Medical Negligence and Long Arm Statute: ELDER V. PERRY COUNTY HOSPITAL (COA 9/14/2007)

ELDER V. PERRY COUNTY HOSPITAL
CIVIL PROCEDURE:  LONG ARM STATUTE JURISDICTION, MEDICAL NEGLIGENCE & INDIANA HOSPITAL

2005-CA-000591
PUBLISHED: VACATING AND REMANDING
PANEL:  COMBS PRESIDING; ACREE, TAYLOR CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/14/2007

CA vacates and remands TC dismissals in these two appeals in this medical malpractice case.

CA holds that the TC has both personal and subject matter jurisdiction over PCMH, and the TC abused its discretion in dismissing PCMH on forum non conveniens grounds. Additionally, the TC improperly applied the doctrine of forum non conveniens in its dismissal of both defendants PCMH and Norton. 

This case has a long and convoluted history and the opinion contains a timeline in an effort to clarify previous rulings. In 1999, the Elders took their 6-year-old son to Perry County Memorial Hospital (PCMH)for fever and nausea. The Elders lived in Hancock County, KY; PCMH is only 3 miles away in Tell City, IN. An ER physician failed to properly treat the child, his condition worsened, and he was transported to another hospital in Evansville, IN, where he died. They sued in 2001. PCMH and Norton (the management company) remain as defendants. In 2004, PCMH filed motions to dismiss on jurisdictional grounds and responses were filed. The Jefferson Circuit Court dismissed PCMH on the basis of forum non conveniens, citing the doctrine sua sponte without ever addressing the jurisdictional issues raised by the parties. In 2005, the TC amended its order to bar PCMH from raising a statute-of-limitations defense in any other action in any other venue.

The Elders and Norton appealled and, while the appeal was pending, the Elders filed suit in Indiana, deciding to litigate there. They sought to have Norton dismissed from the Kentucky suit as well on forum non conveniens grounds in order to litigate against both in Indiana. The TC dismissed on those grounds with the same statute-of-limitations defense prohibition as the PCMH order. Norton appealed this dismissal; the Elders filed an appeal challenging PCMH’s dismissal in order to maintain the option of litigating against both defendants in a single action in Kentucky. The CA vacated the dismissals and remanded. PCMH sought discretionary review, which was granted, and the Supreme Court vacated the CA decision and remanded to the CA in light of Carrico v. Owensboro, 511 S.W.2d 677 (Ky. 1974).

CA holds that the TC has both personal and subject matter jurisdiction over PCMH, and the TC abused its discretion in dismissing PCMH on forum non conveniens grounds. Additionally, the TC improperly applied the doctrine of forum non conveniens in its dismissal of both defendants PCMH and Norton.

Digested by John E. Hamlet

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