Etra v. Matta
| Decision Date | 29 March 1984 |
| Parties | , 463 N.E.2d 3 Blanche ETRA et al., as Executors of Harry Etra, Deceased, Plaintiffs, v. Raymond MATTA et al., Defendants. Raymond MATTA, Third-Party Plaintiff-Appellant, v. Bernard LOWN, Third-Party Defendant-Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Frederick N. Gaffney and Ann R. Goodwin, New York City, for third-party plaintiff-appellant.
Steven J. Ahmuty, Jr., New York City, for third-party defendant-respondent.
Plaintiffs have attempted, in this action, to acquire jurisdiction over a Massachusetts physician whose care of decedent was the alleged cause of death.
Plaintiffs' decedent suffered from a heart condition for which he sought treatment from a Massachusetts physician, Dr. Bernard Lown. During the course of the patient's care, which included a period of hospitalization in a Boston hospital, Dr. Lown prescribed Aprindine, an experimental drug manufactured by defendant Eli Lilly & Co. Following decedent's discharge, he returned to New York, where he came under the care and treatment of a New York physician, Dr. Raymond Matta, to whom Dr. Lown had referred him. Because decedent's treatment program involved the continued use of Aprindine, available only from a clinical investigator such as Dr. Lown, decedent was provided with a supply of the drug to take back to New York.
After decedent came under Dr. Matta's care, Dr. Lown continued to act as a consultant with respect to the drug regimen. He communicated with Dr. Matta several times by telephone and letter and spoke to decedent's wife on the telephone. It is also alleged that he sent an additional supply of Aprindine to decedent in New York. During this period, decedent returned to Boston once for further consultation with Dr. Lown. Thereafter, decedent was admitted to a New York hospital with a condition known as agranulocytosis (depressed white cell count). The treatment with Aprindine was discontinued, and decedent died within a short time.
Asserting that decedent's death was caused by a side effect of the experimental drug, plaintiffs brought this action against both the drug manufacturer and Dr. Matta. Dr. Matta then sought to implead Dr. Lown, the theory of liability resting upon Dr. Lown's failure to inform Dr. Matta of the precise side effects of the drug. Dr. Lown moved to dismiss the third-party complaint on the ground that his contacts with New York were insufficient to require him to defend a medical malpractice action here. We agree with the Appellate Division, 94 A.D.2d 581, 464 N.Y.S.2d 1001, that there is no basis for the exercise of personal jurisdiction over Dr. Lown.
It is urged that jurisdiction might properly be found under either prong of CPLR 302 (subd. [a], par. 1), which provides for the exercise of personal jurisdiction over any nondomiciliary who "transacts any business within the state or contracts anywhere to supply goods or services in the state", where the cause of action arises from those acts. It is contended that because information about Aprindine and decedent's treatment were unavailable to Dr. Matta except through Dr. Lown, Dr. Lown's treatment of his patient continued even after the patient returned to New York. The record does not, however, support the conclusion that Dr. Lown continued to act in the...
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