# Petition for Writ of Certiorari — Wolf v. Richmond County Hospital Authority

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 826

## Text

S4- 1963

NO.

IN THE

Office -Suprerse Court, US.
FILE OD

MAY 30 198

ALEXANDER L STEVAS,
CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1985

ALAN W. WOLF AND GAIL S. WOLF,

V.

Petitioners,

RICHMOND COUNTY HOSPITAL AUTHORITY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

Counsel of Record

A. CAMDEN LEWIS

DARYL G. HAWKINS

Post Office Box 11208
Columbia, South Carolina
(803) 771-8000

QUESTION PRESENTED

Whether these contacts are suf-

ficient to constitute "doing business" for

the purpose of South Carolina obtaining in

personam jurisdiction over a Georgia Hospital

under South Carolina's Long-Arm Statute
(South Carolina Code Section 36-2-802)?

1) Georgia Hospital in Augusta,
Georgia derives one fifth (1/5) of its income
from South Carolina residents and receives
payments from South Carolina welfare agen-
cies;

2) Georgia Hospital is listed in
the yellow pages of the telephone directory
for North Augusta, South Carolina, a City in
Aiken County, South Carolina;

3) Georgia Hospital is under
contract to provide laundry services to the
Edgefield County Hospital in South Carolina;

4) Georgia Hospital as a member of

the East Central Georgia Health Services
Agency, Inc., which district includes Aiken
County, South Carolina, willingly receives
special medical equipment to the exclusion of
Aiken County Hospitals, which equipment is to
be used for all citizens of the East Central

Georgia Hospital Services Agency, Inc.

Title of this case in this Court is:
ALAN W. WOLF AND GAIL S. WOLF,
Petitioners,
versus
RICHMOND COUNTY HOSPITAL AUTHORITY,

Respondent.

id,

TABLE OF CONTENTS

QUESTION PRESENTED... .... 2c ccccece eoece A
TABLE OF AUTHORTIES....cccccccccccsesee IV
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SURESOICTION. coscvcscssccccssccessssces |
STATUTES INVOLVED... cccccccccccsscces oe 2
STATEMENT OF THE CASE... cccccccsecccecse 2
ARGUE ccc eccccccsccccccccccessesccee §
CONCLUSION... ccccsccccccccccssccccesses L§
APPENDIX. .cccccccccccccccescccccccccess 1G
(a) OPINION OF THE FOURTH CIRCUIT
COURT OF APPEALS... cccccccccccccce L7
(b) ORDER OF THE DISTRICT COURT... 52
(c) PETITION FOR REHEARING........ 67

APFIDAVIT OF GERVICE. .ccsccscsassccccce 69

Lii

TABLE OF AUTHORITIES

Cases:
August--v--Parkinson, 734 F.2d 168
CSGR Cis SPSS bc cceccaceccessesscéess SS)

Cubbage -v- Merchent, 732 F.2d 1476
(9th. Cir. 1984) Cert. denied, U.S.
» £405 S.CE. LISD (C19TS)occcccecsers 12, 13

Gelineau -v- New York University
Hospital, 375 F. Supp. 661 (D.N.J.
LWres és 6a6 eeeeeerskekeseeee#8ee#8e?8e#e eeenteeeereesge#seeser#e#e?#e? 10

Helicopteros Nacionales de Columbia,
S.A.-v- Hall, U.S. 104 S.Ct.
1868 ei | Sper rrr rrr rer es eee ee 5

Hume -v- Durwood Medical Clinic, Inc.,
B.C. , 318 S.E.2d 119 (S.C. App.
SEK 66 6 SESS OURS ES 6S OS bE CO RES ES 13

International Shoe Co. ~-v- Washington,
326 U.S. 310 CEPGR P66 eeeteeeesbesenes 5, 13

Kathrein -v- Parkview Meadows, Inc.,
N.M. , 691 P.2d 462 (N.M. 1984). 12, 13

Lee -v- Walworth Valve Company, 482
Pade G22? CGEMs COE. LPF aheccccsccsecs 9, 18

Lemke -v- St. Margaret Hospital, 552
Fo SOOO. SSS (Hc Os EhAe APSSdeacccess Al

Worldwide Volkswagen -v- Woodson,
S44 U.S. 266 (has O ccccccccscccecseces 15

Statutes:
S.C. Code Ann Section 36-2-802

iv

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of cer-
tiorari issue to review the judgment of the
United States Court of Appeals for the Fourth
Circuit entered in the above-styled case.

OPINIONS BELOW

The Cpinion of the Fourth Circuit
Court of Appeals from which this Petition for
a Writ of Certiorari is derived is contained
in the Appendix. The case is reported in 745
F.2d 904 (4th Cir. 1984).

JURISDICTION

The Judgment of the Court of Appeals
for the Fourth Circuit was made and entered
on October 4, 1984. Thé Appellee's Petition

for rehearing was denied by a vote of seven

to four on March 6, 1985. The jurisdiction
of this Court is invoked under 28 U.S.C.
1254(1).

STATUTES INVOLVED

S.C. Code §36-2-802 (1976):

A Court may exercise personal juris-
diction over a person domiciled in, organized
under the law of, doing business, or main-
taining his or its principal place of
business in, this State as to any cause of
action.

