Dean v. Johns

789 So. 2d 1072, 2001 WL 672145
CourtDistrict Court of Appeal of Florida
DecidedJune 18, 2001
Docket1D00-1346
StatusPublished
Cited by17 cases

This text of 789 So. 2d 1072 (Dean v. Johns) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dean v. Johns, 789 So. 2d 1072, 2001 WL 672145 (Fla. Ct. App. 2001).

Opinion

789 So.2d 1072 (2001)

Mary DEAN and Robert Dean, Appellants,
v.
Dale K. JOHNS, M.D.; Dale K. Johns, M.D., P.A.; Bruce G. Witkind, M.D.; Bruce G. Witkind, M.D., P.A.; and Shin J. Oh, M.D., Appellees.

No. 1D00-1346.

District Court of Appeal of Florida, First District.

June 18, 2001.

*1074 John Beranek, Ausley & McMullen, Tallahassee; Donald M. Hinkle, Fonvielle, Hinkle & Lewis, Tallahassee, for Appellants.

James E. Tribble, Collins & Truett, Tallahassee; Frank C. Bozeman, Jr., Bozeman & Matthews, Pensacola, for Appellees.

POLSTON, J.

Appellants Mary Dean and her husband, Robert Dean, filed suit against Mary Dean's physicians, alleging medical malpractice because they failed to discover a tumor in her spine and unnecessary surgery was performed. The trial court granted appellee Dr. Oh's motion for summary judgment and entered final judgment in his favor on the basis that (i) the court did not have personal jurisdiction over Dr. Oh under Florida's long-arm statute, (ii) an exercise of jurisdiction by the court over Dr. Oh would be contrary to and violate due process under the Fourteenth Amendment of the United States Constitution, and (iii) the law of Alabama applies to the claims against Dr. Oh since Alabama has the most significant relationships to the case, and the statute of limitations under Alabama law bars this action. We hold that the court had personal jurisdiction over Dr. Oh pursuant to section 48.193, Florida Statutes (1997), there were sufficient minimum contacts by Dr. Oh with Florida to satisfy constitutional due process requirements, and Florida, not Alabama, had the most significant relationships to the case so that Florida law applies rather than Alabama law. Accordingly, we reverse.

I. Background

Mrs. Dean, a Florida resident, experienced neurological and neuromuscular pain in her back and lower extremities and was treated by Dr. Johns, a Florida neurosurgeon, in Ft. Walton Beach, Florida. Because her condition was so difficult to diagnose, Dr. Johns decided to consult with Dr. Oh, who practices a subspecialty of neurology at the University of Alabama medical school in Birmingham, Alabama.

*1075 Dr. Johns referred Mrs. Dean to Dr. Oh and sent Dr. Oh his report. Dr. Oh received the initial inquiries from Dr. Johns, and Dr. Oh's office called Dr. Johns to set up Mrs. Dean's appointment. Dr. Johns had great respect for Dr. Oh and often referred his problem patients to Dr. Oh, who always accepted these referrals of Florida patients. Dr. Oh first saw Mrs. Dean in November, 1996, knowing that she was a Florida resident who had been referred by Dr. Johns.

Dr. Oh did a medical work-up on Mrs. Dean, including certain tests, but chose not to do a thoracic MRI, which would have revealed that she had a tumor in her spine. Dr. Oh diagnosed Mrs. Dean's condition and recommended surgery, as indicated by a report sent to Dr. Johns. Dr. Oh advised Mrs. Dean that she could have the surgery at the University of Alabama, or she could have it performed in Florida by her main treating physician, Dr. Johns. Dr. Oh was a neurologist, not a surgeon, and he would not perform the surgery himself. Mrs. Dean returned to Florida for the surgery, and Dr. Oh called her there to further discuss the surgery with her. Dr. Oh also consulted by phone with Dr. Johns, discussing Dr. Oh's report and the recommended surgery.

The recommended surgery was performed in Ft. Walton Beach, Florida in March, 1997. The appellants allege that this surgery was completely unnecessary and seriously damaged Mrs. Dean's spinal condition and caused neurological damage. After the surgery, Mrs. Dean continued to see Dr. Johns in Ft. Walton Beach and eventually Dr. Johns recommended that Mrs. Dean should return to Dr. Oh for further examination. In December, 1997, Mrs. Dean was examined by an associate of Dr. Oh, with Dr. Oh present, and a report from Dr. Oh and his associate was sent to Dr. Johns.

In 1998, Mrs. Dean was evaluated by another doctor, who ordered a thoracic MRI that revealed the tumor. After the tumor was surgically removed, appellants brought this medical malpractice action.

Dr. Oh practices primarily at the University of Alabama in Birmingham, but he treats a substantial number of patients from Florida who are referred to him by Florida doctors. Dr. Oh is licensed to practice medicine in Florida, Georgia, and Alabama. His first medical license was obtained in 1972 in Florida, and he continues to maintain this license and fulfill Florida's continuing educational and financial requirements. He attends neurological meetings and seminars in Florida, and submits continuing medical education credits in Florida to maintain his licensure.

Although Dr. Oh states that he has never treated a patient in Florida by being physically present in Florida, he treats approximately 100 Florida patients per year and has treated over 3,200 Florida patients since beginning his practice in Birmingham. Over the years, Dr. Oh has sent thousands of reports to hundreds of referring Florida doctors and has made hundreds of telephone calls to Florida regarding Florida patients.

Dr. Oh also owns two pieces of property in Florida, including rental property.

II. Personal Jurisdiction Under Section 48.193

"In determining whether long-arm jurisdiction is appropriate in a given case, two inquiries must be made. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient `minimum contacts' are demonstrated to satisfy due process requirements." Execu-Tech Business Systems, Inc. v. New Oji Paper Company, Ltd., 752 So.2d 582, 584 (Fla.2000)(quoting *1076 Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989)).

The court has personal jurisdiction over Dr. Oh pursuant to section 48.193, Florida Statutes (1997). There are alternative grounds for jurisdiction under sections 48.193(1)(b) ("Committing a tortious act within this state."), 48.193(1)(f)2 ("Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use"), and 48.193(2) ("A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity"). Either of these three grounds will support personal jurisdiction over Dr. Oh.

A. Tortious Act, § 48.193(1)(b)

Dr. Oh argues that he did not commit a tort within Florida because he was not physically present in Florida during his treatment of Mrs. Dean. However, Florida courts have consistently held that physical presence within Florida is not a requirement for personal jurisdiction. Execu-Tech, 752 So.2d at 586 & n. 11 ("Actual physical presence in Florida is not required in order to establish personal jurisdiction under these circumstances," citing and parenthetically quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ("[W]e have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.")).

As stated in International Harvester Co. v. Mann, 460 So.2d 580, 581 (Fla.

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Bluebook (online)
789 So. 2d 1072, 2001 WL 672145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dean-v-johns-fladistctapp-2001.