Allen v. Missouri Baptist Medical Center

2022 IL App (5th) 210263, 214 N.E.3d 226, 464 Ill. Dec. 780

• Court: Appellate Court of Illinois
• Decided: October 21, 2022
• Docket: 5-21-0263
• Status: Published

Opinion

2022 IL App (5th) 210263 NOTICE Decision filed 10/21/22. The text of this decision may be NO. 5-21-0263 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

RICHARD ALLEN, as Personal Representative ) Appeal from the and Executor of the Estate of Barbara L. Sisson,) Circuit Court of Deceased, ) Madison County. ) Plaintiff-Appellee, ) ) v. ) No. 20-L-1278 ) MISSOURI BAPTIST MEDICAL CENTER, ) Honorable ) Sarah D. Smith, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court, with opinion. Justice Welch concurred in the judgment and opinion. Justice Cates specially concurred, with opinion.

OPINION

¶1 The defendant, Missouri Baptist Medical Center (Missouri Baptist), appeals, pursuant to

Illinois Supreme Court Rule 306(a)(3) (eff. Oct. 1, 2020), the August 6, 2021, order of the circuit

court of Madison County, which denied its motion to dismiss based on a lack of personal

jurisdiction. For the following reasons, we reverse.

¶2 I. BACKGROUND

¶3 On September 4, 2020, the plaintiff, Richard Allen, as personal representative and executor

of the estate of Barbara L. Sisson, deceased, filed a complaint alleging medical negligence and

wrongful death against numerous physicians, health care groups, and hospitals, including the

1 appellant here, Missouri Baptist, in Madison County, Illinois. 1 On October 29, 2020, Missouri

Baptist of St. Louis, Missouri, filed its motion to dismiss for lack of personal jurisdiction. On

August 6, 2021, the circuit court denied the motion to dismiss, finding “sufficient minimum

contacts occurred with the State of Illinois that makes specific jurisdiction over this matter

appropriate.” This timely appeal then followed. The facts necessary to our disposition of this

matter are taken from the various filings of the parties and are as follows.

¶4 At all times relevant to this lawsuit, the decedent and her husband were residents of Illinois.

The plaintiff alleges in his complaint the following general facts. Another defendant, Richard H.

Wikiera, D.O. (Dr. Wikiera), an Illinois defendant with no association or affiliation with Missouri

Baptist, performed on Barbara Sisson (Barbara) what is commonly referred to as gallbladder

surgery on September 4, 2018, in Madison County, Illinois, at Anderson Hospital. The following

morning, on September 5, Barbara developed a subsequent issue or complication which required

additional care. Dr. Wikiera “contacted” Dr. Aliperti, “a physician who specializes in

Gastroenterology and Internal Medicine, with privileges at the Missouri Baptist facility,” and

arranged a transfer of Barbara for further care at Missouri Baptist. Barbara was then transferred to

Missouri Baptist, where she underwent further surgery and care. Unfortunately, Barbara’s

condition further declined, and she died on September 26, 2018. Barbara did not leave the Missouri

Baptist facility from her September 5 transfer through her death on September 26.

1 We note that on September 4, 2020, the plaintiff, along with his son, Donald Sisson, as the surviving son of Barbara Sisson, deceased, also filed a medical negligence action stemming from these events in the State of Missouri. In that action, only Dr. Aliperti, Midwest Therapeutic Endoscopy Consultants, and Missouri Baptist were named as defendants. That action was later dismissed so the plaintiff could pursue an action in the State of Illinois. Because neither the filing of that action nor its dismissal has any bearing on the outcome of this appeal, we decline to discuss it further and only reference the Illinois lawsuit relevant to this appeal. 2 ¶5 Relevant to the issue on appeal, the plaintiff alleged in his complaint that “[Missouri

Baptist] purposely directs its activities to Illinois facilities and patients, and it agreed to a request

by the Illinois defendants to accept [Barbara] as a patient.” He further alleged, “[a]t all times

relevant, [Missouri Baptist], a corporation, was engaged in the business of providing medical care

and accepting referrals of patients in Madison County, Illinois by and through its officers, agents,

employees and representatives.”

¶6 Following the plaintiff’s filing of the complaint, Missouri Baptist, on October 29, 2020,

entered a special and limited appearance for the limited and sole purpose of challenging the circuit

court’s personal jurisdiction over it. At the same time, Missouri Baptist also filed its motion to

dismiss for lack of personal jurisdiction.

¶7 In its motion to dismiss, Missouri Baptist argued that the plaintiff failed to meet its burden

of demonstrating that Missouri Baptist had sufficient contacts with Illinois to be subject to personal

jurisdiction in an Illinois court. Missouri Baptist specifically stated that the plaintiff failed to allege

that it provided care or treatment to the decedent within Illinois or that it committed a tortious act

against the decedent within Illinois. Additionally, Missouri Baptist attached an affidavit from its

manager for patient safety and risk management, Maggie Lange, which attested that (1) Missouri

Baptist is a “nonprofit corporation registered with and licensed by the State of Missouri,”

“maintains its principal place of business in St. Louis County, State of Missouri,” and “does not

maintain any business in the State of Illinois,” (2) the decedent was treated at Missouri Baptist

from September 5, 2018, to September 26, 2018, (3) the decedent’s treatment “was provided

exclusively in the State of Missouri,” and (4) none of Missouri Baptist’s employees provided any

health care services to the decedent in the State of Illinois.

