Allen v. Missouri Baptist Medical Center , 2022 IL App (5th) 210263 ( 2022 )

2022 IL App (5th) 210263NOTICE
Decision filed 10/21/22. The
text of this decision may be NO. 5-21-0263
changed or corrected prior to
the filing of a Petition for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
RICHARD ALLEN, as Personal Representative ) Appeal from the
and Executor of the Estate of Barbara L. Sisson,) Circuit Court of
Deceased, ) Madison County.
)
Plaintiff-Appellee, )
)
v. ) No. 20-L-1278
)
MISSOURI BAPTIST MEDICAL CENTER, ) Honorable
) Sarah D. Smith,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court, with opinion.
Justice Welch concurred in the judgment and opinion.
Justice Cates specially concurred, with opinion.
OPINION
¶1 The defendant, Missouri Baptist Medical Center (Missouri Baptist), appeals, pursuant to
Illinois Supreme Court Rule 306(a)(3) (eff. Oct. 1, 2020), the August 6, 2021, order of the circuit
court of Madison County, which denied its motion to dismiss based on a lack of personal
jurisdiction. For the following reasons, we reverse.
¶2 I. BACKGROUND
¶3 On September 4, 2020, the plaintiff, Richard Allen, as personal representative and executor
of the estate of Barbara L. Sisson, deceased, filed a complaint alleging medical negligence and
wrongful death against numerous physicians, health care groups, and hospitals, including the
1
appellant here, Missouri Baptist, in Madison County, Illinois. 1 On October 29, 2020, Missouri
Baptist of St. Louis, Missouri, filed its motion to dismiss for lack of personal jurisdiction. On
August 6, 2021, the circuit court denied the motion to dismiss, finding “sufficient minimum
contacts occurred with the State of Illinois that makes specific jurisdiction over this matter
appropriate.” This timely appeal then followed. The facts necessary to our disposition of this
matter are taken from the various filings of the parties and are as follows.
¶4 At all times relevant to this lawsuit, the decedent and her husband were residents of Illinois.
The plaintiff alleges in his complaint the following general facts. Another defendant, Richard H.
Wikiera, D.O. (Dr. Wikiera), an Illinois defendant with no association or affiliation with Missouri
Baptist, performed on Barbara Sisson (Barbara) what is commonly referred to as gallbladder
surgery on September 4, 2018, in Madison County, Illinois, at Anderson Hospital. The following
morning, on September 5, Barbara developed a subsequent issue or complication which required
additional care. Dr. Wikiera “contacted” Dr. Aliperti, “a physician who specializes in
Gastroenterology and Internal Medicine, with privileges at the Missouri Baptist facility,” and
arranged a transfer of Barbara for further care at Missouri Baptist. Barbara was then transferred to
Missouri Baptist, where she underwent further surgery and care. Unfortunately, Barbara’s
condition further declined, and she died on September 26, 2018. Barbara did not leave the Missouri
Baptist facility from her September 5 transfer through her death on September 26.
1
We note that on September 4, 2020, the plaintiff, along with his son, Donald Sisson, as the
surviving son of Barbara Sisson, deceased, also filed a medical negligence action stemming from these
events in the State of Missouri. In that action, only Dr. Aliperti, Midwest Therapeutic Endoscopy
Consultants, and Missouri Baptist were named as defendants. That action was later dismissed so the plaintiff
could pursue an action in the State of Illinois. Because neither the filing of that action nor its dismissal has
any bearing on the outcome of this appeal, we decline to discuss it further and only reference the Illinois
lawsuit relevant to this appeal.
2
¶5 Relevant to the issue on appeal, the plaintiff alleged in his complaint that “[Missouri
Baptist] purposely directs its activities to Illinois facilities and patients, and it agreed to a request
by the Illinois defendants to accept [Barbara] as a patient.” He further alleged, “[a]t all times
relevant, [Missouri Baptist], a corporation, was engaged in the business of providing medical care
and accepting referrals of patients in Madison County, Illinois by and through its officers, agents,
employees and representatives.”
¶6 Following the plaintiff’s filing of the complaint, Missouri Baptist, on October 29, 2020,
entered a special and limited appearance for the limited and sole purpose of challenging the circuit
court’s personal jurisdiction over it. At the same time, Missouri Baptist also filed its motion to
dismiss for lack of personal jurisdiction.
¶7 In its motion to dismiss, Missouri Baptist argued that the plaintiff failed to meet its burden
of demonstrating that Missouri Baptist had sufficient contacts with Illinois to be subject to personal
jurisdiction in an Illinois court. Missouri Baptist specifically stated that the plaintiff failed to allege
that it provided care or treatment to the decedent within Illinois or that it committed a tortious act
against the decedent within Illinois. Additionally, Missouri Baptist attached an affidavit from its
manager for patient safety and risk management, Maggie Lange, which attested that (1) Missouri
Baptist is a “nonprofit corporation registered with and licensed by the State of Missouri,”
“maintains its principal place of business in St. Louis County, State of Missouri,” and “does not
maintain any business in the State of Illinois,” (2) the decedent was treated at Missouri Baptist
from September 5, 2018, to September 26, 2018, (3) the decedent’s treatment “was provided
exclusively in the State of Missouri,” and (4) none of Missouri Baptist’s employees provided any
health care services to the decedent in the State of Illinois.
