Prince v. Urban

• Decision Date: 30 September 1996
• Docket Number: No. G015188,G015188
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 7318, 96 Daily Journal D.A.R. 11,989 Traci PRINCE et al., Plaintiffs and Appellants, v. George J. URBAN et al., Defendants and Respondents.

Page 181

57 Cal.Rptr.2d 181

49 Cal.App.4th 1056, 96 Cal. Daily Op. Serv. 7318,

96 Daily Journal D.A.R. 11,989

Traci PRINCE et al., Plaintiffs and Appellants, v. George J. URBAN et al., Defendants and Respondents.

No. G015188.

Court of Appeal, Fourth District, Division 3, California.

Sept. 30, 1996.

[49 Cal.App.4th 1057] Philip M. Prince, Oakland, for Plaintiffs and Appellants.

Bonne, Bridges, Mueller, O'Keefe & Nichols, Lisa L. Werries, Santa Ana, for Defendants and Respondents.

OPINION

SILLS, Presiding Justice.

The question of personal jurisdiction over an out-of-state doctor in a medical malpractice action occurs with sufficient regularity that it is the subject of an annotation in the American Law Reports. (See Annot., In Personam Jurisdiction Under Long-Arm Statute, Over Nonresident Physician, Dentist, or Hospital in Medical Malpractice Action (1983) 25 A.L.R.4th 706.)

In the typical scenario, where a prospective patient travels out of state to a doctor, and there receives allegedly negligent medical treatment, courts consistently hold that the patient's home state courts cannot exercise personal jurisdiction over the physician even though the effects of the doctor's negligence are (literally) felt in the patient's home state. (E.g., Ghanem v. Kay (D.D.C.1984) 624 F.Supp. 23 [no District of Columbia jurisdiction over Maryland podiatrist who negligently performed surgery on D.C. resident even though podiatrist advertised and listed his phone number in D.C. Yellow Pages]; Walters v. St. Elizabeth Hosp. Medical Center (W.D.Pa.1982) 543 F.Supp. 559 [mere acceptance of out-of-state patient by hospital not enough for personal jurisdiction]; Lebkuecher v. Loquasto (1978) 255 Pa.Super. 608, 389 A.2d 143 [no Pennsylvania jurisdiction over New Jersey physician who rendered services in New Jersey to Pennsylvania resident even though physician was listed in Pennsylvania phone book]; Cambre v. St. Paul Fire & Marine Insurance Co. (La.App.1976) 331 So.2d 585 [no Louisiana jurisdiction over Mississippi physicians who performed surgery in Mississippi]; McAndrew v. Burnett (M.D.Pa.1974) 374 F.Supp. 460 [New York doctor left hemostat in Pennsylvania patient's abdominal cavity; held, no jurisdiction even though patient suffered "continuing injury" in Pennsylvania]; Gelineau v. New York University Hospital (D.N.J.1974) 375 F.Supp. 661 [New Jersey resident was sent to New York doctor for treatment of aneurysm, contracted infectious hepatitis from a blood transfusion at New York hospital; held, no jurisdiction even though New York doctors knew patient would return home and some members of hospital staff practiced in New Jersey].)

The case before us now, however, is not quite the typical scenario because it does not involve a situation (like malpractice during out-of-state surgery) where a discrete set of services could be said to have been rendered strictly outside the patient's home state. Here, a California migraine sufferer was referred by her California physician to an Illinois headache specialist. The California patient traveled to see the Illinois physician and his associate at a headache clinic in Illinois. The patient's headaches subsided and she went back to California armed with a 30-day prescription for various medications. After her return to California she had numerous telephone conferences with the headache specialist (for which she was billed a small fee each time). When her medication ran out, her Illinois doctors arranged to have additional medication mailed to her and on other occasions called prescriptions directly to California pharmacies near the patient's home.

Unfortunately, the medications prescribed by the Illinois doctors rendered the patient so confused and disoriented that she became dysfunctional. After hospitalization at a California detoxification facility she filed this action for medical malpractice.

We now affirm the superior court's order that it lacked personal jurisdiction over the Illinois physicians. Granted, the case is a close one. But the balance is tipped in the direction of no jurisdiction by a point articulated by the Ninth Circuit in Wright v. Yackley (9th Cir.1972) 459 F.2d 287, which also involved an out-of-state physician who arranged for prescription refills: a physician's services are personal; they are not directed at a specific location, but at a specific patient. (See id. at pp. 289-290.) By virtue of the "very nature of the average doctor's localized practice, there is no systemic or continuing effort on the part of the doctor to provide services which are to be felt in the forum state." (Id. at p. 290.) Thus where, as here, the out-of-state doctor's contact with the forum state consists of nothing more than telephonic follow up on services rendered in the doctor's own state, it is unreasonable for the patient's home state to exercise personal jurisdiction over the physician. (See id. at p. 289.)

