Unterreiner v. Pernikoff , 2011 IL App (5th) 110006 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Unterreiner v. Pernikoff, 2011 IL App (5th) 110006Appellate Court CHERYL A. UNTERREINER and KIM UNTERREINER, Plaintiffs-
Caption Respondents, v. DAVID PERNIKOFF, M.D., et al., Defendants-
Petitioners.
District & No. Fifth District
Docket No. 5-11-0006
Rule 23 order filed October 14, 2011
Motion to publish
granted November 18, 2011
Held In a medical malpractice case arising from a Missouri physician’s
(Note: This syllabus treatment of plaintiff, the denial of defendants’ motion to dismiss for lack
constitutes no part of of jurisdiction or motion to quash service was reversed and the cause was
the opinion of the court remanded with directions to dismiss the complaint with prejudice, since
but has been prepared the Illinois court had no jurisdiction where defendants were licensed and
by the Reporter of operated only in Missouri, plaintiff was treated in Missouri, and
Decisions for the defendants’ single telephone call in which one of defendant’s employees
convenience of the left a message asking plaintiff to call defendants could not be equated
reader.)
with voluntarily invoking the protections and benefits of the laws of the
State of Illinois and was too attenuated to support jurisdiction.
Decision Under Appeal from the Circuit Court of Madison County, No. 10-L-1038; the
Review Hon. A.A. Matoesian, Judge, presiding.
Judgment Reversed; cause remanded with directions.
Counsel on J. Thaddeus Eckenrode and Lisa Howe, both of Eckenrode-Maupin, of St.
Appeal Louis Missouri, for respondents.
Drew C. Baebler, of Bauer & Baebler, P.C., and Philip C. Denton, of Law
Office of Philip C. Denton, both of St. Louis Missouri, for petitioners.
Panel JUSTICE SPOMER delivered the judgment of the court, with opinion.
Justices Donovan and Wexstten concurred in the judgment and opinion.
OPINION
¶1 The defendants, David Pernikoff, M.D., et al., petition this court to reverse the order of
the circuit court of Madison County that denied the defendants’ motion to dismiss for lack
of jurisdiction and/or motion to quash service. For the reasons that follow, we reverse the
ruling of the trial court and remand with directions.
¶2 FACTS
¶3 On October 6, 2010, the plaintiffs, Cheryl A. Unterreiner and Kim Unterreiner, filed a
complaint in the circuit court of Madison County, alleging medical malpractice against the
defendants. On October 26, 2010, the defendants filed their motion to dismiss for lack of
jurisdiction and/or motion to quash service. On December 10, 2010, the circuit court denied
the motion of the defendants, finding that “there were minimum contacts” for personal
jurisdiction to exist, and this timely appeal followed. The facts necessary to our disposition
of this appeal are taken from the various filings of the parties and are as follows. The
plaintiffs are long-time residents of Highland, in Madison County, Illinois. Defendant Dr.
David Pernikoff, who treated plaintiff Cheryl Unterreiner, is a Missouri resident and
physician licensed to practice medicine in Missouri, but not in Illinois. Codefendant David
J. Pernikoff, M.D., P.C., is the Missouri professional corporation under which Dr. Pernikoff
practices. The defendants have never advertised for clients in Illinois and have never owned
or leased any real or personal property in Illinois. In 2002, Cheryl underwent an aortic valve
replacement with a mechanical valve and was placed on Warfarin as an anticoagulant. The
defendants monitored Cheryl’s anticoagulant levels. Cheryl traveled to Missouri for her
medical care appointments with the defendants. On September 4, 2008, at one such
appointment, Cheryl’s blood was drawn so that her levels could be checked. The results were
not immediately available because the levels were checked by an outside laboratory in
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Missouri. However, “within a few days,” an employee of the defendants called the plaintiffs’
home in Illinois and left a message for Cheryl on the plaintiffs’ telephone answering machine
to call the defendants in Missouri because her anticoagulant levels were low. From her home
in Illinois, Cheryl returned the telephone call and was instructed to take more Warfarin and
to return to the defendants’ office in Missouri in a month to have the levels checked again.
On October 7, 2008, prior to her return appointment, Cheryl suffered a stroke that resulted
in serious injuries. She alleges that negligent care by the defendants caused the stroke.
¶4 ANALYSIS
¶5 The parties agree that the narrow question before this court is whether the defendants had
sufficient minimum contacts with the State of Illinois for an Illinois court to exercise
personal jurisdiction over the defendants. We begin with a brief discussion of Illinois law
relevant to this narrow question. Before an Illinois court may exercise jurisdiction over a
nonresident defendant, that court must ensure its exercise of jurisdiction “comports with
‘traditional notions of fair play and substantial justice.’ ” Culligan International Co. v.
Wallace, Ross, & Sims, 273 Ill. App. 3d 230, 231 (1995) (quoting International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). To so ensure, the court must consider three criteria:
“(1) whether the nonresident defendant had ‘minimum contacts’ with the forum State
such that it had ‘fair warning’ that it may be required to defend there; (2) whether the
action arose out of or relates to the defendant’s contacts with the forum; and (3) whether
it is reasonable to require the defendant to litigate in the forum State.” Culligan, 273 Ill.