3
¶8 Missouri Baptist’s motion to dismiss argued that the provisions of sections 2-209(a) and
(b) of the Code of Civil Procedure (Code) (735 ILCS 5/2-209(a), (b) (West 2020)) are not present
in this matter. Thus, Missouri Baptist argued that only the due process considerations set forth in
section 2-209(c) of the Code (id. § 2-209(c)) and the determination of whether general or specific
personal jurisdiction exists were before the circuit court. Missouri Baptist asserted that specific
personal jurisdiction did not exist because the alleged negligent conduct of Missouri Baptist
against Barbara did not arise from any conduct or actions taken by it within Illinois. It further
argued that because it is not incorporated in Illinois, does not have its principal place of business
in Illinois, and does not have a permanent or systematic relationship with Illinois such that it could
be considered “at home” in Illinois, general jurisdiction also did not exist.
¶9 The plaintiff, in his response, contended that the allegations within the complaint—alleging
that Missouri Baptist knowingly accepted an Illinois resident as a patient from an Illinois
physician, purposefully directed its activities towards Illinois facilities to accept their Illinois
patients, and routinely accepted Illinois patients to its facility—were sufficient to confer specific
personal jurisdiction.
¶ 10 On August 6, 2021, the circuit court entered an order denying Missouri Baptist’s motion
to dismiss. In its order, the circuit court found that Missouri Baptist was “a non-resident defendant,
and therefore Illinois law requires that the defendant have certain minimum contacts with the State
of Illinois in order for a court to have jurisdiction.” The court then noted that the plaintiff had
alleged “various affirmative acts on behalf of [Missouri Baptist], many of which involve the
transfer and referral of the patient” and that “[Barbara] would not have been a patient at [Missouri
Baptist] but for defendant’s granting the request of an Illinois medical provider and [Missouri
Baptist’s] affirmative acceptance of her transfer.” Finally, the circuit court held that “based on the
4
continued and routine transfer and acceptance of patients from Illinois by [Missouri Baptist]
retention of personal jurisdiction over this case would not defy notions of fair play and justice”;
therefore, the circuit court found that “sufficient minimum contacts occurred with the State of
Illinois that makes specific jurisdiction over this matter appropriate.”
¶ 11 A timely petition for leave to appeal followed from Missouri Baptist, and on March 2,
2022, this court granted leave to appeal under Rule 306(a)(3).
¶ 12 II. ANALYSIS
¶ 13 The sole question presented before this court is whether Missouri Baptist had sufficient
minimum contacts with the State of Illinois for an Illinois court to exercise personal jurisdiction
over it. We begin our analysis with a brief discussion of the relevant Illinois law applicable to this
matter as previously outlined by this court in Unterreiner v. Pernikoff, 2011 IL App (5th) 110006,
¶ 5:
“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)).
5
‘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).”
¶ 14 The issue set before this court is a narrow one. At no time during this litigation has the
plaintiff contended that the circuit court had general personal jurisdiction over Missouri Baptist in
this matter. The plaintiff, in his response to Missouri Baptist’s motion to dismiss, only argued that
specific personal jurisdiction existed. The circuit court, in its August 6, 2021, order, found
“sufficient minimum contacts occurred with the State of Illinois that makes specific jurisdiction
over this matter appropriate.” The circuit court’s order did not address whether general personal
jurisdiction was present. On appeal, the plaintiff asserts that because “[t]he Circuit Court did not
find that Illinois has general jurisdiction over Missouri Baptist” and his “response below focused
on specific jurisdiction,” “there is no need for this Court’s involvement on [the general jurisdiction]
issue.” In light of the foregoing, we find that the issue of general personal jurisdiction is not
properly before us and—as the issue has not been raised by the plaintiff at any stage of this
6
litigation, including this appeal—it is forfeited for purposes of this appeal. See Ill. S. Ct. R.
341(h)(7) (eff. Oct. 1, 2020) (argument must contain the contentions of the appellant, the reasons
therefor, and the citation of authorities; points not argued in an opening brief are forfeited). Thus,
we turn our attention to whether the circuit court’s finding of specific jurisdiction over Missouri
Baptist was proper.
¶ 15 First, both parties agree that the Illinois long arm statute is applicable to determining
jurisdiction in this matter, and specifically only subsection (c), which is commonly referred to as
the “catch-all provision.” 735 ILCS 5/2-209(c) (West 2020). The “ ‘catch-all provision,’ broadly
provides that a court ‘may also exercise jurisdiction on any other basis now or hereafter permitted
by the Illinois Constitution and the Constitution of the United States.’ ” Russell v. SNFA, 2013 IL
113909, ¶ 30 (quoting 735 ILCS 5/2-209(c) (West 2002)). “Thus, when, as here, a plaintiff argues
that personal jurisdiction is proper under subsection (c) of the Illinois long-arm statute, the sole
issue before the court is whether the nonresident defendant’s connection or contact with Illinois is
sufficient to satisfy federal and Illinois due process.” Id. Accordingly, “ ‘[s]pecific jurisdiction
requires a showing that the defendant purposefully directed its activities at the forum state and the
cause of action arose out of or relates to the defendant’s contacts with the forum state.’ ” Linder v.
A.W. Chesterton Co., 2020 IL App (5th) 200101, ¶ 11 (quoting Russell, 2013 IL 113909, ¶ 40, and
citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).
