Theodore R. Bledsoe, M.D. v. Brian Crowley, M.D. v. Sylvia Friedman, M.D

WILLIAMS, Circuit Judge,

concurring:

I concur wholeheartedly in Judge Edwards’s excellent opinion and write separately only to consider an additional element in the choice of laws problem.

The Restatement (Second) of Conflict of Laws (1971), to which District of Columbia courts often turn for guidance, 1 lists as the first relevant “factor” in interest analysis “the needs of the interstate ... system [ ].” § 6(2)(a). This of course suggests — quite rightly — that states have shared, non-parochial interests. In the medical malpractice context, with which we deal here, there are systemic interests in (1) states’ being able to develop coherent policies governing medical malpractice liability and (2) individuals’ being able to take advantage of medical services outside their home jurisdictions.

For realization of the first interest, a state that seeks to reduce medical costs by reducing the burden of malpractice liability must be able to assure providers that the state’s rules will actually apply to all (or virtually all) cases. For example, if Maryland places limits on malpractice recoveries but its medical providers are exposed to liability under the laws of states without such controls, the charges of persons providing medical services in Maryland will rise to carry the burden of expected liabilities to out-of-staters. This result thwarts not only the ability of each state to establish a policy and secure whatever benefits it may offer, but also the system’s capacity to conduct and evaluate experiments in liability policy.

The above analysis assumes that the Maryland rule here at issue — requiring arbitration as a precondition to litigation and giving the arbitration result the weight of a presumption in any later suit — is directed at reducing at least the total costs of medical malpractice liability. That inference seem inescapable, and is independent of whether the rule is expected to affect net plaintiff recoveries.

Applying the rule of the patient’s domicile might at first blush seem easily reconciled with the interest in state development *647 of liability policy. If courts apply the law of the patient’s domicile, medical associations can be expected to promptly inform Maryland providers, who in turn can reject would-be out-of-state patients. By contrast, potential out-of-state patients may not so readily learn that use of Maryland providers entails special malpractice rules.

On balance, though, the law of the jurisdiction where the services are provided seems to better accommodate the systemic values. For medical providers to screen out incoming patients altogether would completely destroy individuals’ ability to seek out expert medical help throughout the United States. The Mayo Clinic in Minnesota is simply the most prominent of many providers whose reputation draws patients from the entire country. A system depriving the ill of these benefits would seem a tragic waste.

A more limited response to control by the law of the patient’s domicile would be for providers to accept out-of-state patients, but insist on agreements binding them to local law. But such a practice might founder on rules refusing to enforce agreements waiving rights to recover in tort — including partial waivers such as would be entailed by application of the Maryland rule here. This difficulty might, of course, be salvaged by a halfway rule: that the law of the state where the services are provided would govern the validity of waivers. Such a halfway rule seems an irreducible minimum for achievement of basic systemic goals.

But the stronger rule — that substantive liability is defined by the law of the place services are rendered — seems preferable. While medical associations can readily communicate with members as to liability hazards, and alert them to possible responses, patients are inherently on notice that journeying to new jurisdictions may expose them to new rules. The maxim “When in Rome do as the Romans do” bespeaks the common sense view that it is the traveler who must adjust.

Here of course we act only as surrogates for the District of Columbia courts, and the District’s only case on conflicts in medical malpractice law rejected the law of Virginia, where the services were provided. Kaiser-Georgetown Community Health Plan, Inc. v. Stutsman, 491 A.2d 502 (D.C.1985). Judge Edwards amply distinguishes the case. See Maj.Op. at 643 n. 6. For purposes of considering § 6(2)(a) of the Restatement, however, it appears that no one even brought the systemic values to the attention of the court. The opinion did note that Virginia’s limitation on liability aimed in part at reducing the medical fees charged Virginia residents, 491 A.2d at 510 , but assumed Virginia’s primary interest lay in benefitting providers as opposed to consumers, id. Reasoning from that assumption, the court stated that Virginia’s “interest in the application of its statute becomes attenuated when its intended beneficiaries are foreign corporations with principal places of business outside the State.” Id. at 511 . Such a characterization ignores the systemic interest in states’ being able to adopt policies reducing health care costs for consumers. That interest is little affected by the domicile of the defendant provider. It is true that so long as purely domestic Virginia medical providers can count on the application of Virginia law in all cases arising out of provision of services there, their rates will reflect benefits due to Virginia restrictions; regardless of the conflicts rule, out-of-state firms, if they are to operate in Virginia, will have to match them. (A motel chain cannot charge New York City rates for rooms in Arkansas because it is incorporated or headquartered in New York.) But adoption of a conflicts rule that subjects out-of-state providers to more costly tort regimes effects a troubling discrimination, and if these firms are an important part of the potential supply of medical services in Virginia (i.e., if the purely domestic supply is inelastic), the presence of the burden will increase the market price of all those services.

Thus it seems unlikely that the location of the provider’s incorporation or headquarters undermines the systemic analysis militating in favor of applying the law of the state where the services are provided. (This is a neutral principle and holds equal *648 ly true if the state of provision has policies favoring high malpractice recoveries.) For our purposes it is enough to note that, given the D.C. courts’ practice of looking to the Restatement for guidance on conflicts matters, there is no reason to suppose that they would not recognize the systemic concerns if properly brought to their attention.

. See Gaither v. Myers, 404 F.2d 216, 222 (D.C.Cir.1968); Finance America Corp. v. Moyler, 494 A.2d 926 , 929-30 & n. 7 (D.C.1985); Gabrielian v. Gabrielian, 473 A.2d 847 , 851 n. 11 (D.C. 1984); Hodge v. Southern Ry. Co., 415 A.2d 543, 544 (D.C.1980); Rose v. Silver, 394 A.2d 1368 , 1371 n. 2 (D.C.1978); Clagett v. King, 308 A.2d 245, 248 (D.C.1973); Rzeszotarski v. Rzeszotarski, 296 A.2d 431, 438 (D.C.1972). See also Biscoe v. Arlington County, 738 F.2d 1352, 1361 (D.C.Cir.1984) (applying D.C. conflicts law), cert. denied, 469 U.S. 1159 , 105 S.Ct. 909 , 83 L.Ed.2d 923 (1985).