STATEMENT OF THE CASE

In this action, the Plaintiffs seek
to recover damages for the severe injuries
inflicted on their infant son by the grossly
negligent actions of the agents of the
University Hospital, a facility owned and
operated by the Defendant. University

Hospital is located in Augusta, Georgia and

Plaintiffs were residents of Aiken, South

Carolina when this action was filed.
Jurisdiction in the United States District
Court for the District of South Carolina was
based upon diversity of citizenship. 28
U.S.C. §1332.

The Respondent filed a Motion to
Dismiss for lack of personal jurisdiction
purusant to Fed. R. civ. P. 12(b)2. This
Motion was denied by the District Court.
Jurisdiction was found to be properly before
the Court pursuant to the South Carolina
Long-Arm Statute, S.C. Code Ann. Section
36-2-802 (1976). On appeal, the United
States Court of Appeals for the Fourth
Circuit reversed the decision of the District
Court and granted Defendant's Motion to
Dismiss.

The request for a Writ of Certiorari

rests upon the question of what is meant by

"doing business" for purposes of obtaining in

personam jurisdiction under the South

Carolina Long-Arm Statute.
ARGUMENT
At issue before the Court is whether
a Georgia Hospital's contacts with the State
of South Carolina are sufficient to consti-
tute "doing business" for the purposes of

obtaining in personam jurisdiction under the

South Carolina Long-Arm_ Statute. The
granting of certiorari by this Court will
allow it to resolve the following issue which
is necessarily
comprised therein:
WHETHER A HOSPITAL AUTHORITY WHICH
INCLUDES TEKRITORY IN TWO STATES HAS
SUFFICIENT CONTACTS TO BE SUED IN
EITHER STATE?
S.C. Code Ann. Section 36-2-802
(1976) provides in relevant part "[A] court

may exercise personal jurisdiction over a

person...doing business...in this State as to

any cause of action." When exercising such
jurisdiction due process requirements are
satisfied when the person over whom jurisdic-
tion is asserted has established certain
minimum contacts with the forum such that
requiring him to defend his interests in the
forum State would not “offend traditional
notions of fair play and substantial

justice." International Shoe Co., -v-

Washington, 326 U.S. 310, 316 (1945). The

sufficiency of contacts threshold is ele-
vated, however, when the cause does not arise
in the forum state or derive from the foreign
corporations transactions in the State. In

Helicopteros Nacionales de Columbia, S.A. -v-

Hall, U.S. , 104 S.Ct. 1868 (1984), the

Supreme Court characterized the test to be
aplied in this situation to be whether the

contacts are of a "continuous and systematic"

nature.

The Fourth Circuit herein held that
the hospital's contacts were not purposeful,
Systematic or continuous enough to warrant
the exercise of jurisdiction in light of aue
process guarantees. The Fourth Circuit also
applied its own standard and held that the
contacts with the forum state were not
"fairly extensive" to warrant jurisdiction
since the cause of action arose outside of
the state. (Appendix 12). An analysis of
the differing decisions of the Circuits and
the State Courts of last resort, provides
ample reason why the Court should exercise
its discretion and establish a standard test
in order that uniform decisions may be ren-
dered in this much litigated area.

Before looking at the varying views
of the Courts, the "contacts" which were

found by the District Court must be con-

sidered.

l. The South Carolina Department
of Health and Environmental Control
(DHEC ) has authorized Augusta
Hospital to receive payments’ from
the State of South Carolina for
residents ot Aiken County, South
Carolina, seeking certain maternity
and neonatal services at University
Hospital.

2. University Hospital
received payments from Aiken County
Council as reimbursement for treat-
ment of residents of Aiken County
who are indigent.

3. Although Richmond County
Hospital Authority has no hospital
or medical facility located in South
Carolina, the University Hospital
does receive medicaid/medicare reim-
bursements for qualified South
Carolina residents treated at
University Hospital.

4. University Hospital is
listed in the yellow pages of the
telephone directory for North
Augusta, South Carolina, ae city
located in Aiken County, South
Carolina.

5. University Hospital is
under contract to provide laundry
services to the Edgefield County
Hospital in South Carolina.

6. University Hospital deri-
ves a substantial amount of revenue
from treatment of South Carolina
residents; defendant admitted in
Oral argument that approximately
one-fifth (1/5) of University
Hospital's income is cbtained from
South Carolina residents.

7. University Hospital is a

member of the East Central Georgia
Health Services Agency, Inc. This
agency was created to coordinate
health care needs in its district,
which district includes Aiken
County, South Carolina. This is the
only such district in South Carolina
that crosses state lines. While
this agency does not directly have
jurisdiction over patient admission,
the effect of University Hospital's
membership in the agency is to
require South Carolina residents in
Aiken County as a practical matter
to receive secondary and tertiary
level care from University Hospital.
This is because the agency has
jurisdiction over capital expen-
ditures and construction, as well as
issuing certificates of need. The
purpose of the agency is to avoid
duplication of expensive facilities.
Since University Hospital is well
equipped with such advanced medical
facilities and Aiken County Hospital
is also within the Agency's
district, Aiken Community Hospital
does not receive the advanced equip-
ment. The Agency's efforts to avoid
duplication therefore require Aiken
County residents to seek secondary
and tertiary level care from the
University Hospital in Augusta,
Georgia, since it is the closest and
most convenient facility of its
kind.

