Henderson v. Laser Spine Inst. LLC, No. 1:11–cv–00015–JAW.

CourtUnited States District Courts. 1st Circuit. United States District Court (Maine)
Writing for the CourtJOHN A. WOODCOCK
Citation815 F.Supp.2d 353
PartiesDale HENDERSON, Plaintiff, v. LASER SPINE INSTITUTE LLC, et al., Defendant.
Docket NumberNo. 1:11–cv–00015–JAW.
Decision Date28 September 2011

815 F.Supp.2d 353

Dale HENDERSON, Plaintiff,
v.
LASER SPINE INSTITUTE LLC, et al., Defendant.

No. 1:11–cv–00015–JAW.

United States District Court, D. Maine.

Sept. 28, 2011.


[815 F.Supp.2d 358]

Anthony D. Pellegrini, Paul W. Chaiken, Timothy A. Pease, Rudman & Winchell, Bangor, ME, for Plaintiff.

Joseph M. Bethony, Steven J. Mogul, Gross, Minsky & Mogul, P.A., Bangor, ME, for Defendant.

ORDER ON MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, CHANGE OF VENUE AND ON MOTION TO DISMISS FOR FAILURE TO COMPLY WITH FLORIDA MEDICAL MALPRACTICE STATUTES OR THE MAINE HEALTH SECURITY ACT
JOHN A. WOODCOCK, JR., Chief Judge.

In 2008, Dale Henderson flew to Florida for expensive back surgery at the Tampa facility of the Laser Spine Institute, hoping for recovery and reimbursement. He

[815 F.Supp.2d 359]

got neither. In 2010, Mr. Henderson filed a nine-count complaint against the Laser Spine Institute and Stefan Prada, the surgeon. The Defendants moved to dismiss for lack of personal jurisdiction, for improper venue (and alternatively for a transfer of venue), for failure to comply with Florida medical malpractice statutes, and for failure to comply with the pre-litigation notice and screening requirements of the Maine Health Security Act.

The Court concludes that personal jurisdiction exists over the Defendants, that venue is proper in the District of Maine, and that the Florida statute of limitations is not applicable. However, the Court also concludes that the Plaintiff must first comply with the pre-litigation requirements of the Maine Health Security Act. Although the Court denies most of the motion to dismiss, it dismisses without prejudice the part of the motion that is based on the failure of the Plaintiff to comply with the Maine Health Security Act and stays the action to allow the Plaintiff to comply with the pre-litigation screening requirements of Maine law.

I. STATEMENT OF FACTSA. Procedural History

On December 2, 2010, Dale Henderson, a resident of Orrington, Maine, filed suit in Penobscot County Superior Court against Laser Spine Institute (LSI), a Florida limited liability company, and Dr. Stefan Prada, a Florida resident (collectively Defendants), in connection with medical treatment Mr. Henderson received from them. Mr. Henderson alleged fraud (Count I), breach of contract (Count II), unjust enrichment (Count III), unfair trade practices (Count IV), fraudulent concealment (Count V), negligent misrepresentation (Count VI), negligence (Count VII), intentional infliction of emotional distress (Count VIII), and negligent infliction of emotional distress (Count IX). Compl. (Docket # 2). The Defendants removed the action to this Court on January 13, 2011. Notice of Removal (Docket # 1).

On January 24, 2011, the Defendants moved to dismiss for lack of personal jurisdiction and for change of venue, or alternatively, to dismiss the action for failure to comply with Florida's medical malpractice statute or the Maine Health Security Act (MHSA), 24 M.R.S. § 2501, et seq. Defs.' Mot. to Dismiss for Lack of Pers. Jurisdiction and for Change of Venue, or, in the Alternative, to Dismiss for Pl.'s Failure to Comply with Fla. Med. Malpractice Statutes or the Me. Health Sec. Act (Docket # 12) ( Defs.' Mot.).1 On February 18, 2011, the Plaintiff objected. Pl. Dale Henderson's Opp'n to Defs.' Mot. to Dismiss Compl. for Lack of Pers. Jurisdiction and for Change of Venue, or in the Alternative to Dismiss for Failure to Comply with Fla. Med. Malpractice Statutes or Me. Health Sec. Act (Docket # 16) ( Pl.'s Opp'n ). On March 4, 2011, the Defendants replied. Defs.' Reply in Support of its Mot. to Dismiss (Docket # 17) ( Defs.' Reply ).

