Frazier et al v. University of Mississippi Medical Center et al

Filing 94

ORDER granting 76 Motion to Dismiss for Lack of Jurisdiction; terminating 76 Motion to Stay Proceedings; finding as moot 77 Motion to Dismiss; terminating 77 Motion to Stay Proceedings for the reasons set out in the Order. The claims agai nst Defendant Lori McBride are dismissed without prejudice. The remaining parties are directed to contact Magistrate Judge Ball's chambers within 10 days of the entry of this Order to set the case for a case-management conference. Signed by District Judge Daniel P. Jordan III on October 2, 2017.(SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MICHAEL FRAZIER AND JESSICA
FRAZIER, ON BEHALF OF THEIR
MINOR CHILD, J.L.F.
V.

PLAINTIFFS
CIVIL ACTION NO. 3:16-CV-976-DPJ-FKB

UNIVERSITY OF MISSISSIPPI
MEDICAL CENTER D/B/A BATSON
CHILDREN’S HOSPITAL, ET AL.

DEFENDANTS

ORDER
Defendant Dr. Lori McBride seeks dismissal of the medical-malpractice claims against
her based on lack of personal and subject-matter jurisdiction, forum non conveniens, and prematurity of suit under Louisiana law. Because the Court agrees that it lacks personal jurisdiction
over the claims against McBride, her Motion to Dismiss for Lack of Jurisdiction [76] is granted.
Her Motion to Dismiss based on Choice of Law, Pre-Maturity of Suit under Louisiana Law, and
Forum Non Conveniens [77] is considered moot, and the claims against her are dismissed
without prejudice.
I.

Facts and Procedural History
Dr. McBride is a pediatric neurosurgeon practicing in New Orleans, Louisiana. Plaintiff

J.L.F., the minor daughter of Michael and Jessica Frazier, was a preterm infant born on April 17,
2004, with hydrocephalus (a buildup of excess cerebrospinal fluid in the brain). The Fraziers
reside in Meridian, Mississippi.
J.L.F.’s relevant treatment history began in Mississippi on January 21, 2009, when she
received a ventricular shunt implant to drain cerebrospinal fluid from the brain into the abdomen.
Seven years later, she developed complications and was eventually transferred by ambulance to

Children’s Hospital Foundation of New Orleans where Dr. McBride performed surgery to
change the valve in her shunt.
According to the Amended Complaint, on March 8, 2016, discharge planners at
Children’s Hospital arranged for J.L.F.’s discharge to Sta-Home Health & Hospice, a
Mississippi-based home health-care provider. The Home Health Certification and Plan of Care
that was sent to Sta-Home listed McBride as J.L.F.’s physician.
J.L.F. continued to suffer various symptoms and was readmitted for several months of
inpatient hospital care at Children’s Hospital (New Orleans) and a hospital in Jackson,
Mississippi. She was ultimately “discharged home with permanent brain injuries requiring tube
feedings and nursing care in the home 16 hours per day.” Am. Compl. [9] ¶ 63.
The Fraziers filed this lawsuit on behalf of J.L.F. on December 21, 2016. They assert
claims for medical malpractice against a slew of medical providers. They premise jurisdiction in
this Court on federal claims filed against three of the hospital defendants under the Emergency
Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and § 1557 of the Affordable
Care Act, 42 U.S.C. § 18116. As to McBride, the Fraziers assert state-law claims for negligence
per se, patient abandonment and gross negligence, and negligence. Am. Compl. [9] ¶¶ 147–83.
McBride filed two motions to dismiss, one asserting lack of personal and subject-matter
jurisdiction and the other seeking dismissal on the basis of forum non conveniens and prematurity of suit under Louisiana law. Because the Court finds McBride’s jurisdictional motion
dispositive, it does not reach the issues raised in the second motion.
II.

Analysis
McBride urges dismissal on the basis of both personal and subject-matter jurisdiction.

“[I]n cases originating in federal court, there is no unyielding jurisdictional hierarchy” requiring

