Prince v. Urban

CROSBY, J.,

JDissenting.—While there is surface allure to my colleagues’ opinion, the rule of law they create is a bad one. I cannot agree that a finding of no jurisdiction is necessary to avoid the shunning of California patients seeking follow-up care from out-of-state doctors and medical facilities. Forum non conveniens motions would dispose of most such cases, I think, and properly so.1 But there might be good reason to retain a few of them. For example, what of quack practitioners in other jurisdictions with a track record of attracting desperately ill California patients, whether by advertising or word of mouth, who then continue to treat them when they have returned to this state? They ought to expect to be required to defend here. For these reasons I decline to join in today’s decision, based as it is on spurious notions of public policy. I would hold they have no proper role to play in a jurisdictional analysis; instead, public policy concerns go to forum non conveniens considerations, in my view.

California’s jurisdiction extends to the limits of state and federal due process.2 (Code Civ. Proc., § 410.10.) Due process requires that a defendant have “minimum contacts” with the forum state “such that the maintenance of *1068the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”3 (Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316 [90 L.Ed. 95, 102, 66 S.Ct. 154, 161 A.L.R. 1057].) The test is not “mechanical or quantitative,” but depends upon the “quality and nature” of the defendant’s activities within the state. (Id. at p. 319 [90 L.Ed.2d at pp. 103-104].) Whether a defendant’s contacts with the forum are sufficient to warrant jurisdiction depends on “the relationship among the defendant, the forum, and the litigation.” (Shaffer v. Heitner (1977) 433 U.S. 186, 204 [53 L.Ed.2d 683, 698, 97 S.Ct. 2569].) That relationship “must be such that it is ‘reasonable ... to require the [defendant] to defend the particular suit which is brought there.’ ” (World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 292 [62 L.Ed.2d 490, 498, 100 S.Ct. 559].)

One test is whether “defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” (World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at p. 297 [62 L.Ed.2d at p. 501].) Of course, in the modem age, “commercial transactions [may] touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modem transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.” (McGee v. International Life Ins. Co. (1957) 355 U.S. 220, 222-223 [2 L.Ed.2d 223, 226, 78 S.Ct. 199].)

Nevertheless, state court jurisdiction over nonresidents is not judged only by their expectations or the burden it would place upon them; due process restraints on the exercise of jurisdiction “are a consequence of territorial limitations on the power of the respective States.” (Hanson v. Denckla (1958) 357 U.S. 235, 251 [2 L.Ed.2d 1283, 1296, 78 S.Ct. 1228].) Thus, “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 fomm State, thus invoking the benefits and protections of its laws.” (Id. at p. 253 [2 L.Ed.2d at p. 1298]; see also Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1759 [46 Cal.Rptr.2d 191].) One way to invoke “benefits and protections” is to engage in economic activity in the fomm state, provided that the income generated is not fortuitous or unforeseeable. (Rice Growers Assn. v. First National Bank (1985) 167 Cal.App.3d 559, 567 [214 Cal.Rptr. 468]; see also McGee v. International Life Ins. Co., supra, 355 U.S. *1069at pp. 222-223 [2 L.Ed.2d at pp. 225-226]; Furda v. Superior Court (1984) 161 Cal.App.3d 418, 424 [207 Cal.Rptr. 646] [Although the rule was announced in a products case, there appears no reason why the test should be different for a nonresident marketing services where the individual purposefully entered into a contractual relationship in California and the relationship produced gross income as contemplated.].)4

There are no California cases precisely on point; but a physician’s economic activity in the forum state, or lack thereof, seems to be the key to jurisdiction in this variety of litigation. In Spokane Eye Clinic, Inc. v. Superior Court (1976) 63 Cal.App.3d 548 [133 Cal.Rptr. 838], for example, the Court of Appeal concluded California had no jurisdiction over a Washington medical corporation that treated the plaintiff for glaucoma. After several years the corporation referred him to a San Francisco eye specialist, who performed surgery that resulted in a loss of vision. Plaintiff alleged his injury resulted in part from delay by the Washington doctors. None of the Washington corporation’s physicians were licensed to practice medicine in California, and they received no referral fee. The clinic’s doctors sent at least three patients per year to the San Francisco doctors for treatment; several of those physicians had previously studied glaucoma care in the San Francisco doctors’ offices. The court quite properly concluded defendant corporation had performed no act in California and received no economic benefit from the referral.