The Fourth Circuit seems to have

difficulty in applying a uniform test in its

own cases. In August -v- Parkinson, 734 F.2d

168 (4th Cir. 1984), the Court held that the
Virginia Courts may constitutionally exercise

in personam jurisdiction over an Arizona

insurance company that, by mail, solicited
change in policy coverage from a former
Arizona resident, now residing in Virginia,
who purchased the policy in Arizona. But
looking to the case at bar, the Court held
that the University Hospital's contacts were
not "fairly extensive" even though the seven
enumerated contects clearly are more exten-
sive than the solicitation in the August

case. In Lee -v- Walworth Value Company, 482

F.2d 297 (4th Cir. 1973), the Court held that
South Carolina has a legitimat~ interest in
affording its citizens redress for tortious
injury, even though the act occurred outside

of the state. The Court stated"...the fre-

quency and regularity of (the Defendant's)
activity in South Carolina make it fair to
hold it answerable in that state to Mrs.
Lee.” Lee at 300. But in the case at bar,
the Court made a complete turn-around and
held that even though approximately one-fifth
(1/5) of the Hospital's income is obtained
from South Carolina residents, the Hospital
has a contract to provide laundry services to
the Edgefield County Hospital in South
Carolina, and it advertised in the yellow
pages of the telephone directory for North
Augusta, South Carolina the contacts were de

Minimus and personal jurisdiction should be

denied.

The meaning of the word "solicit"
seems to give the Courts the greatest problem
when trying to decide whether contacts are

continious and systematic. In Gelineau -v-

New York University Hospital, 375 F. Supp.

10

661, 667 (D.N.J. 1974), the Court stated:

Unlike a case involving invo-
luntary interstate or international
economic activity. . . the residence
of a recipient of personal services
rendered elsewhere is irrelevant and
totally incidental to the benefits
provided by the defendant at his own
location. It is clear that when a
patient travels to receive pro-
fessional services without having
been solicited. . . then the client,
who originally traveled to seek ser-
vices apparently not available at
home, ought to expect that he will
have to travel again if he
thereafter complains that the ser-
vices sought by him in the foreign
jurisdiction were there rendered
improperly.

Solicitation, however, was found in

Lemke -v- St. Margaret Hospital, 552 F. Supp.

833 (8.D. Till. 1982). In this case plain-
tiff brought a wrongful death action in
Illinois against the defendant hospital which
was located in Indiana. The Court held that
the defendant was "doing business" in

Illinois because defendant regularly soli-

11

Se

cited Illinois residents. The solicitation
determination was based on the fact that com-
pensation was received with Illinois public
and private finds, and that St. Margaret
Hospital placed advertisements in the Chicago
yellow pages. In the case at bar, the two
factors above were present along with others
but the Fourth Circuit still reversed,
holding that the defendant's contact was not
purposeful and significant.

In a recent Ninth Circuit opinion,

Cubbage -v- Merchent, 732 F.2d 1476 (9th.

Cir. 1984), cert. denied, U.S. » 105

S.Ct. 1359 (1985), that Court held that a
patient who was treated at a hospital just
over the State border can sue in his own
state. Similiarly, in a recent New Mexico

case, Kathrein -v- Parkview Meadows, Inc.,

N.M. , 691 P.2d 462 (N.M. 1984), the

Supreme Court of New Mexico held where the

12

defendant advertised its alcoholism treatment
center in the yellow pages of the Albuquerque
telephone directory and the defendant soli-
cited his referal of patients from an
Albuquerque director, this constituted mini-

mum contacts as required by International

Shoe, supra. Certainly, the seven contacts
established in the case at bar would easily

fit the criteria established in the Cubbage

and Kathrein cases.

The Fourth Circuit cited Hume -v-:_

Durwood Medical Clinic, Inc., $8. 9

318 S.E.2d 119 (S.C. App. 1984), which held
that where defendant Medical Clinic engaged
in a course of treatment of a South Carolina
resident in their offices in North Carolina
and provided follow-up care by mail and
telephone, these actions did not constitute
sufficient contacts for South Carolina to

exercise in personam jurisdiction. The South

13

Carolina Supreme Court has now accepted cer-
tiorari and that case is still pending.

The Circuits and the State Courts
are at both ends of the spectrum concerning
the sufficiency of minimum contacts. The
Fourth Circuit went so far as to belabor the
meaning of the word “require"™ in the seventh
enumerated factor in the case at bar. The
District Court in the case at bar held "as a
practical matter" that Aiken residents were
"required" to seek care at Richmond County
Hospital. The Court explained in its Order
that it meant it was far more convenient for
Aiken residents to go to Augusta than to any
South Carolina hospital with advanced facili-
ties. The Fourth Circuit completely ignored
this contact in order to strengthen their
position that personal jurisdiction was not
warranted in this case.

Considering the fact that the two

14

—_ OOO OO

RL LOL DEE EO EE -

cities are in different states but only
across the river from each other, the stan-

dard enunciated by this Court in Worldwide

Volkswagen <-v- Woodson, 444 U.S. 286 (1980),

is significant. The fundamental rule must be
tempered by considerations given to the con-
venience of the parties, the interstate judi-
cial system's interest in obtaining the most
efficient resolution of controversies, and
the shared interests of the states. in
furthering fundamental substantive social
policies. Id., at 292.
CONCLUSION
For the reasons stated above, the

Petition for Writ of Certiorari should be
granted.

