Mead v. Conn

• Decision Date: 12 January 1993
• Docket Number: No. WD,WD
• Parties: Dede MEAD, et al., Appellants, v. Robert D. CONN, M.D., et al., Defendants, and David V. HENDERSON, M.D., Respondent. 45550.
• Court: Missouri Court of Appeals

Page 109

845 S.W.2d 109

Dede MEAD, et al., Appellants, v. Robert D. CONN, M.D., et al., Defendants and David V. HENDERSON, M.D., Respondent.

No. WD 45550.

Missouri Court of Appeals Western District.

Jan. 12, 1993.

Robert Perkins, Kansas City, for appellants.

Kenneth J. Reilly, Overland Park, for respondent.

Before FENNER, P.J., and TURNAGE and KENNEDY, JJ.

FENNER, Presiding Judge.

Appellants were the plaintiffs before the circuit court in a wrongful death action for the death of C.W. Mead. Appellant Dede Mead was the spouse of C.W. Mead and the mother of his minor children, Stacie Lynn Mead, Joshua William Mead, and Leslie Renee Mead. The appellants' cause of action against Dr. Henderson was dismissed by the circuit court for lack of personal jurisdiction on Dr. Henderson's motion to dismiss. Appellants appeal said dismissal.

A motion to dismiss is normally directed toward testing the sufficiency of the pleadings as they appear on their face. EmpireGas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 (Mo.1974). That is, a ruling on a motion to dismiss is ordinarily confined to the face of the petition. Feinstein v. Edward Livingston & Sons, Inc., 457 S.W.2d 789, 792 (Mo.1970). Grounds not appearing on the face of the pleadings may be employed only when such matters are uncontroverted. Ebling v. Hardesty, 354 S.W.2d 348, 351 (Mo.App.1962). ¹

The pleadings reflect that respondent, David V. Henderson, M.D., is a physician who resides and practices medicine in Garnett, Kansas. C.W. Mead and the appellants were also residents of Garnett, Kansas at the time of C.W. Mead's death. Appellants continue to reside in Garnett, Kansas.

It was further plead that C.W. Mead had been a patient of Dr. Henderson since 1985, and that on or about December 16, 1988, C.W. Mead came to Dr. Henderson's office, which was in Garnett, Kansas, suffering severe chest pain and pains radiating through his arms. Dr. Henderson examined C.W. Mead and performed an electrocardiogram (EKG).

The parties are in agreement that Dr. Henderson transmitted the EKG results to Cardiovascular Consultants, a cardiology group located in Kansas City, Jackson County, Missouri. Robert D. Conn, M.D., an additional party defendant in the wrongful death action, was the physician at Cardiovascular Consultants who analyzed C.W. Mead's EKG.

The parties do not dispute that Dr. Henderson transmitted the EKG test results to Cardiovascular Consultants by way of telephone lines from Garnett, Kansas to Kansas City, Missouri. A computer analysis and then Dr. Conn's evaluation of the test results were sent back to Dr. Henderson on the same day. The pleadings indicate that Dr. Conn analyzed the test results as being within normal limits and that Dr. Henderson then sent C.W. Mead home without further examination or monitoring, where he died within two hours.

Appellants argue that the trial court erred in finding no personal jurisdiction over Dr. Henderson and dismissing their petition against him. Appellants argue that jurisdiction was established under the Missouri Long Arm Statute, section 506.500, RSMo 1986, and due process considerations.

Section 506.500.1 reads, in pertinent part, as follows:

Any person or firm, whether or not a citizen or resident of this state, ... who in person or through an agent does any of the acts enumerated in this section, thereby submits ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this state;

(2) The making of any contract within this state;

(3) The commission of a tortious act within this state; ....

In passing on a motion to dismiss for lack of personal jurisdiction over a nonresident, a two step inquiry is necessary: first, whether the defendant committed one of the acts enumerated in the long arm statute; and second, whether the exercise of personal jurisdiction would violate due process. Watlow Elec. Mfg. v. Sam Dick Industries, 734 S.W.2d 295, 296-97 (Mo.App.1987) (citations omitted). A defendant must maintain certain minimal contacts with the forum state such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Id. at 297 (citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).

In the first step of our inquiry to determine if Missouri has personal jurisdiction over Dr. Henderson, we must determine whether Dr. Henderson committed an act within the Long Arm statute. Appellants argue that Dr. Henderson transacted business in Missouri, made a contract within Missouri, and committed a tort within Missouri.

"Transaction of any business", as used in the Missouri Long Arm Statute, must be construed broadly and may consist of a single transaction if that is the transaction sued upon. State ex rel Metal Serv. Ctr. v. Gaertner, 677 S.W.2d 325, 327 (Mo. banc 1984). A particular purpose of the Missouri Long Arm Statute is to confer jurisdiction over nonresidents who enter into various kinds of transactions with residents of Missouri. Id.

In the case at bar, the plaintiffs below and appellants here are all Kansas residents, the defendant below and respondent here, Dr. Henderson, is also a Kansas resident while defendant below, Dr. Conn, has an office in Missouri. It is alleged that Dr. Henderson practices medicine in Kansas and Dr. Conn practices medicine in Kansas and Missouri. The decedent was also a Kansas resident who was treated by Dr. Henderson in Kansas.

Appellants allege in their petition that Dr. Henderson was negligent in his treatment of C.W. Mead throughout 1988; specifically, by failing to initiate a thorough program of cardiac examination and monitoring. Appellants further allege that Dr. Henderson was negligent in his treatment of C.W. Mead on December 16, 1988, the date the EKG results were transmitted to Dr. Conn. ²

It is not disputed that Dr. Henderson transmitted C.W. Mead's EKG test results by telephone from Kansas to Missouri for analysis by Cardiovascular Consultants. The analysis was performed by Dr. Conn and returned to Dr. Henderson by telephone line...