'IVF' triggers issues regarding state's jurisdiction.

CASE ON POINT: Coggeshall v. Reproductive Endocrine Assoc. of Charlotte, (12/27/2007) So.2d -SC

ISSUE: As more couples resort to In Vitro Fertilization (IVF), more and more cases will arise concerning whether the parents were notified of the possibility of certain conditions, which might influence their decisions as to whether to proceed with IVF. Further, because in many cases, out-of-state providers work closely with prospective parents' in-state physicians, questions will arise as to whether local courts will have jurisdiction over out of state providers. These were but two of the issues with which the courts were confronted in this South Carolina case.

CASE FACTS: In November of 2000, Chandler and Susan Coggesball, residents of South Carolina, consulted with Dr. Jack Crain, of Reproductive Endocrine Associates of Charlotte (REACH), a fertility clinic located in North Carolina. In preparation for the IVF, Dr. Crain referred Susan to Dr. Edward Moore in Columbia, South Carolina for pre-implantation testing and monitoring. The Coggeshalls subsequently signed a contract with REACH for IVF services. After embryo implantation, Susan became pregnant. At 14 weeks gestation, amniocentesis revealed a chromosomal abnormality identified as Down Syndrome. In a subsequent telephone conversation, Dr. Crain advised the Coggeshalls to have pre-implantation genetic testing if they wanted to use IVF in the future. This was the first time the Coggeshalls were made aware that such testing was available. The Coggeshalls' child was born with Down Syndrome. The Coggeshalls brought suit against REACH, Dr. Cairn and others, all of whom were located in North Carolina. In lieu of answering the Coggeshalls' complaint, the defendants each moved that the case be dismissed for lack of jurisdiction over them by the courts of South Carolina because each was a resident or entity based in North Carolina, and had not practiced or performed any service in South Carolina. Accordingly, the Circuit Court of South Carolina granted the defendants' motions to dismiss the Coggeshalls' complaint against them on the grounds that the South Carolina courts had no jurisdiction over any of the defendants, nor any basis for invoking jurisdiction over any of the defendants, all of whom were located in North Carolina and had not done, or attempted to do, business in South Carolina so as to allow the courts of South Carolina to invoke jurisdiction against the defendants. The Coggeshalls appealed the judgment of the South Carolina court.

COURT'S OPINION: The Supreme Court of South Carolina affirmed the judgment of the Circuit Court that the South Carolina Courts had no basis for invoking personal jurisdiction over the defendants who were located in North Carolina.

LEGAL COMMENTARY: Personal jurisdiction is exercised as "general jurisdiction" or "specific jurisdiction." General jurisdiction is the state's right to exercise personal jurisdiction over a defendant even though the underlying suit does not arise out or, or relate to, the defendant's contacts with the forum state. Specific jurisdiction is the state's right to exercise personal jurisdiction because the cause of action arises specifically from a defendant's contacts with the forum state. At the pretrial stage, the burden of proving personal jurisdiction over a nonresident is met by a prima facie showing of the jurisdiction. When a motion to dismiss attacks the allegations of the complaint on the issue of jurisdiction, the court is not confined to the allegations of the complaint, but may resort to affidavits or other evidence to determine jurisdiction. A trial court will be affirmed unless unsupported by the evidence or influenced by an error of law. There is no universal formula for determining what constitutes "doing business" to subject a foreign entity to personal jurisdiction. The question must be resolved on the facts of each case. In this case. REACH and Dr. Crain did not have any contacts with South Carolina that were substantial, continuous, and systematic to justify the exercise of personal jurisdiction. Medical care is of such a personal nature, jurisdiction over an out-of-state physician is generally not exercised, absent other circumstances indicating a purposeful availment of the forum state's market. Although REACH had served a good number of South Carolina patients, REACH did not target its advertising to South Carolina residents, nor did it systematically search out patients in South Carolina. A concurring opinion was filed in which the concurring judge observed that whether a court could exercise personal jurisdiction over a non-resident defendant involved two steps. The concurring judge concluded that the first step was that the court could exercise personal jurisdiction over a non-resident via the "long arm statute." The second step was that the exercise of jurisdiction via the "long arm statute" had to comport with due process. That was not the case here!

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World