¶ 16 “It is settled that the plaintiff has the burden to establish a prima facie basis to exercise
personal jurisdiction over a nonresident defendant.” Russell, 2013 IL 113909, ¶ 28. In the case at
bar, the plaintiff’s basis for the existence of specific jurisdiction is that Missouri Baptist “purposely
directed its activity” towards Illinois when “it agreed to a request by the Illinois defendants to
accept [Barbara] as a patient” and through its “accepting referrals of patients in Madison County,
7
Illinois.” The plaintiff did not allege any other contacts with Illinois outside of its acceptance of
Illinois residents to its facility. There are no allegations that Missouri Baptist advertised or solicited
Illinois residents, that it had any agreements with Illinois health care providers or facilities for
transfers of patients, or that it facilitated the transfer of the patient from Illinois to Missouri. All
the parties agree that Missouri Baptist did not provide any medical care to Barbara while she was
in Illinois; instead, all of the medical treatment she was provided by Missouri Baptist occurred in
Missouri following her transfer. Following Missouri Baptist’s challenging of personal jurisdiction,
the plaintiff did not offer any supplemental evidence to support his claims or highlight any
additional contacts with Illinois. No affidavits or other evidence relating to the issue of specific
jurisdiction was set forth. Further, the plaintiff failed to request an opportunity to conduct limited
discovery on the jurisdictional issue and no discovery on the issue was completed by the parties.
The plaintiff instead chose to stand on the allegations contained in his complaint, both at the circuit
court level and here on appeal, contending that they are sufficient to establish specific personal
jurisdiction over Missouri Baptist. Thus, while there may be other contacts that Missouri Baptist
has with Illinois, we must consider only that which the plaintiff has alleged in his pleadings. Based
upon the case law as articulated below, we find that the allegation that Missouri Baptist accepted
an Illinois patient and that it “routinely” accepts patients from Madison County is not sufficient
for the plaintiff to meet his prima facie case supporting specific personal jurisdiction.
¶ 17 The United States Supreme Court in Burger King Corp., 471 U.S. 462, noted that “a
potential nonresident defendant should be able to ‘reasonably anticipate’ being drawn into
litigation in the foreign forum.” Russell, 2013 IL 113909, ¶ 42. In Burger King Corp., the Court
went on to explain:
8
“ ‘The unilateral activity of those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact with the forum State. The application
of that rule will vary with the quality and nature of the defendant’s activity, but it is
essential in each case that there be some act by which the defendant purposefully avails
itself of the privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws.’ ” Burger King Corp., 471 U.S. at 474-75 (quoting
Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
“The Court further explained that requiring a showing of ‘purposeful availment’ within the forum
state protects a nonresident defendant from being haled into a jurisdiction based on random or
attenuated contacts or the unilateral activity of a third party.” Russell, 2013 IL 113909, ¶ 42 (citing
Burger King Corp., 471 U.S. at 475). Specific jurisdiction can be exercised with due process only
where the defendant’s activities in the state “ ‘give rise to the liabilities sued on.’ ” Daimler AG v.
Bauman, 571 U.S. 117, 138 (2014) (quoting International Shoe Co. v. Washington, 326 U.S. 310,
317 (1945)).
¶ 18 We are therefore tasked with deciding whether Missouri Baptist’s “routine” acceptance of
patients from Illinois, and its subsequent acceptance of the transfer of Barbara, was sufficient to
create minimum contacts with Illinois to give rise to specific jurisdiction. There are numerous
cases within Illinois that have addressed jurisdictional issues as it relates to Illinois residents and
out-of-state health care providers. Unfortunately, none of these cases is specifically on point with
the facts set before us; however, we do find them to be instructive when taken together for the
purposes of this decision.
“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
9
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.
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
10
drugs were unnecessary and had been negligently prescribed to him. 111 Ill. App. 3d at
776.” Unterreiner, 2011 IL App (5th) 110006, ¶¶ 7-8.
¶ 19 The plaintiff argues that many of the cases, such as those discussed above, cannot be relied
upon because they were decided prior to the amendment of section 2-209 that extended the long-
arm jurisdiction to the full extent allowed by due process of law. However, numerous cases
following those decisions have also relied upon the analysis of those cases and reiterate the analysis
derived from those decisions. Thus, while not necessarily binding upon this court, they remain
instructive and the logic behind their analysis remains intact.
¶ 20 In Unterreiner, 2011 IL App (5th) 110006, the plaintiff, an Illinois resident, traveled to
Missouri for her medical appointments with the defendant health care providers. After some initial
blood work, the Missouri health care provider phoned the plaintiff at her home in Illinois,
instructed her to take some medication, and asked her to return to their Missouri offices for follow-
up. Id. ¶ 3. This court found personal jurisdiction could not rest on a phone conversation. Id. ¶ 9.
The defendants operated their medical offices exclusively in Missouri, were licensed only in
Missouri, never advertised for clients in Illinois, and never owned or leased any real or personal
property in Illinois. Id. The plaintiff unilaterally sought out the defendants and traveled to Missouri
to receive treatment from them. Id. Thus, we found that the fact that the defendants provided advice
to her over a phone call while she was in Illinois could not equate to the defendants having
“voluntarily invoked the protections and benefits of the laws of the State” of Illinois. (Internal
quotation marks omitted.) Id.
¶ 21 Also, in Sabados v. Planned Parenthood of Greater Indiana, 378 Ill. App. 3d 243, 245
(2007), an Illinois patient brought a medical negligence action against Planned Parenthood of
Greater Indiana (PPI), which prescribed birth control pills for her, alleging injuries from a blood
11
clot sustained after she returned to Illinois. PPI was located in Indiana and did not maintain an
office in Illinois. Id. at 251. It also conducted treatment and business exclusively in Indiana. Id.
The appellate court found that minimum contacts were lacking to have jurisdiction over PPI in
Illinois because the only contacts with Illinois were telephone book advertisements, which the
court found amounted “to mere solicitation.” Id.
