Case Notes: A River Runs Through It in Jurisdiction issues in case involving medical treatment in Louisville but followup surgery across the Ohio River (Cooper vs. Dr. Ajith Nair, Kentuckiana Pain Specialists and Metro Specialty Surgery Center, COA NPO 1/9/2015)

 

Screenshot capture from Google Maps.

Screenshot capture from Google Maps.

This decision highlights what the risks are when you select a Louisville physician who then ships you across the river to Indiana for surgery (where there is more favorable medical malpractice protection for the doctor but a most tortuous path for those who have been injured when trying to get their lives back from a doctor’s mistakes).  The doctors say it keeps their costs down by operating in Indiana, but another way to look at it is that it frustrates the patient’s care and needs, especially when the procedure is believed to have been botched.

Here’s the case and a recommended read for the limits of prosecuting medical negligence claims when a river runs through it.  Note, the decision indicates the actual act of negligence arose from the surgery in Indiana which has a two year statute of limitation with Kentucky having a one-year statute.  The lawsuit was filed in Kentucky on the eve of the one year Kentucky SOL (statute of limitation), and the trial court ruled nearly a half-year prior to the two-year SOL for Indiana.  Nothing was said in this opinion whether they was concurrent or subsequent filing in Indiana, and one can clearly understand the fight to stay in the Commonwealth to avoid the harsh and nearly insurmountable obstacles to recovery through the Indiana medical malpractice system.  Thus, the results might not be so harsh as originally suspected if there was concurrent filing in Kentucky and Indiana.  And, this my friends is why medical malpractice prosecution and defense is not for the faint hearted, and why the traffic snarls are not the only reason to stay on this side of the river when it comes to medical treatment.

And, of course, these litigants have yet to address the choice of law issues in this one, and will still have to navigate how the office visits and treatment might allow personal jurisdiction over Dr. Nair and Kentuckiana Pain Specialists.

Medical Negligence.  Venue and in personal jurisdiction re Indiana surgery center; Long Arm Statute (interesting read since physicians treated plaintiff in Louisville, but physician performed surgery in Indiana at the Metro Specialty Surgical Center)

Teddy Cooper vs.  Dr. Ajith Nair, M.D.
COA NPO 1/9/2015
Affirming in part, vacating in part and remanding;  Jefferson County

Teddy Cooper and Lori Cooper, his wife, appeal from the order of the Jefferson Circuit Court dismissing their negligence action against Dr. Ajith Nair; Kentuckiana Pain Specialists, P.S.C.; and Metro Specialty Surgery Center, L.L.C. On appeal, the Coopers argue that the trial court erred in determining that Jefferson County was not the proper venue for their claims and that the court lacked in personam jurisdiction over Metro Specialty Surgery Center, a business entity organized under the laws of Indiana and domiciled there. Having reviewed the record and the arguments of counsel, we affirm in part, vacate in part, and remand.

In this case, a Hardin County resident was treated by Dr. Nair at Kentuckiana Pain Specialists for 22 separate visits for low back complaints, but has back surgery in Indiana at the Metro Specialty Surgery Center.  One day before the one-year anniversary of the surgery, Cooper filed suit in Jefferson County against Dr. Nair, Kentuckiana Pain, and Metro Specialty Surgery Center claiming they deviated from the standard of care.  What was not included in the complaint was the basis for jurisdiction over Metro Surgery who raised personal jurisdiction and venue in defense.  It was not disputed that the med-mal claim was based upon the Indiana surgery.

Judge Bisig, Jefferson Circuit Court, dismissed the claims against Metro Surgery for lack of jurisdiction and dismissed the claims against Dr. Nair and Kentuckiana Pain for lack of venue.

Jurisdiction was noted to be a two-step process.   First was jurisdiction authorized under the long arm statute?  Second, does jurisdiction comport with federal due process.

While the Coopers are required to set forth the necessary facts supporting a finding of jurisdiction, they failed to identify to the trial court which of these circumstances was relevant to its  determination. Nor have they offered any basis for the exercise of  personal jurisdiction in their brief on appeal. Instead, the Coopers argue that they are entitled to an opportunity to conduct further discovery since they adduced evidence sufficient to show: that Dr. Nair is an agent of Metro Specialty Surgery Center; that other Kentucky doctors have a relationship with the surgery center; and that the surgery center maintains contact and does business with Kentucky patients. The Coopers contend that the trial court erred by denying them the opportunity to conduct further discovery with respect to these issues.