Respectfully submitted,

A. CAMDEN LEWIS

DARYL G. HAWKINS

Post Office Box 11208

Columbia, S.C. (803) 771-8000
Attorneys for Petitioners

15

APPENDIX

16

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 84-1024

ALAN W. WOLF and GAIL S. WOLF,

Appellees,

vs.
RICHMOND COUNTY HOSPITAL AUTHORITY,

Appellant.

Appeal from the United States
District Court for the District of
South Carolina, at Aiken. Charles
E. Simons, Jr. District Judge. (C/A
83-1533-6)

Argued: August 9, 1984
Decided: October 4, 1984

Before RUSSELL, HALL and CHAPMAN,
Circuit Judges:

Wyck A. Knox, Jr. (Ted H. Clarkson,
Knox & Zacks, P.C.; David A. Brown,
Henderson, Salley, Lynn, Farmer,
Brown & Tucker on brief ) for
Appellant; Daryl G. Hawkins (A.
Camden Lewis, Austin & Lewis. on
brief) for Appellees.

17

Camden Lewis, Austin & Lewis on
brief) for Appellees.

CHAPMAN, Circuit Judge:

The issue in this appeal is
whether a Georgia hospital's contacts with
the State of South Carolina are suf-
ficient to constitute "doing business" for
purposes of obtaining personal jurisdiction
under the South Carolina Long-Arm Statute.
We find that the hospital's contacts are not
purposeful, systematic or significant enough
to warrant the exercise of jurisdiction in
light of due process guarantees and this
court's standard that the contacts with the
forum state be "fairly extensive" when the
cause of action arises outside that
state. We, therefore, reverse the decision
of the district court and grant defendant's

motion to dismiss.

18

This is a diversity jurisdiction
case in which Alan and Gail Wolf allege that
their infant son was injured as a_ result of
actions taken by agents of £4University
Hospital, a public hospital located in the
City of Augusta and in Richmond County,
Georgia. The hospital is owned and operated
by the defendant, Richmond County Hospital
Authority (Hospital Authority), a public
authority created under _— the Georgia
Hospital Authorities Law. The Hospital
Authority originally instituted suit in the
Civil Court of Richmond County against the
Wolfs for nonpayment of a bill incurred at
University Hospital. The Wolfs answered and
counterclaimed with allegations of medical
malpractice. Georgia residents at the time
of the alleged malpractice and at the time

of the commencement and answer to the

19

Wolfs moved to Aiken County, South
Carolina before filing the present action.
Aiken County and Richmond County are
separated by the Savannah River, the
boundary between South Carolina and Georgia.
The defendant moved to dismiss this action
pursuant to Federal Rule of Civil Procedure
12(b)(2) for lack of personal jurisdiction.
Three affidavits were submitted to. the
district court, two from officials of
the South Carolina Department of Health
and Environmental Control (DHEC) and _ one
from the Executive Director of the
Richmond County Hospital Authority. Based
on these affidavits and on facts stated at a
hearing, the district court denied the motion
to dismiss. The court made the following

seven findings of fact:

l. The South Carolina Department
of Health and Environmental
Control (DHEC ) has authorized
Augusta Hospital to receive

payment from the State of South

20

Carolina for residents of Aiken
County, South Carolina, seeking
certain maternity and neonatal
services at University Hospital.

2. University Hospital
received payments from Aiken
County Council as reimbursement

for treatment of residents of Aiken
County who are indigent.

3. Although Richmond County
Hospital Authority has no hospital
or medical facility located in
South Carolina, the University
Hospital does receive
medicaid/medicare reimbursements for
qualified Sovth Carolina residents
treated at University Hospital.

4. University Hospital is
listed in the yellow pages of the
telephone directory for North
Augusta, South Carolina, a city
located in Aiken County, South
Carolina.

5. University Hospital is
under contract to provide laundry
services to the Edgefield County
Hospital in South Carolina.

6. University Hospital
derives a substantial amount of
revenue from treatment of South
Carolina residents; defendant

admitted in oral argument’ that
approximately one-fifth (1/5) of

University Hospital's income is
obtained from South Carolina
residents.

21

7. University Hospital is a
member of the East Central
Georgia Health Services Agency,
Inc. This agency was created to
coordinate health care needs in its
district, which district includes
Aiken County, South Carolina. fThis
is the only such district in South

Carolina that crosses state
lines. Whiie this agency does
not directly have jurisdiction

Over patient admission, the effect
of University Hospital's membership
in the agency is to require
South Carolina residents in Aiken
County as a practical matter to
receive secondary and tertiary!
level care from University Hospital.
This is because the agency has
jurisdiction over capital expen-
ditures and construction, as well
as issuing certificates of need.
The purpose of the agency is to
avoid duplication of expensive
facilities. Since University
Hospital is well equipped with such
advanced medical facilities and
&iken County Hospital is also within
the Agency's district, Aiken

Community Hospital does not
receive the advanced equipment.
The Agency's efforts to avoid
duplication therefore require

Aiken County residents to seek

lat oral argument the court was
informed that tertiary care is the highest
level of care avaliable at a hospital.