Similarly, in Wright v. Yackley (9th Cir. 1972) 459 F.2d 287, plaintiff was treated with drugs by a defendant in South Dakota who gave her unlimited prescription refills. She moved to Idaho, but was unable to fill the prescription. She wrote the defendant who, without charge, furnished copies of her original prescription. She then claimed injury from use of the drugs.5 The court explained the injury resulted from the original treatment and noted, *1070“[this] was not diagnosis and treatment by mail. It was simply confirmation of the old diagnosis and prescription.” {Id. at p. 289.)

The court asserted the focus should be on the place where personal services are rendered, and tortious rendition is not a “portable tort . . . .” (Wright v. Yackley, supra, 459 F.2d at pp. 289-290.) It observed, “From the very nature of the average doctor’s localized practice, there is no systematic or continuing effort on the part of the doctor to provide services which are to be felt in the forum state” and that a local doctor does not ordinarily engage in “voluntary, interstate economic activity.” (Id. at p. 290.) The court also thought “[t]he traveling public would be ill served were the treatment of doctors confined to so much aspirin as would get the patient into the next state” (ibid.) and that the forum state’s interest “is not that [its citizens] should be free from injury by out-of-state doctors, but rather that they should be able to secure adequate medical services to meet their needs wherever they may go.” (Id. at p. 291; see also Valley Wide Health Services v. Graham (1987) 106 N.M. 71 [738 P.2d 1316] [A New Mexico resident treated at Colorado clinic; defendant doctor’s single return call, confirming previous diagnosis, was held to be an insufficient contact.]; Almeida v. Radovsky (R.I. 1986) 506 A.2d 1373 [Plaintiff’s decedent traveled from Rhode Island to Massachusetts for treatment for 15 years; no jurisdiction where physician’s only “contact” was the execution of an agreement to accept payments from Rhode Island’s Blue Shield plan and no evidence doctors derived any increase in business from Rhode Islanders or that the carrier referred its subscribers to out-of-state physicians.]; Schwilm v. Holbrook (3d Cir. 1981) 661 F.2d 12 [A West Virginia doctor misdiagnosed plaintiff’s neck injury; the only contact with Pennsylvania was arranging plaintiff’s transfer to a Pennsylvania hospital and sending medical records there.].)6

There is more here, however. Kennedy v. Freeman (10th Cir. 1990) 919 F.2d 126 is more apt factually. There a patient had a lesion removed in Oklahoma by a local physician. The doctor sent it to defendant in Texas, where he erroneously measured it, resulting in the wrong treatment and the spread of a malignant melanoma. The court said Oklahoma had personal *1071jurisdiction over the Texas defendant: “In the context of doctor-patient litigation, special rules have evolved to ensure that personal jurisdiction is asserted over a doctor only when she has purposefully availed herself of the privileges of conducting activities within her patient’s state. While a doctor’s practice may be local, she may often treat out-of-state patients who seek her help. Thus, courts have had to fashion jurisdictional rules when doctors who have essentially local practices become involved in another state not as a result of their intention to do so but, rather, as a result of the action of their out-of-states patients. [Citations.] Courts have found jurisdiction over nonresident doctors where they purposefully directed their actions at plaintiffs’ states. For example, where doctors or hospitals have intentionally solicited business from a state, courts have held jurisdiction over them to be proper in that state. [Citations.]” (Id. at p. 129.)

