Personal Jurisdiction and Choice of Law In Interstate Medical Practice Not Settled Issues
By Charles M. Key*, Wyatt, Tarrant & Combs, LLP, Memphis, TN
When a patient travels from State A to State B for treatment by a physician who resides and practices solely in State B, then alleges injury resulting from an act or omission of the physician that occurred solely in State B, is the physician subject to personal jurisdiction in State A? Is the physician subject to enforcement of the civil or criminal statutes of State A, solely on the basis of the physician’s conduct in State B? If you think the answers to both questions are clearly “No” and “No,” read on.
Mississippi Supreme Court Sustains Personal Jurisdiction Over Foreign State Physician in the Patient’s Home State
Facts and Holding
Sharon Dunn, a resident of Jackson County, Mississippi, was injured in a forklift accident in the gulf-coast city of Pascagoula, Mississippi in September 1993. She sought medical care in nearby Mobile, Alabama from several providers, including Dr. John Yager, a Mobile neurologist. Dr. Yager gave Ms. Dunn a prescription for Tegretol, a drug used to control certain types of seizures and to treat trigeminal neuralgia (facial nerve pain), which she later filled in a pharmacy in Mississippi. Ms. Dunn suffered a severe adverse reaction to the drug, resulting in blindness and other physical problems.
Ms. Dunn sued Dr. Yager and others in the Circuit Court of Jackson County, Mississippi in 1996. Over the next 12 years all of the other defendants either settled or were otherwise dismissed from the lawsuit, leaving Dr. Yager as the sole remaining defendant. Ms. Dunn proceeded against Dr. Yager for failure to obtain informed consent, failure to warn of potential adverse reactions to the drug, and medical negligence. Dr. Yager’s motion to dismiss for lack of personal jurisdiction was denied by the trial court. On interlocutory appeal of the personal jurisdiction issue, the Mississippi Supreme Court dismissed as “improvidently granted,” and remanded to the trial court.
A jury trial was held in December 2008, resulting in a defense verdict. On Ms. Dunn’s appeal to the Mississippi Supreme Court, Dr. Yager cross-appealed on the trial court’s ruling sustaining personal jurisdiction. The Mississippi Supreme Court affirmed the trial court judgment for Dr. Yager on the merits, as well as the trial court’s finding against Dr. Yager on the issue of personal jurisdiction.1
In a careful review of the record before it, the Mississippi Supreme Court noted that Dr. Yager only treated Mississippi residents when they sought care from him in Alabama. He neither solicited business in Mississippi, nor practiced in Mississippi at any time. He was licensed to practice in Alabama, and not in Mississippi, owned no property in Mississippi, and had no agency relationship with anyone in Mississippi. He did, however, participate in a number of preferred provider organizations that performed services in Mississippi for Mississippi employers and patients, and accepted reimbursement from (among others) Blue Cross Blue Shield of Mississippi and Mississippi Medicaid. On these facts, the Mississippi Supreme Court found that “Dr. Yager’s averment that he was ‘not doing business’ in Mississippi is dubious at best, given his involvement not only with health-care providers and insurers, but also the government of Mississippi.”2
The Mississippi Long-Arm Statute
Quoting with approval from its earlier cases, the Mississippi Supreme Court said that:
“[u]nder now well established law, Mississippi’s long-arm statute contains no requirement that the part of the tort which caused the injury be committed in Mississippi.” Rather, for purposes of our long-arm statute, a tort is committed in Mississippi when the injury results in this State.3
The Court concluded that “ Dunn’s actual injury, not the mere consequences thereof, occurred in Mississippi,” and on this basis found the requirements of Mississippi’s long-arm statute to have been met.4
Moving then to the due process analysis, and after discussing the familiar precedent in International Shoe Co. v. Washington5 and its progeny as well as the cases noted above, the Mississippi Court concluded:
Mississippi has an interest in adjudicating a dispute in which its resident, Dunn, suffered physical injury. This interest is particularly compelling when the alleged tortfeasor is in Mobile, Alabama, an area which, as noted by the circuit court, has numerous historic, economic, and commercial ties with South Mississippi. Relatedly, the geographic proximity involved in this specific case also weighs in favor of Dunn as to the burden on the defendant and the interest in the most efficient resolution of controversies. Stated succinctly, this case involves a physician from Mobile, Alabama, not Missoula, Montana, the Mayo Clinic in Rochester, Minnesota, or the MD Anderson Cancer Center in Houston, Texas.... [G]iven this geographic proximity and Dr. Yager's contacts with Mississippi, including his PPO participation and prior status as a Mississippi Medicaid provider, he reasonably could expect to be sued by a Mississippi patient in Mississippi....
Our holding is restricted to the facts of this specific case, as “[n]othing in the record suggests this trial was an inefficient method of resolving this dispute or that it imposed an undue burden to have [Dr. Yager] defend the suit in Mississippi.” [Estate of Jones v. Phillips], 992 So.2d [1131,] 1142 [( Miss. 2008)]. Therefore, this Court concludes that the circuit court did not err in finding that “traditional notions of fair play and substantial justice” were not offended in exercising personal jurisdiction over Dr. Yager. Int'l Shoe, 326 U.S. at 316. Future cases must be based on the facts peculiar to such cases to insure that International Shoe’s mandate is honored.
