Every now and then something happens that's unique. It's hardly unique for defense counsel to send us a case, with his/her client's consent and invite us to blog about it – but only once in twelve years has that happened where the result was a loss. That decision was Mantgem v. Spinal Kinetics, No. 19CV350146, slip op. (Cal. Super. June, 11 2020), and it certainly involved unusual facts and procedure. Unusual facts: The plaintiff, a resident of California, was a medical tourist. She "traveled to Germany to undergo" surgery with a medical device that had not yet been approved in the United States. Slip. op. at 1. According to the complaint she received informed consent in Germany. Id.
Since it's a product liability case, there are, of course, allegations that the surgery failed, the product was defective, etc. Id. Since the defendant device manufacturer happened also to have its principal place of business in California, suit was filed in that state's court.
The unusual procedure was the defendant filing a motion to dismiss for forum non conveniens, which would have required plaintiff to refile in Germany, since plaintiff voluntarily went to Germany for the surgery and implant at issue. Id., slip op. at 2. Although there were good grounds for so proceeding – Germany was a proper and available forum, much of the relevant evidence was there, and the device was only approved for use in Germany by German regulators – that proved to be too heavy a lift for the court. After all, how often has forum non conveniens been invoked where both the plaintiff and the defendant are resident in the jurisdiction where suit was filed, regardless of any other facts? Cf. Kleiner v. Spinal Kinetics, Inc., 2016 WL 1565544, at *7 (N.D. Cal. April 19, 2016) (granting forum non conveniens dismissal in case involving same product – but where the plaintiffs were Germans who had surgery in Germany). We do not know of any successful forum non conveniens dismissals where both plaintiff and defendant were residents of the forum. This is not to say that it shouldn't be done in cases like Mantgem, but courts are not likely to be sympathetic.
In Mantgem the court hinged most of its reasoning on plaintiff's assertion that 41 (or 38, or 35, take your pick) different California physicians had treated her claimed injuries. Slip op. at 4-5. But what caught our eye was the very last reason asserted by the court:
Neither party applies a full three-part government interest test to determine the choice of law that would be applied in this case. . . . Assuming the first two factors apply, given the above analysis, California still holds a stronger interest in applying its law, and would be more impaired if German law was applied.
Slip op. at 5. But in the very next paragraph, Mantgem states, "This Court takes no position as to the applicable choice of law for the trial of this matter." Id.
Mantgem's choice of law finding, if that is what is, struck us as bizarre. Our gut reaction is that where medical treatment is at issue, the governing law is that of the jurisdiction in which that treatment occurred. But having never addressed that question before in any depth, we decided to take a closer look.
Our reaction was driven by case law in the Third and DC Circuits, where most of our bloggers practice. Third Circuit law was established in Blakesley v. Wolford, 789 F.2d 236 (3d Cir. 1986), holding that a malpractice lawsuit by a Pennsylvania resident plaintiff, who went to Texas for surgery, would be governed by Texas law. Blakesley held that, where claims arise from medical treatment, the place of injury is where the treatment took place, not where its eventual "effects" are "felt. "Clearly, the place where the injury occurred, that is, the place where the operation which injured [plaintiff] took place." Id. at 243. To hold otherwise is to give "double weight" to the plaintiff's domicile, since "the effects of an injury necessarily follow a plaintiff to his or her state of residence." Perhaps even more important, since the plaintiff "voluntarily and intentionally went to" another state for medical treatment, doctors in that state "w[ere] fully entitled to rely on [their] home state's law" in performing such treatment. Id. at 243. "[I]t is only fair that the law of the state to which the patient has voluntarily traveled, and in which the doctor has chosen to conduct the operation, be applied to adjudicate the respective rights, duties, and obligations between the parties." Id.
Warriner v. Stanton, 475 F.3d 497 (3d Cir. 2007), followed Blakesley in applying the law of the state of treatment rather than the law of the plaintiff's domicile because as in Blakesley, the plaintiffs "intentionally initiated" the treatment in a different state from where they lived. Id. at 503. "In the context of a doctor-patient lawsuit . . ., "it is only fair that the law of the state to which the patient has voluntarily traveled." Id. at 504 (quoting Blakesley). The court appended additional practical reasons to the Blakesley analysis.
[A]lthough [plaintiff] was a resident of New Jersey at the time of the alleged malpractice, citizens do not carry their home state's laws with them wherever they go. Indeed, . . . by entering the state the visitor has exposed himself to the risks of the territory and should not expect to subject persons living there to a financial hazard that their law had not created.
