Woodward v. Keenan, Docket No. 30820

• Decision Date: 09 November 1977
• Docket Number: Docket No. 30820
• Citation: 261 N.W.2d 80,79 Mich.App. 543
• Parties: Victoria WOODWARD and Timothy J. Woodward, her husband, Plaintiffs-Appellants, v. P. Justin KEENAN, M. D., and South Bend Clinic, Defendants-Appellees, and Bertram W. Smith, M. D., Defendant. 79 Mich.App. 543, 261 N.W.2d 80
• Court: Court of Appeal of Michigan — District of US

Page 80

261 N.W.2d 80

Victoria WOODWARD and Timothy J. Woodward, her husband Plaintiffs-Appellants, v. P. Justin KEENAN, M. D., and South Bend Clinic Defendants-Appellees and Bertram W. Smith, M. D., Defendant.

Docket No. 30820.

79 Mich.App. 543, 261 N.W.2d 80

Court of Appeals of Michigan.

Nov. 9, 1977.

Released for Publication Jan. 12, 1978.

[79 MICHAPP 544] Charfoos & Charfoos by Thomas H. Bleakley, Detroit, for plaintiffs-appellants.

Scott A. Saurbier, Detroit, for Keenan and South Bend.

John T. Ryan, St. Joseph, for Smith.

Before RILEY, P. J., and BASHARA and MAHINSKE, ^* JJ.

PER CURIAM.

Plaintiffs appeal an adverse accelerated judgment dismissing their cause against defendants-appellees for want of in personam jurisdiction. GCR 1963, 116.1(1).

As best we can glean them, the facts are these: Plaintiff Victoria Woodward visited the Coloma, Michigan office of Dr. Amelia Fajardo, a family practitioner, complaining of progressive deafness and a "roaring" sensation in her left ear. Dr. Fajardo referred plaintiff to defendant South Bend Clinic, a medical center operating exclusively in Indiana since 1916. The Clinic is a partnership with all of its staff residing in Indiana.

On October 9, 1973, Mrs. Woodward appeared at the clinic for examination, after a telephone appointment had been made either by Dr. Fajardo, [79 MICHAPP 545] her office staff or the patient herself. Plaintiff brought with her a letter written by a Dr. Frederic A. Gibbs of Chicago, Illinois, reporting the results of an electroencephalogram Dr. Gibbs had recently performed.

At the Clinic, Dr. Justin Keenan, M. D., examined plaintiff and then wrote a letter ¹ to Dr. Fajardo detailing the results of his examination.

From this point onward, the record is extremely sketchy. It does not reveal what further role Dr. Fajardo may have played in plaintiff's case. Nor does it indicate the nature of defendant Bertram Smith's involvement with plaintiff Woodward (other than stating that he is a practicing medical physician and surgeon specializing in diseases of the ear, nose and throat from his offices in Coloma, Michigan). All that is certain is that plaintiff, despite a progressively worsening condition, never returned to the South Bend Clinic. Instead, she sought the services of a Michigan neurosurgeon who attributed her hearing problem to a brain [79 MICHAPP 546] tumor. By the time of surgery, September 4, 1974, plaintiffs allege that the tumor was so extensive that the neurosurgeon could remove only 80 to 90 percent of it and that damage to the brain resulted. Additional surgery was required on January 22, 1975.

Charging appellees with a failure timely to diagnose plaintiff's condition, the complaint alleged that Mrs. Woodward suffered complete facial paresis and "total losses" of some "cranial nerves". Victoria Woodward sought a million dollars in damages and her husband, Timothy J. Woodward, sought $250,000; they demanded a jury trial. Appellees received service of process in Indiana.

The lower court, in granting appellees' motion for accelerated judgment, ruled by written opinion that appellees' contacts with the State of Michigan were insufficient under the due process clause to warrant the exercise of limited personal jurisdiction over them.

On appeal, plaintiffs maintain that the mailing of a diagnostic letter into Michigan, with knowledge that it would be used in future treatment of plaintiff's condition, provides the requisite Michigan contact which permits the court reasonably to exercise limited personal jurisdiction over the Indiana defendants. In support, plaintiffs point to M.C.L.A. § 600.705(2); M.S.A. § 27A.705(2) and M.C.L.A. § 600.725(2); M.S.A. § 27A.725(2) and charge that the sending of the allegedly faulty diagnosis caused tortious consequences to occur in Michigan.

Plaintiffs cite no Michigan cases, indeed no cases at all, where courts, on similar facts, have held it reasonable under the due process clause to bind foreign doctors or hospitals to the personal jurisdiction of the forum state. Our independent examination uncovers cases uniformly rejecting plaintiffs'[79 MICHAPP 547] contention. See Gelineau v. New York University Hospital, 375 F.Supp. 661 (D.N.J., 1974), Wright v. Yackley, 459 F.2d 287 (C.A.9, 1972), McAndrew v. Burnett, 374 F.Supp. 460 (M.D.Pa., 1974), Aylstock v. Mayo Foundation, 341 F.Supp. 560 (D.Mont., 1972), and Soares v. Roberts, 417 F.Supp. 304 (D.R.I., 1976).

While we recognize the State's interest in providing a convenient forum for vindicating the rights of its injured residents, this interest cannot override Michigan's legitimate concern that its citizens obtain out-of-state professional care whenever it is needed or desired.

Our views are accurately reflected in Gelineau, supra, a case largely resembling the present suit:

"Unlike a case involving voluntary interstate or international economic activity * * * which is directed at the forum state's markets, the residence of a recipient of personal services rendered elsewhere is irrelevant and totally incidental to the benefits provided by the defendant at his own location. It is clear that when a client or a patient travels to receive professional services without having been solicited * * * then the client, who originally traveled to seek services apparently not available at home, ought to expect that he will have to travel again if he thereafter complains that the services sought by him in the foreign jurisdiction were therein rendered improperly.

"Any other rule would seem to be not only fundamentally unfair, but would inflict upon the professions the obligation of traveling to defend suits brought in foreign jurisdictions, sometimes very distant jurisdictions, there brought solely because the patient or client upon his return to his own home decided to sue at home for services sought by himself abroad.

"Such a rule would have a chilling effect on the availability of professional services to non-residents. Professionals in the medical field, for example, concerned with one of the most rapidly advancing sciences of modern times, would be hesitant to treat a non-[79 MICHAPP 548] resident if they knew that thereafter, upon the receipt of a registered letter, they could be compelled to travel to a foreign state, and there to account, under the laws of that state, for the services which were sought from them and rendered by them at home. The issue is whether or not a physician, a hospital, or such, licensed only to practice in New York, having been sought out by a resident of the State of New Jersey, or even perhaps a resident of a foreign nation, should be required to defend a malpractice action in those respective forums based upon the standards of care and the substantive laws of those foreign forums. We think not.

"Here, as we have found, New York University Hospital has not purposefully availed itself of the privileges of conducting activities within the forum state. The medical services that it provided to the plaintiff were performed in New York at the request of the plaintiff who unilaterally traveled to New York to receive them. The residence of the plaintiff herein was, and is now irrelevant to the services provided by this defendant at its location." 375 F.Supp. at 667-668. (Footnotes omitted.)

Although factual distinctions can be drawn which may differentiate the suit at hand from Gelineau and the other cited cases, (e. g., here plaintiff on the suggestion of her Michigan doctor traveled less than 50 miles to the South Bend Clinic), the principle nonetheless remains: Michigan has a significant interest in assuring to its residents the availability of...