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the Court to consider a challenge to its subject-matter jurisdiction before ruling on personal
jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 (1999). Instead,
lower courts facing multiple grounds for dismissal [should] consider the
complexity of the subject-matter jurisdiction issues raised by the case, as well as
concerns of federalism, and of judicial economy and restraint in determining
whether to dismiss claims due to a lack of personal jurisdiction before considering
challenges to its subject-matter jurisdiction.
Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 213 (5th Cir. 2000). Because the Court
concludes that the personal-jurisdiction issue is relatively “straightforward” and “present[s] no
complex question of state law, and the alleged defect in subject-matter jurisdiction raises a
difficult and novel question,” it chooses to “turn[] directly to personal jurisdiction.” Ruhrgas
AG, 526 U.S. at 588.
“Absent a federal statute that provides for more expansive personal jurisdiction, the
personal jurisdiction of a federal district court is coterminous with that of a court of general
jurisdiction of the state in which the district court sits.” Submersible Sys., Inc. v. Perforadora
Cent., S.A. de C.V., 249 F.3d 413, 418 (5th Cir. 2001) (citing Fed. R. Civ. P. 4(k)(1)). The
parties do not suggest that either of the federal statutes involved in this case expands the Court’s
personal jurisdictional reach, so the Court considers whether a Mississippi state court would have
personal jurisdiction over the claims against McBride.
For a federal district court in [Mississippi] to exercise personal jurisdiction over a
defendant, that exercise of jurisdiction must first be proper under [Mississippi’s]
long-arm statute. If the state long-arm statute allows the district court to exercise
personal jurisdiction, the exercise of personal jurisdiction must also be proper
under the Due Process Clause of the Fourteenth Amendment.
Id.
A.

Long-Arm Statute

The Fraziers contend that McBride is subject to personal jurisdiction in Mississippi under
the tort prong of the long-arm statute, which provides:
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Any nonresident person . . . who shall commit a tort in whole or in part in this
state against a resident or nonresident of this state . . . shall by such act or acts be
deemed to be doing business in Mississippi and shall thereby be subjected to the
jurisdiction of the courts of this state.
Miss. Code Ann. § 13-3-57.
The Mississippi Supreme Court has held that “for purposes of our long-arm statute, a tort
is committed in Mississippi when the injury results in this State . . . because an injury is
necessary to complete a tort.” Horne v. Mobile Area Water & Sewer Sys., 897 So. 2d 972, 977
(Miss. 2004) (citing Sorrells v. R & R Custom Coach Works, Inc., 636 So. 2d 668, 672 (Miss.
1994)). On the other hand, “consequences stemming from the actual tort injury do not confer
personal jurisdiction at the site or sites where such consequences happen to occur.” Jobe v. ATR
Mktg., Inc., 87 F.3d 751, 753 (5th Cir. 1996).
In Dunn v. Yager, the court considered the application of the tort prong of the long-arm
statute to a medical-malpractice claim against an out-of-state doctor. 58 So. 3d 1171 (Miss.
2011). There, plaintiff Sharon W. Dunn traveled from her home on the Mississippi coast to
Mobile, Alabama, for treatment by Dr. John G. Yager. Alleging an adverse reaction to a drug
Yager prescribed, Dunn sued Yager in Mississippi state court, asserting failure-to-warn medicalmalpractice claims. Yager contested personal jurisdiction, and the Mississippi Supreme Court
upheld the trial court’s exercise of personal jurisdiction over him, concluding that “Dunn’s actual
injury, not the mere consequences thereof, occurred in Mississippi. Dunn filled the prescription
in Mississippi, consumed the prescription drugs in Mississippi, and the effects of her injury were
suffered in Mississippi.” 58 So. 3d at 1185.
Under Dunn, the Court assumes that Mississippi’s long-arm statute would permit it to
exercise personal jurisdiction over McBride under the facts alleged in the Amended Complaint.

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The Fraziers claim that steps McBride took in Louisiana caused delays and resulting injury once
J.L.F. returned home to Mississippi.
B.

Due Process

The personal-jurisdiction inquiry does not end with the Mississippi statute. The Court
must also consider due process.
The constitutional limitations on the reach of the personal jurisdiction of a court
are now quite familiar. The exercise of personal jurisdiction over a nonresident
defendant comports with due process principles only when two requirements are
met. First, the nonresident defendant must have purposefully availed himself of
the benefits and protections of the forum state by establishing minimum contacts
with that forum state. Second, the exercise of personal jurisdiction over the
nonresident defendant must not offend traditional notions of fair play and
substantial justice.
Allred v. Moore & Peterson, 117 F.3d 278, 285 (5th Cir. 1997) (internal quotation marks and
citations omitted). Starting with the minimum-contacts inquiry, it
may be further subdivided into contacts that give rise to “specific” personal
jurisdiction and those that give rise to “general” personal jurisdiction. Specific
jurisdiction is appropriate when the nonresident defendant’s contacts with the
forum state arise from, or are directly related to, the cause of action. General
jurisdiction, however, will attach, even if the nonresident defendant’s contacts
with the forum state are not directly related to the cause of action, if the
defendant’s contacts with the forum state are both “continuous and systematic.”
Id. at 286 (quoting Wilson v. Belin, 20 F.3d 644, 647 (5th Cir. 1996)) (additional citation
omitted). Because there has been no hearing, the Fraziers are merely required to make a prima
facie showing of these requirements. Bullion v. Gillespie, 895 F.2d 213, 216–17 (5th Cir. 1990).
1.

