S. R. v. City of Fairmont

• Decision Date: 29 July 1981
• Docket Number: No. CC922,CC922
• Court: West Virginia Supreme Court
• Parties: S. R. v. The CITY OF FAIRMONT, etc.

Page 712

280 S.E.2d 712

167 W.Va. 880

S. R. v. The CITY OF FAIRMONT, etc.

No. CC922.

Supreme Court of Appeals of West Virginia.

July 29, 1981.

Syllabus by the Court

"The standard of jurisdictional due process is that a foreign corporation must have such minimum contacts with the state of the forum that the maintenance of an action in the forum does not offend traditional notions of fair play and substantial justice." Syllabus Point 1, Hodge v. Sands Manufacturing Company, 151 W.Va. 133, 150 S.E.2d 793 (1966). Herbert G. Underwood, Irene M. Keeley, Steptoe & Johnson, Clarksburg, Robert W. Dinsmore, Morgantown, for plaintiff.

James McNeer, J. Michael McDonald, McNeer, Highland & McMunn, Clarksburg, for Wadhwa's Gyne and Infertility Services, Inc., a corp., and Saroj R. Wadhwa, M.D.

MILLER, Justice:

This case involves a certified question relating to the correctness of the circuit court's dismissal of the defendant, Wadhwa's Gyne and Infertility Services, Inc., (Infertility Services), a Pittsburgh, Pennsylvania medical corporation, for lack of personal jurisdiction. We believe the circuit court incorrectly dismissed this defendant.

This medical malpractice action was filed by the plaintiff, S.R., ¹ against several defendants, alleging that an abortion was negligently performed on her and that her resultant injuries were compounded by a subsequent misdiagnosis of her condition and a failure to supply proper treatment at Fairmont General Hospital.

On February 22, 1980, plaintiff went to Pittsburgh, Pennsylvania to have an abortion performed at the Allegheny Reproductive Health Center (Allegheny Center). At that time, she was a student at Fairmont State College in West Virginia. After filling out routine forms relating to her background and condition, plaintiff saw Dr. Saroj R. Wadhwa, an obstetrician-gynecologist, who worked at the Allegheny Center.

The above information is contained primarily in the deposition of Dr. Wadhwa. This deposition was limited by the trial court to facts relative to personal jurisdiction under our Long-Arm Statute, W.Va.Code, 31-1-15. At the deposition, Dr. Wadhwa stated that she owned all of the stock in Infertility Services, a Pennsylvania medical professional corporation. ² From her deposition it also appears that Dr. Wadhwa, acting through Infertility Services, contracted to render abortion services to the Allegheny Center and was paid for these services. These services had been rendered for approximately six months prior to plaintiff's abortion. The discovery record shows that Allegheny Center advertises its abortion services in the Fairmont area and lists a toll-free number in the Fairmont telephone directory. It also does the same advertising and has a toll-free telephone listing in the following northern West Virginia cities: Wheeling, Clarksburg and Morgantown. Allegheny Center does not dispute West Virginia's assertion of jurisdiction over it.

Whether Dr. Wadhwa had actual or constructive knowledge of this solicitation and advertising, due to the number of West Virginians served by the clinic does not fully appear in the record before us. Dr. Wadhwa's deposition was limited in this area by her counsel's advice not to answer certain questions.

Limiting objections were also made with regard to her knowledge that the abortion was not successful as certain of the fetal parts were not recovered. However, on one of the medical records prepared by the doctor, this statement was made: "?? complete fetal parts seen." Part of the plaintiff's malpractice contention was the doctor knew that the abortion was not totally successful but permitted the plaintiff to return to West Virginia without arranging for or advising her of the proper follow-up care except to call Allegheny Center in Pittsburgh if she had problems. Whether there was a violation of the doctor's continuing duty of care, we believe, has some bearing on Infertility Services' exposure to personal jurisdiction in this State.

When the plaintiff returned to Fairmont, she developed cramps, vaginal bleeding and a fever. She went to the Fairmont General Hospital. Its personnel were apparently unsuccessful in diagnosing the exact nature of plaintiff's problem and released her. When her condition grew worse, she sought readmission at Fairmont General Hospital where she went into shock. She was then transferred to the West Virginia University Medical Center. Ultimately, personnel at the Medical Center were able to save her life. Before the undelivered fetal parts were removed, however, plaintiff developed acute renal failure arising from the septic abortion. Plaintiff, in the absence of a kidney transplant, now relies on ambulatory peritoneal dialysis as a life support system.