In sum, this Court concludes that the long-arm statute, under its tort prong, subjected Dr. Yager to the jurisdiction of the circuit court, and that its application does not offend the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Accordingly, [Dr. Yager’s cross-appeal for lack of personal jurisdiction] is without merit.6
Comparison With Prior Cases
While a full discussion of the parallel case law is beyond the scope of this article, there is substantial precedent that appears contrary to the court’s holding in Dunn. In fact, no case cited by the Mississippi Supreme Court in its carefully crafted opinion goes quite so far as the Court does in Dunn. But according to the Dunn court’s analysis, neither did any of the prior cases present precisely the same unique set of facts.
The court in Dunn explained that the state’s long-arm statute reaches any person who has committed a tort in Mississippi, and that while the alleged breach of duty may have occurred in Alabama (not Mississippi), the injury occurred when Ms. Dunn filled the prescription, ingested the drug, and suffered the adverse reaction, all in Mississippi. Quoting from the pleadings, the court noted Ms. Dunn’s assertion that “her ‘cause of action did not accrue until she ingested the Tegretol and sustained an adverse reaction,’” all of which admittedly occurred in Mississippi. The court thus concluded that “Dunn’s actual injury, not the mere consequences thereof, occurred in Mississippi,” that Dr. Yager’s contacts with the State of Mississippi were sufficient to satisfy the International Shoe “minimum contacts” standard, and that sustaining jurisdiction over Dr. Yager in this case was not offensive to “traditional notions of fair play and substantial justice.”7
Briefs filed in Dunn refer to several closely analogous prior cases:
- Rittenhouse v. Mabry8 – Mississippi resident treated by physician in Tennessee; court held “Rittenhouse’s continuing pain and discomfort, suffered as a result of the injury after she returned to Mississippi, do not qualify as a tortuous occurrence in Mississippi.”
- Wright v. Yackley9 – South Dakota physician who treated Idaho resident solely in South Dakota not subject to jurisdiction in Idaho. The court was quoted as saying, “the idea that tortuous rendition of such services is a portable tort which can be deemed to have been committed wherever the consequences foreseeably were felt is wholly inconsistent with the public interest in having services of this sort generally available.”
- Bufkin v. Thermage, Inc.10 – Mississippi resident treated by defendant plastic surgeon in Alabama; held no personal jurisdiction. The court explained, “ Ms. Bufkin chose to travel out of state to have the procedures performed without being solicited to do so. . . . [W]hen a patient travels to another state to receive professional services without having been solicited, then she ‘ought to expect that [s]he will have to travel again if [s]he thereafter complains that the services sought by [her] in the foreign jurisdiction were therein rendered improperly.’”11
- Kennedy v. Ziesmann12 – Ohio physician not subject to personal jurisdiction in Kentucky when all treatment occurred in Ohio. “[T]he cause of action against Dr. Zeismann did not arise from activities in Kentucky merely because he treated a Kentucky resident in Ohio who then returned to Kentucky.”
- Forrest County General Hospital v. Conway13 – plaintiff child misdiagnosed and suffered injury in Forrest County, then transferred to Hinds County for further treatment; venue was proper only in county in which the misdiagnosis and “initial damages” occurred.
While the Dunn court did not discuss any of the above cases or attempt to distinguish them from the case at bar, its analysis can be understood as implying a distinction on the basis of the court’s finding that Ms. Dunn’s cause of action, in contrast with the facts in the above cases, accrued only when she filled her prescription and ingested the Tegretol, in Mississippi.
Having prevailed on the merits, Dr. Yager has no plan to appeal the issue of personal jurisdiction.14
Washington Federal Court Finds Idaho Pathologist Subject to Criminal Prohibition Against Unlicensed Interstate Practice
One newer case, reported after the filing of briefs in Dunn and presenting slightly different issues, is also worth noting. In Smith v. Laboratory Corporation of America, Inc.,15 a tissue specimen taken from a patient in Idaho was sent to a pathology lab in the State of Washington for examination. Although the owner of the Washington lab apparently also had a place of business in Idaho, its pathologist practiced solely in Washington, and not in Idaho, but did receive specimens from various states for examination. Alleging a misdiagnosis, the plaintiff first sued in Idaho state court. The defendant pathologist removed to federal district court in Idaho, then moved to dismiss for lack of personal jurisdiction. The Idaho district court granted defendant’s motion,16 and transferred the case to the United States District Court for the Western District.17
In the Washington district court, the plaintiffs sought to sustain a cause of action against the Washington pathologist for the unlicensed practice of medicine under the Idaho Medical Practices Act.18 The defendant pathologist moved for summary judgment on the issue, which the district court denied, finding “ Idaho has created an aggressive statute to prevent unlicensed out-of-state doctors from practicing on Idaho residents,” a subject as to which “the Washington legislature has expressed no interest.”19 The court explained:
Idaho Code § 54-1804(1) creates limited allowances for out-of-state physicians: a physician who is not licensed in Idaho may only practice medicine in Idaho if she is called in consultation by an Idaho-licensed doctor; is invited to conduct a lecture, clinic, or demonstration; or is administering a remedy, diagnostic procedure, or advice as directed by a physician.20
Violation of the Idaho statute is a felony, subject to imprisonment for up to 5 years, fines of up to $10,000, or both.21 The district court concluded:
Idaho has demonstrated that licensure of out-of-state physicians who practice medicine within the state is an important matter of public policy; Washington has not. Accordingly, Idaho law governs the unlicensed practice of medicine issue.22
Previously, physicians and medical groups providing services in their home states to residents of other states may have assumed, and lawyers representing such physicians and groups often have advised, that personal jurisdiction will normally lie solely in the medical provider’s home state, and that the law of the home state will be controlling. Following the rulings in Dunn v. Yager and Smith v. Laboratory Corporation of America, Inc., counsel for physicians and group practices providing services to patients from other states must take a fresh look at the personal jurisdiction and choice of law issues that may affect their clients’ practices.