App. 3d at 231 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-78 (1985)).
“The determination as to what constitutes sufficient minimum contacts depends upon the
facts of each case.” Ballard v. Fred E. Rawlins, M.D., Inc., 101 Ill. App. 3d 601, 603 (1981).
However, for sufficient minimum contacts to exist, “[t]he defendant must have voluntarily
invoked the protections and benefits of the laws of the state” in question. Muffo v. Forsyth,
37 Ill. App. 3d 6, 9 (1976). A plaintiff may not “lure” a nonresident defendant into a
jurisdiction, and the mere “unilateral action of the plaintiff in seeking and obtaining the
service of the defendant cannot serve to satisfy the jurisdictional requirement” of minimum
contacts. Muffo, 37 Ill. App. 3d at 9. When a defendant contests the existence of personal
jurisdiction, the plaintiff bears the burden of proving its presence. Ballard, 101 Ill. App. 3d
at 604. If the trial court has based its decision about personal jurisdiction solely on
documentary evidence, as the court did here, our review of that decision is de novo. Kostal
v. Pinkus Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381, 383 (2005).
¶6 In the case at bar, the only contacts the defendants had with the State of Illinois were the
unanswered phone call placed by the defendants in Missouri to the plaintiffs’ Illinois home
and the return phone call, which resulted in a conversation, from the plaintiffs’ Illinois home
to the defendants’ office in Missouri. The plaintiffs contend these contacts were sufficient
to invest an Illinois court with jurisdiction over the defendants because “Dr. Pernikoff chose
not to have [Cheryl] come to his office in Missouri for a consultation, but instead chose to
prescribe treatment to Cheryl over the phone to her home in Madison County.” According
to the plaintiffs, the telephone communication “initiated by Dr. Pernikoff’s office *** was
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the incipient negligence in this case that directly led to” the plaintiffs’ damages. The
defendants counter that one phone conversation does not amount to the minimum contacts
necessary for personal jurisdiction over them to exist. We agree with the defendants.
¶7 In Muffo v. Forsyth, 37 Ill. App. 3d 6, 9 (1976), this court held that when an Illinois
resident seeks out treatment from a nonresident provider, the mere fact that the nonresident
provider is aware that the Illinois resident “would likely fill” the provider’s prescription in
Illinois is not sufficient to invest personal jurisdiction over the nonresident. That is because
the Illinois resident “was the motivating force for the relationship” and, having sought
treatment in Missouri, could reasonably be required “to return to Missouri to prosecute any
actions arising out of that treatment.” Muffo, 37 Ill. App. 3d at 10. Thus, for sufficient
minimum contacts to exist, “[t]he defendant must have voluntarily invoked the protections
and benefits of the laws of the state” in question. Muffo, 37 Ill. App. 3d at 9. A plaintiff may
not “lure” a nonresident defendant into a jurisdiction, and the mere “unilateral action of the
plaintiff in seeking and obtaining the service of the defendant cannot serve to satisfy the
jurisdictional requirement” of minimum contacts. Muffo, 37 Ill. App. 3d at 9.
¶8 Likewise, in Ballard v. Fred E. Rawlins, M.D., Inc., 101 Ill. App. 3d 601, 605 (1981),
we held that even when a nonresident provider calls prescriptions in to an Illinois pharmacy,
the mere fact that the nonresident provider asked the Illinois resident for the name of a
pharmacy close to where the Illinois resident lived, “such [pharmacy] being in Illinois, is an
insufficient basis for subjecting the [nonresident provider] to the jurisdiction of Illinois.”
Building upon our reasoning in Muffo and Ballard, the appellate court held in Veeninga v.
Alt, 111 Ill. App. 3d 775, 779 (1982), that the “unilateral activity” of an Illinois resident “in
seeking and obtaining medical services outside of Illinois” led to the alleged damages to that
resident and that, accordingly, the nonresident provider “was not amenable to the jurisdiction
of Illinois courts.” That was true in Veeninga even though the Illinois resident’s prescriptions
had been filled in Illinois, he had injected himself with the prescribed drugs in Illinois, and
the allegation in his complaint was that the prescription drugs were unnecessary and had been
negligently prescribed to him. 111 Ill. App. 3d at 776.