3 ¶8 Missouri Baptist’s motion to dismiss argued that the provisions of sections 2-209(a) and

(b) of the Code of Civil Procedure (Code) (735 ILCS 5/2-209(a), (b) (West 2020)) are not present

in this matter. Thus, Missouri Baptist argued that only the due process considerations set forth in

section 2-209(c) of the Code (id. § 2-209(c)) and the determination of whether general or specific

personal jurisdiction exists were before the circuit court. Missouri Baptist asserted that specific

personal jurisdiction did not exist because the alleged negligent conduct of Missouri Baptist

against Barbara did not arise from any conduct or actions taken by it within Illinois. It further

argued that because it is not incorporated in Illinois, does not have its principal place of business

in Illinois, and does not have a permanent or systematic relationship with Illinois such that it could

be considered “at home” in Illinois, general jurisdiction also did not exist.

¶9 The plaintiff, in his response, contended that the allegations within the complaint—alleging

that Missouri Baptist knowingly accepted an Illinois resident as a patient from an Illinois

physician, purposefully directed its activities towards Illinois facilities to accept their Illinois

patients, and routinely accepted Illinois patients to its facility—were sufficient to confer specific

personal jurisdiction.

¶ 10 On August 6, 2021, the circuit court entered an order denying Missouri Baptist’s motion

to dismiss. In its order, the circuit court found that Missouri Baptist was “a non-resident defendant,

and therefore Illinois law requires that the defendant have certain minimum contacts with the State

of Illinois in order for a court to have jurisdiction.” The court then noted that the plaintiff had

alleged “various affirmative acts on behalf of [Missouri Baptist], many of which involve the

transfer and referral of the patient” and that “[Barbara] would not have been a patient at [Missouri

Baptist] but for defendant’s granting the request of an Illinois medical provider and [Missouri

Baptist’s] affirmative acceptance of her transfer.” Finally, the circuit court held that “based on the

4 continued and routine transfer and acceptance of patients from Illinois by [Missouri Baptist]

retention of personal jurisdiction over this case would not defy notions of fair play and justice”;

therefore, the circuit court found that “sufficient minimum contacts occurred with the State of

Illinois that makes specific jurisdiction over this matter appropriate.”

¶ 11 A timely petition for leave to appeal followed from Missouri Baptist, and on March 2,

2022, this court granted leave to appeal under Rule 306(a)(3).

¶ 12 II. ANALYSIS

¶ 13 The sole question presented before this court is whether Missouri Baptist had sufficient

minimum contacts with the State of Illinois for an Illinois court to exercise personal jurisdiction

over it. We begin our analysis with a brief discussion of the relevant Illinois law applicable to this

matter as previously outlined by this court in Unterreiner v. Pernikoff, 2011 IL App (5th) 110006,

¶ 5:

“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)).

5 ‘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).”

¶ 14 The issue set before this court is a narrow one. At no time during this litigation has the

plaintiff contended that the circuit court had general personal jurisdiction over Missouri Baptist in

this matter. The plaintiff, in his response to Missouri Baptist’s motion to dismiss, only argued that

specific personal jurisdiction existed. The circuit court, in its August 6, 2021, order, found

“sufficient minimum contacts occurred with the State of Illinois that makes specific jurisdiction

over this matter appropriate.” The circuit court’s order did not address whether general personal

jurisdiction was present. On appeal, the plaintiff asserts that because “[t]he Circuit Court did not

find that Illinois has general jurisdiction over Missouri Baptist” and his “response below focused

on specific jurisdiction,” “there is no need for this Court’s involvement on [the general jurisdiction]

issue.” In light of the foregoing, we find that the issue of general personal jurisdiction is not

properly before us and—as the issue has not been raised by the plaintiff at any stage of this

6 litigation, including this appeal—it is forfeited for purposes of this appeal. See Ill. S. Ct. R.

341(h)(7) (eff. Oct. 1, 2020) (argument must contain the contentions of the appellant, the reasons

therefor, and the citation of authorities; points not argued in an opening brief are forfeited). Thus,

we turn our attention to whether the circuit court’s finding of specific jurisdiction over Missouri

Baptist was proper.

¶ 15 First, both parties agree that the Illinois long arm statute is applicable to determining

jurisdiction in this matter, and specifically only subsection (c), which is commonly referred to as

the “catch-all provision.” 735 ILCS 5/2-209(c) (West 2020). The “ ‘catch-all provision,’ broadly

provides that a court ‘may also exercise jurisdiction on any other basis now or hereafter permitted

by the Illinois Constitution and the Constitution of the United States.’ ” Russell v. SNFA, 2013 IL

113909, ¶ 30 (quoting 735 ILCS 5/2-209(c) (West 2002)). “Thus, when, as here, a plaintiff argues

that personal jurisdiction is proper under subsection (c) of the Illinois long-arm statute, the sole

issue before the court is whether the nonresident defendant’s connection or contact with Illinois is

sufficient to satisfy federal and Illinois due process.” Id. Accordingly, “ ‘[s]pecific jurisdiction

requires a showing that the defendant purposefully directed its activities at the forum state and the

cause of action arose out of or relates to the defendant’s contacts with the forum state.’ ” Linder v.

A.W. Chesterton Co., 2020 IL App (5th) 200101, ¶ 11 (quoting Russell, 2013 IL 113909, ¶ 40, and

citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).

