VANCE v. MOLINA

VANCE v. MOLINA
2001 OK 60
28 P.3d 570
72 OBJ 1966
Case Number: 95023
Decided: 07/03/2001
Mandate Issued: 07/26/2001

GEORGE VANCE, individually, and as natural father and next friend of BRENDA VANCE, deceased, and for and on behalf of the estate of BRENDA VANCE, deceased, Plaintiff-Appellant
v.
MARCEL MOLINA, M.D., Defendant-Appellee

 [28 P.3d 571]

CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION NO. 3

¶0 Plaintiff-Appellant's decedent, Brenda Vance, was a citizen and resident of Tulsa County, Oklahoma and died there in September 1998. Her personal representative brought suit in the District Court of Tulsa County against defendant, Marcel Molina, M.D., a citizen and resident of Harris, County, Texas, and two Tulsa doctors for medical malpractice. In January 1998 Ms. Vance went to Dr. Molina in Texas and he treated her for obesity by performing "gastric segmentation" surgery. After returning to her home near Tulsa, Ms. Vance complained of post-operative complications and received treatment in Tulsa from local doctors. Dr. Molina and others in his office discussed Ms. Vance's condition on the telephone with Ms. Vance and her Tulsa doctors. Ms. Vance went back to Texas in August 1998 and Dr. Molina performed a second gastric segmentation surgery. Ms. Vance again returned to Tulsa, where she died on September 26, 1998. Ms. Vance's personal representative sued Dr. Molina, serving him via certified mail in Harris County, Texas. On May 17, 2000, the District Court of Tulsa County, Oklahoma, Hon. Ronald L. Shaffer, District Judge, granted Dr. Molina's motion to dismiss Ms. Vance's action on the ground that the court lacked personal jurisdiction over Dr. Molina. The Court of Civil Appeals, Division 3, reversed and remanded the matter in a two-to-one opinion. We granted certiorari on May 14, 2001.

OPINION OF THE COURT OF CIVIL APPEALS VACATED, JUDGMENT OF THE DISTRICT COURT AFFIRMED.

Fred E. Stoops, Sr., RICHARDSON, STOOPS, RICHARDSON & WARD, Tulsa, Oklahoma for Plaintiffs-Appellants.
Karen L. Callahan and Leslie C. Weeks, RODOLPH & TODD, Tulsa, Oklahoma, for Defendant-Appellee.

 [28 P.3d 572]

OPINION

Watt, Vice Chief Justice ,

FACTS AND PROCEDURAL BACKGROUND

¶1 Brenda Vance, age 46, was five-feet four-inches tall but weighed 280 pounds. She lived near Tulsa, Oklahoma and in January 1998 went to Harris County, Texas for treatment of her obesity by Marcel Molina, M.D., a specialist in gastric segmentation, a surgical technique designed to help severely overweight patients lose weight. Following her surgery Ms. Vance returned to Tulsa. She started complaining of complications and was treated by Tulsa doctors. Ms. Vance and her doctors called Dr. Molina's office. Dr. Molina and his staff had several telephone conversations with Ms. Vance and her Tulsa doctors in which they discussed Ms. Vance's condition. In August 1998 Ms. Vance went back to Texas and Dr. Molina performed a second gastric segmentation surgery on Ms. Vance. Following the second surgery, Ms. Vance returned to Tulsa. Dr. Molina and his staff were again called by Ms. Vance and her Tulsa doctors and again discussed Ms. Vance's condition and treatment with them. Ms. Vance died in Tulsa on September 26, 1998.

¶2 Ms. Vance's personal representative, Plaintiff George Vance, sued Dr. Molina for medical malpractice. Ms. Vance also sued two of the local doctors who had treated her in Tulsa. Dr. Molina was served, via certified mail, in Harris County, Texas. Dr. Molina moved to dismiss plaintiff's action on the ground that Dr. Molina's contacts with the State of Oklahoma had been too tenuous to support his being joined as a defendant by "long-arm" service of process. The trial court agreed and dismissed Plaintiff's case against Dr. Molina. In a two-to-one opinion, the Court of Civil Appeals, Division 3, reversed and remanded the case to the trial court for trial on the merits.

ISSUE

¶3 There is but one issue in this matter: did the trial court correctly dismiss plaintiff's action on the ground that the court did not acquire personal jurisdiction over Dr. Molina by reason of the service of process upon him, via certified mail, in Harris County, Texas? We hold that the trial court did correctly dismiss plaintiff's action.

