Cresta v. Neurology Center, P.A., 86-16.

• Decision Date: 12 April 1989
• Docket Number: No. 86-16.,86-16.
• Citation: 557 A.2d 156
• Parties: Gina CRESTA, for herself and as Administratrix for the Estate of Richard Crests, Appellants, v. The NEUROLOGY CENTER, P.A., and the Neurology Center, P.C., and Marvin C. Korengold, and David Satinsky, and Charles M. Citrin, Appellees.
• Court: D.C. Court of Appeals

557 A.2d 156

Gina CRESTA, for herself and as Administratrix for the Estate of Richard Crests, Appellants, v. The NEUROLOGY CENTER, P.A., and the Neurology Center, P.C., and Marvin C. Korengold, and David Satinsky, and Charles M. Citrin, Appellees.

No. 86-16.

District of Columbia Court of Appeals.

Argued February 2, 1988.

Decided April 12, 1989.

Edward L. Genn, Washington, D.C., for appellants.

James P. Salmon, Upper Marlboro, Md., for appellees.

Before ROGERS,¹ Chief Judge, and MACK and FERREN, Associate Judges.

PER CURIAM:

Gina Cresta, party-appellant and administratrix for the estate of the deceased appellant Richard Cresta, contends that the trial court, in its failure to weigh and apply factors of sufficient contacts within this jurisdiction as well as private and public interests, erroneously dismissed the suit against appellees, The Neurology Center, P.A., The Neurology Center, P.C., Marvin C. Korengold, David Satinsky, and Charles M. Citrin on the grounds of forum non conveniens. In particular, appellant argues that appellees did not, on this record, meet the heavy burden of establishing compelling reasons and forum inconvenience to support their motion for dismissal. We agree and reverse.

I

In the fall of 1980, Richard and Gina Crests and their children moved from Massachusetts to the Washington, D.C. area so that Richard could attend George Washington University. According to the Crestas' complaint, on November 26, 1980, while Mr. Crests was in Massachusetts on Thanksgiving vacation, he was struck in the head with a broomstick by another individual. Mr. Crests was initially treated for his injuries at Massachusetts General Hospital; when he returned to the District of Columbia, he received further medical treatment at Georgetown University Hospital. His symptoms, however, persisted, and Mr. Crests sought additional help from the appellee Neurology Center on or about December 17 or 18, 1980. His complaint alleges that the appellees diagnosed his condition as "post-concussion syndrome," advising him that his symptoms would disappear in time. The complaint further asserts that in the ensuing months, when his symptoms did not abate, Mr. Cresta telephoned the appellees on various occasions to inform them of his condition and that they continued to offer similar assurances. In October 1982, twenty-two months after his initial consultation, Neurology Center physicians performed certain additional tests and determined that Mr. Crests was suffering from a brain tumor. On September 12, 1985, Richard Crests died.

When the Crestas first arrived in the Washington, D.C. area in August 1980, they took up residence in Alexandria, Virginia. An affidavit filed by the Crestas states that, to the best of their recollection, they subsequently moved into a Holiday Inn in Washington (where Mr. Crests was working part-time) in January 1981. In September 1981, they moved again, to 625 10th St., N.E. in the District of Columbia. In September 1981, they also began to receive Aid to Families with Dependent Children (AFDC) benefits through the District of Columbia.

Mr. Crests was treated as an outpatient at Georgetown University Hospital on December 4, 1980, March 25, 1981, March 31, 1981 and May 5, 1981. He later received inpatient care at George Washington University Medical Center from October 18, 1982 to December 24, 1982 and from January 24, 1983 to February 23, 1983. As a result of his condition, Mr. Crests eventually withdrew from school and the appellants returned to Massachusetts in or about February 1983.

The individual appellees are, according to their respective affidavits, all residents of Montgomery County, Maryland. The Neurology Center, P.A. is a Maryland professional association, but, since 1979, has also possessed a certificate of authority to do business in the District of Columbia as the Neurology Center, P.C. The Neurology Center operates three offices, one in Chevy Chase, Maryland, one at 2141 K Street in the District of Columbia, and one in Rockville, Maryland. The appellees assert that their examinations and testing of Mr. Crests all occurred at their Chevy Chase office, although the appellants remembered having their initial consultation with Dr. Satinsky in the K Street office. Mr. Cresta's phone calls were, as far as can be determined, all made to Dr. Satinsky at the Chevy Chase office.