¶ 16 “It is settled that the plaintiff has the burden to establish a prima facie basis to exercise

personal jurisdiction over a nonresident defendant.” Russell, 2013 IL 113909, ¶ 28. In the case at

bar, the plaintiff’s basis for the existence of specific jurisdiction is that Missouri Baptist “purposely

directed its activity” towards Illinois when “it agreed to a request by the Illinois defendants to

accept [Barbara] as a patient” and through its “accepting referrals of patients in Madison County,

7 Illinois.” The plaintiff did not allege any other contacts with Illinois outside of its acceptance of

Illinois residents to its facility. There are no allegations that Missouri Baptist advertised or solicited

Illinois residents, that it had any agreements with Illinois health care providers or facilities for

transfers of patients, or that it facilitated the transfer of the patient from Illinois to Missouri. All

the parties agree that Missouri Baptist did not provide any medical care to Barbara while she was

in Illinois; instead, all of the medical treatment she was provided by Missouri Baptist occurred in

Missouri following her transfer. Following Missouri Baptist’s challenging of personal jurisdiction,

the plaintiff did not offer any supplemental evidence to support his claims or highlight any

additional contacts with Illinois. No affidavits or other evidence relating to the issue of specific

jurisdiction was set forth. Further, the plaintiff failed to request an opportunity to conduct limited

discovery on the jurisdictional issue and no discovery on the issue was completed by the parties.

The plaintiff instead chose to stand on the allegations contained in his complaint, both at the circuit

court level and here on appeal, contending that they are sufficient to establish specific personal

jurisdiction over Missouri Baptist. Thus, while there may be other contacts that Missouri Baptist

has with Illinois, we must consider only that which the plaintiff has alleged in his pleadings. Based

upon the case law as articulated below, we find that the allegation that Missouri Baptist accepted

an Illinois patient and that it “routinely” accepts patients from Madison County is not sufficient

for the plaintiff to meet his prima facie case supporting specific personal jurisdiction.

¶ 17 The United States Supreme Court in Burger King Corp., 471 U.S. 462, noted that “a

potential nonresident defendant should be able to ‘reasonably anticipate’ being drawn into

litigation in the foreign forum.” Russell, 2013 IL 113909, ¶ 42. In Burger King Corp., the Court

went on to explain:

8 “ ‘The unilateral activity of those who claim some relationship with a nonresident

defendant cannot satisfy the requirement of contact with the forum State. The application

of that rule will vary with the quality and nature of the defendant’s activity, but it is

essential in each case that there be some act by which the defendant purposefully avails

itself of the privilege of conducting activities within the forum State, thus invoking the

benefits and protections of its laws.’ ” Burger King Corp., 471 U.S. at 474-75 (quoting

Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

“The Court further explained that requiring a showing of ‘purposeful availment’ within the forum

state protects a nonresident defendant from being haled into a jurisdiction based on random or

attenuated contacts or the unilateral activity of a third party.” Russell, 2013 IL 113909, ¶ 42 (citing

Burger King Corp., 471 U.S. at 475). Specific jurisdiction can be exercised with due process only

where the defendant’s activities in the state “ ‘give rise to the liabilities sued on.’ ” Daimler AG v.

Bauman, 571 U.S. 117, 138 (2014) (quoting International Shoe Co. v. Washington, 326 U.S. 310,

317 (1945)).

¶ 18 We are therefore tasked with deciding whether Missouri Baptist’s “routine” acceptance of

patients from Illinois, and its subsequent acceptance of the transfer of Barbara, was sufficient to

create minimum contacts with Illinois to give rise to specific jurisdiction. There are numerous

cases within Illinois that have addressed jurisdictional issues as it relates to Illinois residents and

out-of-state health care providers. Unfortunately, none of these cases is specifically on point with

the facts set before us; however, we do find them to be instructive when taken together for the

purposes of this decision.

“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

9 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 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.

Likewise, in Ballard v. Fred E. Rawlins, M.D., Inc., 101 Ill. App. 3d 601, 605

(1981), we held that even when a nonresident provider calls prescriptions in to an Illinois

pharmacy, the mere fact that the nonresident provider asked the Illinois resident for the

name of a pharmacy close to where the Illinois resident lived, ‘such [pharmacy] being in

Illinois, is an insufficient basis for subjecting the [nonresident provider] to the jurisdiction

of Illinois.’ Building upon our reasoning in Muffo and Ballard, the appellate court held in

Veeninga v. Alt, 111 Ill. App. 3d 775, 779 (1982), that the ‘unilateral activity’ of an Illinois

resident ‘in seeking and obtaining medical services outside of Illinois’ led to the alleged

damages to that resident and that, accordingly, the nonresident provider ‘was not amenable

to the jurisdiction of Illinois courts.’ That was true in Veeninga even though the Illinois

resident’s prescriptions had been filled in Illinois, he had injected himself with the

prescribed drugs in Illinois, and the allegation in his complaint was that the prescription

10 drugs were unnecessary and had been negligently prescribed to him. 111 Ill. App. 3d at

776.” Unterreiner, 2011 IL App (5th) 110006, ¶¶ 7-8.

¶ 19 The plaintiff argues that many of the cases, such as those discussed above, cannot be relied

upon because they were decided prior to the amendment of section 2-209 that extended the long-

arm jurisdiction to the full extent allowed by due process of law. However, numerous cases

following those decisions have also relied upon the analysis of those cases and reiterate the analysis

derived from those decisions. Thus, while not necessarily binding upon this court, they remain

instructive and the logic behind their analysis remains intact.

¶ 20 In Unterreiner, 2011 IL App (5th) 110006, the plaintiff, an Illinois resident, traveled to

Missouri for her medical appointments with the defendant health care providers. After some initial

blood work, the Missouri health care provider phoned the plaintiff at her home in Illinois,

instructed her to take some medication, and asked her to return to their Missouri offices for follow-

up. Id. ¶ 3. This court found personal jurisdiction could not rest on a phone conversation. Id. ¶ 9.

The defendants operated their medical offices exclusively in Missouri, were licensed only in

Missouri, never advertised for clients in Illinois, and never owned or leased any real or personal

property in Illinois. Id. The plaintiff unilaterally sought out the defendants and traveled to Missouri

to receive treatment from them. Id. Thus, we found that the fact that the defendants provided advice

to her over a phone call while she was in Illinois could not equate to the defendants having

“voluntarily invoked the protections and benefits of the laws of the State” of Illinois. (Internal

quotation marks omitted.) Id.

