Kennedy v. Ziesmann

• Decision Date: 08 December 1981
• Docket Number: Civ. A. No. 80-159.
• Citation: 526 F. Supp. 1328
• Parties: Samantha KENNEDY v. Karl ZIESMANN, M.D., et al.
• Court: U.S. District Court — Eastern District of Kentucky

526 F. Supp. 1328

Samantha KENNEDY v. Karl ZIESMANN, M.D., et al.

Civ. A. No. 80-159.

United States District Court, E. D. Kentucky, Covington Division.

December 8, 1981.

Bill G. Wilder and Jan Paul Koch, Florence, Ky., for plaintiff.

Leo J. Breslin, Lindhorst & Dreidame, David A. Kohnen, Walter E. Haggerty, Frost & Jacobs, Cincinnati, Ohio, for defendants.

MEMORANDUM OPINION and ORDER

BERTELSMAN, District Judge.

This opinion will deal with further issues in this medical malpractice case, another aspect of which has been reported at 520 F.Supp. 706 (E.D.Ky.1981). The complaint alleges that the defendants negligently caused or permitted anesthetic to be administered to the plaintiff while she was pregnant but did not know it, thus endangering both herself and the fetus. By reason of her fear of the ill effects of the anesthesia, she alleged she subsequently had an abortion.

The aspect before the court at this time concerns personal jurisdiction over the defendant Ziesmann.¹ Concerning the defendant Ziesmann, the facts are these:

The defendant, Karl Ziesmann, M.D., is a board certified obstetrician and gynecologist who resides and practices in Cincinnati, Ohio.² Dr. Ziesmann is licensed to practice medicine only in Ohio. His medical practice, Glenn-Ziesmann Associates, Inc., is incorporated in the State of Ohio. Dr. Ziesmann is a member of the administrative and teaching staff at Bethesda Hospital, a hospital located in Cincinnati, Ohio. He is also Chairman of the OB-GYN Department and Chairman of the Medical-Dental Staff which automatically makes him a Member of the Board of Trustees.

Including the procedure performed on plaintiff, Dr. Ziesmann has performed three joint surgeries on Kentucky residents with Doctors Cullen and Brogan in the past five years. Several years back he accepted a fourth Kentucky resident for treatment. Dr. Ziesmann is not on staff at any hospital in Kentucky. He maintains no banking or checking accounts in Kentucky, nor does he own any personal or real property in the State of Kentucky.

The plaintiff, Samantha Kennedy, was referred to the defendant for a tubal ligation by her Kentucky doctor, Dr. Brogan, a plastic surgeon. Dr. Brogan was to perform two other surgical procedures on Ms. Kennedy, an abdominal lipectomy and a bilateral augmentation mammoplasty. When Ms. Kennedy expressed a desire to obtain a tubal ligation, Dr. Brogan suggested that all procedures could be accomplished at once but it would necessitate his working in conjunction with a Cincinnati doctor since he did not perform tubal ligations. He informed the plaintiff that he had worked with Dr. Ziesmann before on this type of cooperative surgery.

Dr. Brogan telephoned Dr. Ziesmann to request that he see the plaintiff with regard to the surgery. Dr. Brogan provided the plaintiff with Dr. Ziesmann's office address and telephone number and instructed her to set up an appointment for an examination with Dr. Ziesmann. The plaintiff seemed to recall that Dr. Brogan arranged the appointment with Dr. Ziesmann but on further questioning she admitted her confusion and said that it was quite probable that she made the appointment.

The plaintiff went to Ohio around October 25 or 26, 1979, for her appointment with Dr. Ziesmann. Dr. Brogan, not Dr. Ziesmann, arranged for admission of the plaintiff into Bethesda Hospital. On December 7, 1979, Dr. Ziesmann performed a bilateral tubal ligation on the plaintiff in conjunction with two other surgical procedures performed by Dr. Brogan. Post-operative care was rendered by Dr. Ziesmann from mid-December 1979 to mid-January 1980.

On December 26, 1979, the plaintiff went to Dr. Brogan's office and demanded a pregnancy test. Positive results were obtained on December 27, 1979. The plaintiff called Dr. Ziesmann's office that same day with the results. Dr. Ziesmann returned plaintiff's call and suggested that she seek help at the Margaret Sanger Clinic in Cincinnati, Ohio. Instead, plaintiff, on or about December 28, 1979, visited another doctor in Florence, Kentucky to seek medical advice as to whether she was capable of carrying the baby. This doctor referred her to Women to Women, a clinic in Cincinnati. Ultimately, the plaintiff obtained an abortion in Cincinnati on January 2, 1980.

On March 24, 1980, the plaintiff hemorrhaged and was treated at St. Elizabeth North Hospital in Kentucky in the emergency room. On March 27, 1980, the plaintiff called Dr. Ziesmann to obtain advice on the bleeding. Dr. Ziesmann telephoned Kentucky one hour later, returning the plaintiff's call. He then telephoned Ralph Schwartz Drugs in Florence, Kentucky, to prescribe methegrine tablets for treatment of the plaintiff's bleeding.

Subsequently, this original action was brought in this court seeking damages against the defendants based on alleged malpractice in permitting anesthetic to be administered to plaintiff while she was pregnant. Dr. Ziesmann was served through the Secretary of the State of Kentucky, pursuant to Kentucky's long-arm statute, KRS § 454.210.³ Although the court is aware that this statute "has authorized ... the courts to reach to the full constitutional limits in pursuing non-resident defendants,"⁴ the court nevertheless holds that the statute does not contemplate an exercise of personal jurisdiction over the defendant Ziesmann in the circumstances above described, and that to exercise such personal jurisdiction over him in these circumstances would be a deprivation of his constitutional right to due process of law. Therefore, his motion to dismiss for lack of personal jurisdiction must be granted.

Although the long-arm statute is to be interpreted broadly, its reach is not unlimited. It has been stated that there are three prerequisites for a proper exercise of personal jurisdiction over a non-resident under the long-arm statute:

"... First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in that state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable."⁵

Analysis reveals that these elements are lacking here. Considering the first two elements together, plaintiff argued that Dr. Ziesmann in treating a resident of Kentucky "purposefully" caused "a consequence" in Kentucky, since he knew plaintiff would return there bearing any ill effects his treatment may have caused her. But the cause of action against Dr. Ziesmann did not arise from activities in Kentucky merely because he treated a Kentucky resident in Ohio who then returned to Kentucky.

In a closely analogous situation, Judge Ballantine of the Western District of Kentucky held that an Ohio dentist was not subject to service of process under the long-arm statute under similar circumstances.⁶ "Medical services provide a unique situation in determining whether personal jurisdiction exists."⁷ This court concurs with the view that "the idea that tortious 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 such services generally available."⁸

Plaintiff argues that the listing in directories circulated in Kentucky and the telephone calls Dr. Ziesmann made to Kentucky satisfy the "purposefully availing" element of the tripartite test discussed above.

In support of this contention, plaintiff relies on McGee v. Riekhof,⁹ but that case is clearly distinguishable. There, the cause of action alleged was based on claimed negligent advice given by the non-resident defendant physician in telephoning plaintiff in the forum state and advising him to return to work, allegedly prematurely, after a delicate eye operation. The court was careful to point out that the cause of action arose out of alleged negligent advice given to the plaintiff in the forum state by the non-resident defendant from outside the forum state. Here, the cause of action alleged, if any exists, arose in Ohio when the anesthetic was administered, and the telephone calls were only incidental. Incidental telephone calls from outside the forum state into the forum...