General Jurisdiction

In the general-jurisdiction section of the Fraziers’ memorandum, they say general
jurisdiction exists by virtue of Mississippi Code sections 13-3-57 (the long-arm statute) and 151-36 (the medical-malpractice statute). The Fraziers offer no legal authority to support this
argument, and it is not persuasive. First, as noted above, satisfaction of the long-arm statute is
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just the first step in the personal-jurisdiction analysis. Submersible Sys., Inc., 249 F.3d at 418.
Due process must still be addressed. Id. Second, the mere existence of a statute creating a cause
of action cannot establish a defendant’s continuous and systematic contacts with the forum state.
The only other argument that seems to touch general jurisdiction in the Fraziers’
memorandum is found in another section where they say due process is satisfied for the reasons
stated in Dunn v. Yager. Pls.’ Mem. [86] at 4. But Dunn is easily distinguishable on this issue.
There, the doctor
was an approved Mississippi Medicaid provider from January 1989 through
August 1995. . . . Furthermore, since 1992, Dr. Yager had participated in various
PPOs which, inter alia, gave him access to more than 800,000 members of
BCBS-MS as prospective clients. In addition, Dr. Yager solicited patients
through the PPOs, as an approved preferred provider. Finally, Dr. Yager’s
treatment of Dunn was itself approved by F.A. Richard, based in Pascagloua,
Mississippi, which acted as the “[r]esponsible party” and insurance company
under the “Workmen’s Comp Only” section for Dunn’s claim.
58 So. 3d at 1186. The court thus concluded that “Dr. Yager had ‘systematic and continuous’
contacts with Mississippi” to support the exercise of general personal jurisdiction. Id. (citations
omitted).
By contrast, McBride lacked similar contacts with the State of Mississippi. In an
uncontested affidavit, McBride says she has “never practiced medicine at a clinic or hospital in
the State of Mississippi,” has never “physically seen or treated a patient in the State of
Mississippi,” has not “come in to the [S]tate of Mississippi to manage a patient that was
previously seen” by her, and has “not solicited any patients in Mississippi.” McBride Aff. [76-2]
¶¶ 2, 4. McBride’s affidavit shows that she had no purposeful contacts with the State of
Mississippi, much less systematic and continuous ones. The Fraziers have not met their burden
as to general jurisdiction.

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2.

Specific Jurisdiction

So the question turns to specific jurisdiction. “When a controversy is related to or arises
out of a nonresident’s contacts with the forum, the minimum-contacts inquiry focuses on the
relationship among the defendant, the forum, and the litigation.” Stuart v. Spademan, 772 F.2d
1185, 1190 (5th Cir. 1985). The Fifth Circuit articulated a three-step analysis for analyzing
specific-jurisdiction issues in Nuovo Pignone, SpA v. STORMAN ASIA M/V:
(1) whether the defendant has minimum contacts with the forum state, i.e.,
whether it purposely directed its activities toward the forum state or purposefully
availed itself of the privileges of conducting activities there; (2) whether the
plaintiff’s cause of action arises out of or results from the defendant’s forumrelated contacts; and (3) whether the exercise of personal jurisdiction is fair and
reasonable.
310 F.3d 374, 378 (5th Cir. 2002) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474
(1985)).
McBride does not directly contest the first step, but the Fraziers seem to address it when
they say: “The physician-activities Dr. McBride participated in as outlined supra are sufficient
to demonstrate that Dr. McBride has purposefully availed herself to the jurisdiction of
Mississippi.” Pls.’ Mem. [86] at 4. The Fraziers offer no additional argument or authority on
this point, but in the long-arm section of their brief, they contend that McBride: (1) is identified
as the admitting physician to home health services in Mississippi; (2) prescribed J.L.F. to home
health; (3) prescribed treatment for all home-health and IV therapy; (4) ordered, monitored, and
evaluated all home-health and IV therapy; (5) accepted payment from a Mississippi insurance
company for her professional services; and (6) supervised skilled services and treatment for
home-health and IV therapy. Pls.’ Mem. [86] at 2–3.
These alleged contacts are strikingly similar to those in Sanders v. Buch, where a doctor
prescribed home healthcare, was listed as the attending physician, and provided orders and a plan
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of care after the plaintiff returned to his home state. 938 F. Supp. 532, 534 (W.D. Ark. 1996).
Despite these contacts, the court found that the doctor did not purposefully direct his activities to
the forum state. Id. at 537–38. And as for the Fraziers’ observation that McBride accepted
payments from Mississippi, other courts have held that such transactions are not a sufficient
basis for specific jurisdiction. See, e.g., Harlow v. Children’s Hosp., 432 F.3d 50, 63−64 (1st
Cir. 2005).
The courts that have addressed specific jurisdiction in the physician-patient context have
applied a variety of jurisdictional rules to reach their results. Indeed, there is a large body of law
on this point generally flowing from Wright v. Yackley, 459 F.2d 287, 288–89 (9th Cir. 1972)
(finding no jurisdiction in Idaho over South Dakota doctor who treated his patient in South
Dakota and merely phoned a prescription refill into Idaho). While McBride mentioned some of
the cases in her rebuttal, neither party analyzed those holdings or examined the physicianspecific rules that have developed. The Court is reluctant to do so sua sponte. Regardless, the
Fraziers have not given the Court enough to conclude that they made a prima facie showing on
this point.
But even assuming they had, McBride based her specific-jurisdiction argument on the
second step of the test. See Def.’s Mem. [79] at 9. “Step two asks whether the cause of action
arises out of or results from [the defendant’s] forum-related contacts.” Seiferth v. Helicopteros
Atuneros, Inc., 472 F.3d 266, 276 (5th Cir. 2006) (internal quotation marks and citation omitted);
see also Rudzewicz, 471 U.S. at 472. And that inquiry is claim specific. Seiferth, 472 F.3d at
274.
In Seiferth, the defendant designed a work platform that was attached to a helicopter. Id.
at 270. The design work occurred in Florida, but the defendant later flew the helicopter to

