Hendry v. Ornda Health Corporation, Inc.

Hendry v. Ornda Health Corp., Inc., No.

2nd District, 14 September 2000




LiteLife and LiteLife Program, and n/k/a LighterLife; TENET HEALTH CARE
CORPORATION, f/k/a OrNda Health Corporation, Inc., and d/b/a Tenet Health
SystemHealth Corporation, Inc.; and DAVENPORT MEDICAL CENTER, n/k/a/ Tenet
Health Systems DMC, Inc.,


(John Stoner, Defendant).

Appeal from the Circuit Court
of Kane County.

No. 98–LK–91

Honorable Gene L. Nottolini, Judge,

JUSTICE McLAREN delivered the opinion of the

Defendants Ornda Health Corporation, Inc.
(Ornda), Tenet Health Care Corporation (Tenet), and Davenport Medical Center
(Davenport) (collectively hereafter referred to as corporate defendants) bring
this interlocutory appeal from the trial court’s order finding personal
jurisdiction over them. We affirm and remand the cause.

Plaintiff Patsy Hendry brought a 23-count
complaint against the corporate defendants and defendant Dr. John Stoner
alleging, inter alia, negligence, breach of warranty, fraud, and
medical malpractice. The corporate defendants filed a special and limited
appearance, objecting to the jurisdiction of the trial court because the
corporate defendants were foreign corporations that did not do business in
Illinois. Following a hearing, the trial court denied the special and limited
appearance. The corporate defendants were given leave to file a supplemental
pleading regarding the special and limited appearance. This, too, was denied.
The trial court then allowed the corporate defendants’ motion for interlocutory
appeal. This court denied the initial application for leave to appeal; however,
a second such application, brought pursuant to Supreme Court Rule 306(a) (166
Ill. 2d R. 306(a)) was granted, and this appeal followed. Defendant Stoner is
not part of this appeal.

The corporate defendants contend that the trial
court erred in denying the supplemental special and limited appearance and in
finding in personam jurisdiction over them. Where, as here, the trial
court did not hold an evidentiary hearing but determined jurisdiction solely on
the basis of documentary evidence, the standard of review is de novo.
See Gaidar v. Tippecanoe Distribution Service, Inc., 299 Ill. App.
3d 1034, 1040 (1998).

Hendry alleged in her complaint that she
participated in a surgical weight-loss program run by Ornda and since purchased
by defendant Tenet. Hendry learned of the program through television
advertisements in Illinois and via a videotape that she ordered from the
program. Litelife program dispatched a limousine to drive Hendry from her home in
Aurora, Illinois, to the Davenport Medical Center in Davenport, Iowa, for a
consultation. Eventually, Dr. Stoner performed a silastic ring vertical
gastroplasty (stomach stapling) on Hendry at Davenport. Approximately eight
months later, Hendry returned to Davenport, and Stoner performed a single
panniculectomy (tummy tuck) to remove excess abdominal skin that had resulted
from Hendry’s weight loss of over 100 pounds. Following that surgery, Hendry
suffered from constant and substantial pain, drainage from open wounds, and
frequent bleeding, even after a follow up with Stoner in Davenport. The
injuries, pain, suffering, and subsequent medical treatments required are the
basis for the damages sought in this case.

Both Hendry and the corporate defendants agree
that the defendants were foreign corporations, not licensed in Illinois. An
Illinois trial court may exercise jurisdiction over such corporations based upon
(a) the fact that the corporation has been found to be “doing business” in
Illinois or (b) compliance with the requirements of the long-arm statute,
section 2–209(a)(1) of the Code of Civil Procedure (Code) (735 ILCS
5/2–209(a)(1) (1994)). General Electric Railcar Services Corp. v.
Wilmington Trust Co.,
208 Ill. App. 3d 459, 463-64 (1990).

Jurisdiction based upon a party’s “doing
business” in Illinois was recognized by the courts before it was codified as
section 2–209(b)(4) of the Code (735 ILCS 5/2–209(b)(4) (West 1994)). See
Gaidar, 299 Ill. App. 3d at 1041. A nonresident corporation is
considered to have consented to jurisdiction if it is doing business in
Illinois. Rokeby-Johnson v. Derek Bryant Insurance Brokers, Ltd., 230
Ill. App. 3d 308, 318 (1992). There is no comprehensive test for determining
what activity amounts to “doing business”; however, if a corporation is
conducting business in Illinois of such character and extent as to warrant the
inference that the corporation has subjected itself to the jurisdiction and laws
of Illinois, the corporation may be found to be “doing business” in Illinois.
See Cook Associates, Inc. v. Lexington United Corp., 87 Ill. 2d 190,
201 (1981). “Doing business” requires activities greater than mere solicitation
by employees who have authority only to solicit business (Cook, 87 Ill.
2d at 201), and business activity in the state must be carried on with a fair
measure of permanence and continuity, not occasionally or casually.
Rokeby-Johnson, 230 Ill. App. 3d at 318. The decision as to whether a
corporation’s activities in Illinois are sufficiently permanent and continuous
must be made on a case-by-case basis on the unique situation presented.
Hulsey v. Scheidt, 258 Ill. App. 3d 567, 572 (1994).