22

secondary and tertiary level

care from the University Hospital

in Augusta, Georgia, since it is the

closest and most convenient facility

of its kind.

II

The Hospital Authority makes’ two
arguments. First, it contends that the
district court's finding of fact that South

Carolina residents in Aiken County are

"required" to seek health care from

University Hospital is clearly erroneous.
Second, defendant argues that, on the basis
of the district court's first six findings of
fact and other facts in the record,
Plaintiffs have not established "fairly
extensive" contacts of University Hospital
with the State of South Carolina
required for the exercise of personal juris-
diction.

The Hospital Authority contends that

there is no evidence in the record to support

23

the district court's finding of fact number
seven. In this finding the court considered
the relationship of the East Central
Georgia Health Services Agency, Inc. to
the provision of health care in the
Richmond County, Georgia and Aiken County,
South Carolina area and concluded that "the
effect of University Hospital's membership
in the [health services] agency is to
require South Carolina residents in Aiken
County as a practical matter to receive
secondary and tertiary level care from
University Hospital." In its final finding
of fact the court also stated that "{t]he
Agency's efforts to avoid duplication
therefore require Aiken County’ residents
to seek secondary and tertiary level care
from the University Hospital in Augusta,
Georgia, since it is the clo

sest and most convenient facility of its

24

kind." Plaintiffs argue that this finding
is supported by one of the affidavits and by
a factual allegation in their complaint
which, they contend, must be accepted as true
for purposes of a motion to dismiss.
Examining first the affidavits
presented to the district court, we find
that defendant submitted an affidavit in
which the affiant specifically stated that
"South Carolina residents are under no com-
pulsion or requirement to seek secondary and

tertiary level care from University

25

Hospital."2 This affidavit also provided
that "University Hospital has no obligation
to admit a patient who is a resident of South
Carolina." While conceding that Aiken
County residents are under no "compulsion"
to seek health care from University
Hospital, plaintiff argues that finding of
fact number seven is supported by paragraph
four of an affidavit prepared by the

DHEC's Division of Certification of Need of

2in his affidavit, the Executive
Director of the Hospital Authority stated:

South Carolina residents are
under no compulsion or requirement
to seek secondary and tertiary
level care from University
Hospital and the existence of
the East Central Georgia Health
Systems Agency, Inc., and membership
therein has no effect on where
patients are required to seek treat-
ment. The health system agencies
only have jurisdiction over capital
spending and construction, not over
patient admissions.

26

the Bureau of Health Facilities and Services

Development. This paragraph provides:

Aiken County is
included within the East
Central Georgia Health
Service Area which is the
only HSA that crosses
state lines in South
Carolina. Under the
Certificate of Need
program, the review and
approval of capital expen-
ditures and expansion of
hospital services for the
sole hospital located in
Aiken County, the Aiken
Community Hospital, would
take into consideration
facilities and services
available at Augusta
hospitals, including
University Hospital, and
the utilization of such
services by Aiken County

residents. Any unne-
cessary duplications would
be avoided. Likewise,

approval for the develop-
ment and expansion of ser-
vices in Augusta hospitals
would be based in part
upon the utilization of
those hospitals by Aiken
County residents.

In analyzing the affidavits, we

27

do not find that Aiken County residents
are “required" to seek care in Georgia. The
affidavits suggest that certain medical faci-
lities are available at University Hospital
that are not available at the hospital
located in Aiken County and that’ the
purpose of the health systems agency is to
avoid duplication of facilities and services
in an area. This planning function, however,
does not extend to controlling patient
admissions or assigning a certain person to a
certain hospital. Plaintiff seeks to
support the district court's conclusion
that "as a practical matter" Aiken
County residents are “required" to seek care
at University Hospital by pointing out that
the hospital is a thirty-minute drive from
Aiken whereas the other two cities in
South Carolina with equivalent facilities

are over an hour or two and one-half hours

28

away from Aiken. This fact, however, does
not establish that Aiken residents are
"required" to seek care at the hospital.
People and their physicians choose hospi-
tals for a variety of reasons. Proximity is
merely one of those reasons. We find that
use of the term “require," which has the con-
notation of certain persons being compelled
to go to certain hospitals, is not sup-
ported by the affidavits.

Plaintiffs also argue that’ the
finding is supported by their complaint in
which they allege that the citizens of North
Augusta and Aiken, South Carolina are "forced
to rely upon the University Hospital to pro-
vide them secondary and tertiary level care"
by the operation of the East Central Georgia
Health Planning Agency District. Plaintiffs'
argument with respect to the complaint is

that, on a motion to dismiss, the Plaintiffs'

29

”
“

factual allegations must be accepted as true.