¶ 21 Also, in Sabados v. Planned Parenthood of Greater Indiana, 378 Ill. App. 3d 243, 245

(2007), an Illinois patient brought a medical negligence action against Planned Parenthood of

Greater Indiana (PPI), which prescribed birth control pills for her, alleging injuries from a blood

11 clot sustained after she returned to Illinois. PPI was located in Indiana and did not maintain an

office in Illinois. Id. at 251. It also conducted treatment and business exclusively in Indiana. Id.

The appellate court found that minimum contacts were lacking to have jurisdiction over PPI in

Illinois because the only contacts with Illinois were telephone book advertisements, which the

court found amounted “to mere solicitation.” Id.

¶ 22 The list of cases above is by no means exhaustive, but taken together, they outline that

where a patient initiates contact with an out-of-state facility, which does not have offices or

conduct services within Illinois, personal jurisdiction generally will not exist without further

contacts or activities by the out-of-state defendant with Illinois. See also Green v. United States,

No. 14-CV-119-NJR-DGW, 2016 WL 6248281 (S.D. Ill. Oct. 26, 2016) (no jurisdiction over

Missouri health care providers who had telephone contact with a correctional facility regarding

plaintiff inmate’s office note); Clemens v. Greenberg, 2022 IL App (1st) 201129 (brief phone call

between Wisconsin doctor who had treated patient for infection in Wisconsin and emergency room

(ER) physician in Illinois, in which physician informed the doctor of patient’s deep vein

thrombosis and how he would treat patient, did not create minimum contacts with Illinois sufficient

to satisfy due process and subject doctor and hospital to specific personal jurisdiction under

Illinois’s long-arm statute, in patient’s medical malpractice action; where call was initiated by

patient’s mother and ER physician, doctor’s participation was extremely limited, and doctor did

not provide any input into treatment plan).

¶ 23 The plaintiff and the circuit court distinguished the cases cited above with the present case

by arguing/finding that Barbara did not “unilaterally” select the out-of-state health care provider.

It is the plaintiff’s and the circuit court’s contention that Missouri Baptist’s acceptance of the

transfer of an out-of-state patient destroyed the unilateral nature of the contact between the parties,

12 rendering the analysis of these cases inapplicable. Plaintiff argues that Barbara “did not travel to

Missouri; she was transferred there, after Missouri Baptist chose to accept the transfer. She did not

show up on its doorstep.” We disagree. This court fails to find a significant difference between a

patient “traveling” on her own and the “transfer” of a patient orchestrated by her health care

provider. In both cases, the out-of-state health care provider has not reached into Illinois, but the

patient, whether by her own travel or a phone call from her physician acting on her behalf, has

reached out into the out-of-state forum for treatment. There is no allegation that Missouri Baptist

initiated the contact between the parties; in fact, it is clear from the plaintiff’s pleadings that

Barbara, through her physician, initiated the contact. Further, Missouri Baptist did not come to

Illinois to treat Barbara. They required that she come to Missouri to be treated. The mere

acceptance of the transfer of an out-of-state patient, alone, does not give rise to specific jurisdiction

over the health care provider in the home state of that patient. It is a leap to find that a patient

showing up on the doorstep of a hospital, on her own accord, and the hospital accepting her as a

patient constitutes “unilateral” activity, but that a patient’s physician calling a hospital and getting

the acceptance prior to the travel to the facility does not. In both cases, the out-of-state patient is

initiating the contact and, in both cases, the out-of-state defendant is accepting the defendant for

treatment at its location out of state. It is important that we reiterate that we are only considering

the allegations as contained within the plaintiff’s complaint in this matter; thus, we are only

considering whether the acceptance of the transfer of a patient alone, as alleged in this case, is

sufficient. We are not holding that the acceptance of a patient cannot be considered alongside other

contacts that could then be sufficient to give grounds for specific jurisdiction.

¶ 24 Additionally, we must keep in mind that not only must there be contact with Illinois, but

specific jurisdiction can be exercised with due process only where the defendant’s activities in the

13 state “ ‘give rise to the liabilities sued on.’ ” Daimler AG, 571 U.S. at 138 (quoting International

Shoe Co., 326 U.S. at 317). Here, that would mean we would need to find that Missouri Baptist’s

act of accepting the transfer of Barbara “gave rise” to her injuries. The plaintiff attempts to put

forth a “but-for” theory of causation, arguing that but for Missouri Baptist’s acceptance and her

subsequent transfer to their facility, the harm would have never occurred. However, we find this

is insufficient to give Illinois specific jurisdiction over Missouri Baptist.

¶ 25 “Although the United States Supreme Court has not clarified what is meant by ‘arising out

of’ or ‘related to’ in the context of a jurisdiction question [citation], several courts have determined

that the applicable standard is lenient or flexible.” Russell, 2013 IL 113909, ¶ 83 (citing Myers v.

Casino Queen, Inc., 689 F.3d 904, 913 (8th Cir. 2012)). Despite this lenient standard, we decline

to go so far as to say that the acceptance of a patient by a hospital caused or led to the death of a

patient. Generally, broad “but-for” arguments are insufficient. “Because ‘ “but for” events can be

very remote, *** due process demands something like a “proximate cause” nexus.’ ” Harlow v.

Children’s Hospital, 432 F.3d 50, 61 (1st Cir. 2005) (quoting Cambridge Literary Properties, Ltd.

v. W. Goebel Porzellanfabrik, 295 F.3d 59, 65 (1st Cir. 2002)). “A ‘but for’ requirement *** has

in itself no limiting principle; it literally embraces every event that hindsight can logically identify

in the causative chain.” Nowak v. Tak How Investments, Ltd., 94 F.3d 708, 715 (1st Cir. 1996).