At present, both cases seem to be simply testing the outer limits of existing doctrine, rather than the beginning of a new trend. As similar fact patterns emerge in later cases, however, it will be interesting to see if other courts will go this far, will potentially expand on these case precedents, or will reject the Dunn and Smith rulings as exceeding due process limitations.
The author wishes to thank Robert S. Mink, Esq., of Wyatt, Tarrant & Combs’ Jackson, Mississippi office, for alerting him to the Dunn decision, and Dr. Yager’s appellate counsel, Brett K. Williams, Esq., of Dogan & Wilkinson, PLLC, Pascagoula, Mississippi, for speaking with him about the case and providing copies of his briefs. The views contained in this article are solely attributable to the author.
* Charles M. Key is a partner in the Memphis office of Wyatt, Tarrant & Combs, LLP. Mr. Key represents physicians, other healthcare providers, and related organizations in business planning, regulatory compliance, Medicare reimbursement, insurance, risk management, and medical staff relations. He holds an undergraduate degree in philosophy from Arkansas State University and a law degree from the University of Missouri-Columbia.
Mr. Key is an experienced speaker and writer on legal issues in healthcare, and has served as an adjunct professor in the graduate program in health administration at the University of Memphis. His recent speaking engagements include continuing education sessions on health regulation, medical liability, and advance medical directives.
Mr. Key is Chair-Elect of the Tennessee Bar Foundation Board of Trustees, and is a member of the American Health Lawyers Association, the American Bar Association Health Law Section, and the State Bar Associations of Missouri and Tennessee. He is a Past Chair of the Tennessee Bar Association Health Law Section, Vice-Chair of the ABA Health Law Section Publications Committee, and serves on the Editorial Boards of the ABA publications The Health Lawyer and Stark & Antikickback Toolkit.
|1 ||Dunn v. Yager, Nos. 2009-CA-00599-SCT and 2004-IA-01833-SCT, Miss. Sup. Ct. 4/14/2011, Slip Op. at 1-10, 52 (available at http://www.mssc.state.ms.us/Images/Opinions/CO69443.pdf). The personal jurisdiction issue apparently presented a case of first impression before the Mississippi Supreme Court.|
|2 ||Slip Op. at 11-14.|
|3 ||Slip Op. at 17 (emphasis added by the Dunn court), quoting from Sorrells v. R&R Custom Coach Works, Inc., 636 So. 2d 668, 672 ( Miss. 1994) and citing Horne v. Mobile Area Water & Sewer System, 897 So. 2d 972 ( Miss. 2004) and other cases.|
326 U.S. 310, 316 (1945).
|6 ||Slip Op. at 22-23.|
Slip Op. at 17-23.
832 F.2d 1380, 1381-1384 (5 th Cir. 1987).
459 F.2d 287, 288-291 (9 th Cir. 1972).
2009 WL 114780 (S.D. Miss.).
Bufkin v. Thermage, Inc., 2009 WL 114780, at *7 (S.D. Miss.), quoting Woodward v. Keenan, 79 Mich. App. 543, 261 N.W.2d 80 (Mich. App. 1977).
526 F.Supp. 1328, 1329-31 (D. Ky. 1981).
700 So.2d 324, 326-27 (Miss. 1997).
Phone conversation between author and Dr. Yager’s appellate counsel in late April 2011.
|15 ||2009 WL 3872042 (D. Idaho 2009). The Idaho District Court based its ruling on International Shoe and its progeny, including Schwarzenegger v. Fred Martin Motor Company, 374 F.3d 797, 801, 802 (9th Cir. 2004) (specifically addressing the application of traditional due process analysis to tort cases), but cited no Idaho precedent involving facts closely analogous to the case before it. Id. at *4 -*6. The case thus appears to have been a case of first impression in Idaho.|
Id. at *7.
Smith v. Laboratory Corporation of America, Inc., 2010 WL 5464770 at *1 ( W.D. Wash. Dec. 30, 2010).
Idaho Code § 54-1804 et seq.
Id. at *3.
Id. at *3-4, citing Idaho Code § 54-1804(2).
Id . at *4.
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