This argument, however, overlooks
the fact that the allegation in the
complaint was controverted by Defendants'
affidavit (compare footnotes two and three,
supra). "In ruling on a_ motion to dismiss
for lack of personal jurisdiction, the alle-
gations of the complaint, except insofar as
controverted by the defendant's affidavit,

must be taken as true." Black v. Acme

Markets, Inc., 564 F.2d 681, 683, n.3

(Sth Circ. i977). The statement in defen-
dant's affidavit that "South Carolina resi-
dents are under no compulsion or requirement
to seek .. . care from University Hospital"
was not in turn controverted by statements in

plaintiffs' affidavits. See O'Hare

International Bank v. Hampton, 437 F.2d

1173 (7th Cir. 1971) (because affidavts filed

pursuant to Fed.R.Civ.P. 12(d) contained

30

contradictory factual allegations with
respect to personal jurisdiction, court
accepted as true for purposes of appeal,
facts related in plaintiff's affidavits
and complaint) Nor are the facts upon
which the jurisdictional issue is’. based
so closely intertwined with the facts
involving the merits of the case that a
decision on personal jurisdiction should
have been postponed until trial. See 2A _

Moore's Federal Practice 412.16 (1984); Hare

v. Family Publications Service, Inc., 334

F.Supp. 953, 956 (D.Md. 1971). Further, in
its order deciding the motion to dismiss the
district court made no mention of assuming
the truth of the allegation in plaintiff's
complaint.

When a presumption of validity is
not applied to the factual allegation in

paragraph Iv3 of plaintiff's complaint, we

3Pparagraph IV of the complaint provi-
31

are left with the definite and firm convic-

footnote 3 continued:
des:

In operating the said
University Hospital the defendant,
Richmond County Hospital
Authority, has_ significant con-
tacts with the State of South
Carolina, as University Hospital is
a regional referral medical center
servicing North Augusta and Aiken,
South Carolina and environs. It
lists University Hospital in the
telephone directories for North
Augusta and Aiken, South Carolina,
and otherwise promotes and
markets its services to citizens
of South Carolina. It regularly
receives,admits and treats patients
who are residents of the Aiken,
South Carolina area, anbd both
Aiken, South Carolina and Agusta,
Georgia are included in the East
Central Georgia Health Planning
Agency District by operation of
which the citizens of North Augusta
and Aiken, South Carolina are forced
to reyl upon the University Hospital
to provide them secondary and ter-
tiary level care, and the University
Hospital provides primary, secondary
and tertiary medical care to a
Significant number of citizens of
the Aiken, South Carolina area on a
regular basis, for which it receives
substantial federal funding, which
would not be available to it.
(Emphasis added)

32

tion that a mistake has been committed by
the district court in the conclusion
that South Carolina residents are
"required" to seek care at University

Hospital. United States oof America v.

United States Gypsum Company, 333 U.S.

364, 395 (1948). This finding of fact
pra therefore, clearly erroneous.
Iit

The question is whether, based on
the first six findings of facts which
defendant does not contest, the hospital
has sufficient contacts with South Carolina
to subject the Hospital Authority to personal
jurisdiction. Where federal jurisdictlon is
based on diversity of citizenship a two-part
test is to be applied to determine questions

of persczal jurisdiction. Hardy v Pioneer

33

Parachute Cos « 531 F.2d 193, 195 (4th

Cig. i976). First, whether there is statu-
tory authority for the exercise of jurisdic-
tion under the laws of South Carolina and
second, whether the exercise of jurisdiction
complies with federal constitutional
standards of due process. Id. The statutory
authority is clear. The Wolfs assert per-
sonal jurisdiction on the basis of S.C.Code
Ann. 36-2-802 which provides:
A court may exercise
personal jurisdiction over
a person domiciled in,
organized under the laws
of, doing business, or
Maintaining his or its
principal place of busi-
ness in, this State as to
any cause of action.
The long-arm statutes of South
Carolina have consistently been interpreted

to provide for jurisdiction to the full

extent permissible under the due _ process

34

clause of the fourteenth amendment.

Ratliff v. Cooper Laboratories, Inc., 444

F.2d 745, 747 (4th Cir. 1971)

The legal standard to be applied in
the due process analysis is well established.
Where the defendant is not present in the
forum, the defendant must have "certain
minimum contacts with [the forum state] such
that the maintenance of the suit does not
offend ‘traditional notions of fair play

and substantial justice.'" International

Shoe Co. v. Washington, 326 U.S. 310, 316

(1945). Within the broad principle of

International Shoe, different statutory pro-

visions and different standards apply in
cases where the contact with the state gives
rise to the putative cause of action
(S.C.Code Ann. 36-2-803) and where, as in
the instant case, Plaintiff's claims arise

totally outside of the state. (S.C Code.

35

Ann. 36-3-802). A more stringent standard
is applied when, as in the case at bar,

Section 36-2-802 is relied upon. Long v.

Baldt, 464 F.Supp. 269, 275, fn. 7 (D.S.C.
1979).

To establish personal jurisdiction
over an out-of-state defendant under the
"doing business" provision, the "contacts
between [the defendant] and the State must
be fairly extensive before the burden of
defendiny a suit there may be imposed upon it
without offending ‘traditional notions of
fair play and substantial justice.'"

(citations omitted) Ratliff, supra. ac 748.

See also O'Neal vv. Bicks Brokerage CO.»

537 F.2d 1266, 1268 (4th Cir. 1976)
("(T)he sufficiency of contacts threshold is
elevated when the cause does not arise in the
forum state or derive from the foreign cor-

poration's transactions in the state," citing

36

Lee v. Walworth Valve Co., 482 F.2d 297 (4th

Cir. 1973) and Ratliff, supra. The Supreme

Court has characterized the test to be
applied when a Plaintiff's claim does not
arise out of a defendant's activities in
the forum state as whether the contacts are

-
of a "“continuous and systematic" nature.

