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 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
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.
In opposition to Patel's motion, plaintiff contends that the
Illinois Supreme Court has construed the state's long-arm
statute, Ill.Rev.Stat. ch. 110, § 2-209,*fn2 to assert
jurisdiction over non-resident defendants whose conduct outside
Illinois produces tortious injury within Illinois. Gray v.
American Radiator & Standard Sanitary Corp., 22 Ill.2d 432,
176 N.E.2d 761 (1961). Plaintiff
also argues that there is personal jurisdiction over Patel on
the theory that he is "doing business" in Illinois. In her
brief, plaintiff alleges that Patel regularly treats Illinois
patients directly and through referrals at St. Margaret
Hospital; that Patel is compensated with Illinois public and
private funds for treating Illinois residents; and in support
of her "doing business" theory, that St. Margaret Hospital, as
referral agent for Patel, regularly and continuously solicits
Illinois patients. Plaintiff has produced photostatic copies
of St. Margaret Hospital advertisements in the Chicago Yellow
Pages Consumer Buying Guide. Patel admits that he treated
plaintiff's decedent on the hospital's referral.
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
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
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
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
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 ...