                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                       Unterreiner v. Pernikoff, 2011 IL App (5th) 110006




Appellate Court            CHERYL A. UNTERREINER and KIM UNTERREINER, Plaintiffs-
Caption                    Respondents, v. DAVID PERNIKOFF, M.D., et al., Defendants-
                           Petitioners.



District & No.             Fifth District
                           Docket No. 5-11-0006


Rule 23 order filed        October 14, 2011
Motion to publish
granted                    November 18, 2011



Held                       In a medical malpractice case arising from a Missouri physician’s
(Note: This syllabus       treatment of plaintiff, the denial of defendants’ motion to dismiss for lack
constitutes no part of     of jurisdiction or motion to quash service was reversed and the cause was
the opinion of the court   remanded with directions to dismiss the complaint with prejudice, since
but has been prepared      the Illinois court had no jurisdiction where defendants were licensed and
by the Reporter of         operated only in Missouri, plaintiff was treated in Missouri, and
Decisions for the          defendants’ single telephone call in which one of defendant’s employees
convenience of the         left a message asking plaintiff to call defendants could not be equated
reader.)
                           with voluntarily invoking the protections and benefits of the laws of the
                           State of Illinois and was too attenuated to support jurisdiction.


Decision Under             Appeal from the Circuit Court of Madison County, No. 10-L-1038; the
Review                     Hon. A.A. Matoesian, Judge, presiding.
Judgment                   Reversed; cause remanded with directions.


Counsel on                 J. Thaddeus Eckenrode and Lisa Howe, both of Eckenrode-Maupin, of St.
Appeal                     Louis Missouri, for respondents.

                           Drew C. Baebler, of Bauer & Baebler, P.C., and Philip C. Denton, of Law
                           Office of Philip C. Denton, both of St. Louis Missouri, for petitioners.


Panel                      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
        of 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. Codefendant 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

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     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


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     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.
¶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 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.
¶8        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 drugs were unnecessary and had been
     negligently prescribed to him. 111 Ill. App. 3d at 776.
¶9        We conclude that under the reasoning found in these above three cases, and others that
     have followed them, there is no personal jurisdiction in the case at bar. The defendants
     operate their medical office exclusively in Missouri and are licensed to practice medicine
     only in Missouri. They have never advertised for clients in Illinois and have never owned or
     leased any real or personal property in Illinois. Plaintiff Cheryl Unterreiner unilaterally
     sought out the defendants and traveled to Missouri to receive treatment from them. Although
     it is true, as the plaintiffs suggest, that the defendants could have required Cheryl to visit
     their office in Missouri to receive the advice to adjust her Warfarin levels, we do not believe
     the fact that the defendants chose to so advise her, in a solitary phone call, can be equated
     with the defendants having “voluntarily invoked the protections and benefits of the laws of
     the State” of Illinois. See, e.g., Muffo v. Forsyth, 37 Ill. App. 3d 6, 9 (1976). The defendants’
     contact with Illinois is simply far too attenuated and fortuitous to support jurisdiction. Cheryl
     could have returned the defendants’ phone call from any number of jurisdictions, including
     Missouri. A rule of law that allowed personal jurisdiction over a physician on the basis of
     a single phone call would effectively ensure that no physician ever delivered instructions