The court concluded due process was satisfied because defendant accepted the tissue sample from Oklahoma, sent his bill there, and rendered his diagnosis through the mail. (Kennedy v. Freeman, supra, 919 F.2d at p. 129; accord, Bullion v. Gillespie (5th Cir. 1990) 895 F.2d 213 [A Texas patient was referred to defendant, a California urologist, after reading her book. She was examined and treated in California and invited to participate in an experimental Food and Drug Administration treatment program, administered by her Texas physician. Defendant mailed her drugs, and plaintiff paid her for services and drugs.]; McGee v. Riekhof (D.Mont 1978) 442 F.Supp. 1276 [A Utah surgeon reattached a Montana resident’s retina in Utah and told plaintiff’s wife to call. During the second call, defendant said plaintiff could return to work. He did and suffered a retinal tear.].)

Kennedy also rejected the major argument against jurisdiction cited by the majority and the superior court in this case: “The district court reasoned that given [Oklahoma’s] compelling interest in ensuring access to out-of-state, specialized medical care, jurisdiction should not lie in this case. However, when a doctor purposefully directs her activities at the forum state, that state has a greater interest in deterring medical malpractice against its residents. [Citations.] The district court’s concerns are placed in their proper perspective when one considers that suits against doctors are always available in their home states. Thus, finding jurisdiction in this type of case will have only incremental deterrent effect on doctors who provide health care to citizens of foreign states. At any rate, our decision is consistent with the Supreme Court’s observation that ‘[t]he Due Process Clause allows flexibility in ensuring that commercial actors are not effectively “judgment proof’ for the consequences of obligations they voluntarily assume in other States.’ ” (Kennedy v. Freeman, supra, 919 F.2d at pp. 129-130.)

The present defendants’ contacts with this state and this plaintiff were extensive. They actively consulted with her by telephone on numerous *1072occasions, monitored her condition, and arranged for her consumption of a variety of medications in California. Significantly, they billed plaintiff for these new services. The simple fact that treatment continued over the phone, for a price, convinces me defendant should have anticipated being haled into court in this state.

California jurisdiction in this case is not unreasonable under our long-arm statute. (See Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 113 [94 L.Ed.2d 92, 105, 107 S.Ct. 1026].) The burden on the doctors to defend in California, as opposed to Illinois, is not especially great in this age of electronic mail, video conferencing, videotape, and speedy air travel between major cities.7 California does have a significant interest in protecting its residents from potentially harmful drugs and treatment rendered by those not licensed to practice here (although hardly the interest in an isolated incident of alleged malpractice by Illinois physicians that Illinois would). But the litigation could be resolved in this state, if Illinois is an unsatisfactory forum for some reason.

The majority is concerned that a finding of jurisdiction will encourage doctors to refuse to treat residents of other states or cause them to discontinue the care of patients returning to their home states. And these are somewhat troublesome notions, I agree. Doctors are notoriously litigation-sensitive, but they should not fear that this state would choose to retain the vast majority of cases of out-of-state origin. Under most circumstances the cases, local treatment, not solicited or followed up across state lines, will not result in a finding of jurisdiction.

Here, though, defendants went beyond the borders of Illinois and did more than merely counsel an erstwhile patient. They purposefully engaged in fee-generating activities in California. Assuming it has anything to do with the analysis, I see no fundamental substantive social policy of this state that would be subverted by finding jurisdiction on these facts. (Kennedy v. Freeman, supra, 919 F.2d at p. 129; but see Howard v. Dooner Laboratories, Inc. (1984) 211 Mont. 312 [688 P.2d 279].) And it is demeaning to the outstanding specialists, clinics, and hospitals around this country to suggest California patients would be given a couple of aspirin to get across the state line and no follow-up treatment were we to rule otherwise with respect to a few bad apples in the medical profession that cannot be discouraged in any other reasonable way apart from trial before a California jury.

In short, we should decline to adopt a rule to the effect that when out-of-state doctors elect to practice medicine in California by telephone and *1073mail, they will be immune from suit here. Why should one occupation be singled out for such special treatment under our long-arm statute? On the other hand, most similarly situated defendants, doctors and hospitals included, may proceed with a properly presented forum non conveniens motion.8 (See Code Civ. Proc., § 418.10, subd. (d).) This state, after all, is not suffering from a lack of litigation.