The Court of Appeals in an opinion written by Judge Combs concluded there was no personal jurisdiction over Metro Specialty Surgery Center.

It is undisputed that Metro Specialty Surgery Center is an Indiana business entity with its principal place of business in Jeffersonville, Indiana. It is not registered with the Kentucky Secretary of State, and it is not authorized to conduct business in the Commonwealth. In fact, given the breadth of services that it offers on an outpatient basis, it is specifically prohibited from conducting business here. It is undisputed that the surgery center  as not involved with the care and treatment that Teddy Cooper was offered or  provided in the Commonwealth. The surgery center provided care to him only  in Indiana. The surgery center does not supply goods nor does it contract to supply goods in the Commonwealth. It has no agents or employees working on its behalf in Kentucky. It maintains no office in Kentucky; it does not insure any party in the Commonwealth; it does not own property here; and the Coopers have never alleged that it caused tortious injury here. Under these circumstances, we  conclude that the requirements of our long-arm statute have not been satisfied.

However, with regard to personal jurisdiction over Dr.  Nair and Kentuckiana Pain Specialists, the COA vacated the order of the Jefferson Circuit Court “dismissing the claims asserted by the Coopers against Dr. Nair and Kentuckiana Pain Specialists and remand for further proceedings. However, based upon the foregoing analysis, we affirm the order of the court dismissing the claims asserted by the Coopers against Metro Specialty Surgery Center. ”

[continue reading below for the entirety of the appellate opinion]

CIVIL (INTERNET DOMAINS): Commonwealth of Kentucky, ex rel. J. Michael Brown, Secretary, Justice & Public Safety Cabinet v. Interactive Media Entertainment & Gaming Assn., Inc., et al. (SC 3/18/2010)

Commonwealth of Kentucky, ex rel. J. Michael Brown, Secretary, Justice & Public Safety Cabinet v. Interactive Media Entertainment & Gaming Assn., Inc., et al.
2009-SC-000043-MR March 18, 2010 Opinion by Justice Noble. All sitting; all concur.

Petitioners filed for a writ from the Court of Appeals to stop Commonwealth from seizing the Internet domain names of gambling websites. The Court of Appeals granted the writ after concluding that the circuit court was acting outside its jurisdiction. The Supreme Court reversed the Court of Appeals, holding petitioners lacked standing to challenge the forfeiture. Some of the counsel for petitioners claimed to represent the domain names themselves. The Court held that in in rem litigation such as this, only those with an interest in the property have an interest in the litigation. Since the property can have no interest in itself, it had no interest in contesting the forfeiture.

Furthermore, the Court held that two gaming trade associations who purported to represent the remaining petitioners also lacked standing. The Court noted that these trade associations have standing only if its members could have sued in their own right. Since neither trade association would identify which domain name registrants it claimed to represent, the Court held the associations could not meet their burden of showing they had standing. The Court declined to reach the merits of the case and remanded to the Court of Appeals with instructions to dismiss the petition for a writ.

CIVIL PROCEDURE, Board of Claims SOL: Nelson County Board of Education v. Forte (COA 10/9/2009)

Nelson County Board of Education v. Forte

2008-CA-001958 10/09/09 2009 WL 3231646 DR Pending

Opinion by Judge Taylor; Chief Judge Combs and Judge Nickell concurred. The Court affirmed an order of the circuit court which vacated and remanded an order of the Board of Claims dismissing an action as time barred under KRS 44.110(1). The Court held that the circuit court properly vacated and remanded. The term “court” as used in KRS 413.270(1) included the Board of Claims and therefore, the tolling provision of KRS 413.270(1) was applicable to an action filed in the Board of Claims.

CIVIL PROCEDURE: Dismissal for lack of prosecution; long arm statute: Beach v. Caesars Riverboad Casino, LLC (COA 9/4/2009)

Beach v. Caesars Riverboad Casino, LLC

2008-CA-000402    9/4/09    2009 WL 2834842    DR pending Opinion by Judge Taylor; Judge Moore concurred; Judge VanMeter dissented.