Helicopteros Nacionales de Colombia, S.A. v.

Hall, 104 S.Ct. 1868 (1984).

The three cases in which the
court has reviewed the questions of the
sufficiency of contacts necessary for per-
sonal jurisdiction and the fairness of
requiring a foreign defendant to litigate in
the courts of South Carolina, when the
cause of action arises in another state,

O'Neal, supra; Lee, supra; and Ratliff,

supra; provide the standard against which the
instant case should be examined. The facts

of the three cases were summarized in

37

O'Neal:

In Ratliff, the Court was pre-
sented with non-South Carolina
citizens seeking to maintain an
action in South Carolina District
Court against two pharmaceutical
companies for injuries occurring
in other states. Although cogni-
zant of the companies' minimum con-
tacts in the state, we concluded
that the suit could not be main-

tained in South Carolina because
the injury did not arise out of
activity in the forum state.

This decision was dictated by the
fact that South Carolina had no
nexus and plaintiffs were
attempting to avail themselves
of South Carolina's lengthy statute
of limitations.

In Lee, in contrast to Ratliff,
we held that suit could be main-
tained in South Carolina by the
executrix of an estate whose dece-
dent was killed on the high seas.
The executrix was a citizen and
resident of South Carolina as was
the decedent. Although
recognizing that the cause of action
did not occur in the forum state, we
nevertheless concluded that South
Carolina had a paternal interest in
the recovery by one of its citizens
of appropriate compensation. Lee,
supra. at 299. Walworth
Company did not maintain an office
in South Carolina, owned no property
in the state, and had no resident
sales pevsonnel. Walworth,

38

however, sent sales personnel to
South Carolina soliciting business
for approximately eighty (80) days

annually. This factor coupled
with sales exceeding one hundred
thousand dollars annually led us

to conclude that Walworth's con-
tacts were sufficient to fall within
the ambit of in personam jurisdic-
tion of South Carolina.

Applying these standards’ to
this appeal, we hold that Hicks'
contacts with South Carolina are
de minimis. The sole thread
linking Hicks to South Carolina is
arranging for the transportation
of cotton to South Carolina.
These transactions were conducted in
Mississippi with the Mississippi
agent of a South Carolina entity.
Over a three-year period, these
transactions occurred intermit-
tently resulting in meager
remuneration. Hicks has’- never
operated or established its
"presence" in South Carolina.

O'Neal, 537 F.2d at 1268.

The Wolfs' attempt to place
themselves within the factual situation
found in Lee; however, the facts do not fit.
In Lee we emphasized the State's paternal

interest in protecting its residents and

39

:

that such interest can be considered in
evvereioins whether South Carolina courts may
exercise jurisdiction over a nonresident cor-
peration. In Lee, however, there were other
facts that warranted the exercise of juris-
diction over the nonresident corporation.
For three years salesmen with the corporation
had spent approximately eighty days each year
soliciting * siness in the state and the
corporation had made sales amounting to
$100,000 to South Carolina customers, in _
Lee, the defendant contesting jurisdiction
had actively engaged in substantial com-
merce within the borders of South Carolina.
In the case at bar there has been no
finding that University Hospital ever
"solicited" business in South Carolina. The
affidavit submitted by defendant affirmed
that “University Hospital does not adver-

tise or otherwise solicit or encourage

40

South Carolina residents to seek treatment
at University Hospital."

The contacts cited in the first,
second, third and sixth findings of fact
establish that University Hospital treats
South Carolina residents and receives
payments (either from state or local govern-
mental bodies or from the residents them-
selves) for services rendered. The fourth
contact cited the listing of University
Hospital in the North Augusta, South
Carolina telephone directory does not indi-
eate a purposeful contact in order to
generate revenue but instead illustrates the
proximity of and the close ties existing bet-
ween Augusta, Georgia and North Augusta,
South Carolina. The court did not find that
University Hospital had obtained paid adver-
tisements in the North Augusta telephone

directory. See also Kennedy v. Ziesmann, 526

41

F.Supp. 1328 (E.D.Ky. 1981) (court found
that a telephone listing alone, without addi-
tional advertising or other solicitation did
not amount "in and of itself to regular soli-
citation of business" such that a physician
in a neighboring state would be subject to
jurisdiction in the state where the directory
was distributed).

The only purposeful contact shown by
plaintiffs is the provision of laundry ser-
vices to the county hospital in Edgefield,
South Carolina. This contact is, however, de

minimis and the cause of action did not arise

from this contact. The seventh finding of
fact, excepting the portion that this court
finds clearly erroneous, describes the acti-
vities of the East Central Georgia Health
Services Agency and not activities initiated
by University Hospital. This finding shows

that the Hospital Authority is subject to

42

regulations imposed by the Congress of the
United States in regard to the development
and distribution of health care facilities.
See, 42 U.S.C. 300(1) -300(1)(4) (governing
the establishment and duties of health system
agencies). The fact that the Hospital
Authority complies with the requirements of
federal law and that this law
establishes an agency affecting both Georgia
and South Carolina does not indicate pur-
poseful, voluntary activity in South Carolina
on the part of the defendant.