B. Factual Background 2

In September 2008, Dale Henderson, through his personal assistant, Judy Sawyer, contacted LSI, a limited liability company that provides spinal surgery services based in Tampa, Florida, seeking relief from chronic and nearly unendurable back

[815 F.Supp.2d 360]

pain. Pl.'s Opp'n Attach. 1 ¶¶ 3, 8 ( Henderson Decl.); Pl.'s Opp'n Attach. 2 ¶¶ 5–7 ( Sawyer Decl.); Compl. ¶¶ 1–2; Defs.' Mot. Attach. 1 ¶ 4 ( Bollinger Decl.). LSI instructed Ms. Sawyer to forward Mr. Henderson's MRI records to their facilities for review. Sawyer Decl. ¶ 7. Ms. Sawyer sent the MRIs. Id. Time passed and LSI did not get back to Mr. Henderson regarding potential treatment. Id. ¶ 8. Ms. Sawyer then contacted Richard “Bud” Anderson, an Ellsworth, Maine resident, who had initially recommended LSI to Mr. Henderson. Id.; Henderson Decl. ¶¶ 5–6, 10. Mr. Anderson contacted LSI on Mr. Henderson's behalf to inquire as to the status of Mr. Henderson's request for a consultation. Henderson Decl. ¶ 11.

Later that month, LSI telephoned Mr. Henderson in Maine to schedule an appointment and discuss the costs of treatment. Id. ¶ 12. Mr. Henderson asserts that during that conversation, “Audrey,” an LSI employee, assured him that his insurance would cover the treatment costs but informed him that he would have to pay $30,000 in advance. Id. ¶¶ 12–13. LSI sent a facsimile to Mr. Henderson, providing him with a list of hotels where he could stay while in Tampa, Florida for his treatment. Id. ¶ 14. LSI also faxed Mr. Henderson a patient registration package comprised of several forms for him to fill out and send back to LSI. Id. ¶ 15.

In early October 2008, Mr. Henderson traveled to Florida for treatment at LSI. Id. ¶ 17. On October 6, 2008, Mr. Henderson received a consultation at LSI and surgery was scheduled for the following day. Id. During the consultation, LSI informed Mr. Henderson that, in order for the first treatment to be effective, he would need a second treatment several days after the first. Id. The second treatment required a $25,500 advance. Id. ¶ 18. Mr. Henderson agreed to both treatments and asked Ms. Sawyer in Maine to wire the necessary funds to LSI in Florida. Id. ¶ 18–19. Concerned that the wired funds had not gone through properly, LSI communicated with Ms. Sawyer by telephone to obtain the funds for Mr. Henderson's further treatment. Sawyer Decl. ¶¶ 16–17. Mr. Henderson underwent the second treatment on October 14, 2008 and, several days later, returned to Maine. Henderson Decl. ¶ 23.

By December 2008, Mr. Henderson's back pain had returned. Id. ¶ 24. He made a number of calls to LSI in December 2008 and January 2009 to speak with Dr. Prada, but was unable to reach him. Id. ¶ 25. In January 2009, Dr. Prada telephoned Mr. Henderson in Maine and directed him to obtain another MRI and to send the results to him in Florida. Id. ¶ 26. Two weeks after sending the MRI results to Dr. Prada, Mr. Henderson, at LSI's direction and while in considerable pain, returned to Florida for another consultation at LSI which took place on February 18, 2009. Id. ¶¶ 27–29; Compl. ¶ 43. Even though Dr. Prada had the MRI results for approximately two weeks, Mr. Henderson believed he was reviewing them for the first time during the consultation. Id. ¶ 30. Dr. Prada informed Mr. Henderson that there were no further surgical treatments that LSI could provide him for his back condition but that he could administer a steroid injection for the pain. Id. Even though Dr. Prada conducted no physical examination of Mr. Henderson, he reached this conclusion in less than three minutes of reviewing the MRI results. Id. Mr. Henderson received the injection and returned to Maine, but he asserts he never would have traveled to Florida if he had known that the only available treatment was steroid injection because such a treatment was available in Maine. Id. ¶¶ 31–32.

During this same time, Mr. Henderson became concerned that his insurer, Aetna,

[815 F.Supp.2d 361]

had not reimbursed him for his first two LSI treatments in October 2008. Id. ¶ 33. When Ms. Sawyer, at Mr. Henderson's request, asked Aetna about the status of his reimbursement, Aetna told her that it lacked the necessary information from LSI. Id. ¶ 34. Ms. Sawyer telephoned LSI and requested the missing information and LSI assured her that the information had been sent to Aetna. Id. ¶ 35.

In February 2009, Aetna denied Mr. Henderson's claim for reimbursement. Id. ¶ 36. Ms. Sawyer again contacted LSI regarding Aetna's denial of Mr. Henderson's claim. Id. ¶ 37. Steven Torres, an LSI employee, advised Ms. Sawyer that Mr. Henderson should appeal Aetna's denial. Id. To assist with the appeal, Mr. Torres emailed Mr. Henderson's patient ledger to Ms. Sawyer in Maine. Id. ¶ 38. The patient ledger itemized the costs of treatment and detailed the services provided totaling $124,979.95, reduced by $55,500.00 to reflect Mr. Henderson's two advance payments. Id. In addition to the email, LSI faxed Ms. Sawyer in Maine a form letter to be edited and sent to Aetna. Ms. Sawyer completed and mailed LSI's form letter on February 27, 2009. Id. ¶ 39.