Id. (citations and quotation marks omitted). Accord Grossbaum v. Genesis Genetics Institute, LLC, 489 F. Appx. 613, 616 (3d Cir. 2012) (proper to apply law of state where "[a]lmost all of the relevant [medical] events occurred"); Guinan v. A.I. duPont Hospital for Children, 597 F. Supp.2d 517, 526-27 (E.D. Pa. 2009) ("Plaintiff intentionally travelled from New Jersey to Delaware to receive treatment" so Delaware law applied; "Delaware also has an interest maintaining the predictability of its regulations so that health care professionals practicing within its borders know what standards govern their conduct."), aff'd, 393 F. Appx. 884 (3d Cir. 2010); Capone v. Nadig, 963 F. Supp. 409, 414 (D.N.J. 1997) (applying Blakesley and the law of the place where plaintiff "voluntarily sought the medical care").
The District of Columbia's small size and differing tort law, has led to a string of decisions involving medical treatments taking place in Virginia (which has various restrictions) or Maryland (which has a malpractice cap). In Bledsoe v. Crowley, 849 F.2d 639 (D.C. Cir. 1988), a D.C. plaintiff treated in Maryland tried the same "injury occurred" argument that had failed in Blakesley with no greater luck. "[Plaintiff's] attempt to separate the place where the injury occurred from the place where the negligence took place makes no sense." Id. at 642.
[A] Maryland court would, we believe, apply the general principle that the applicable law is that of the place where the "wrong" occurred. If [plaintiff] was wronged anywhere, it was certainly in Maryland.
Id. (footnote omitted). "Where the entire relationship between the parties was centered in Maryland and the allegedly tortious conduct occurred in that state, Maryland's interest in regulating the activity must be deemed the stronger one." Id. at 642-42
Groover, Christie & Merritt, P.C. v. Burke, 917 A.2d 111 (D.C. 2007), applied Bledsoe to malpractice allegedly committed by a Maryland doctor in Maryland, despite the injury (a stroke) happening in DC. "[T]he parties' relationship was "centered" in Maryland − that is where [plaintiff] consulted with [defendant] and where each of her MRI scans was conducted." Id. at 1117. That logic was applied in a device implant case in Hartley v. Dombrowski, 744 F. Supp.2d 328 (D.D.C. 2010). Surgery and an allegedly negligent discharge occurred in one jurisdiction, and an allegedly negligent prescription of drugs occurred in another. In each instance that law of the location of the challenged medical treatment applied. Id. at 338-39. See Bederson v. United States, 756 F. Supp.2d 38, 52-53 (D.D.C. 2010) (same as Hartley; law of place where alleged malpractice occurred applied, requiring application of different laws to different claims); Paxton v. Washington Hospital Center Corp., 991 F. Supp.2d 29, 34 (D.D.C. 2013) (the "the hospital-patient relationship was centered here" and "the conduct that allegedly caused the injury − the surgery − also occurred here," thus forum law properly applied); Kaiser-Georgetown Community Health Plan, Inc., 689 F. Supp. 9, 13 n.2 (D.D.C. 1988) (malpractice in Maryland location not "fortuitous" because since plaintiff's insurer "designated" use of that hospital).
However, an arguably contrary result was reached in Raflo v. United States, 157 F. Supp.2d 1 (D.D.C. 2001), a failure-to-diagnose case. The court held that "the actionable injury is the condition caused by improper treatment rendered because of the misdiagnosis," which had occurred elsewhere than the original failure. The court applied the law of the state where the allegedly unnecessary additional medical treatment occurred. Id. at 11.
Most other decisions reach the same choice of law result as in Blakesley and Bledsoe. Huss v. Gayden, 571 F.3d 442 (5th Cir. 2009), is particularly interesting, from our drug/device-oriented point of view, since the alleged malpractice was the prescription of certain drugs. The court followed Bledsoe and held that the "center of gravity" was the state where the alleged misprescription occurred. Id. at 450-51. Another appellate decision, Farwell v. Un, 902 F.2d 282, 287 (4th Cir. 1990), used a "'place-of-wrong's-standard-of-care' exception to the classic lex loci rule," so that the law of the state where the allegedly negligent medical treatment applied.
