Carter v. Wake Forest University Baptist Medical Center

• Citation: 76 Va.App. 756,883 S.E.2d 693
• Docket Number: Record No. 0309-22-3
• Decision Date: 07 March 2023
• Parties: Katherine Louise CARTER, Executor of the Estate of Worth Harris Carter, Jr., Deceased v. WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER and Wake Forest University Health Sciences
• Court: Virginia Court of Appeals

76 Va.App. 756

883 S.E.2d 693

Katherine Louise CARTER, Executor of the Estate of Worth Harris Carter, Jr., Deceased

v.WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER and Wake Forest University Health Sciences

Record No. 0309-22-3

Court of Appeals of Virginia, Salem.

March 7, 2023

Monica T. Monday (David R. Berry; James W. Haskins ; Scott C. Wall, Stuart; Gentry Locke; Young, Haskins, Mann, Gregory & Wall, P.C., on briefs), for appellant.

S. Virginia Bondurant Price (Nicholas J. Giles ; Alicia M. Penn, Richmond; Matthew E. Kelley ; McGuireWoods LLP; Frith Anderson & Peake, on briefs), for appellees.

Present: Judges Huff, Athey and White

OPINION BY JUDGE KIMBERLEY SLAYTON WHITE

Appellant Katherine Louise Carter challenges the circuit court's dismissal of appellees Wake Forest University Baptist Medical Center and Wake Forest University Health Sciences for lack of personal jurisdiction. Finding appellees’ contacts with Virginia insufficient under the Due Process Clause of the Fourteenth Amendment, we affirm.

BACKGROUND

In early 2016, Worth Carter ("Mr. Carter") sought treatment from a Virginia dermatologist, Dr. Judith M. Szulecki, for a rash and infection affecting his groin area. Following approximately six months of treatment with no resolution, Mr. Carter's primary care physician referred Mr. Carter to Wake Forest University Baptist Medical Center ("WFUBMC") in Winston-Salem, North Carolina.

On June 24, 2016, Mr. Carter first visited Dr. Kevin P. High, a North Carolina doctor employed by Wake Forest University Health Sciences ("WFUHS") located at WFUBMC (collectively "Wake Forest"), regarding the rash and infection affecting his groin area. Nearly a week later, Katherine Louise Carter ("Ms. Carter"), Mr. Carter's daughter, contacted Dr. High requesting updates on her father's condition. Dr. High responded to her inquiry and offered suggestions regarding pain relief. In response, Ms. Carter asked for a prescription to be sent to their local pharmacy in Virginia. These contacts were made through an online patient portal, myWakeHealth.

In early July, Ms. Carter contacted Dr. High, again using the myWakeHealth portal, further updating Dr. High on Mr. Carter's worsening condition. In response, Dr. High responded that the worsening condition may, in fact, result from congestive heart failure

. Thereafter, Mr. Carter sought treatment for congestive heart failure at Johns Hopkins Hospital. Upon discharge, Mr. Carter was referred back to Wake Forest, for the same condition affecting his groin area.

Mr. Carter visited Dr. Steven R. Feldman, a dermatologist at Wake Forest, on five separate occasions between August of 2016 and December of 2016. In addition to these visits, Mr. Carter and his daughter communicated with Dr. Feldman by initiating telephone conversations and text messages regarding his condition, follow-up treatment, and prescriptions.

On August 26, 2016, Mr. Carter saw Dr. William Brown Applegate at Wake Forest who, upon examination of Mr. Carter, made an assessment that he needed constant care and forwarded this information to Dr. Feldman. Because of the continuing condition affecting Mr. Carter's groin area, Dr. Applegate referred Mr. Carter to Dr. Lucian G. Vlad, a wound care specialist, also located at Wake Forest. Mr. Carter first visited Dr. Vlad on September 22, 2016, and Mr. Carter would visit Dr. Vlad an additional ten times between September 2016 and February 2017. During this time, Mr. Carter and his daughter initiated phone calls to Dr. Vlad and communicated with him through the patient portal regarding Mr. Carter's condition and treatment options.

In January of 2017, Mr. Carter was hospitalized in Virginia. Ms. Carter contacted Dr. Vlad regarding her father's condition. In response, Dr. Vlad suggested Mr. Carter obtain a biopsy while he was hospitalized. Ms. Carter later informed Dr. Vlad that a biopsy could not be obtained in Virginia for months without a referral to another dermatologist. In response, Dr. Vlad made clear he did not want Mr. Carter seeing another dermatologist and that a biopsy could be obtained in North Carolina during Mr. Carter's next visit.

Mr. Carter obtained a biopsy at Wake Forest on February 27, 2017. Following the biopsy, Mr. Carter returned to Wake Forest for additional MRI, CT, and bone scans

. The tests revealed that Mr. Carter suffered from metastatic cancer. Mr. Carter passed away on April 7, 2017.