¶ 22 The list of cases above is by no means exhaustive, but taken together, they outline that
where a patient initiates contact with an out-of-state facility, which does not have offices or
conduct services within Illinois, personal jurisdiction generally will not exist without further
contacts or activities by the out-of-state defendant with Illinois. See also Green v. United States,
No. 14-CV-119-NJR-DGW, 2016 WL 6248281 (S.D. Ill. Oct. 26, 2016) (no jurisdiction over
Missouri health care providers who had telephone contact with a correctional facility regarding
plaintiff inmate’s office note); Clemens v. Greenberg, 2022 IL App (1st) 201129 (brief phone call
between Wisconsin doctor who had treated patient for infection in Wisconsin and emergency room
(ER) physician in Illinois, in which physician informed the doctor of patient’s deep vein
thrombosis and how he would treat patient, did not create minimum contacts with Illinois sufficient
to satisfy due process and subject doctor and hospital to specific personal jurisdiction under
Illinois’s long-arm statute, in patient’s medical malpractice action; where call was initiated by
patient’s mother and ER physician, doctor’s participation was extremely limited, and doctor did
not provide any input into treatment plan).
¶ 23 The plaintiff and the circuit court distinguished the cases cited above with the present case
by arguing/finding that Barbara did not “unilaterally” select the out-of-state health care provider.
It is the plaintiff’s and the circuit court’s contention that Missouri Baptist’s acceptance of the
transfer of an out-of-state patient destroyed the unilateral nature of the contact between the parties,
12
rendering the analysis of these cases inapplicable. Plaintiff argues that Barbara “did not travel to
Missouri; she was transferred there, after Missouri Baptist chose to accept the transfer. She did not
show up on its doorstep.” We disagree. This court fails to find a significant difference between a
patient “traveling” on her own and the “transfer” of a patient orchestrated by her health care
provider. In both cases, the out-of-state health care provider has not reached into Illinois, but the
patient, whether by her own travel or a phone call from her physician acting on her behalf, has
reached out into the out-of-state forum for treatment. There is no allegation that Missouri Baptist
initiated the contact between the parties; in fact, it is clear from the plaintiff’s pleadings that
Barbara, through her physician, initiated the contact. Further, Missouri Baptist did not come to
Illinois to treat Barbara. They required that she come to Missouri to be treated. The mere
acceptance of the transfer of an out-of-state patient, alone, does not give rise to specific jurisdiction
over the health care provider in the home state of that patient. It is a leap to find that a patient
showing up on the doorstep of a hospital, on her own accord, and the hospital accepting her as a
patient constitutes “unilateral” activity, but that a patient’s physician calling a hospital and getting
the acceptance prior to the travel to the facility does not. In both cases, the out-of-state patient is
initiating the contact and, in both cases, the out-of-state defendant is accepting the defendant for
treatment at its location out of state. It is important that we reiterate that we are only considering
the allegations as contained within the plaintiff’s complaint in this matter; thus, we are only
considering whether the acceptance of the transfer of a patient alone, as alleged in this case, is
sufficient. We are not holding that the acceptance of a patient cannot be considered alongside other
contacts that could then be sufficient to give grounds for specific jurisdiction.
¶ 24 Additionally, we must keep in mind that not only must there be contact with Illinois, but
specific jurisdiction can be exercised with due process only where the defendant’s activities in the
13
state “ ‘give rise to the liabilities sued on.’ ” Daimler AG, 571 U.S. at 138 (quoting International
Shoe Co., 326 U.S. at 317). Here, that would mean we would need to find that Missouri Baptist’s
act of accepting the transfer of Barbara “gave rise” to her injuries. The plaintiff attempts to put
forth a “but-for” theory of causation, arguing that but for Missouri Baptist’s acceptance and her
subsequent transfer to their facility, the harm would have never occurred. However, we find this
is insufficient to give Illinois specific jurisdiction over Missouri Baptist.
¶ 25 “Although the United States Supreme Court has not clarified what is meant by ‘arising out
of’ or ‘related to’ in the context of a jurisdiction question [citation], several courts have determined
that the applicable standard is lenient or flexible.” Russell, 2013 IL 113909, ¶ 83 (citing Myers v.
Casino Queen, Inc., 689 F.3d 904, 913 (8th Cir. 2012)). Despite this lenient standard, we decline
to go so far as to say that the acceptance of a patient by a hospital caused or led to the death of a
patient. Generally, broad “but-for” arguments are insufficient. “Because ‘ “but for” events can be
very remote, *** due process demands something like a “proximate cause” nexus.’ ” Harlow v.
Children’s Hospital, 432 F.3d 50, 61 (1st Cir. 2005) (quoting Cambridge Literary Properties, Ltd.
v. W. Goebel Porzellanfabrik, 295 F.3d 59, 65 (1st Cir. 2002)). “A ‘but for’ requirement *** has
in itself no limiting principle; it literally embraces every event that hindsight can logically identify
in the causative chain.” Nowak v. Tak How Investments, Ltd., 94 F.3d 708, 715 (1st Cir. 1996).
Therefore, “although proximate causation is not a per se requirement of specific jurisdiction, its
presence or absence is still important.” Harlow, 432 F.3d at 61.