Therefore, “although proximate causation is not a per se requirement of specific jurisdiction, its

presence or absence is still important.” Harlow, 432 F.3d at 61.

¶ 26 Here, the location of the alleged tortious conduct, medical malpractice, occurred in

Missouri, not Illinois. There are no allegations that an issue occurred in the transfer or that the

acceptance resulted in delayed treatment. The plaintiff has put forth no evidence that Missouri

Baptist purposefully induced Barbara to leave Illinois to come to Missouri or that Missouri Baptist

14 induced Barbara’s Illinois physician to refer her to Missouri Baptist. Therefore, the subsequent

alleged medical negligence of a health care provider, without more, does not “arise out of” the

acceptance of the transfer of patient.

¶ 27 Furthermore, the plaintiff, and the circuit court decision, imply that Missouri Baptist’s

alleged “routine” acceptance of patients from Madison County, Illinois, is a basis for specific

jurisdiction. This is not entirely correct.

“In order for a court to exercise specific jurisdiction over a claim, there must be an

‘affiliation between the forum and the underlying controversy, principally, [an] activity or

an occurrence that takes place in the forum State.’ [Citation.] When there is no such

connection, specific jurisdiction is lacking regardless of the extent of a defendant’s

unconnected activities in the State.” Bristol-Myers Squibb Co. v. Superior Court of

California, 582 U.S. ___, ___, 137 S. Ct. 1773, 1781 (2017) (quoting Goodyear Dunlop

Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).

Here, it appears that the plaintiff and the circuit court conflate to an extent the often-blurry line

between specific and general jurisdiction. As discussed above, the acceptance of a patient alone is

not grounds for specific jurisdiction. However, the number of patients a health care facility sees

could be evidence of business activity within a state, such that a plaintiff could argue that the state

is “at home” for purposes of general jurisdiction, especially when paired with other activities such

as marketing, sales, advertising, etc. However, in our examination of specific jurisdiction, the

acceptance of other individuals unrelated to the lawsuit is not relevant unless it demonstrates

activity that would be directed at Illinois residents or the injured party or that the defendant is

availing itself of Illinois laws or protections. This delineation is also evidenced in some of the

aforementioned cases. Here, the plaintiff put forth only the allegations contained in the complaint,

15 and there was no evidence presented that Missouri Baptist directed advertising, outreach efforts,

or anything of this nature into Illinois to seek out or acquire Illinois residents as patients. Like the

cases cited above, the relationship between Missouri Baptist and Barbara began with an unsolicited

and unilateral phone call from Barbara’s Illinois physician to Missouri Baptist. While it is true that

Missouri Baptist accepted an Illinois resident as a patient, it did so at its Missouri facility. This is

simply not a case of Missouri Baptist doing anything that might be construed as availing itself of

the benefits or protections of Illinois laws.

¶ 28 Furthermore, we briefly turn to the case Kostal v. Pinkus Dermatopathology Laboratory,

P.C., 357 Ill. App. 3d 381 (2005), which provides an example of when a defendant has availed

itself of Illinois laws sufficient to support personal jurisdiction. In Kostal, the out-of-state

defendant was a national diagnostic lab company based in Michigan, whose physicians provided

diagnostic services in Michigan through the mail to Illinois patients. The Kostal court noted that

the services “[were fundamentally interstate in nature from the inception of the relationship.”

(Internal quotation marks omitted.) Id. at 397. The court also noted that special jurisdictional rules

exist with respect to physicians “to ensure that jurisdiction is asserted only when that physician

has purposefully availed himself of the privileges of conducting activities in the patient’s state.”

Id. at 390. Generally, “the tortious rendition of medical services outside the forum state is not a

portable tort that would subject an out-of-state doctor to jurisdiction in the forum.” Id. at 392 (citing

Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972)). Thus, because the plaintiff did not travel out of

the State of Illinois to receive medical care and because defendants purposefully directed activities

to Illinois through their mail-based diagnostic services, the exercise of personal jurisdiction over

the defendants comported with due process requirements. Id. at 397-98.

16 ¶ 29 The present matter stands in stark contrast to Kostal. Here, Barbara physically traveled to

Missouri for medical treatment. No treatment was rendered by Missouri Baptist in Illinois. There

are no allegations that Missouri Baptist solicited, advertised to, or targeted the plaintiff or any other

Illinois resident. There are no allegations that Missouri Baptist had any ongoing relationship with

the Illinois physician who referred Barbara to them. The only contact with Illinois is Missouri

Baptist’s acceptance of the transfer of an Illinois resident to its facility. Ultimately, the mere fact

that the reputation and expertise of an institution lead to referrals from out of state cannot be

enough to establish specific jurisdiction.

¶ 30 We acknowledge that with the advancement in technology, especially the ability to video

conference, the way health care is delivered to patients is rapidly changing. Physician-patient

interactions and medical treatment no longer always require in-person meetings like it previously

did. Further, health care providers are consolidating and becoming larger and more regional in

nature. As a result, we must reiterate that each case where the issue of personal jurisdiction arises,

especially in the context of medical services, must be decided upon its own facts.

¶ 31 Therefore, here, where we must consider only the allegations contained in the plaintiff’s

complaint as alleged and where the plaintiff bears the burden of showing a prima facie case of

specific personal jurisdiction, we find that the plaintiff has failed to meet his burden because

Missouri Baptist’s acceptance of an Illinois resident, alone, does not create sufficient minimum

contacts with Illinois to create personal jurisdiction in Illinois courts.