I

Traci Prince suffered from chronic migraine headaches and high blood pressure. ¹ In the fall 1991, her local physician, Jon Ahdout, ordered a CAT scan, which disclosed a possible stroke. She consulted a headache specialist at Scripps Medical Institute in San Diego, who suggested she see Dr. Seymour Diamond at a headache clinic in Chicago.

Prince saw Diamond and was hospitalized in his headache unit from October 29 to November 14. He treated her with an assortment of drugs. Prince's headaches subsided, and before leaving Illinois she obtained a 30-day prescription for her various medications. She returned to California, where the regimen continued.

While in California, Prince frequently received medical advice from the clinic doctors by telephone. She spoke with Diamond or with Dr. George Urban or left messages and received return calls from one of them. The clinic charged her $10 for each telephone consultation. When her 30-day prescription ran out, Diamond or Urban authorized refills through a Chicago pharmacy. Later, one of the doctors phoned prescriptions directly to a California pharmacy. Plaintiff returned for a checkup at the clinic in December.

Prince began experiencing energy loss and disorientation and later, in December 1991, hallucinations and delusions which progressively worsened. She returned to the clinic. Again, Prince was given a multitude of medications. She felt better and returned to California, but continued to discuss her condition with Urban by telephone.

By April, however, she had become dysfunctional; and, on April 12, 1992, she was hospitalized at a Brea psychiatric facility for detoxification and counseling, where she remained for six days. She has not taken the medications since and no longer suffers the adverse symptoms.

Plaintiff filed her complaint in this state for professional negligence, breach of contract, and negligent infliction of emotional distress against Urban, Diamond, and the clinic on March 18, 1993. Defendants were served in Illinois.

The superior court quashed service of summons: "[It would be a very terrible thing if plaintiff] had gone for the treatment and been told by the doctors that if they wanted any follow-up discussion or consultation or prescriptions or advice, they'd have to stay [in Illinois]." The court noted it was "troubled by the concept that ... doctors in the position of these defendants, would be susceptible to jurisdiction in all 50 states," concluding it "would be improper ... when they maintain all of their activities and all of their offices and treatment facilities and licensing [ ] in Illinois." Moreover, plaintiff "deliberately sought the advice of an Illinois physician and at best as an indirect and derivative result continued with consultation," and that if the court were to find jurisdiction, "the next person that calls ... the doctor has to then make a decision."

II

We have already seen that the easy cases are where it is impossible to say that the medical treatment has taken place anywhere else but out of the forum state. The more difficult cases are those where some aspect of the relationship does cross state lines.

One aspect of a doctor's practice which may cross state lines is marketing. The counterpoint to the traditional "localized practice" of the "average" doctor is the doctor who attains national prominence and specifically invites out-of-state patients to come under his or her care. Bullion v. Gillespie (5th Cir.1990) 895 F.2d 213 illustrates such a case. There, a California urologist authored a nationally-distributed book. A Texas doctor recommended that his patient read the book, and the Texas doctor then contacted the California urologist to have him review the patient's particular problem. The contact resulted in the Texas patient being put on the mailing list for the urologist's newsletter, and a recommendation for a new treatment program in Texas. Additionally, the patient came out to California for an in-person consultation, where the urologist recommended the patient participate in an experimental treatment program he was administering with FDA approval. As part of the program, it was "envisioned" (as the Bullion court put it, id. at page 215) that the patient would receive a certain drug in the mail, and that she would continue visiting her Texas doctor who would report his findings to the urologist. The patient received the drug in the mail from the California doctor and related correspondence.

The patient sued the out-of-state doctor for harm caused by the drug. In holding that a Texas court could exercise personal jurisdiction over the urologist, the Fifth Circuit pointed out the plaintiff was the California doctor's patient "for purposes of the experimental program," kept in regular contact with the plaintiff's Texas doctor, plus "administered to the needs of other patients in Texas as well." (Id. at p. 217.) (The court did not elaborate on other patients who were part of the urologist's sphere of influence.) The court thus concluded that the...