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Cheryl A. Unterreiner and Kim Unterreiner v. David Pernikoff

November 18, 2011

CHERYL A. UNTERREINER AND KIM UNTERREINER,
PLAINTIFFS-RESPONDENTS,
v.
DAVID PERNIKOFF, M.D., ET AL., DEFENDANTS-PETITIONERS.



Appeal from the Circuit Court of Madison County. No. 10-L-1038 Honorable A. A. Matoesian, Judge, presiding.

The opinion of the court was delivered by: Justice Spomer

Rule 23 order filed October 14, 2011;

Motion to publish granted

November 18, 2011

JUSTICE SPOMER delivered the judgment of the court, with opinion. Justices Donovan and Wexstten concurred in the judgment and opinion.

OPINION

¶ 1 The defendants, David Pernikoff, M.D., et al., petition this court to reverse the order of the circuit court of Madison County that denied the defendants' motion to dismiss for lack or jurisdiction and/or motion to quash service. For the reasons that follow, we reverse the ruling of the trial court and remand with directions.

¶ 2 FACTS

¶ 3 On October 6, 2010, the plaintiffs, Cheryl A. Unterreiner and Kim Unterreiner, filed a complaint in the circuit court of Madison County, alleging medical malpractice against the defendants. On October 26, 2010, the defendants filed their motion to dismiss for lack of jurisdiction and/or motion to quash service. On December 10, 2010, the circuit court denied the motion of the defendants, finding that "there were minimum contacts" for personal jurisdiction to exist, and this timely appeal followed. The facts necessary to our disposition of this appeal are taken from the various filings of the parties and are as follows. The plaintiffs are long-time residents of Highland, in Madison County, Illinois. Defendant Dr. David Pernikoff, who treated plaintiff Cheryl Unterreiner, is a Missouri resident and physician licensed to practice medicine in Missouri, but not in Illinois. Co-defendant David J. Pernikoff, M.D., P.C., is the Missouri professional corporation under which Dr. Pernikoff practices. The defendants have never advertised for clients in Illinois and have never owned or leased any real or personal property in Illinois. In 2002, Cheryl underwent an aortic valve replacement with a mechanical valve and was placed on Warfarin as an anticoagulant. The defendants monitored Cheryl's anticoagulant levels. Cheryl traveled to Missouri for her medical care appointments with the defendants. On September 4, 2008, at one such appointment, Cheryl's blood was drawn so that her levels could be checked. The results were not immediately available because the levels were checked by an outside laboratory in Missouri. However, "within a few days," an employee of the defendants called the plaintiffs' home in Illinois and left a message for Cheryl on the plaintiffs' telephone answering machine to call the defendants in Missouri because her anticoagulant levels were low. From her home in Illinois, Cheryl returned the telephone call and was instructed to take more Warfarin and to return to the defendants' office in Missouri in a month to have the levels checked again. On October 7, 2008, prior to her return appointment, Cheryl suffered a stroke that resulted in serious injuries. She alleges that negligent care by the defendants caused the stroke.

¶ 4 ANALYSIS

¶ 5 The parties agree that the narrow question before this court is whether the defendants had sufficient minimum contacts with the State of Illinois for an Illinois court to exercise personal jurisdiction over the defendants. We begin with a brief discussion of Illinois law relevant to this narrow question. Before an Illinois court may exercise jurisdiction over a nonresident defendant, that court must ensure its exercise of jurisdiction "comports with 'traditional notions of fair play and substantial justice.' " Culligan International Co. v. Wallace, Ross, & Sims, 273 Ill. App. 3d 230, 231 (1995) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). To so ensure, the court must consider three criteria: "(1) whether the nonresident defendant had 'minimum contacts' with the forum State such that it had 'fair warning' that it may be required to defend there; (2) whether the action arose out of or relates to the defendant's contacts with the forum; and (3) whether it is reasonable to require the defendant to litigate in the forum State." Culligan, 273 Ill. App. 3d at 231 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-78 (1985)).

"The determination as to what constitutes sufficient minimum contacts depends upon the facts of each case." Ballard v. Fred E. Rawlins, M.D., Inc., 101 Ill. App. 3d 601, 603 (1981). However, for sufficient minimum contacts to exist, "[t]he defendant must have voluntarily invoked the protections and benefits of the laws of the state" in question. Muffo v. Forsyth, 37 Ill. App. 3d 6, 9 (1976). A plaintiff may not "lure" a nonresident defendant into a jurisdiction, and the mere "unilateral action of the plaintiff in seeking and obtaining the service of the defendant cannot serve to satisfy the jurisdictional requirement" of minimum contacts. Muffo, 37 Ill. App. 3d at 9. When a defendant contests the existence of personal jurisdiction, the plaintiff bears the burden of proving its presence. Ballard, 101 Ill. App. 3d at 604. If the trial court has based its decision about personal jurisdiction solely on documentary evidence, as the court did here, our review of that decision is de novo. Kostal v. Pinkus Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381, 383 (2005).

¶ 6 In the case at bar, the only contacts the defendants had with the State of Illinois were the unanswered phone call placed by the defendants in Missouri to the plaintiffs' Illinois home and the return phone call, which resulted in a conversation, from the plaintiffs' Illinois home to the defendants' office in Missouri. The plaintiffs contend these contacts were sufficient to invest an Illinois court with jurisdiction over the defendants because "Dr. Pernikoff chose not to have [Cheryl] come to his office in Missouri for a consultation, but instead chose to prescribe treatment to Cheryl over the phone to her home in Madison County." According to the plaintiffs, the telephone communication "initiated by Dr. Pernikoff's office *** was the incipient negligence in this case that directly led to" the plaintiffs' damages. The defendants counter that one phone conversation does not amount to the minimum contacts necessary for personal jurisdiction over them to exist. We agree with the defendants.

ΒΆ 7 In Muffo v. Forsyth, 37 Ill. App. 3d 6, 9 (1976), this court held that when an Illinois resident seeks out treatment from a nonresident provider, the mere fact that the nonresident provider is aware that the Illinois resident "would likely fill" the provider's prescription in Illinois is not sufficient to invest personal jurisdiction over the nonresident. That is because the Illinois resident "was the motivating force for the relationship" and, having sought treatment in Missouri, could reasonably be required "to return to Missouri to prosecute any actions arising out of that treatment." Muffo, 37 Ill. App. 3d at 10. Thus, for sufficient minimum contacts to exist, "[t]he defendant must have voluntarily invoked the protections and benefits of the laws of the state" in question. Muffo, 37 Ill. App. 3d at 9. A plaintiff may not "lure" a nonresident defendant into a ...


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