Plaintiff's attorney objected to the restrictions placed on Dr. Wadhwa's testimony at the deposition. He sought to resume the deposition and to obtain a ruling and sanctions before the circuit court stating that the defense objections were improper. However, the circuit court denied this motion and granted the defense attorney's motion to dismiss Infertility Services. We conclude for reasons hereinafter set out that this dismissal was error. We also conclude that plaintiff's attorney should be permitted to initiate further discovery as against Dr. Wadhwa and Infertility Services.

The central question is whether Infertility Services has sufficient contacts in this State to support personal jurisdiction under our Long-Arm Statute, W.Va.Code, 31-1-15. ³ We have traditionally recognized that our Long-Arm Statute must be read in light of the traditional due process requirements which we formulated in Syllabus Point 1 of Hodge v. Sands Manufacturing Company, 151 W.Va. 133, 150 S.E.2d 793 (1966):

"The standard of jurisdictional due process is that a foreign corporation must have such minimum contacts with the state of the forum that the maintenance of an action in the forum does not offend traditional notions of fair play and substantial justice." ⁴

See also Chase v. Greyhound Lines, Inc., W.Va., 211 S.E.2d 273 (1975); State ex rel. Coral Pools, Inc. v. Knapp, 147 W.Va. 704, 131 S.E.2d 81 (1963); Gavenda Brothers, Inc. v. Elkins Limestone Company, Inc., 145 W.Va. 732, 116 S.E.2d 910 (1960). ⁵

Our cases in this area are predicated upon the "minimum contacts" theory of doing business developed in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Here, both parties rely on the recent case of World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In World-Wide Volkswagen, the Supreme Court, after affirming the validity of the minimum contact test concept, elaborated on factors to be considered in determining whether the minimum contact test has been met:

"The relationship between the defendant and the forum must be such that it is 'reasonable ... to require the corporation to defend the particular suit which is brought there.' 326 U.S., at 317, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102, 161 A.L.R. 1057 ((1945)). Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State's interest in adjudicating the dispute, see McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, 226 (1957); the plaintiff's interest in obtaining convenient and effective relief, see Kulko v. California Superior Court supra, (436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)) 436 U.S. at 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132, 141, at least when that interest is not adequately protected by the plaintiff's power to choose the forum, cf. Shaffer v. Heitner, 433 U.S. 186, 211, n. 37, 97 S.Ct. 2569, 2583, 53 L.Ed.2d 683, 702 (1977); the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies, see Kulko v. California Superior Court, supra, 436 U.S. at 93, 98, 98 S.Ct. 1690, 1697, 1700, 56 L.Ed.2d 132, 142, 145." 444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 498.

In analyzing the present case, we begin with the contractual relationship between the plaintiff and Infertility Services. The contract contains two essential duties: the duty to use reasonable care in performing the abortion and, more importantly, the duty to provide appropriate follow-up care once it appeared likely that the abortion was not complete. Lawson v. Conaway, 37 W.Va. 159, 16 S.E. 564 (1892); 61 Am.Jur.2d Physicians & Surgeons § 234 et seq. (1981); 70 C.J.S. Physicians & Surgeons § 48 f (1951); Annot., 57 A.L.R.2d 379 (1958); Annot., 57 A.L.R.2d 432 (1958); Louisell and Williams, Medical Malpractice § 8.08 (1977).

While we do not suggest that this professional duty required Infertility Services to follow the plaintiff into West Virginia in order to render on-going medical services, we do believe that it was required to arrange a competent source of treatment in West Virginia that could intelligently provide follow-up care in light of the probable unsuccessful abortion. To hold otherwise would emasculate the very heart of the professional obligation a doctor owes a patient. It was the failure to arrange for appropriate follow-up care which is claimed to have brought about the ultimate harm to the plaintiff in this State. When plaintiff visited the Fairmont General Hospital neither she nor the personnel at the hospital were aware that the abortion was incomplete. As a consequence, the hospital may well have been hampered in its diagnosis of her problem.

The interstate nature of this contractual relation presents the real dilemma to counsel for the injured plaintiff. The suit in West Virginia without Infertility Services as a party defendant enables Fairmont General Hospital to cast the...