On December 16, 1983, Richard and Gina Crests, filed a complaint based on claims of medical malpractice, negligence, breach of warranty of contract, and misrepresentation against appellees, Neurology Centers, et al. In the complaint, the Crestas contended that appellees did not provide proper neurological and neuroradiological services to Richard and failed to make proper and timely tests to discover the existence of a brain tumor. On February 8, 1984, appellees moved for dismissal on the grounds of forum non conveniens. In support of this motion, appellees contended that "since the wrongs alleged in [appellants'] complaint occurred in the state of Maryland, the common and statutory law of the state of Maryland controls all substantive issues in this case." Suggesting that appellants were non-residents and that the incident occurred outside the District of Columbia, appellees argued that they were subject to suit "in the jurisdiction where the incident occurred and the law of the place of the incident governs" and "the busy courts of this jurisdiction [should] not be employed to resolve litigation which properly lies in another jurisdiction." After discovery and the completion of two status conferences, on September 17, 1984, argument was heard on appellees' motion to dismiss. On March 18, 1985, the trial court granted appellees' motion to dismiss and accordingly entered an order.

In its order, the trial court stated that "plaintiffs [appellants], husband and wife, are, as their complaint reflects, residents of Watertown, Massachusetts. The individual defendants [appellees] are residents of the state of Maryland. The corporate defendant, Neurology Center, P.A. is a Maryland professional corporation which has offices in Bethesda and Rockville, Maryland and in the District of Columbia." The trial court also noted that "[a]t all times germane to the complaint, the male plaintiff was a student at George Washington University. His permanent residence was Massachusetts." In framing the jurisdictional issue before it, the trial court stated that "[t]he sole issue is whether plaintiffs, who are non-residents of the District and who, when living in the District, were here only on a temporary basis, i.e., because the male plaintiff was a student at George Washington University, should be permitted to utilize the services of the Superior Court of the. District of Columbia because of alleged negligence of the defendants in the performance of services . . in Maryland." The trial court emphasized the fact that the tortious conduct occurred in Maryland and concluded; "the limited resources of the Superior Court should not be subjected to the demands of this case. Plaintiffs [appellants] are not residents of the District. The `individual defendants [appellees] are not residents of the District of Columbia. The plaintiffs [appellants] seek to utilize the services of the personnel of the Superior Court in order to avoid the procedure provided by the laws of Maryland with respect to malpractice actions. . . . [I]t [allowing the claim to be heard] could open the Superior Court to a flood of litigation by non-residents of the District against non-resident doctors for alleged tortious conduct . . . which occurred outside the District, simply because those doctors may also transact business in the District with respect to other persons."

The Crestas then filed a motion, on March 28, 1985, to reconsider, amend, or alter the trial court's order. This motion was denied on November 4, 1985. When Richard Crests died, his wife, Gina, was sabstituted as a party plaintiff-administratrix for the purposes of this appeal.

The trial court specifically focused on appellants' residency at the time the complaint was filed (i.e., Massachusetts) and the situs of the injury (i.e., Maryland, where the alleged failure; to provide proper neurological services occurred), instead of considering all significant contacts (in addition to residency and the situs of the injury) within this jurisdiction. In exercising its broad discretionary power, the trial court must weigh the private and public interests underlying the doctrine of forum non conveniens.

II

The decision to grant or deny a motion to dismiss on the grounds of forum non conveniens is committed to the sound discretion of the court and will not be overturned absent a clear abuse of discretion. See Asch v. Taveres, 467 A.2d 976, 978 (D.C. 1983) (citing Cockrell v. Cumberland Corp., 458 A.2d 716, 718 (D.C. 1983)); Mobley v. Southern Railroad Co., 418 A.2d 1044 (D.C. 1980); accord Carr v. Bio — Medical Applications of Washington Inc., 366 A.2d 1089 (D.C. 1976). While the trial court has broad discretionary power in its determination of forum non conveniens issues, this power is nevertheless limited by the heavy burden of proof upon a defendant who moves the court for dismissal under this procedural doctrine, see Deupree v. Le, 402 A.2d 428, 429 (D.C. 1979), and an independent evaluation by this court of the private and public interests ennunciated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947); accord Sartori v. Society of American Military Engineers, 499 A.2d 883, 885 (D.C. 1985); see, e.g., Asch v. Taveres, supra, 467 A.2d at 978; Cohane v. Arpeja-California, Inc., 385 A.2d 153, 156 (D.C.), cert. denied, 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1978). We find that appellees did not meet the heavy burden of proof of establishing compelling reasons and forum inconvenience that would require dismissal. Under the principles outlined in the...