The Court reversed and remanded an order of the circuit court dismissing an action for lack of jurisdiction over appellees on appellant’s complaint for personal injuries she received on appellees’ riverboat casino located just across the Kentucky state line in Indiana. The Court held that the trial court erred by dismissing the complaint and concluding that the cause of action did not arise out appellees’ contacts in Kentucky. The Court took judicial notice, pursuant to KRE 201, of the adjudicated facts set out in Ford v. RDI/Caesars Riverboat Casino, LLC, 503 F.Supp. 2d 839 (W.D. Ky. 2007), and held that these facts, coupled with the unrefuted allegations in the complaint, provided the Court with a sufficient factual background to analyze appellees’ contacts with Kentucky under the long- arm statute, KRS 454.210. While appellees’ contacts with Kentucky did not “cause” the accident, the systematic and continuous nature of the contacts most clearly contributed to appellant’s presence on the premises when she suffered her injuries.

WRITS – Lack of subject matter jurisdiction in writ filed over property distribution and estate matter: William Goldstein, Executor v. Judge Timothy J. Feeley & Ruby Joann Young-Layer (Real Party in Interest) (SC 8/27/2009)

William Goldstein, Executor v. Judge Timothy J. Feeley & Ruby Joann Young-Layer (Real Party in Interest)
2008-SC-000597-MR August 27, 2009
Opinion by Justice Venters. All sitting; all concur.

Before the circuit court could rule on the property division in dissolution action, the exhusband passed away. The circuit court substituted the estate as party to the dissolution and entered a restraining order prohibiting transfer of marital assets. The executor filed for a writ of prohibition and mandamus, arguing the trial court lacked personal jurisdiction. The Court of Appeals denied the writ. On appeal, the executor argued that a writ was proper since the trial court was proceeding outside its jurisdiction, which he contended was a proper basis for the issuance of a writ. The executor asserted he had not been properly served with process, therefore the circuit court lacked personal jurisdiction over him.

The Court affirmed the Court of Appeal’s denial of the writ, holding the “lack of jurisdiction” in writ cases as referred to in Hoskins means a lack of subject matter jurisdiction —not personal jurisdiction. Furthermore, the Court held that the exhusband’s death “did not divest the circuit court of jurisdiction over the marital property, nor did it eliminate the necessity of equitably dividing the marital property.”

FAMILY LAW – Grandparents, custody, jurisdiction between states: George Mauldin; and Joyce Mauldin v. Rebecca Bearden (SC 8/27/2009)

George Mauldin; and Joyce Mauldin v. Rebecca Bearden
2008-SC-000557-DGE August 27, 2009
Opinion by Justice Noble; all sitting.

In 2005, the Jefferson Family Court awarded paternal grandparents temporary, and later permanent, custody of an infant whose parents were deemed to be abusive and alcoholic. The grandparents took the child to Alabama where they resided. In 2006, the grandparents filed a petition in Alabama to adopt the child. The child’s mother filed a CR 60.02 motion in Jefferson Family Court to set aside the permanent custody award, alleging the grandparents and the child’s father 7 conspired to fraudulently keep her away from the custody proceedings. The family court denied the CR 60.02 motion and declined to exercise jurisdiction over the mother’s subsequent motion for visitation—deferring to the Alabama courts. The Court of Appeals reversed and remanded back to the family court for a full evidentiary hearing on the CR 60.02 motion.

The Supreme Court reversed and reinstated the family court’s decision, holding it was not an abuse of discretion for the family court to take the allegations in the affidavit on their face and not hold a hearing. The Court noted that testimony on the issues would not have fundamentally changed the allegations. Further, the Court noted that the family court had dealt with the parties extensively and was in a position to judge the parties’ credibility without holding a hearing. Furthermore, the Court ruled that the mother had not identified a meritorious defense–a prerequisite for vacating a judgment under CR 60.02. The Court noted that the mother never appealed the family court’s custody ruling and could not now substitute a CR 60.02 motion for an appeal. Finally, the Court held that even though the family court mistakenly allowed the grandparents to pursue custody under KRS Chapter 403 rather than Chapter 620, it had correctly deferred jurisdiction on the visitation issue to the Alabama courts. Chief Justice Minton concurred in result only.

TAXATION – Federal Telecommunications Act preempting local tax: Directv, Inc. and Echostar Satellite, LLC v. Commissioner, Dept. of Revenue (SC 6.25.2009)

Directv, Inc. and Echostar Satellite, LLC v. Commissioner, Dept. of Revenue and Frankfort Independent School District
2007-SC-000714-DG June 25, 2009
Opinion by Justice Abramson. All sitting; all concur.