On March 8, 2019, Ms. Carter, as executor of Mr. Carter's estate, filed suit in the Circuit Court of the City of Martinsville against Wake Forest and four North Carolina doctors—Dr. High, Dr. Feldman, Dr. Applegate, and Dr. Vlad (collectively "the North Carolina doctors")—in addition to Mr. Carter's Virginia dermatologist, Dr. Szulecki. The summons and complaint were served on WFUBMC's registered agent in Virginia.¹ WFUHS and the North Carolina doctors were served through the Secretary of the Commonwealth.

Wake Forest and the North Carolina doctors moved, by special appearance, to dismiss for lack of personal jurisdiction on May 3, 2019. On September 18, 2019, pursuant to Code § 8.01-277.1(B)(3), the circuit court authorized jurisdictional discovery. Subsequently, on April 28, 2020, the circuit court directed the parties to finish jurisdictional discovery by June 1, 2020. On May 26, 2020, Ms. Carter nonsuited the four North Carolina doctors leaving only Wake Forest and Dr. Szulecki as defendants.

Wake Forest filed an amended motion to dismiss for lack of personal jurisdiction by special appearance on July 22, 2020, following the conclusion of jurisdictional discovery. The circuit court conducted a hearing in Martinsville, Virginia, on April 27, 2021. No live testimony was presented during the hearing.

Rather, the parties relied on their briefs and the exhibits attached thereto. Following the hearing, the circuit court granted Wake Forest's motion to dismiss for lack of personal jurisdiction by order dated July 22, 2021. Specifically, the circuit court found that application of Virginia's long-arm statute was not consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In coming to that conclusion, the circuit court made the following undisputed findings of fact:

1. WFUBMC is a corporation organized and existing under the laws of North Carolina with its principal place of business in Winston-Salem, North Carolina.

2. WFUHS is a corporation organized and existing under the laws of North Carolina with its principal place of business in Winston-Salem, North Carolina.

3. Dr. High, Dr. Feldman, Dr. Applegate, and Dr. Vlad ("North Carolina physicians") were at all pertinent times employees of WFUHS, and they saw the decedent at their offices in Winston-Salem, North Carolina.

4. The decedent, who first sought medical care from WFUBMC in 1999, did not rely on any advertising or solicitation from the defendants or the North Carolina physicians. Dr. Lewis referred the decedent to Dr. High, and the physicians at Johns Hopkins referred him to Dr. Feldman.

5. None of the North Carolina physicians was licensed to practice medicine in the Commonwealth of Virginia during the relevant time period.

6. The telephone calls from Dr. Feldman and Dr. Vlad to the plaintiff while she and the decedent were in Virginia were in response to inquiries from the plaintiff.

7. The text messages that Dr. Feldman sent to the plaintiff were in response to text messages that the plaintiff had sent to him.

8. The messages that Dr. High and Dr. Vlad sent to the plaintiff on MyWakeHealth "were in response to messages initiated by her, without her stating where she was located."

Amended Motion to Dismiss for Lack of Personal Jurisdiction by Special Appearance, p. 10.

9. The North Carolina physicians wrote various prescriptions and sent them electronically to the decedent's pharmacy in Rocky Mount, Virginia, at the decedent's request.

10. The North Carolina physicians sent copies of their office notes to Dr. Lewis at the decedent's request.

11. On March 7, 2017, the State Corporation Commission issued to WFUBMC a certificate of authority to transact business in the Commonwealth of Virginia.

12. On June 15, 2020, the plaintiff filed a complaint in Superior Court of Forsythe County, North Carolina, naming as defendants Baptist, WFUHS, WFUBMC, Dr. High, Dr. Feldman, Dr. Applegate, and Dr. Vlad. The lawsuit seeks compensatory damages for the wrongful death of the decedent.

Ms. Carter later filed a motion for entry of partial final judgment pursuant to Rule 1:2 on December 2, 2021. Wake Forest filed their response in opposition to Ms. Carter's motion for partial final judgment on January 6, 2022. On February 3, 2022, the circuit court entered a partial final judgment order granting Ms. Carter's motion and rendering the circuit court's July 22, 2021 order a final order as to defendant Wake Forest. As such, Ms. Carter filed this appeal on February 23, 2022.

ANALYSIS

Ms. Carter challenges the dismissal of Wake Forest for lack of personal jurisdiction. She argues that Wake Forest's contacts suffice to comport with due process therefore placing Wake Forest within the reach of Virginia's long-arm statute. In reviewing and ruling on Wake Forest's motion to dismiss by special appearance, the circuit court treated the motion like a demurrer, without objection from any party. Notwithstanding, the circuit court also allowed evidence that had been provided in the discovery process to be presented in support and in opposition to the motion, by agreement of the parties. Nonetheless, we review "issues of statutory and constitutional interpretation under a de novo standard of review." Bergaust v. Flaherty , 57 Va. App. 423, 429, 703 S.E.2d 248 (2011) (citing Cabaniss v. Cabaniss , 46 Va. App. 595, 620 S.E.2d 559 (2005) ).

First, we address Virginia's long-arm statute. Code § 8.01-328.1 states, in relevant part, personal jurisdiction may be exercised by "transacting any business" in the Commonwealth or by ...