Hendry relies upon 11 “verified facts” to
support a finding that the corporate defendants were “doing business” in
Illinois. Hendry alleged that the corporate defendants (1) employed Illinois
residents; (2) treated Illinois patients; (3) granted Illinois physicians
admitting privileges; (4) were under contract with many Illinois-based
organizations, such as Deere and Company, Heritage National Healthplan, Inc.,
Trinity Physician Hospital Organization, Ltd., and Trinity Hospital
Organization, Ltd.; (5) advertised their programs in Illinois by way of radio,
television, newspaper (i.e., the Chicago Tribune), and the Yellow
Pages, which were all targeted to Illinois residents; (6) had employees that
served as faculty and lectors for seminars and conferences that took place in
Illinois; (7) had presented as many as seven seminars about the LiteLife program
in Illinois; (8) arranged and paid for 30 separate limousine trips (at a total
cost of $8,821) from Illinois to Iowa for their Illinois LiteLife patients; (9)
sent promotional videos to as many as 35 Illinois residents who were ultimately
treated; (10) circulated to Illinois patients eight different newsletters that
they published; and (11) obtained authorizations from two LiteLife patients who
were Illinois residents to provide testimonials for use in promotional
materials. The corporate defendants counter with the facts that Hendry was not
treated in Illinois, the corporate defendants do not treat any of their patients
in Illinois, all treatment is administered in Iowa, and the corporate defendants
have no offices in Illinois.

We conclude that the corporate defendants were
not “doing business” in Illinois. The vast majority of Hendry’s allegations
point to nothing more than the advertising of the corporate defendants’ services
in Illinois. The fact that employees, patients, and doctors travel from Illinois
to Iowa to in some way be part of the corporate defendants’ operations does not
demonstrate that the corporate defendants chose to submit to the protection of
Illinois laws. All the services provided under the contracts with Illinois-based
organizations were provided in Iowa, not Illinois. Furthermore, merely entering
into a contract with a resident of Illinois is not sufficient by itself to
subject a nonresident to in personam jurisdiction in Illinois. See
Mellon First United Leasing v. Hansen, 301 Ill. App. 3d 1041, 1048
(1998). The only real contact the corporate defendants had with Illinois was the
transportation they provided for 15 Illinois residents to visit the hospital in
Iowa. Three patients in 1995 and twelve patients in 1996 were transported from
Illinois to Iowa, fourteen by limousine and one by airplane. No transportation
was provided in 1997 or 1998. These contacts were neither sufficiently permanent
nor continuous to find that the corporate defendants were “doing business” in
Illinois; these contacts were very limited and were discontinued after only a
short period. Personal jurisdiction over the corporate defendants cannot be
found under section 2–209(b)(4) of the Code.

However, personal jurisdiction may be found
under the long-arm statute also. The transaction of business within Illinois
submits a person to the jurisdiction of the courts of this state as to any cause
of action arising from that transaction. See 735 ILCS 5/2–209(a)(1) (West
1994). In this case, the corporate defendants twice hired limousines to
transport Hendry from her home in Illinois to Iowa and back home during the
course of her treatment. This, we conclude, was a transaction of business in
Illinois sufficient to invoke personal jurisdiction over the corporate
defendants. The corporate defendants argue that they did not own or control the
limousine service and the service was not an agent or an employee of the
corporate defendants; therefore, since all the consultations and medical
treatment took place in Iowa, the corporate defendants transacted no business in
Illinois. However, by sending the limousines into Illinois to fetch and return
Hendry, the corporate defendants moved beyond merely advertising and soliciting
business in Illinois to physically getting business in Illinois and transporting
it to Iowa. They provided a service–transportation–in Illinois. The fact that
they did not operate the transportation service is irrelevant. By providing the
transportation through a hired limousine service, the corporate defendants have
transacted business in Illinois.

The corporate defendants cite a line of cases in
which Illinois residents who traveled to other states for medical treatment were
not allowed to prosecute malpractice actions in Illinois for injuries arising
out of the treatments. See, e.g., Rogers v. Furlow, 699 F. Supp. 672
(N.D. Ill. 1988); Veeninga v. Alt, 111 Ill. App. 3d 775 (1982);
Ballard v. Rawlins, 101 Ill. App. 3d 601 (1981); Muffo v. Forsyth,
37 Ill. App. 3d 6 (1976). However, none of these cases makes so broad a
statement regarding jurisdiction. Furthermore, each decision is based on the
particular facts of the case, and none is exactly on point. Veeninga,
and Muffo involved Illinois residents filling
prescriptions made by out-of-state doctors. More instructive in this case is
Rogers, wherein the Illinois plaintiff sued in federal court in
Illinois the Mayo Clinic of Minnesota and several doctors at the clinic for
injuries resulting from surgery performed in Minnesota. The court found that
“the mere exchange of phone calls and letters” between the plaintiff and the
defendants did not constitute “transacting business” for purposes of the
statute. Rogers, 699 F. Supp. at 675. In none of these cases did the
defendant provide for the physical transportation of the plaintiff to the place
of business and the return to his or her home. The corporate defendants did not
merely solicit plaintiff. They did not merely passively accept the patronage of
plaintiff. They sought plaintiff’s business and physically brought her to Iowa
to partake of their services. This entry into Illinois through the use of the
hired limousine service provides sufficient contact with Illinois for us to
conclude that the corporate defendants transacted business in Illinois and are
subject to personal jurisdiction in this state.

For these reasons, the judgment of the circuit
court of Kane County is affirmed, and the cause is remanded for further

Affirmed and remanded.