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       over the telephone, or via e-mail, for that physician could never know with certainty where
       they might eventually be haled into court as a result of those instructions. See, e.g., Burger
       King Corp. v. Rudzewicz, 471 U.S. 462, 486 (1985) (forseeability of being haled into the
       forum’s courts is an important consideration in deciding whether the nonresident defendant
       has purposefully established minimum contacts with the forum state). We note that courts
       in other jurisdictions have reached the same result. See, e.g., Prince v. Urban, 57 Cal. Rptr.
       2d 181, 184 (Cal. Ct. App. 1996) (“Follow up consultation ancillary to the examination and
       treatment made by the out-of-state doctor, telephone calls about the status of an out-of-state
       patient, or arrangements for a patient to continue with medication prescribed by that doctor”
       not sufficient minimum contacts.); Campbell v. Gasper, 102 F.R.D. 159, 162 (D. Nev. 1984)
       (use of mails or telephone alone does not amount to purposeful activity); Bond v.
       Messerman, 895 A.2d 990, 1000-01 (Md. 2006) (telephone calls and correspondence alone
       are not sufficient contacts to satisfy due process); Greenberg v. Miami Children’s Hospital
       Research Institute, Inc., 208 F. Supp. 2d 918, 926 (N.D. Ill. 2002) (telephone calls and
       correspondence alone not sufficient basis for personal jurisdiction).
¶ 10       Each of the three cases cited by the plaintiffs in support of their position is factually
       distinguishable from the case at bar. In Ores v. Kennedy, 218 Ill. App. 3d 866, 869-70
       (1991), personal jurisdiction was found over a Texas attorney who corresponded by mail and
       by telephone with, and on behalf of, a client in Illinois. The mail and telephone contacts
       between the third-party defendant attorney and the Illinois client and the other Illinois
       residents the attorney contacted on the client’s behalf were numerous, numbering at least 20
       phone calls and multiple letters by mail and courier. Ores, 218 Ill. App. 3d at 869-70.
       Accordingly, the appellate court found that the attorney had “ ‘purposefully directed’ his
       activities at Illinois residents” because he had “repeated business contacts” with the Illinois
       residents while carrying out his fiduciary duties to an estate and the estate’s executors and
       that he “purposefully derived a financial benefit” from these contacts by billing the estate for
       the time he spent conversing and corresponding with the Illinois residents. Ores, 218 Ill.
       App. 3d at 873. Moreover, the claim in question was a contribution claim, and the Ores court
       stressed that because Illinois public policy favors contribution, the State of Illinois had “a
       substantial interest” in the contribution action. Ores, 218 Ill. App. 3d at 874. In contrast, in
       the case at bar there was only one phone conversation, for which no one was billed, and no
       other Illinois contacts.
¶ 11       In Culligan International Co. v. Wallace, Ross, & Sims, 273 Ill. App. 3d 230, 231 (1995),
       the appellate court determined that personal jurisdiction existed over a West Virginia law
       firm retained by an Illinois resident to defend a West Virginia lawsuit because a lawyer from
       the firm wrote letters to, made telephone calls to, and eventually visited for purposes of
       discussing the case, the plaintiff’s headquarters in Illinois. On the basis of these multiple
       contacts, and the fact that the firm “derived financial benefit from its activities,” the court
       concluded that the defendant firm had “ ‘purposefully directed’ activities and intentionally
       provided legal services to an Illinois resident in Illinois.” Culligan, 273 Ill. App. 3d at 232.
       As explained above, in the case at bar there was only one phone conversation, for which no
       one was billed, and no other Illinois contacts.
¶ 12       Likewise, in Klump v. Duffus, 71 F.3d 1368, 1372 (7th Cir. 1995), personal jurisdiction

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       was found over a North Carolina attorney who was hired by an Illinois resident to defend a
       lawsuit in an Illinois court involving an auto accident that involved two Illinois residents and
       occurred in Illinois, because there were multiple and frequent telephonic and mail contacts
       with Illinois residents, whereas in the case at bar there was only one phone conversation, for
       which no one was billed, and no other Illinois contacts.
¶ 13       In sum, the three cases cited by the plaintiffs are far too removed, factually, from the case
       at bar to control our decision.

¶ 14                                       CONCLUSION
¶ 15      For the foregoing reasons, the trial court erred when denying the defendants’ motion to
       dismiss and/or quash service. Accordingly, we reverse the trial court’s ruling and remand
       with directions to the trial court to dismiss the plaintiffs’ complaint with prejudice.

¶ 16       Reversed; cause remanded with directions.




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