¶ 32 III. CONCLUSION

¶ 33 For the foregoing reasons, we reverse the circuit court’s August 6, 2021, order denying the

defendant’s motion to dismiss.

¶ 34 Reversed.

17 ¶ 35 JUSTICE CATES, specially concurring:

¶ 36 I agree with the majority’s determination that the trial court erred when it denied Missouri

Baptist’s motion to dismiss for lack of specific personal jurisdiction. I write separately because I

do not agree fully with the majority’s jurisdictional analysis and discussion of case law. The only

issue on appeal is whether the trial court erred in finding that it had specific personal jurisdiction

over Missouri Baptist in this case. After reviewing the record, sparse as it is, I find that the plaintiff

did not meet his burden to establish a prima facie basis for specific personal jurisdiction over

Missouri Baptist under the particular facts presented herein. Accordingly, the trial court’s finding

of specific jurisdiction cannot be sustained.

¶ 37 In this case, the plaintiff’s decedent was transferred from a hospital in Madison County,

Illinois, to Missouri Baptist in St. Louis, Missouri, where she later died. The plaintiff brought a

medical negligence action against Missouri Baptist and several other defendants in the circuit court

of Madison County. Missouri Baptist moved to dismiss the claims against it, arguing the Illinois

circuit court did not have general or specific jurisdiction over it. The plaintiff filed a response in

opposition to Missouri Baptist’s motion. Therein, the plaintiff addressed only specific

jurisdiction. 2 The trial court found there were “sufficient minimum contacts” with the State of

Illinois to “make specific jurisdiction over this matter appropriate” and denied Missouri Baptist’s

motion to dismiss on that basis. 3 Missouri Baptist appealed.

¶ 38 Under federal due process standards, a court may exercise specific jurisdiction over a

nonresident defendant who has not consented to suit if the defendant has “purposefully directed”

2 In the appellee’s brief, the plaintiff readily acknowledged that his arguments in the trial court focused solely on specific jurisdiction, and as such, there was “no need for this Court’s involvement” on the issue of general jurisdiction. 3 Missouri Baptist also argued that it was not subject to general personal jurisdiction in Illinois, but the trial court did not reach that issue. Accordingly, that issue is reserved for another day. 18 his activities at residents of the forum and the litigation results from alleged injuries that “arise out

of or relate to” those activities. (Internal quotation marks omitted.) Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 472 (1985). In Burger King Corp., the United States Supreme Court

explained the rationale underlying this principle of due process:

“A State generally has a ‘manifest interest’ in providing its residents with a convenient

forum for redressing injuries inflicted by out-of-state actors. [Citations.] Moreover, where

individuals ‘purposefully derive benefit’ from their interstate activities [citation], it may

well be unfair to allow them to escape having to account in other States for consequences

that arise proximately from such activities; the Due Process Clause may not readily be

wielded as a territorial shield to avoid interstate obligations that have been voluntarily

assumed. And because ‘modern transportation and communications have made it much

less burdensome for a party sued to defend himself in a State where he engages in economic

activity,’ it usually will not be unfair to subject him to the burdens of litigating in another

forum for disputes relating to such activity. [Citation.]” Burger King Corp., 471 U.S. at

473-74.

¶ 39 The Supreme Court noted that, notwithstanding the aforementioned considerations, the

“constitutional touchstone” is whether the defendant purposefully established “ ‘minimum

contacts’ ” with the forum state. Burger King Corp., 471 U.S. at 474 (quoting International Shoe

Co. v. Washington, 326 U.S. 310, 316 (1945)). While the application of the rule will vary with the

quality and nature of the defendant’s activities, it is essential that “ ‘there be some act by which

the defendant purposefully avails itself of the privilege of conducting activities within the forum

State, thus invoking the benefits and protections of its laws.’ ” Burger King Corp., 471 U.S. at 475

(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). This “purposeful availment” requirement

19 protects a nonresident defendant from being brought into a jurisdiction based on random or

attenuated contacts or the unilateral activity of another person. Burger King Corp., 471 U.S. at

475. Where, however, a nonresident defendant has “deliberately *** engaged in significant

activities” within a forum or “created continuing obligations” between himself and residents of the

forum, he has availed himself of the privileges of conducting business in that forum and of the

benefits and protections of the forum’s laws. Under such circumstances, it is “presumptively not

unreasonable to require him to submit to the burdens of litigation in that forum as well.” (Internal

quotation marks omitted.) Burger King Corp., 471 U.S. at 475-76. Jurisdiction may not be avoided

simply because the defendant did not physically enter the forum. Burger King Corp., 471 U.S. at

476.

¶ 40 In keeping with these principles, an Illinois court may exercise specific personal

jurisdiction over a nonresident defendant if the defendant has purposefully directed its activities at

the forum and the action arises out of or relates to those activities. Russell v. SNFA, 2013 IL

113909, ¶ 40 (citing Burger King Corp., 471 U.S. at 472). Specific personal jurisdiction is case

specific. Aspen American Insurance Co. v. Interstate Warehousing, Inc., 2017 IL 121281, ¶ 14.

The plaintiff has the burden to establish a prima facie basis upon which an Illinois court may

exercise personal jurisdiction over a nonresident defendant. Russell, 2013 IL 113909, ¶ 28.

¶ 41 Here, the plaintiff alleged that Missouri Baptist “purposely direct[ed] its activities to

Illinois facilities and patients, and it agreed to a request by the Illinois defendants to accept

[plaintiff’s decedent] as a patient.” The plaintiff further alleged that Missouri Baptist “was engaged

in the business of providing medical care and accepting referrals of patients in Madison County,

Illinois, by and through its officers, agents, employees and representatives.” When presented with

Missouri Baptist’s challenge to personal jurisdiction, the plaintiff did not offer supporting

20 affidavits or other evidence to establish specific jurisdiction, nor did he request an opportunity to

conduct limited discovery on that issue. Instead, the plaintiff argued that the unrebutted allegations

in his complaint were sufficient to establish specific personal jurisdiction over Missouri Baptist.

