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LEMKE v. ST. MARGARET HOSP.

December 13, 1982

BETTY SUE LEMKE, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF MICHAEL KIRT, A MINOR, DECEASED, PLAINTIFF,
v.
ST. MARGARET HOSPITAL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Aspen, District Judge:

  MEMORANDUM OPINION AND ORDER

Plaintiff, Betty Sue Lemke, an Illinois resident, brought this action in the Circuit Court of Cook County, under the Illinois Wrongful Death Act, Ill.Rev.Stat. ch. 70, §§ 1-2, alleging that the wrongful conduct of defendants, St. Margaret Hospital, Hammond Indiana, Dr. U.H. Patel, a surgeon licensed in Indiana, and Wentworth Jr. High School, School District # 155, caused the injury and death of her minor son. Defendants Patel and St. Margaret Hospital filed an uncontested petition for removal to this Court on July 6, 1982. This matter is presently before the Court upon the motion of defendant St. Margaret Hospital for transfer of venue to the Northern District of Indiana, pursuant to 28 U.S.C. § 1404(a). Defendant Patel has also moved to dismiss for want of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) and, alternatively, to transfer of venue to the Northern District of Indiana. In addition, defendants Wentworth Jr. High School ("Wentworth") and School District # 155 filed a motion to remand the case against them to the state court. For reasons stated below, defendant St. Margaret Hospital's motion to transfer venue is denied. Defendant Patel's motions to dismiss for lack of personal jurisdiction and to transfer venue are denied, and the motion to remand is also denied.

The Complaint

The relevant allegations of the complaint are as follows. Plaintiff's decedent, Michael Lemke, was injured on May 20, 1982, while attending Wentworth Jr. High School in Calumet City, Illinois, when the palm of his right hand was punctured by a pencil. The same day, St. Margaret Hospital in Hammond, Indiana, admitted Michael for treatment. Dr. Patel performed surgery to remove a portion of the pencil from the boy's hand. After the surgery, Michael's physical condition deteriorated, and on May 22, 1982, he was transferred to Michael Reese Hospital in Chicago, Illinois. Two days later he died at Michael Reese.*fn1

Dr. Patel's Motion to Dismiss

The defendant Dr. Patel has moved to dismiss for want of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Patel stated under oath that he is a citizen and resident of Indiana, that he is only licensed to practice in Indiana, and that he treated plaintiff's decedent only in Indiana. He argues, therefore, that there is no basis for personal jurisdiction over him in Illinois, and further, that federal due process precludes the assertion of jurisdiction over him in Illinois.

When a non-resident defendant challenges personal jurisdiction, the plaintiff bears the burden of proof. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 200, 81 L.Ed. 183 (1936); O'Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir. 1971). To meet his burden of proof, the plaintiff must make a prima facie showing of the basis for jurisdiction. O'Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir. 1971). On a motion to dismiss, however, the plaintiff's allegations are taken as true, Mathers Fund, Inc. v. Colwell Co., 564 F.2d 780, 783 (7th Cir. 1977).

The instant cause has been removed from state court. Federal court jurisdiction in removal cases is derivative, measured by whether the state court had or would have jurisdiction. Shultz v. Director, Federal Emergency Management Agency, 477 F. Supp. 118, 119 (N.D.Ill. 1979).*fn3 State court jurisdiction must be tested against both the local law basis for jurisdiction and the federal standards of due process. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 290, 100 S.Ct. 559, 563, 62 L.Ed.2d 490 (1980). The Illinois Supreme Court recently made clear that its interpretation of the state's long-arm statute is not to be equated with changing federal standards of due process, and that the Illinois standards are analytically distinct from those federal standards. Green v. Advance Ross Electronics Corp., 86 Ill.2d 431, 436-37, 56 Ill.Dec. 657, 660, 427 N.E.2d 1203, 1206 (1981). The proper inquiry, therefore, is whether Illinois law provides a basis for personal jurisdiction over Dr. Patel, and if so, whether such an assertion of jurisdiction would satisfy the federal requirements of due process.

With the above principles in mind, we have considered separately both grounds for jurisdiction urged by plaintiff. We conclude that there is doubt concerning whether Illinois law allows the long-arm statute to even reach out-of-state doctors under facts such as those at hand. In any event, due process would preclude the assertion of jurisdiction over Dr. Patel if based solely on the tortious act provision of the long-arm statute. Nevertheless, jurisdiction over Dr. Patel in Illinois is proper here, because by regularly treating Illinois patients solicited by St. Margaret Hospital, Dr. Patel may be deemed to be "doing business" in Illinois. Jurisdiction under the "doing business" theory is supported by Illinois law and, upon this record, is consonant with due process.

The Tortious Act Provision of the Long-Arm Statute

Plaintiff's argument for jurisdiction based upon the long-arm statute rests primarily on Gray, supra. In both Gray and this case, conduct outside the state allegedly caused injury to an Illinois resident within the state. Thus, at least facially, a local law basis for jurisdiction over Dr. Patel exists in Illinois.

Two Illinois appellate decisions, however, cast doubt on the above reasoning. In both Ballard v. Fred E. Rawlins, M.D., Inc., 101 Ill. App.3d 601, 56 Ill.Dec. 940, 428 N.E.2d 532 (1981), and Muffo v. Forsyth, 37 Ill. App.3d 6, 345 N.E.2d 149 (1976), Illinois courts refused to find jurisdiction over non-resident doctors who allegedly rendered negligent care to Illinois residents. Both cases involved prescriptions written in Missouri by the doctors. The plaintiffs in Ballard and Muffo had argued for jurisdiction based upon the tortious act provision of the long-arm statute. Ballard and Muffo were decided before Green established that the Illinois standards should be construed separately from federal due process. Thus, Ballard and Muffo do not specify whether jurisdiction was lacking as a matter of local statutory interpretation or on due process grounds.

If Ballard and Muffo should be considered statutory interpretations, then this Court must find that the tortious act provision of the long-arm statute does not provide a local law basis for jurisdiction over Dr. Patel. Under this reading, we need not reach the due process inquiry in order to deny jurisdiction over Dr. Patel under the long-arm statute. However, if Ballard and Muffo were based upon federal due process, then this Court could not gainsay that those decisions, at least implicitly, recognized a local law basis for jurisdiction over negligent out-of-state doctors. Under such a reading, this Court would reach the due process inquiry and, though not necessarily bound by a state court interpretation of federal due process, see ...


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