, 443 (D.Conn.1967) (a claim for negligent failure to warn about the dangers of cigarette smoking related back to claims of negligent manufacture and breach of implied warranty of fitness because defendant had notice from original complaint that plaintiff was trying to enforce a claim for damages sustained from smoking [defendant's] cigarettes, and "[i]t is not unreasonable to require [defendant] to anticipate all theories of recovery and prepare its defense accordingly").
Given that the original complaint should have put defendants on notice of plaintiffs' informed consent claim, relation back is not precluded by the fact that plaintiffs will have to prove different facts to recover on this claim. Such a reading of Rule 15(c)(1)(B) would "prohibit relation back even where plaintiff alleged an additional specific act of negligence during the operation itself, unless the newly alleged act was related to the previously alleged specific acts." Neeriemer, 477 P.2d at 749. Rather, notice is the issue underlying the Rule 15(c)(1)(B) inquiry. Meijer, 533 F.3d at 866. Therefore, the Court concludes that plaintiffs' informed consent claim relates back to the original complaint and it will deny defendants' Motion to Dismiss this claim.
The Court also finds that plaintiff's newly added medical malpractice claim based on Dr. Dombrowski's post-surgery prescription of steroidal medication relates back to the original complaint. That complaint specifically alleged that Dr. Dombrowski had prescribed steroidal medication to treat Mrs. Hartley's post-operative paralysis and numbness. (Compl. ¶ 6.) The Amended Complaint merely asserts a new claim for malpractice based on that conduct. This is precisely the sort of amendment contemplated by Rule 15(c), which provides for relation back where the amended pleading asserts
Dr. Dombrowski and Dombrowski, PC have moved to dismiss plaintiffs' complaint because plaintiffs failed to comply with the pre-filing requirements for medical malpractice claims set forth in Maryland's Act. (Dombrowski Mot. to Dismiss at 1). Maryland's Act provides that as a precondition to filing suit, medical malpractice claims alleging damages in excess of a specified jurisdictional amount (i.e., $30,000)
When determining the applicable law in a diversity case, a federal court applies the choice of law rules of the forum state. Bledsoe v. Crowley, 849 F.2d 639, 641 (D.C.Cir.1988) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). The District uses "governmental interest analysis," which requires a court to evaluate the governmental policies underlying the applicable conflicting laws, and determine which jurisdiction's policies would be most advanced by having its law applied to the facts of the case under review. Id. This inquiry includes consideration of the following factors from the Restatement (Second) of Conflict of Laws § 145:(1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (4) the place where the relationship is centered. Jaffe v. Pallotta TeamWorks, 374 F.3d 1223, 1227 (D.C.Cir.2004). Finally, choice of law analysis is performed for each issue adjudicated, therefore a different law can apply to different issues. Id.
The governmental policies underlying the malpractice laws in Maryland and in the District differ significantly. Maryland's Act is aimed at reducing the cost of malpractice insurance and overall health care costs for Maryland residents. Specifically, in making arbitration a precondition to filing suit, "[t]he goal ... was to establish a mechanism to screen malpractice claims prior to the filing of suit.... [T]his would reduce the cost of defense by ferreting out unmeritorious claims which, in turn, would lower the cost of malpractice insurance and, potentially, overall health care costs." Group Health Assoc. v. Blumenthal, 295 Md. 104, 453 A.2d 1198, 1204 (1983) (citation omitted). Similarly, the purpose behind capping non-economic damages was to "`assure the availability of sufficient liability insurance,
Plaintiffs claim that Dr. Dombrowski and Dombrowski, PC failed to timely advise Mrs. Hartley of the risks of having a spinal cord modulator implanted in her lumbar area, and that she would not have undergone the procedure had she been so advised. (Am. Compl. ¶¶ 22-24.) Both Maryland and the District have an interest in applying their laws to this claim because these defendants do business in both jurisdictions. Thus, large malpractice liability would affect insurance and health care costs in Maryland, while a cap on damages would prevent the District from holding its practitioners fully liable for their negligence. As both jurisdictions' policies are implicated, the Court turns to the other choice of law factors.
The negligent conduct at issue occurred in both the District and Maryland. In the District, Dr. Dombrowski failed to inform Mrs. Hartley of the risks of implantation at their pre-operation consultations, including the one at which Mrs. Hartley agreed to have the modulator permanently implanted. (Am. Compl. ¶¶ 8-9.) Nor did he adequately disclose these risks on the day of the surgery, which took place in Maryland. (Am. Compl. ¶ 10.) Plaintiffs' injuries were suffered predominantly in Pennsylvania, where plaintiffs reside.
In sum, governmental interest analysis does not favor either Maryland or the District. Where the interests of both jurisdictions are equally weighty, the law of the forum state shall apply. Stutsman, 491 A.2d at 509 n. 10 (noting that the forum state's interest in the fair and efficient administration of justice together with the saving that accrue to its judicial system when its judges apply law with which they are familiar tilt the balance in favor of the forum state when the interests of both jurisdictions are equally weighty). Thus, District law shall apply to plaintiffs' informed consent claim.
