This is the last part of my three-part series on the issue of whether Nevada has jurisdiction over a doctor who practices medicine over the Internet from a different state.
1. Many States Have Recognized The Propriety Of Exercising Jurisdiction Over Nonresident Doctors
Courts have found jurisdiction over nonresident doctors where they purposefully directed their actions at plaintiffs' states. For example, where doctors or hospitals have sought business from a state, courts have held jurisdiction over them to be proper in that state. See, e.g., Cubbage v. Merchant, 744 F.2d 665 (9th Cir.1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985); Pijanowski v. Cleveland Clinic Found., 635 F.Supp. 1435 (E.D.Mich.1986); Lemke v. St. Margaret Hosp., 552 F.Supp. 833 (N.D.Ill.1982). Whether a party solicited the business interface in the first place is irrelevant, so long as defendant then directed its activities to the forum resident. Lanier v. American Bd. of Endodontics, 843 F.2d 901, 910 (6th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988).
In Texas, specific jurisdiction is established if the defendant's alleged liability arises from or is related to its contacts within the forum. To establish specific personal jurisdiction over a nonresident physician who treats an unsolicited Texas patient outside of Texas, the patient must show that the nonresident physician, by his actions, knowingly interjected himself into the patient's treatment in Texas. See Clark v. Noyes, 871 S.W.2d 508, 514-16 (Tex.App.-Dallas 1994); see also Kennedy v. Freeman, 919 F.2d 126, 129 (10 th Cir.1990); Wright v. Yackley, 459 F.2d 287, 288-89 (9 th Cir.1972).
The rationale for this rule involves a balancing of the State's interest in the maintenance of the quality of medical care rendered to Texans with the need for Texas residents to have access to the best available medical care regardless of state lines. See Clark, 871 S.W.2d at 516.
In Bullion v. Gillespie, 895 F.2d 213 (5 th Cir.1990), a Texas patient visited a urologist in California, who enrolled the patient in an experimental drug treatment program. The patient then returned to Texas. The California doctor mailed the experimental drugs to the patient in Texas. The drugs injured the patient. See Id. at 215. The Fifth Circuit held that an allegation that the doctor was shipping the drugs to the patient was sufficient to create a prima facie case establishing personal jurisdiction in Texas over the California doctor. See Id. at 217.
In McGee v. Riekhof, 442 F.Supp. 1276 (D.Mont.1978), McGee, the plaintiff, traveled from Montana to Minnesota to obtain treatment from the defendant doctor for a detached retina. The plaintiff then returned to Montana. At the doctor's direction, the plaintiff kept the doctor updated on his condition. After a few weeks, the doctor told the plaintiff he could return to work. The plaintiff did so and suffered a retinal redetachment with a massive retinal tear of the right eye. See Id. at 1277. The plaintiff sued the doctor in Montana.
The Montana federal district court determined it had personal jurisdiction over the Minnesota doctor because the plaintiff was in Montana when the doctor committed the negligent act for which he was sued: advising the patient he could return to work. The court stated: "[b]ased upon the fact the medical service in this case amounts to a new diagnosis, and was rendered to plaintiff while he was in Montana, this court concludes that exercise of personal jurisdiction in this situation is not unreasonable, and comports with the tenets of due process." Id. at 1279. The court stated that "it would be fundamentally unfair to patients to permit doctors to telephonically render services and treatment in Montana, yet shield them from suit in Montana" (emphasis added). Id.
In Kennedy v. Freeman, 919 F.2d 126 (10 th Cir.1990), an Oklahoma patient had a lesion removed by her Oklahoma physician, who sent it to the Texas defendant, Freeman, for a special measurement. See Id. at 127. Freeman measured it and sent a report to the Oklahoma physician that the lesion measure 0.2 millimeters. In fact, the lesion measured 1.2 millimeters. Based on Freeman's incorrect measurement of the lesion, the plaintiff's Oklahoma physician determined no treatment or follow-up care was necessary. Four years later, the plaintiff learned that malignant melanoma had spread over her entire body. See Id. The Tenth Circuit noted that Freeman willingly accepted the sample from Oklahoma, signed a report purporting to establish the size of the lesion and sent it to Oklahoma, and he sent his bill to Oklahoma. Freeman knew the extreme significance of his work and that it would be the basis of the plaintiff's further treatment in Oklahoma. See Id. at 129. The Tenth Circuit ruled that "when a doctor purposefully directs her activities at the forum state, that state has a greater interest in deterring medical malpractice against its residents." Id.
An employee does not himself lack the requisite contact with a forum merely because he acts on behalf of a corporation. Nor does he lack the requisite contact because independent actions of the corporation contribute to events in the forum that give rise to the lawsuit. Courts can constitutionally exercise jurisdiction over a nonresident individual, regardless of his status as an employee, if his actions are a contributing cause of lawsuit-related events that occur in the forum, and if he is reasonably aware that his actions may have an impact in the forum.
Doctors are independently licensed professionals; many are their own corporations. In an age when electronic communication is becoming ubiquitous, doctors will inevitably stretch the limits of their licenses and extend their services to those in other states. Doctors who provide services to nonresident patients may reasonably expect to be hailed into court in whatever jurisdiction they might commit malpractice.
Why should Nevada adhere to a blanket rule that will result in less protection for Nevada residents in our increasingly electronic age?
The application of the fiduciary shield rule often results in deviation from the law governing personal jurisdiction. In obtaining jurisdiction over a corporate agent, courts must pursue reasoned analysis under the minimum contacts standard rather than reaching easy but incorrect results under the fiduciary shield rule. Courts properly have great discretion in asserting jurisdiction and personal jurisdiction is entirely appropriate in this instance.