¶9 We conclude that under the reasoning found in these above three cases, and others that
have followed them, there is no personal jurisdiction in the case at bar. The defendants
operate their medical office exclusively in Missouri and are licensed to practice medicine
only in Missouri. They have never advertised for clients in Illinois and have never owned or
leased any real or personal property in Illinois. Plaintiff Cheryl Unterreiner unilaterally
sought out the defendants and traveled to Missouri to receive treatment from them. Although
it is true, as the plaintiffs suggest, that the defendants could have required Cheryl to visit
their office in Missouri to receive the advice to adjust her Warfarin levels, we do not believe
the fact that the defendants chose to so advise her, in a solitary phone call, can be equated
with the defendants having “voluntarily invoked the protections and benefits of the laws of
the State” of Illinois. See, e.g., Muffo v. Forsyth, 37 Ill. App. 3d 6, 9 (1976). The defendants’
contact with Illinois is simply far too attenuated and fortuitous to support jurisdiction. Cheryl
could have returned the defendants’ phone call from any number of jurisdictions, including
Missouri. A rule of law that allowed personal jurisdiction over a physician on the basis of
a single phone call would effectively ensure that no physician ever delivered instructions
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over the telephone, or via e-mail, for that physician could never know with certainty where
they might eventually be haled into court as a result of those instructions. See, e.g., Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 486 (1985) (forseeability of being haled into the
forum’s courts is an important consideration in deciding whether the nonresident defendant
has purposefully established minimum contacts with the forum state). We note that courts
in other jurisdictions have reached the same result. See, e.g., Prince v. Urban, 57 Cal. Rptr.
2d 181, 184 (Cal. Ct. App. 1996) (“Follow up consultation ancillary to the examination and
treatment made by the out-of-state doctor, telephone calls about the status of an out-of-state
patient, or arrangements for a patient to continue with medication prescribed by that doctor”
not sufficient minimum contacts.); Campbell v. Gasper, 102 F.R.D. 159, 162 (D. Nev. 1984)
(use of mails or telephone alone does not amount to purposeful activity); Bond v.
Messerman, 895 A.2d 990, 1000-01 (Md. 2006) (telephone calls and correspondence alone
are not sufficient contacts to satisfy due process); Greenberg v. Miami Children’s Hospital
Research Institute, Inc., 208 F. Supp. 2d 918, 926 (N.D. Ill. 2002) (telephone calls and
correspondence alone not sufficient basis for personal jurisdiction).
¶ 10 Each of the three cases cited by the plaintiffs in support of their position is factually
distinguishable from the case at bar. In Ores v. Kennedy, 218 Ill. App. 3d 866, 869-70
(1991), personal jurisdiction was found over a Texas attorney who corresponded by mail and
by telephone with, and on behalf of, a client in Illinois. The mail and telephone contacts
between the third-party defendant attorney and the Illinois client and the other Illinois
residents the attorney contacted on the client’s behalf were numerous, numbering at least 20
phone calls and multiple letters by mail and courier. Ores, 218 Ill. App. 3d at 869-70.
Accordingly, the appellate court found that the attorney had “ ‘purposefully directed’ his
activities at Illinois residents” because he had “repeated business contacts” with the Illinois
residents while carrying out his fiduciary duties to an estate and the estate’s executors and
that he “purposefully derived a financial benefit” from these contacts by billing the estate for
the time he spent conversing and corresponding with the Illinois residents. Ores, 218 Ill.
App. 3d at 873. Moreover, the claim in question was a contribution claim, and the Ores court
stressed that because Illinois public policy favors contribution, the State of Illinois had “a
substantial interest” in the contribution action. Ores, 218 Ill. App. 3d at 874. In contrast, in
the case at bar there was only one phone conversation, for which no one was billed, and no
other Illinois contacts.
¶ 11 In Culligan International Co. v. Wallace, Ross, & Sims, 273 Ill. App. 3d 230, 231 (1995),
the appellate court determined that personal jurisdiction existed over a West Virginia law
firm retained by an Illinois resident to defend a West Virginia lawsuit because a lawyer from
the firm wrote letters to, made telephone calls to, and eventually visited for purposes of
discussing the case, the plaintiff’s headquarters in Illinois. On the basis of these multiple
contacts, and the fact that the firm “derived financial benefit from its activities,” the court
concluded that the defendant firm had “ ‘purposefully directed’ activities and intentionally
provided legal services to an Illinois resident in Illinois.” Culligan, 273 Ill. App. 3d at 232.
As explained above, in the case at bar there was only one phone conversation, for which no
one was billed, and no other Illinois contacts.
¶ 12 Likewise, in Klump v. Duffus, 71 F.3d 1368, 1372 (7th Cir. 1995), personal jurisdiction
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was found over a North Carolina attorney who was hired by an Illinois resident to defend a
lawsuit in an Illinois court involving an auto accident that involved two Illinois residents and
occurred in Illinois, because there were multiple and frequent telephonic and mail contacts
with Illinois residents, whereas in the case at bar there was only one phone conversation, for
which no one was billed, and no other Illinois contacts.
¶ 13 In sum, the three cases cited by the plaintiffs are far too removed, factually, from the case
at bar to control our decision.
¶ 14 CONCLUSION
¶ 15 For the foregoing reasons, the trial court erred when denying the defendants’ motion to
dismiss and/or quash service. Accordingly, we reverse the trial court’s ruling and remand
with directions to the trial court to dismiss the plaintiffs’ complaint with prejudice.
¶ 16 Reversed; cause remanded with directions.
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