DISCUSSION

¶4 Service of process is governed by 12 O.S. Supp. 1994 § 2004.

¶5 The United States Supreme Court has long held that in order for out-of-state service of process to satisfy constitutional requirements and serve to acquire jurisdiction of a court over a nonresident defendant, "minimum contacts" must exist between the defendant and the forum state. The protection against inconvenient litigation is often described in terms of "reasonableness" or "fairness." The defendants contacts with the forum state "must be such that maintenance of the suit ‘does not offend traditional notions of fair play and substantial justice.'" World Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 291-92, 100 S. Ct. 559, 563-64 (1980), citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057 (1945).

¶6 We have not previously considered whether a physician who provides medical care in his home state to a patient who lives in another state but came to the physician for care may be sued by the patient in her home state. Cases from the federal courts and the courts of other states, however, have dealt with the issue. Most of those cases have held that a doctor who provides primary treatment to a nonresident in his home state and follow up advice to the patient and her local doctors in her home state can't be sued in the patient's home state. Wright v. Yackley, 459 F.2d 287 (9

¶7 Plaintiff relies on Kennedy v. Freeman. 919 F.2d 126 (10

¶8 We have found no case that has followed Kennedy under circumstances similar to those present here. In fact, every case that we have found that had facts similar to the facts of this matter has distinguished Kennedy: Vogel v. Bellows-Blakely, 1999 WL 270330 Slip Op. at 4 (Tex.App.-Dallas) (" . . . in Kennedy the patient was being treated in . . . Oklahoma at the time Freeman provided his service . . ."); Prince v. Urban, 49 Cal. App. 4

¶10 It is obvious that specialty care involves followup care. In fact, a doctor has an ethical obligation to render such care and failure to do so would be an abandonment of his patient. Thus, requiring a nonresident physician to defend a lawsuit in a forum to which the doctor's only connection is followup care rendered to a patient who came to the doctor in the doctor's home state for primary treatment would be unfair and we decline to impose such a requirement on Dr. Molina here. Further, plaintiff's cause of action can be enforced in Texas where Dr. Molina operated on Ms. Vance. Thus, we conclude that the acts of Dr. Molina in Oklahoma and the consequences of those acts were too insubstantial to establish the "minimum contacts" between Dr. Molina and the state of Oklahoma required by International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 652, 90 L. Ed. 95 (1945).

¶11 OPINION OF THE COURT OF CIVIL APPEALS VACATED, JUDGMENT OF THE DISTRICT COURT AFFIRMED.

¶12 HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, OPALA, SUMMERS, BOUDREAU, and WINCHESTER, JJ. - concur

¶13 KAUGER, J. - dissent

FOOTNOTES

1 In pertinent part, 12 O.S. Supp. 1994 § 2004 provides:

A. SUMMONS: ISSUANCE. Upon filing of the petition, the clerk shall forthwith issue a summons. Upon request of the plaintiff separate or additional summons shall issue against any defendants.

. . .

C. BY WHOM SERVED: PERSON TO BE SERVED.

. . .

2. SERVICE BY MAIL.

. . .

b. Service by mail shall be accomplished by mailing a copy of the summons and petition by certified mail, return receipt requested and delivery restricted to the addressee. When there is more than one defendant, the summons and a copy of the petition or order shall be mailed in a separate envelope to each defendant. If the summons is to be served by mail by the court clerk, the court clerk shall enclose the summons and a copy of the petition or order of the court to be served in an envelope, prepared by the plaintiff, addressed to the defendant, or to the resident service agent if one has been appointed. The court clerk shall prepay the postage and mail the envelope to the defendant, or service agent, by certified mail, return receipt requested and delivery restricted to the addressee. The return receipt shall be prepared by the plaintiff. Service by mail to a garnishee shall be accomplished by mailing a copy of the summons and notice by certified mail, return receipt requested, and at the election of the judgment creditor by restricted delivery, to the addressee.

. . .

E. SUMMONS: TERRITORIAL LIMITS OF EFFECTIVE SERVICE.

. . .

2. When the exercise of jurisdiction is authorized by subsection F of this section, service of the summons and petition may be made outside this state:

. . .

c. in the manner prescribed by paragraph 2 of subsection C of this section,

. . .

F. ASSERTION OF JURISDICTION. A court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States.