Plaintiffs claim that Dr. Dombrowski and Dombrowski, PC committed medical malpractice while implanting the spinal cord modulator. (Am. Compl. ¶¶ 26-28.) For the reasons explained above, both Maryland and the District have an interest in applying their laws to this claim. And, as above, the place of the injury, the localities of the parties, and the center of the relationship do not favor either jurisdiction. However, the negligent conduct underlying this claim occurred entirely in Maryland, as that is where the surgery took place.
Plaintiffs claim that under the doctrine of res ipsa loquitur, all three defendants were either individually or collectively negligent during the device implantation, thereby causing Mrs. Hartley's injuries. (Am. Compl. ¶¶ 36-40.) Again, both Maryland and the District's policy interests are implicated by this claim. But with respect to defendant MASC, Maryland's interest clearly outweighs the District's, as MASC is a Maryland corporation that conducts business in Maryland (Mem. P. & A. in Supp. of Def. MASC's Mot. to Dismiss at 2), and therefore, the effects of large malpractice liability would be felt
The analysis of the four Restatement factors is similar to the Restatement analysis above, with the localities of the parties more strongly favoring Maryland due to MASC. Thus, the Court finds that Maryland law applies to plaintiffs' res ipsa loquitur claim.
Plaintiffs claim that MASC committed medical malpractice by discharging Mrs. Hartley after the operation without first seeking physician approval. (Am. Compl. ¶¶ 33-35.) Maryland clearly has the greater interest in this claim as it concerns a Maryland corporation, the negligent conduct occurred in Maryland, the injury was suffered in Pennsylvania and arguably also in Maryland (see supra note 6), and the parties' localities are in Maryland and Pennsylvania. Thus, Maryland law applies to this claim.
Plaintiffs allege that Dr. Dombrowski and Dombrowski, PC committed medical malpractice by prescribing Mrs. Hartley steroidal medication in response to her complaints of numbness and paralysis post-operation. (Am. Compl. ¶¶ 29-32.) The choice of law analysis for this claim is the same as for the informed consent claim against these defendants, except that here, the negligent conduct occurred in the District. Thus, this "dominant interest" tips the scales in favor of the District, and District law applies to this claim. Bledsoe, 849 F.2d at 643 (quoting Biscoe, 738 F.2d at 1361).
Finally, plaintiffs allege that all three defendants are liable for Mr. Hartley's loss of consortium due to Mrs. Hartley's condition. (Am. Compl. ¶¶ 41-42.) For loss of consortium claims, the District applies the law of the state where the marriage is domiciled. Long v. Sears Roebuck & Co., 877 F.Supp. 8, 13 (D.D.C. 1995) (citing Stutsman v. Kaiser Foundation Health Plan, 546 A.2d 367 (D.C. 1988)); Parnigoni v. St. Columba's Nursery School, 681 F.Supp.2d 1, 13 (D.D.C. 2010); see also Felch v. Air Fla., Inc., 562 F.Supp. 383, 386 (D.D.C.1983) (noting that under governmental interest analysis, an action for loss of consortium is typically governed by the law of the state of marital domicile rather than the law of the state where the wrong occurred). Thus, plaintiffs' loss of consortium claim is governed by Pennsylvania law, as that is where plaintiffs' marriage is domiciled and the injury to the marital relationship is suffered. See Long, 877 F.Supp. at 13.
The Court has found that Maryland law applies to three of plaintiffs' six
Dr. Dombrowski and Dombrowski, PC have 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.) This statute allows a district court to transfer a case to another district where the case might have been brought "[f]or the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). In deciding whether to transfer, a court is to consider several private and public interest factors. The private interest factors include (1) the plaintiff's choice of forum, (2) the defendant's choice of forum, (3) where the claim arose, (4) the convenience of the parties, (5) the convenience of the witnesses, particularly if important witnesses may actually be unavailable to give live trial testimony in one of the districts, and (6) the ease of access to sources of proof. Montgomery v. STG Intern., Inc., 532 F.Supp.2d 29, 32-34 (D.D.C.2008). The public interest factors include (1) the transferee's familiarity with the governing laws, (2) the relative congestion of each court, and (3) the local interest in deciding local controversies at home. Id.
Given the proximity of Maryland to the District, public, rather than private, interest factors predominate. See Medlantic Long Term Care Corp. v. Smith, 791 A.2d 25, 31 (D.C.2002) ("Where the plaintiff's choice of forum is between the District of Columbia and one of the counties in the Washington, D.C. metropolitan area... the public interest factors predominate for the obvious reason that the relative
As all claims against MASC have been dismissed, the Court will deny MASC's Motion to Dismiss for lack of personal jurisdiction as moot.
The Court will grant plaintiffs' Motion to Amend and it will grant in part Dr. Dombrowski and Dombrowski, PC's Motion to Dismiss. As a result, all claims against MASC shall be dismissed. The remaining claims against Dr. Dombrowski and Dombrowski, PC for informed consent, medical malpractice for the post-surgery prescription of steroidal medication, and loss of consortium shall remain in this Court, which will apply District law to the informed consent and medical malpractice claims, and Pennsylvania law to the loss of consortium claim.