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Mississippi and inspected it. Id. After the platform failed, the injured plaintiff brought claims
based on defective design and negligence. As to the design-defect claim, the Fifth Circuit found
that personal jurisdiction did not exist:
By transporting the helicopter and work platform to Mississippi and inspecting
the platform there, Camus directed his activity toward the state and purposefully
availed himself of its laws, which satisfies the first prong of the Nuovo Pignone
analysis. The inquiry fails, however, at the second step, because the defective
design claim does not arise out of or result from Camus’s Mississippi contacts.
Id. at 275. On the other hand, personal jurisdiction did exist as to the negligence claims related
to the in-state inspection. Seiferth, 472 F.3d at 276.
McBride makes the same argument here, but the Fraziers never address it, and it is not
otherwise apparent that the Fraziers meet their burden at step two. Most of the alleged contacts
relate to the discharge orders McBride signed before J.L.F. left Louisiana. And to the extent the
Fraziers say McBride prescribed or supervised treatment in Mississippi, they have not explained
how those activities are linked to the actual injuries and claims. They have not, for example,
stated that the IV therapy McBride allegedly ordered, monitored, or supervised harmed J.L.F.
See id. Because the Fraziers have not demonstrated that the claims arise out of or result from
McBride’s alleged forum-related contacts, they have failed to meet their burden of showing
specific jurisdiction.1

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Assuming the Court had personal and subject-matter jurisdiction, the case would still be
dismissed without prejudice as prematurely filed under Louisiana law. See Huss v. Gayden, 571
F.3d 442, 450 (5th Cir. 2009) (applying Mississippi choice-of-law rules to medical-malpractice
claim of Mississippi resident against Tennessee doctor concerning treatment in Tennessee and
concluding Tennessee law applied); see also Flagg v. Stryker Corp., 819 F.3d 132, 137–38 (5th
Cir. 2016) (explaining that, under Louisiana law, a medical-malpractice plaintiff may not bring
her lawsuit until she has “present[ed her] claim to a medical review panel [and] ‘the panel has
rendered its expert opinion on the merits of the complaint’”) (quoting Delcambre v. Blood Sys.,
Inc., 893 So. 2d 23, 27 (La. 2005)) (emphasis omitted).
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III.

Conclusion
The Court has considered all arguments. Those not specifically addressed would not

have changed the outcome. For the foregoing reasons, Defendant Lori McBride’s Motion to
Dismiss for Lack of Jurisdiction [76] is granted; her Motion to Dismiss based on Choice of Law,
Pre-Maturity of Suit under Louisiana Law, and Forum Non Conveniens [77] is considered moot;
and the claims against her are dismissed without prejudice. The remaining parties are directed to
contact Magistrate Judge Ball’s chambers within 10 days of the entry of this Order to set the case
for a case-management conference.
SO ORDERED AND ADJUDGED this the 2nd day of October, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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