Direct broadcast satellite (DBS) television providers brought an action seeking to have KRS 160.140, which imposes a gross receipts tax declared preempted under the federal Telecommunications Act of 1996. The circuit court awarded summary judgment to the DBS providers. The Court of Appeals reversed, holding that because the tax was levied to fund schools, it was, in effect, a state tax, not local, and thus was not preempted by the Act. The Supreme Court reversed the Court of Appeals and reinstated the circuit court’s summary judgment in favor of the DBS providers. The Court held that the tax was of the type expressly prohibited by the Act because the taxes were imposed on a district-by-district basis. The Court noted that the Act’s legislative history buttressed this conclusion.

Civil Procedure – local order prescribing objections during preliminary hearings, jurisdiction over judge’s local rule: Delahanty v. Commonwealth (COA 7/31/2009)

Delahanty v. Commonwealth
2008-CA-000580 07/31/2009 2009 WL 2341518

Opinion by Judge Thompson; Judges Acree and Taylor concurred.
The Court affirmed an order of the circuit court granting a writ prohibiting a district court judge from enforcing a verbal and written directive prohibiting the county attorney and his assistants from making objections to defense counsel’s questions during preliminary hearings to establish probable cause to detain a defendant pending indictment. The Court first held that the circuit court had jurisdiction to consider the writ pursuant to controlling precedent, CR 81, SCR 1.040(6) and KRS 23A.080(2). The Court next held that KRS 23A.080(2) was constitutional and did not impermissibly amend Section 112 of the Kentucky Constitution. The Court then held that summons was not required to be issued to commence the original action and to confer personal jurisdiction over the judge. The Court then held that the threat of contempt was a sufficient legal interest to confer standing on the county attorney. The Court ultimately held that the writ was properly issued as the directive preventing county attorneys from advocating on behalf of the Commonwealth without being subject to the penalty of contempt resulted in an irreparable injury without an adequate remedy by appeal. The Court rejected the argument that objections were not sustainable during a preliminary hearing as objections on the basis of relevancy and competency were viable and sustainable. The blanket “standing” objection did not serve the purpose of preserving for appellate review the factual and legal foundations for objections. The Court finally rejected the argument that the directive was a “general policy” as opposed to a “rule” and that on that basis alone it was invalid because the district court lacked authority to promulgate it.

Jurisdiction – Personal jurisdiction, long arm statute, and eBay contacts: Robey v. Hinners (COA 5/29/2009)

Robey v. Hinners
2008-CA-000989
05/29/2009
2009 WL 1491387

Opinion by Senior Judge Buckingham; Judge Acree concurred; Chief Judge Combs dissented by separate opinion.

The Court reversed and remanded an default judgment of the circuit court in favor of a non-resident seller of a vehicle on eBay to a Kentucky resident.

The Court first held that the issue of personal jurisdiction could be raised by appellant even though a default judgment was entered. Although the case involved a default judgment, appellant contested the issue of personal jurisdiction by moving the court to dismiss the complaint on that ground. In a case of first impression, the Court then held that the transaction was a random, fortuitous and attenuated contact with Kentucky and therefore appellant did not have sufficient minimum contacts with Kentucky to allow a Kentucky court to assert personal jurisdiction over him. Merely placing the vehicle for auction on eBay did not alone create personal jurisdiction, the seller accepting the Application for Kentucky Certificate of Title/Registration did not create personal jurisdiction, the buyer taking the vehicle to Kentucky and discovering the defect did not create personal jurisdiction, the language in the eBay listing referring to a 1 month/1,000 mile Service Agreement did not create jurisdiction, and there was no evidence that the seller used eBay on any occasion other than this particular sale.

CIVIL PROCEDURE: Failure to join indispensable party: Watkins v. Fannin (COA 2/27/2009)

Watkins v. Fannin
2008-CA-000170
02/27/2009
2009 WL 485030
Opinion by Judge Acree; Judge VanMeter and Senior Judge Henry concurred.

The Court dismissed an appeal from an order of the circuit court dismissing appellant’s petition for declaration of rights.

The Court held that because appellant failed to name an indispensable party, the Court was without jurisdiction to grant relief. Because appellant’s petition sought an order to restore good time and expunge his prison record and only the Department of Corrections and the warden had the authority to do so, failure to name them in the Notice of Appeal was fatal.