Contrary to the plaintiff’s contention, the complaint does not contain specific factual allegations

establishing the nature and quality of Missouri Baptist’s relationship with the plaintiff’s decedent

and Illinois or the existence, nature, and quality of the relationships among Missouri Baptist, Dr.

Aliperti, and Dr. Wikiera. While there seems no dispute that Dr. Wikiera, an Illinois physician,

contacted Dr. Aliperti, “a physician who specializes in Gastroenterology and Internal Medicine,”

the plaintiff did not present any factual allegations, supporting affidavits, or other documentation

describing the specific conversation between these two physicians pertaining to the plaintiff’s

decedent or the details surrounding the referral and transfer of the decedent from an Illinois

medical facility to Missouri Baptist. Significant questions regarding these matters remain

unanswered. For example, was the transfer of the patient performed at the direction of Dr. Aliperti,

and if so, what instructions did Dr. Aliperti give for the transfer? Were Dr. Aliperti and his

employer, Midwest Therapeutic Endoscopy Consultants, LLC, agents of Missouri Baptist?

¶ 42 Additionally, Missouri Baptist presented an affidavit by Maggie Lange in support of its

jurisdictional arguments. In the affidavit, Lange stated that Missouri Baptist did not maintain any

business in Illinois. The plaintiff did not attempt to counter Lange’s assertion. Some limited

discovery or investigation of these matters might have shed light on the quality, nature, and extent

of Missouri Baptist’s contacts with Illinois and its residents. 4

4 Here, for example, a click of the mouse could have produced the corporate standing of Midwest Therapeutic Endoscopy Consultants, LLC, revealing that it was an LLC registered to do business in Illinois, and that Dr. Aliperti was the named manager. See Corporation/LLC Search/Certificate of Good Standing, Ill. Sec’y of State, https://apps.ilsos.gov/corporatellc/corporatellccontroller (last visited Oct. 18, 2022) [https://perma.cc/49KN-ZVMJ]. Likewise, a view of the websites of Missouri Baptist and BJC HealthCare indicates that Missouri Baptist is part of the BJC HealthCare (BJC) system; that BJC does business through 21 ¶ 43 To recap, the plaintiff did not present specific allegations or any supporting affidavits or

documentation regarding the details surrounding the referral and transfer of the decedent from a

health care facility in Illinois to a health care facility in Missouri. Additionally, the extent and

quality of Missouri Baptist’s contacts with Illinois went undeveloped in this case. The plaintiff’s

bare, conclusory allegations are not sufficient to make a prima facie showing that Missouri

Baptist’s contacts with Illinois satisfied due process for purposes of specific personal jurisdiction

in this case. For these reasons, I conclude that the trial court erred in finding that it had specific

personal jurisdiction over Missouri Baptist and that the court’s decision must be reversed.

¶ 44 In the majority opinion, my colleagues state that the jurisdictional issue is narrow, and that

this court is “tasked with deciding whether Missouri Baptist’s ‘routine’ acceptance of patients from

Illinois, and its subsequent acceptance of the transfer of [the decedent], was sufficient to create

minimum contacts with Illinois to give rise to specific jurisdiction.” Supra ¶ 18. The majority then

considers a line of Illinois cases in which Illinois residents, acting unilaterally, made conscious

decisions to travel outside of Illinois for medical treatment and thereafter were not permitted to

prosecute actions against the nonresident medical providers in Illinois because there was no

showing that the nonresident providers purposefully availed themselves of the privilege of

conducting business in Illinois. Unterreiner v. Pernikoff, 2011 IL App (5th) 110006, ¶ 9; Veeninga

its broad network of physicians and hospitals in Illinois, including Madison County; and that Dr. Aliperti is a part of the BJC network of physicians. See, e.g., Missouri Baptist Medical Center, BJC HealthCare, https://www.bjc.org/about-us/bjc-locations/missouri-baptist-medical-center (last visited Oct. 18, 2022) [https://perma.cc/RK57-U8X3]; Locations, BJC HealthCare, https://www.bjc.org/about-us/locations (last visited Oct. 18, 2022) [https://perma.cc/L4SC-X9YR]; Giuseppe Aliperti, MD, BJC HealthCare, https:// doctors.bjc.org/wlp2/doctors/info/akt003z6/giuseppe-aliperti-md (last visited Oct. 18, 2022) [https:// perma.cc/86RZ-R6UK]. The plaintiff could have requested that the trial court take judicial notice of the websites or domain locations of the individual and corporate defendants. See generally Innovative Garage Door Co. v. High Ranking Domains, LLC, 2012 IL App (2d) 120117, ¶ 4 n.1; People v. Clark, 406 Ill. App. 3d 622, 632 (2010); Ill. R. Evid. 201(b) (eff. Jan. 1, 2011). 22 v. Alt, 111 Ill. App. 3d 775, 779 (1982); Ballard v. Fred E. Rawlins, M.D., Inc., 101 Ill. App. 3d

601, 605 (1981); Muffo v. Forsyth, 37 Ill. App. 3d 6, 9 (1976). The majority acknowledges that

these cases are not specifically on point on the facts, but nevertheless finds them instructive. Supra

¶ 18. I do not share this view.