¶ 26 Here, the location of the alleged tortious conduct, medical malpractice, occurred in
Missouri, not Illinois. There are no allegations that an issue occurred in the transfer or that the
acceptance resulted in delayed treatment. The plaintiff has put forth no evidence that Missouri
Baptist purposefully induced Barbara to leave Illinois to come to Missouri or that Missouri Baptist
14
induced Barbara’s Illinois physician to refer her to Missouri Baptist. Therefore, the subsequent
alleged medical negligence of a health care provider, without more, does not “arise out of” the
acceptance of the transfer of patient.
¶ 27 Furthermore, the plaintiff, and the circuit court decision, imply that Missouri Baptist’s
alleged “routine” acceptance of patients from Madison County, Illinois, is a basis for specific
jurisdiction. This is not entirely correct.
“In order for a court to exercise specific jurisdiction over a claim, there must be an
‘affiliation between the forum and the underlying controversy, principally, [an] activity or
an occurrence that takes place in the forum State.’ [Citation.] When there is no such
connection, specific jurisdiction is lacking regardless of the extent of a defendant’s
unconnected activities in the State.” Bristol-Myers Squibb Co. v. Superior Court of
California, 582 U.S. ___, ___, 137 S. Ct. 1773, 1781 (2017) (quoting Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
Here, it appears that the plaintiff and the circuit court conflate to an extent the often-blurry line
between specific and general jurisdiction. As discussed above, the acceptance of a patient alone is
not grounds for specific jurisdiction. However, the number of patients a health care facility sees
could be evidence of business activity within a state, such that a plaintiff could argue that the state
is “at home” for purposes of general jurisdiction, especially when paired with other activities such
as marketing, sales, advertising, etc. However, in our examination of specific jurisdiction, the
acceptance of other individuals unrelated to the lawsuit is not relevant unless it demonstrates
activity that would be directed at Illinois residents or the injured party or that the defendant is
availing itself of Illinois laws or protections. This delineation is also evidenced in some of the
aforementioned cases. Here, the plaintiff put forth only the allegations contained in the complaint,
15
and there was no evidence presented that Missouri Baptist directed advertising, outreach efforts,
or anything of this nature into Illinois to seek out or acquire Illinois residents as patients. Like the
cases cited above, the relationship between Missouri Baptist and Barbara began with an unsolicited
and unilateral phone call from Barbara’s Illinois physician to Missouri Baptist. While it is true that
Missouri Baptist accepted an Illinois resident as a patient, it did so at its Missouri facility. This is
simply not a case of Missouri Baptist doing anything that might be construed as availing itself of
the benefits or protections of Illinois laws.
¶ 28 Furthermore, we briefly turn to the case Kostal v. Pinkus Dermatopathology Laboratory,
P.C., 357 Ill. App. 3d 381 (2005), which provides an example of when a defendant has availed
itself of Illinois laws sufficient to support personal jurisdiction. In Kostal, the out-of-state
defendant was a national diagnostic lab company based in Michigan, whose physicians provided
diagnostic services in Michigan through the mail to Illinois patients. The Kostal court noted that
the services “[were fundamentally interstate in nature from the inception of the relationship.”
(Internal quotation marks omitted.) Id. at 397. The court also noted that special jurisdictional rules
exist with respect to physicians “to ensure that jurisdiction is asserted only when that physician
has purposefully availed himself of the privileges of conducting activities in the patient’s state.”
Id. at 390. Generally, “the tortious rendition of medical services outside the forum state is not a
portable tort that would subject an out-of-state doctor to jurisdiction in the forum.” Id. at 392 (citing
Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972)). Thus, because the plaintiff did not travel out of
the State of Illinois to receive medical care and because defendants purposefully directed activities
to Illinois through their mail-based diagnostic services, the exercise of personal jurisdiction over
the defendants comported with due process requirements. Id. at 397-98.
16
¶ 29 The present matter stands in stark contrast to Kostal. Here, Barbara physically traveled to
Missouri for medical treatment. No treatment was rendered by Missouri Baptist in Illinois. There
are no allegations that Missouri Baptist solicited, advertised to, or targeted the plaintiff or any other
Illinois resident. There are no allegations that Missouri Baptist had any ongoing relationship with
the Illinois physician who referred Barbara to them. The only contact with Illinois is Missouri
Baptist’s acceptance of the transfer of an Illinois resident to its facility. Ultimately, the mere fact
that the reputation and expertise of an institution lead to referrals from out of state cannot be
enough to establish specific jurisdiction.
¶ 30 We acknowledge that with the advancement in technology, especially the ability to video
conference, the way health care is delivered to patients is rapidly changing. Physician-patient
interactions and medical treatment no longer always require in-person meetings like it previously
did. Further, health care providers are consolidating and becoming larger and more regional in
nature. As a result, we must reiterate that each case where the issue of personal jurisdiction arises,
especially in the context of medical services, must be decided upon its own facts.
¶ 31 Therefore, here, where we must consider only the allegations contained in the plaintiff’s
complaint as alleged and where the plaintiff bears the burden of showing a prima facie case of
specific personal jurisdiction, we find that the plaintiff has failed to meet his burden because
Missouri Baptist’s acceptance of an Illinois resident, alone, does not create sufficient minimum
contacts with Illinois to create personal jurisdiction in Illinois courts.
¶ 32 III. CONCLUSION
¶ 33 For the foregoing reasons, we reverse the circuit court’s August 6, 2021, order denying the
defendant’s motion to dismiss.
¶ 34 Reversed.