In Fields v. Legacy Health Systems, 413 F.3d 943 (9th Cir. 2005), the plaintiff moved from one state to another after receiving the allegedly negligent medical treatment. That did not allow plaintiff to rely on the statute of limitations of his new domicile. "Here, Oregon has the most significant contacts. The injury in this case was [the decedent's] misdiagnosis and inability to seek treatment, not her resulting death." Id. at 952. In addition:
Oregon has the ability to regulate the medical industry in the state. It also has an interest in protecting its medical providers from stale claims and the excessive financial burdens of litigating wrongful death claims. We hold that Oregon's statutes . . . apply to [plaintiff's] claim whether brought in Oregon or Washington.
Id. at 953 (citation omitted).
Our appellate roundup also includes a state supreme court decision, Grover v. Isom, 53 P.3d 821 (Idaho 2002), which relied upon the same interest analysis as the federal courts we have cited:
[I]t is clear that Oregon has an interest in making certain that oral surgeons practicing in Oregon are subject to Oregon laws and the Oregon standard of care. The defendants would justifiably expect to be governed by Oregon law, since they were licensed in Oregon and in this case conducted their business in Oregon. . . . As a general rule, a victim should recover under the system in place where the injury occurred. Predictability and ease in determining and applying law are also better served by applying Oregon law, because it is a simple policy that the place of the injury should generally govern the choice of law.
Id. at 824.
Once again, however, we found a dissenting voice. In Kuehn v. Childrens Hospital, 119 F.3d 1296 (7th Cir. 1997). In order to apply the law of the plaintiff's residence, rather than the law of the place of surgery, Kuehn did three things differently. First, Kuehn discounted "predictability," finding it to be lex loci in disguise. Id. at 1301. Second, it redefined "injury" so that it occurred when the plaintiff "received" an allegedly botched bone marrow extraction, rather than when the claimed negligence occurred. Id. Third, it held (uniquely, we believe) that because the parties had a "written contract" (the case involved "experimental" treatment), if the medical defendants wanted the law of their state to apply, they should have imposed a "contractual choice of law provision." Id. at 1302. It is no surprise that this singular reasoning came from Judge Posner.
We also uncovered a bunch of federal district court opinions from every circuit making choice of law decisions in medical malpractice cases involving non-forum medical treatment. Because it also involved product liability claims, Bush v. Thoratec Corp., 13 F. Supp.3d 554 (E.D. La. 2014), aff'd, 802 F.3d 680 (5th Cir. 2015), was also particularly interesting to us. Plaintiff's decedent, a Louisiana resident, was transferred to a Virginia hospital for treatment, which included implantation of a medical device. Id. at 561. He returned home and later died, allegedly from problems with the device, which was the subject of a Dear Doctor letter. The Virginia treaters' response to the letter was a major issue in the suit. Id. at 565. On choice of law, the Louisiana court applied Virginia law:
Here, it is apparent that the allegedly negligent acts or omissions occurred in Virginia. [The] device was implanted in Virginia and much of [decedent's] recovery occurred in Virginia. [Defendant treater] received the correction letter and signed the acknowledgment in Virginia, and [they] allegedly failed to inform [decedent] of the new information contained in the correction letter during his recovery in Virginia. . . . [T]he acts or omissions here took place in Virginia, and accordingly, the substantive law of Virginia is applicable.
Id. at 568-69.
In Alvarado v. Caesar, 2012 WL 6589184 (D. Mass. Dec. 17, 2012), the same practical concerns − about states' need to regulate the provision of health care within their boundaries, and health care providers knowing what the rules were – were at the fore:
Rhode Island has a more significant relationship to the case. It is undisputed that defendant's allegedly negligent conduct (during and immediately after [plaintiff's] surgery) occurred entirely in Rhode Island. Both, patients and health care providers, could reasonably expect that a Rhode Island-licensed physician performing surgery in a Rhode Island hospital would be governed by Rhode Island law. . . . Rhode Island has a strong and significant interest in seeing that medical providers operating within its borders conform their practices to the laws and standards of that state.