¶ 45 Specific jurisdiction depends on the particular and unique facts in each case. None of the

cases cited above are analogous to the case before us. 5 Each of these cases was decided on its own

particular facts, and, unlike the present case, the jurisdictional facts were better developed in those

cases. As noted above, there is scant information in the record regarding the activities of Missouri

Baptist and its agents with respect to the “routine acceptance” of transfer patients and the

subsequent acceptance and transfer of the decedent. Because the jurisdictional facts have not been

developed in the case at bar, there are no meaningful points of comparison between this case and

those cited in the majority opinion. It is like trying to compare an open box, with its contents

displayed, and a closed container, sealed with conclusory allegations.

¶ 46 The majority also discusses Kostal v. Pinkus Dermatopathology Laboratory, P.C., 357 Ill.

App. 3d 381 (2005), as an example of a case in which nonresident defendants purposely directed

activities at Illinois and availed themselves of Illinois law. Upon considering the quality and nature

of the defendants’ activities with Illinois and its residents, the Kostal court determined that the

defendants, by the very nature of their business model and practice, operated nationwide and that,

5 In Unterreiner, the nonresident physicians’ solitary, follow-up phone call to the residence of their Illinois patient to adjust a prescription was insufficient to establish that the defendants had voluntarily invoked the protections and benefits and protections of the laws of Illinois. In Veeninga, Ballard, and Muffo, a nonresident physician called-in or wrote a prescription for a medication for an Illinois patient that was filled in Illinois, and that single phone call or contact was found to be an insufficient basis for exercising personal jurisdiction over the nonresident provider. It is also noteworthy that Veeninga, Ballard, and Muffo were decided before the legislature amended the Illinois long-arm statute in 1989, adding a “catch-all” provision that allows a court to exercise jurisdiction on “any other basis *** permitted by the Illinois Constitution and the Constitution of the United States.” Ill. Rev. Stat. 1989, ch. 110, ¶ 2-209(c). 23 through their national operations, “affected a significant interest in Illinois—the health of one of

its citizens.” Kostal, 357 Ill. App. 3d at 398. Again, unlike the case at bar, the Kostal court had the

benefit of a record in which the jurisdictional facts regarding personal jurisdiction were developed.

¶ 47 Later in the opinion, the majority acknowledges the lack of development of jurisdictional

facts in this record, but nevertheless finds that like the aforementioned cases, “the relationship

between Missouri Baptist and [the decedent] began with an unsolicited and unilateral phone call”

from the decedent’s physician to Missouri Baptist and that “[t]his is simply not a case of Missouri

Baptist doing anything which might be construed as availing itself of the benefits or protections of

Illinois laws.” Supra ¶ 27. I do not agree that those findings can be discerned from the current

record. What is known is that a seriously ill patient was transferred from an Illinois health care

facility to a Missouri hospital. Beyond that, as noted above, the plaintiff did not provide any

allegations or information regarding the specific circumstances surrounding the patient transfer.

As to Missouri Baptist, the facts regarding personal jurisdiction, specific and general alike, have

not been developed in this case.

¶ 48 Decades ago, the Supreme Court recognized that “modern transportation and

communications” made it much less burdensome for a party to defend itself in a forum where it

engaged in economic activities and, therefore, that it usually would not be unfair to subject that

party to the burdens of litigating disputes related to its activities in that forum. (Internal quotation

marks omitted.) Burger King Corp., 471 U.S. at 474. The “constitutional touchstone” of due

process remains whether a nonresident defendant purposefully established “minimum contacts”

within a forum, but advances in technology and transportation impact the nature and quality of a

defendant’s activities and contacts with that forum. Burger King Corp., 471 U.S. at 474. The

delivery of health care services has noticeably changed in the past several years due, in part, to

24 significant advances in communications technology. Increasingly, medical consultations and

virtual health care services are being offered via telemedicine and the web. Medical providers,

including local physicians, are able to reach out beyond state lines to establish relationships with,

and meet obligations to, their out-of-state patients. Health care corporations routinely engage in

mergers and acquisitions of regional health care facilities and, with intentionality, market their

services to patients regionally. Whether an out-of-state provider is subject to personal jurisdiction

in Illinois must be decided based on the unique facts presented in each case and in light of the

continuing advances in “transportation and communications.”

¶ 49 In sum, this case presents us with a single issue of specific jurisdiction, and the resolution

of the issue depends upon the minimum contacts that Missouri Baptist, an out-of-state health care

corporation, has with Illinois and one of its residents. The plaintiff did not present specific factual

allegations or supporting documentation regarding the quality and nature of Missouri Baptist’s

contacts and relationship with the decedent and the State of Illinois. Instead, the plaintiff relied on

conclusory allegations in his complaint to support his claim of specific personal jurisdiction.

Without sufficient support for his jurisdictional allegations, the plaintiff did not meet his burden

to make a prima facie showing that Missouri Baptist purposely directed its activities to Illinois

facilities and patients and, therefore, that its activities were not random, fortuitous, or attenuated.

In light of the foregoing, the trial court’s finding that it had specific jurisdiction over Missouri

Baptist cannot be sustained. Therefore, I agree the trial court’s decision must be reversed.

¶ 50 For the reasons stated, I specially concur.

25 Allen v. Missouri Baptist Medical Center, 2022 IL App (5th) 210263

Decision Under Review: Appeal from the Circuit Court of Madison County, No. 20-L- 1278; the Hon. Sarah D. Smith, Judge, presiding.

Attorneys Michael J. Nester, of Donovan Rose Nester, P.C., of Belleville, for and Terrence J. O’Toole Jr., of Baker Sterchi Cowden & Rice Appellant: LLC, of St. Louis, Missouri, for appellant.

Attorneys Roy C. Dripps, Charles W. Armbruster III, and Michael T. for Blotevogel, of Armbruster Dripps Blotevogel, LLC, of Appellee: Maryville, for appellee.