17
¶ 35 JUSTICE CATES, specially concurring:
¶ 36 I agree with the majority’s determination that the trial court erred when it denied Missouri
Baptist’s motion to dismiss for lack of specific personal jurisdiction. I write separately because I
do not agree fully with the majority’s jurisdictional analysis and discussion of case law. The only
issue on appeal is whether the trial court erred in finding that it had specific personal jurisdiction
over Missouri Baptist in this case. After reviewing the record, sparse as it is, I find that the plaintiff
did not meet his burden to establish a prima facie basis for specific personal jurisdiction over
Missouri Baptist under the particular facts presented herein. Accordingly, the trial court’s finding
of specific jurisdiction cannot be sustained.
¶ 37 In this case, the plaintiff’s decedent was transferred from a hospital in Madison County,
Illinois, to Missouri Baptist in St. Louis, Missouri, where she later died. The plaintiff brought a
medical negligence action against Missouri Baptist and several other defendants in the circuit court
of Madison County. Missouri Baptist moved to dismiss the claims against it, arguing the Illinois
circuit court did not have general or specific jurisdiction over it. The plaintiff filed a response in
opposition to Missouri Baptist’s motion. Therein, the plaintiff addressed only specific
jurisdiction. 2 The trial court found there were “sufficient minimum contacts” with the State of
Illinois to “make specific jurisdiction over this matter appropriate” and denied Missouri Baptist’s
motion to dismiss on that basis. 3 Missouri Baptist appealed.
¶ 38 Under federal due process standards, a court may exercise specific jurisdiction over a
nonresident defendant who has not consented to suit if the defendant has “purposefully directed”
2
In the appellee’s brief, the plaintiff readily acknowledged that his arguments in the trial court
focused solely on specific jurisdiction, and as such, there was “no need for this Court’s involvement” on
the issue of general jurisdiction.
3
Missouri Baptist also argued that it was not subject to general personal jurisdiction in Illinois, but
the trial court did not reach that issue. Accordingly, that issue is reserved for another day.
18
his activities at residents of the forum and the litigation results from alleged injuries that “arise out
of or relate to” those activities. (Internal quotation marks omitted.) Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985). In Burger King Corp., the United States Supreme Court
explained the rationale underlying this principle of due process:
“A State generally has a ‘manifest interest’ in providing its residents with a convenient
forum for redressing injuries inflicted by out-of-state actors. [Citations.] Moreover, where
individuals ‘purposefully derive benefit’ from their interstate activities [citation], it may
well be unfair to allow them to escape having to account in other States for consequences
that arise proximately from such activities; the Due Process Clause may not readily be
wielded as a territorial shield to avoid interstate obligations that have been voluntarily
assumed. And because ‘modern transportation and communications have made it much
less burdensome for a party sued to defend himself in a State where he engages in economic
activity,’ it usually will not be unfair to subject him to the burdens of litigating in another
forum for disputes relating to such activity. [Citation.]” Burger King Corp., 471 U.S. at
473-74.
¶ 39 The Supreme Court noted that, notwithstanding the aforementioned considerations, the
“constitutional touchstone” is whether the defendant purposefully established “ ‘minimum
contacts’ ” with the forum state. Burger King Corp., 471 U.S. at 474 (quoting International Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945)). While the application of the rule will vary with the
quality and nature of the defendant’s activities, it is essential that “ ‘there be some act by which
the defendant purposefully avails itself of the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its laws.’ ” Burger King Corp., 471 U.S. at 475(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). This “purposeful availment” requirement
19
protects a nonresident defendant from being brought into a jurisdiction based on random or
attenuated contacts or the unilateral activity of another person. Burger King Corp., 471 U.S. at
475. Where, however, a nonresident defendant has “deliberately *** engaged in significant
activities” within a forum or “created continuing obligations” between himself and residents of the
forum, he has availed himself of the privileges of conducting business in that forum and of the
benefits and protections of the forum’s laws. Under such circumstances, it is “presumptively not
unreasonable to require him to submit to the burdens of litigation in that forum as well.” (Internal
quotation marks omitted.) Burger King Corp., 471 U.S. at 475-76. Jurisdiction may not be avoided
simply because the defendant did not physically enter the forum. Burger King Corp., 471 U.S. at
476.
¶ 40 In keeping with these principles, an Illinois court may exercise specific personal
jurisdiction over a nonresident defendant if the defendant has purposefully directed its activities at
the forum and the action arises out of or relates to those activities. Russell v. SNFA, 2013 IL
113909, ¶ 40 (citing Burger King Corp., 471 U.S. at 472). Specific personal jurisdiction is case
specific. Aspen American Insurance Co. v. Interstate Warehousing, Inc., 2017 IL 121281, ¶ 14.
The plaintiff has the burden to establish a prima facie basis upon which an Illinois court may
exercise personal jurisdiction over a nonresident defendant. Russell, 2013 IL 113909, ¶ 28.
¶ 41 Here, the plaintiff alleged that Missouri Baptist “purposely direct[ed] its activities to
Illinois facilities and patients, and it agreed to a request by the Illinois defendants to accept
[plaintiff’s decedent] as a patient.” The plaintiff further alleged that Missouri Baptist “was engaged
in the business of providing medical care and accepting referrals of patients in Madison County,
Illinois, by and through its officers, agents, employees and representatives.” When presented with
Missouri Baptist’s challenge to personal jurisdiction, the plaintiff did not offer supporting
20
affidavits or other evidence to establish specific jurisdiction, nor did he request an opportunity to
conduct limited discovery on that issue. Instead, the plaintiff argued that the unrebutted allegations
in his complaint were sufficient to establish specific personal jurisdiction over Missouri Baptist.