Id. at *2. See also Engle v. Uhaul, 2016 WL 740327, at *3 (S.D. Ohio Feb. 25, 2016) ("Because [plaintiff's] claim is based upon treatment he received in Indiana, the undersigned . . . finds Indiana law applicable to [plaintiff's] malpractice claim"); McKinley v. United States, 2015 WL 5842626, at *6 (M.D. Ga. Oct. 6, 2015) ("Plaintiff's wrongful death claim is governed by the substantive law of Tennessee because that is where Defendant's negligence first took effect on Plaintiff."); Moore v. Central Carolina Surgical Eye Associates, P.A., 2013 WL 1123850, at *4 n.5 (W.D. Va. March 15, 2013) (law of place where "[p]laintiff's surgery − the basis for her claim and the subsequent treatments – occurred" applies); Bramberger v. Toledo Hospital, 897 F. Supp.2d 587, 598 (N.D. Ohio 2012) ("Ohio's interest is greater than that of Michigan. Again, [plaintiff] traveled to Ohio to seek medical care . . ., and these Defendants provided that care to [plaintiff] in Ohio."); Lewis v. Waletzky, 576 F. Supp.2d 732, 736-37 (D. Md. 2008) (law of place of prescription applies in negligent prescription case due to "strong public interest" in regulating malpractice within state's borders; following Bledsoe), aff'd, 475 F. Appx. 906 (4th Cir. 2012); Silong v. United States, 2006 WL 948048, at *4 (M.D. Fla. Apr. 12, 2006) ("it seems likely that California law will govern this case because the alleged medical malpractice occurred in California"); Lopez v. United States, 2005 WL 2076593, at *13 (E.D.N.Y. Aug. 26, 2005) (applying law of the place where the claimed malpractice occurred in federal prisoner suit); Stephens v. Norwalk Hospital, 162 F. Supp.2d 36, 43-44 (D. Conn. 2001) (law of place of alleged malpractice applies; "Connecticut has a strong interest in regulating medical practice within its state"); Zimbauer v. Milwaukee Orthopaedic Group, Ltd., 920 F. Supp. 959, 963 (E.D. Wis. 1996) ("plaintiff, while an Illinois resident, sought treatment and was treated in Wisconsin. Thus, the underlying facts giving rise to the litigation occurred in Wisconsin. . . . Wisconsin law applies."); Donnelly v. McLellan, 889 F. Supp. 136, 139 (D. Vt. 1995) ("the only treatment that [defendant] provided to [plaintiff] occurred . . . [in] New York. Because New York is the site of the alleged tort, New York law . . . must be applied"); Castelli v. Steele, 700 F. Supp. 449, 454-55 (S.D. Ind. 1988) ("[E]ach act of negligence complained of occurred in Indiana. This is probably the most important factor because Indiana doctors are strictly regulated by the state of Indiana and must conform their practices to the laws of this state. . . . The doctor-patient relationship was initiated in Indiana, and all of the diagnosis and treatment was rendered in Indiana. The mere fact that plaintiff resided in Illinois and might well have developed her injuries there does not outweigh the more significant Indiana contacts."); Truck Insurance Exchange v. Tetzlaff, 683 F. Supp. 223, 2256 (D. Nev. 1988) ("The treatment occurred in Nevada. . . . The place of the wrong in this case is Nevada, and, therefore . . . Nevada substantive law applies.").
Again, we also found a case going the other way. In Scadden v. Northwest Iowa Hosp. Corp., 2010 WL 3805638 (N.D. Iowa Sept. 22, 2010), the court distinguished Blakesley and applied the law of the plaintiff's domicile, rather than where the alleged malpractice occurred. Id. at *4. Unlike Blakesley, "the negligence alleged was not from an affirmative act." Instead, "the defendants allegedly were negligent in not hospitalizing the plaintiff, but in sending her home to Nebraska. Even though the alleged malpractice occurred in Iowa, it is not clear that the the injury occurred in Iowa." Id. (quotation marks omitted).
In any event, to answer that choice of law issue alluded to, but not decided in Mantgem, where a major issue involves an assessment of the medical care provided to the plaintiff, a large majority of cases opt to apply the law of the jurisdiction in which that medical care occurred – regardless of the manner in which they analyze choice of law (lex loci or some Restatement variant). Since the plaintiff in Mantgem sought out surgery in Germany and voluntarily traveled there, the majority rule would apply German law.
One final note. The cases establishing the majority rule that the law of the place of medical treatment controls in cases concerning liability for that treatment have always involved the plaintiff's physical presence in that jurisdiction to receive that treatment. That fact pattern can no longer be assumed. With the rise of telemedicine – particularly in the wake of the COVID-19 pandemic – the previously simple question of where treatment actually occurred becomes murky. Our research did not run across a telemedicine malpractice case (a quick search turned up none, outside of pro se prisoner cases), but they will inevitably occur. We make no predictions how telemedicine will affect choice of law in medical malpractice and similar cases.
Originally published August 10, 2020.
This article is presented for informational purposes only and is not intended to constitute legal advice.