Med mal case belonged in Missouri - not Madison County, appellate court rules

Steve Korris Oct. 18, 2011, 4:43pm


MOUNT VERNON – Madison County Circuit Judge Andy Matoesian kept a medical malpractice case that belonged in Missouri, Fifth District appellate justices ruled.

On Oct. 14, they directed Matoesian to dismiss a suit Cheryl Unterreiner filed against Missouri physician David Pernikoff and his professional corporation.

They rejected Matoesian's conclusion that a telephone call from Pernikoff's office to Unterreiner's home in Highland established sufficient contact with Illinois.

"Cheryl could have returned the defendants' phone call from any number of jurisdictions, including Missouri," Justice Stephen Spomer wrote.

"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 over the telephone, or via email, for that physician could never know with certainty where they might eventually be haled into court as a result of those instructions," he wrote.

"The defendants have never advertised for clients in Illinois and have never owned or leased any real or personal property in Illinois," he wrote.

"The defendants' contact with Illinois is simply far too attenuated and fortuitous to support jurisdiction," he wrote.

Justices James Donovan and James Wexstten agreed.

Unterreiner underwent a heart valve replacement in 2002, and for the next six years she took Warfarin as an anticoagulant.

She traveled to Missouri for appointments at Pernikoff's office.

In 2008, an employee left a phone message that her anticoagulant levels were low.

Unterreiner returned the call, and an employee told her to keep taking Warfarin and return in a month.

Within a month, Unterreiner suffered a stroke resulting in serious injuries.

She and husband Kim Unterreiner sued two years later, and Pernikoff moved to dismiss.

Matoesian denied the motion last December, but now he must grant it.

Spomer wrote, "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.

"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."

He wrote that Unterreiner sought out Pernikoff and traveled to Missouri for treatment.

He wrote that he couldn't equate a solitary phone call with voluntary invocation of the protections and benefits of Illinois laws.

Lisa Howe and Thaddeus Eckenrode represented Pernikoff.

Drew Baebler and Philip Denton represented the Unterrreiners.

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