Contrary to the plaintiff’s contention, the complaint does not contain specific factual allegations
establishing the nature and quality of Missouri Baptist’s relationship with the plaintiff’s decedent
and Illinois or the existence, nature, and quality of the relationships among Missouri Baptist, Dr.
Aliperti, and Dr. Wikiera. While there seems no dispute that Dr. Wikiera, an Illinois physician,
contacted Dr. Aliperti, “a physician who specializes in Gastroenterology and Internal Medicine,”
the plaintiff did not present any factual allegations, supporting affidavits, or other documentation
describing the specific conversation between these two physicians pertaining to the plaintiff’s
decedent or the details surrounding the referral and transfer of the decedent from an Illinois
medical facility to Missouri Baptist. Significant questions regarding these matters remain
unanswered. For example, was the transfer of the patient performed at the direction of Dr. Aliperti,
and if so, what instructions did Dr. Aliperti give for the transfer? Were Dr. Aliperti and his
employer, Midwest Therapeutic Endoscopy Consultants, LLC, agents of Missouri Baptist?
¶ 42 Additionally, Missouri Baptist presented an affidavit by Maggie Lange in support of its
jurisdictional arguments. In the affidavit, Lange stated that Missouri Baptist did not maintain any
business in Illinois. The plaintiff did not attempt to counter Lange’s assertion. Some limited
discovery or investigation of these matters might have shed light on the quality, nature, and extent
of Missouri Baptist’s contacts with Illinois and its residents. 4
4
Here, for example, a click of the mouse could have produced the corporate standing of Midwest
Therapeutic Endoscopy Consultants, LLC, revealing that it was an LLC registered to do business in Illinois,
and that Dr. Aliperti was the named manager. See Corporation/LLC Search/Certificate of Good Standing,
Ill. Sec’y of State, https://apps.ilsos.gov/corporatellc/corporatellccontroller (last visited Oct. 18, 2022)
[https://perma.cc/49KN-ZVMJ]. Likewise, a view of the websites of Missouri Baptist and BJC HealthCare
indicates that Missouri Baptist is part of the BJC HealthCare (BJC) system; that BJC does business through
21
¶ 43 To recap, the plaintiff did not present specific allegations or any supporting affidavits or
documentation regarding the details surrounding the referral and transfer of the decedent from a
health care facility in Illinois to a health care facility in Missouri. Additionally, the extent and
quality of Missouri Baptist’s contacts with Illinois went undeveloped in this case. The plaintiff’s
bare, conclusory allegations are not sufficient to make a prima facie showing that Missouri
Baptist’s contacts with Illinois satisfied due process for purposes of specific personal jurisdiction
in this case. For these reasons, I conclude that the trial court erred in finding that it had specific
personal jurisdiction over Missouri Baptist and that the court’s decision must be reversed.
¶ 44 In the majority opinion, my colleagues state that the jurisdictional issue is narrow, and that
this court is “tasked with deciding whether Missouri Baptist’s ‘routine’ acceptance of patients from
Illinois, and its subsequent acceptance of the transfer of [the decedent], was sufficient to create
minimum contacts with Illinois to give rise to specific jurisdiction.” Supra ¶ 18. The majority then
considers a line of Illinois cases in which Illinois residents, acting unilaterally, made conscious
decisions to travel outside of Illinois for medical treatment and thereafter were not permitted to
prosecute actions against the nonresident medical providers in Illinois because there was no
showing that the nonresident providers purposefully availed themselves of the privilege of
conducting business in Illinois. Unterreiner v. Pernikoff, 2011 IL App (5th) 110006, ¶ 9; Veeninga
its broad network of physicians and hospitals in Illinois, including Madison County; and that Dr. Aliperti
is a part of the BJC network of physicians. See, e.g., Missouri Baptist Medical Center, BJC HealthCare,
https://www.bjc.org/about-us/bjc-locations/missouri-baptist-medical-center (last visited Oct. 18, 2022)
[https://perma.cc/RK57-U8X3]; Locations, BJC HealthCare, https://www.bjc.org/about-us/locations (last
visited Oct. 18, 2022) [https://perma.cc/L4SC-X9YR]; Giuseppe Aliperti, MD, BJC HealthCare, https://
doctors.bjc.org/wlp2/doctors/info/akt003z6/giuseppe-aliperti-md (last visited Oct. 18, 2022) [https://
perma.cc/86RZ-R6UK].
The plaintiff could have requested that the trial court take judicial notice of the websites or domain
locations of the individual and corporate defendants. See generally Innovative Garage Door Co. v. High
Ranking Domains, LLC, 2012 IL App (2d) 120117, ¶ 4 n.1; People v. Clark, 406 Ill. App. 3d 622, 632
(2010); Ill. R. Evid. 201(b) (eff. Jan. 1, 2011).
22
v. Alt, 111 Ill. App. 3d 775, 779 (1982); Ballard v. Fred E. Rawlins, M.D., Inc., 101 Ill. App. 3d
601, 605 (1981); Muffo v. Forsyth, 37 Ill. App. 3d 6, 9 (1976). The majority acknowledges that
these cases are not specifically on point on the facts, but nevertheless finds them instructive. Supra
¶ 18. I do not share this view.
¶ 45 Specific jurisdiction depends on the particular and unique facts in each case. None of the
cases cited above are analogous to the case before us. 5 Each of these cases was decided on its own
particular facts, and, unlike the present case, the jurisdictional facts were better developed in those
cases. As noted above, there is scant information in the record regarding the activities of Missouri
Baptist and its agents with respect to the “routine acceptance” of transfer patients and the
subsequent acceptance and transfer of the decedent. Because the jurisdictional facts have not been
developed in the case at bar, there are no meaningful points of comparison between this case and
those cited in the majority opinion. It is like trying to compare an open box, with its contents
displayed, and a closed container, sealed with conclusory allegations.