I would reverse.

This comment assumes there is no procedural bar to the action, e.g., that the statute of limitations has not run or that defendants have agreed to waive it. (See Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 750, fn. 2 [1 Cal.Rptr.2d 556, 819 P.2d 14]; Shiley Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 130 [6 Cal.Rptr.2d 38].)

The facts were not in conflict; the case presents a question of law. (Great-West Life Assurance Co. v. Guarantee Co. of North America (1988) 205 Cal.App.3d 199, 204 [252 Cal.Rptr. 363].) Plaintiffs bore the burden of proving minimum contacts (State of Oregon v. Superior Court (1994) 24 Cal.App.4th 1550, 1557 [29 Cal.Rptr.2d 909]); the burden then *1068shifted to defendants to demonstrate that assumption of jurisdiction would be unreasonable. (Ibid.)

I find nothing in International Shoe suggesting “public policy” of the forum state should play any role in the due process jurisdictional analysis.

Courts recognize that less extensive activity may support “limited” or “specific” jurisdiction, i.e., where defendant’s contacts with the jurisdiction give rise to the cause of action asserted. (Cornelison v. Chaney (1976) 16 Cal.3d 143, 148 [127 Cal.Rptr. 352, 545 P.2d 264].) Jurisdiction exists over one who causes “effects in the state by an act or omission done elsewhere with respect to causes of action arising from the effects . . . unless the nature of the effects and of the individual’s relationship to the state make exercise of jurisdiction unreasonable. [Citations.]” (Secrest Machine Corp. v. Superior Court (1983) 33 Cal.3d 664, 669 [190 Cal.Rptr. 175, 660 P.2d 399].)

I have considered whether it might violate the law of California, and thus serve as a basis for jurisdiction, that physicians not licensed in this state prescribed drugs here for California patients. But Business and Professions Code section 4008 states, “the board may adopt regulations permitting the dispensing of drugs . . . pursuant to a prescription of a person licensed to prescribe in a state other than California . . . .” The regulations provide, “[a] pharmacist may furnish a drug or device pursuant to a written or oral order from a prescriber licensed in a state other than California in accordance with Business and Professions Code Section 4008.” (Cal. Code Regs., tit. 16, § 1717, subd. (d).)

In Etra v. Malta (1984) 61 N.Y.2d 455 [474 N.Y.S.2d 687, 463 N.E.2d 3], the court concluded New York’s long-arm statute (applying where defendant “ ‘transacts . . . business’ ” or “ ‘contracts anywhere to supply goods or services in the state’ ”) did not reach a Massachusetts doctor who treated the decedent with an experimental drug in Massachusetts, referred him to a New York physician, and continued to consult and provide the experimental drug (the drug was available only from a clinical investigator), which ultimately caused the side effect that killed decedent. The court noted defendant did not act as the “treating physician” and was thus not conducting business in the state. It added that incidental provision of a drug, as part of a course of treatment rendered in another state, did not fall within contemplation of the statute. (463 N.E.2d. at pp. 4-5.)

And removal to federal court under diversity rules appears available to defendants, if they wish.

I realize, of course, that the convenience of the forum is also a factor in the jurisdictional analysis “at least when . . . justification for the exercise of jurisdiction is not obvious.” (Cornelison v. Chaney, supra, 16 Cal.3d at p. 150.) Here, with all due respect, prescribing medication for a fee in this state makes the exercise of jurisdiction sufficiently obvious to avoid resolving the jurisdictional issue on purely grounds of convenience. Another consideration is that the action might be barred in Illinois for some reason, in which case it would be quite an inconvenient forum for our California plaintiff. (See fn. 1, ante.) Moreover, the majority’s finding that jurisdiction is lacking is the end of the lawsuit in California, while a determination that this state is merely an inconvenient forum would allow the court the option to abate, rather than dismiss, the proceeding. (Code Civ. Proc. § 410.30, subd. (a).)