The appeals process with Aetna continued and in March 2009, Mr. Henderson employed the assistance of Maine attorney, Timothy Pease. Pl.'s Opp'n Attach. 3 ¶ 5 ( Pease Decl.). Throughout the remainder of 2009, Mr. Pease was in contact with LSI in an attempt to have Aetna cover the LSI treatments. Id. ¶¶ 6–22. These contacts included numerous telephone calls and emails from LSI to Mr. Pease in Maine. Id. On October 23, 2009, Aetna denied Mr. Henderson's claim a second time because it determined that the treatments provided by Dr. Prada and LSI were “experimental or investigational.” Henderson Decl. ¶ 49; Sawyer Decl. ¶ 29. Mr. Henderson requested an external review of the second denial, which Medwork Independent Review conducted. Henderson Decl. ¶ 50. On October 19, 2010, Aetna, LSI, and Mr. Henderson participated in a telephone hearing, and, nine days later, the independent reviewer issued a written decision denying coverage. Id. ¶¶ 50–51; Compl. ¶ 39. On November 20, 2009, Mr. Henderson and Mr. Pease held a conference call with the Director of Patient Financial Services for LSI, David Neal, in an effort to get additional information from...

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21 practice notes
  • Paterno v. Institution
    • United States
    • New York Supreme Court Appellate Division
    • October 16, 2013
    ...that New York can properly exercise personal jurisdiction in the case at bar. The dissent cites Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d 353 [D.Me.], wherein the United States District Court for the District of Maine held that, under Maine law, the State of Maine could properly exe......
  • Plixer Int'l, Inc. v. Scrutinizer GMBH, Civil No. 2:16–CV–578–DBH
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • October 18, 2017
    ...this District have not adopted it, Auburn Mfg. v. Steiner, 493 F.Supp.2d 123, 128 n.3 (D. Me. 2007) ; Henderson v. Laser Spine Inst., 815 F.Supp.2d 353, 377 (D. Me. 2011), and the Eleventh Circuit has pointed out scholarly criticism of it. Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 12......
  • Paterno v. Laser Spine Inst., No. 186
    • United States
    • New York Court of Appeals
    • November 20, 2014
    ...found subject to personal jurisdiction by other courts, and urges us to follow suit. He relies on Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d 353 (D.Me.2011) and Bond v. Laser Spine Inst., LLC, 2010 WL 3212480, 2010 U.S. Dist LEXIS 82736 (E.D.Pa., Aug. 11, 2010, No. 10–1086). These ca......
  • Paterno v. Laser Spine Institute
    • United States
    • New York Court of Appeals
    • November 20, 2014
    ...found subject to personal jurisdiction by other courts, and urges us to follow suit. He relies on Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d 353 (D.Me.2011) and Bond v. Laser Spine Inst., LLC, 2010 WL 3212480, 2010 U.S. Dist LEXIS 82736 (E.D.Pa., Aug. 11, 2010, No. 10–1086). These ca......
  • Request a trial to view additional results
21 cases
  • Paterno v. Institution
    • United States
    • New York Supreme Court Appellate Division
    • October 16, 2013
    ...that New York can properly exercise personal jurisdiction in the case at bar. The dissent cites Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d 353 [D.Me.], wherein the United States District Court for the District of Maine held that, under Maine law, the State of Maine could properly exe......
  • Plixer Int'l, Inc. v. Scrutinizer GMBH, Civil No. 2:16–CV–578–DBH
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • October 18, 2017
    ...this District have not adopted it, Auburn Mfg. v. Steiner, 493 F.Supp.2d 123, 128 n.3 (D. Me. 2007) ; Henderson v. Laser Spine Inst., 815 F.Supp.2d 353, 377 (D. Me. 2011), and the Eleventh Circuit has pointed out scholarly criticism of it. Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 12......
  • Paterno v. Laser Spine Inst., No. 186
    • United States
    • New York Court of Appeals
    • November 20, 2014
    ...found subject to personal jurisdiction by other courts, and urges us to follow suit. He relies on Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d 353 (D.Me.2011) and Bond v. Laser Spine Inst., LLC, 2010 WL 3212480, 2010 U.S. Dist LEXIS 82736 (E.D.Pa., Aug. 11, 2010, No. 10–1086). These ca......
  • Paterno v. Laser Spine Institute
    • United States
    • New York Court of Appeals
    • November 20, 2014
    ...found subject to personal jurisdiction by other courts, and urges us to follow suit. He relies on Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d 353 (D.Me.2011) and Bond v. Laser Spine Inst., LLC, 2010 WL 3212480, 2010 U.S. Dist LEXIS 82736 (E.D.Pa., Aug. 11, 2010, No. 10–1086). These ca......
  • Request a trial to view additional results

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