¶ 46 The majority also discusses Kostal v. Pinkus Dermatopathology Laboratory, P.C., 357 Ill.
App. 3d 381 (2005), as an example of a case in which nonresident defendants purposely directed
activities at Illinois and availed themselves of Illinois law. Upon considering the quality and nature
of the defendants’ activities with Illinois and its residents, the Kostal court determined that the
defendants, by the very nature of their business model and practice, operated nationwide and that,
5
In Unterreiner, the nonresident physicians’ solitary, follow-up phone call to the residence of their
Illinois patient to adjust a prescription was insufficient to establish that the defendants had voluntarily
invoked the protections and benefits and protections of the laws of Illinois. In Veeninga, Ballard, and Muffo,
a nonresident physician called-in or wrote a prescription for a medication for an Illinois patient that was
filled in Illinois, and that single phone call or contact was found to be an insufficient basis for exercising
personal jurisdiction over the nonresident provider. It is also noteworthy that Veeninga, Ballard, and Muffo
were decided before the legislature amended the Illinois long-arm statute in 1989, adding a “catch-all”
provision that allows a court to exercise jurisdiction on “any other basis *** permitted by the Illinois
Constitution and the Constitution of the United States.” Ill. Rev. Stat. 1989, ch. 110, ¶ 2-209(c).
23
through their national operations, “affected a significant interest in Illinois—the health of one of
its citizens.” Kostal, 357 Ill. App. 3d at 398. Again, unlike the case at bar, the Kostal court had the
benefit of a record in which the jurisdictional facts regarding personal jurisdiction were developed.
¶ 47 Later in the opinion, the majority acknowledges the lack of development of jurisdictional
facts in this record, but nevertheless finds that like the aforementioned cases, “the relationship
between Missouri Baptist and [the decedent] began with an unsolicited and unilateral phone call”
from the decedent’s physician to Missouri Baptist and that “[t]his is simply not a case of Missouri
Baptist doing anything which might be construed as availing itself of the benefits or protections of
Illinois laws.” Supra ¶ 27. I do not agree that those findings can be discerned from the current
record. What is known is that a seriously ill patient was transferred from an Illinois health care
facility to a Missouri hospital. Beyond that, as noted above, the plaintiff did not provide any
allegations or information regarding the specific circumstances surrounding the patient transfer.
As to Missouri Baptist, the facts regarding personal jurisdiction, specific and general alike, have
not been developed in this case.
¶ 48 Decades ago, the Supreme Court recognized that “modern transportation and
communications” made it much less burdensome for a party to defend itself in a forum where it
engaged in economic activities and, therefore, that it usually would not be unfair to subject that
party to the burdens of litigating disputes related to its activities in that forum. (Internal quotation
marks omitted.) Burger King Corp., 471 U.S. at 474. The “constitutional touchstone” of due
process remains whether a nonresident defendant purposefully established “minimum contacts”
within a forum, but advances in technology and transportation impact the nature and quality of a
defendant’s activities and contacts with that forum. Burger King Corp., 471 U.S. at 474. The
delivery of health care services has noticeably changed in the past several years due, in part, to
24
significant advances in communications technology. Increasingly, medical consultations and
virtual health care services are being offered via telemedicine and the web. Medical providers,
including local physicians, are able to reach out beyond state lines to establish relationships with,
and meet obligations to, their out-of-state patients. Health care corporations routinely engage in
mergers and acquisitions of regional health care facilities and, with intentionality, market their
services to patients regionally. Whether an out-of-state provider is subject to personal jurisdiction
in Illinois must be decided based on the unique facts presented in each case and in light of the
continuing advances in “transportation and communications.”
¶ 49 In sum, this case presents us with a single issue of specific jurisdiction, and the resolution
of the issue depends upon the minimum contacts that Missouri Baptist, an out-of-state health care
corporation, has with Illinois and one of its residents. The plaintiff did not present specific factual
allegations or supporting documentation regarding the quality and nature of Missouri Baptist’s
contacts and relationship with the decedent and the State of Illinois. Instead, the plaintiff relied on
conclusory allegations in his complaint to support his claim of specific personal jurisdiction.
Without sufficient support for his jurisdictional allegations, the plaintiff did not meet his burden
to make a prima facie showing that Missouri Baptist purposely directed its activities to Illinois
facilities and patients and, therefore, that its activities were not random, fortuitous, or attenuated.
In light of the foregoing, the trial court’s finding that it had specific jurisdiction over Missouri
Baptist cannot be sustained. Therefore, I agree the trial court’s decision must be reversed.
¶ 50 For the reasons stated, I specially concur.
25
Allen v. Missouri Baptist Medical Center, 2022 IL App (5th) 210263Decision Under Review: Appeal from the Circuit Court of Madison County, No. 20-L-
1278; the Hon. Sarah D. Smith, Judge, presiding.
Attorneys Michael J. Nester, of Donovan Rose Nester, P.C., of Belleville,
for and Terrence J. O’Toole Jr., of Baker Sterchi Cowden & Rice
Appellant: LLC, of St. Louis, Missouri, for appellant.
Attorneys Roy C. Dripps, Charles W. Armbruster III, and Michael T.
for Blotevogel, of Armbruster Dripps Blotevogel, LLC, of
Appellee: Maryville, for appellee.
26