Plaintiff also argues that’ the
hospital's contacts with South Carolina are
more extensive than those of the defendant in
O'Neal because University Hospital receives
one-fifth of its income from South Carolina
patients, as opposed to the “meager remunera—
tion" receiv . by the O'Neal defendant from

dealings in South Carolina. In making such a

43

comparison, however, the fundamental nature

of the defendant must be recognized. "Cases
involving medical services are quite dif-
ferent from those involving other commercial

activity." Hume v. Durwood Medical Clinic,

Inc., No. OL96, @iis. Go. at. 22 (8.€. Ce.
App. June ll, 1984). The cases from other
jurisdictions involving hospitals and physi-
cians are instructive. And, although federal
law is controlling on the issue of due pro-

cess, Amba Marketing Systems, Inc. v. Jobar

International, Inc., 551 F.2d 784,789 (9th

Cir. 1977), a recent decision of the South

Carolina Court of Appeals, Hume v. Durwood, _

Supra, is persuasive. Hume involved a medi-
cal malpractice action brought by the admi-
nistratrix of a South Carolina decedent
against, among others, a North Carolina cor-
poration doing business as a medical clinic

and certain North Carolina physicians.

44

Deposition testimony revealed the degree and
nature of the contacts between the defen-
dants, the decedent and the State of South
Carolina. The depositions reflected that,
although they had a number of patients from
South Carolina, the clinic and physicians did
not solicit business in South Carolina. None
of the clinic's staff physicians were
licensed to practice medicine in South
Carolina. The clinic and physicians billed
South Carolina patients by mail and one of
the physicians had written a letter to the
decedent in South Carolina furnishing medical
advice. Finding that the exercise of juris-
diction in South Carolina would not be con-
sonant with due process, the court quoted

from Gelineau v. New York University

Hospital, 375 F.Supp. 661, 667 (D.N.J.

1974):

Unlike a case
involving involuntary
interstate or inter-

45

national economic’ acti-
vity. . -the residence
of a recipient of personal
services rendered
elsewhere is’ irrelevant
and totally incidental to
the benefits provided by
the defendant at his own
location. It is clear
that when a patient tra-
vels to receive pro-
fessional services without
having been solicited...
then the client, who
originally traveled to
seek services apparently
not available at _ home,
ought to expect that he
will have to travel again
if he thereafter complains
that the services sought
by him in the foreign
jurisdiction were there
rendered improperly.

Hume, Slip op. at 22.
The court also approved the

reasoning of Gelineau that the state's

interest in insuring that its citizens do not
have to leave the state to file suit must be
balanced against the burden to those pro-

viding the medical services of having to

46

defend themselves in a foreign forum. Such
a burden might ultimately have the counter
productive result of reducing the availabi-
lity of medical services to residents of

the forum state. See also Wright v.

Yackley, 459 F.2d 28 (9th Cir. 1972); But see

Cubbage v. Merchent, 732 F.2d 1476(9th Cir.

1984) (Hug., J., dissenting). (majority
found "no evidence in the’ record" to indi-
cate that subjecting foreign defendants’ to
jurisdiction would have a "'chilling
effect'" on defendants' treatment of other
residents of forum state).

The Hume court concluded that the
conduct of the physicians and the clinic
did not show “an intent on their part
to purposefully avail themselves of the
privilege of providing medical services to
South Carolina residents on a systematic

basis." Id.

47

The cases relied on by the Wolfs in
which doctors or medical facilities were
found to be subject to the’ jurisdiction
of a foreign court are distinguishable
because, in these cases, the defendant either
actively solicited or encouraged the nonresi-
dent to travel to their facility for treat-
ment or had patient referral or transfer

contacts. Cubbage Vv. Merchent, — supra

(defendant physicians applied for and
received Medi-Cal numbers in order to receive
reimbursement from forum state for services
rendered to eligible residents of forum sta-
te; defendant hospital took out a paid
advertisement in yellow pages of
telephone directory distributed in forum

state); Lemke v. St. Margaret's Hospital, 552

F.Supp. 833 (N.D.I11. 1982) (finding of soli-
citation made by district court - defen-

dant advertised in forum state yellow

48

pages); Braman Vv. Mary Hitchcock

Memorial Hospital 631 F.2d 6 (2d Cir.

1980) (defendants, pursuant to agreements
with forum state hospitals, served as

consultants and supplied back-up services

to hospitals in forum state - on remand
district court instructed to determine
whether those and other contacts

distinguish the case from another case
where personal jurisdiction was not found
because the defendant Hospital did not have
"any agents in the forum state channeling

patients" to it); Soares V. Roberts, 417

F.Supp. 304 (D.R.I. 1976) (finding by
district court that nonresident Hospital
"knowingly solicited and facilitated
referrals of [forum state] residents on a
continuing basis" and placed advertisements
in its home-state newspaper and on television

which were widely received in the forum

49

state); S. R. V. City of Fairmont, 280

S.E.2d 712 (W. Va. 1981) (defendant medical
corporation found to derive a direct eco-
nomic benefit from solicitation made by an
abortion clinic in defendant's home state for
abortion business from forum state).
IV

In conducting the due process analy-
sis and balancing issues of fairness and con-
venience to the parties, questions also arise
of whether the plaintiff would suffer
hardship in the event of dismissal and
whether there is “any other state whose
courts might provide a more likely

forum," Lee _v. Walworth Valve, supta,

482 F.2d at 299. In the instant case the
alleged cause of action arose in Georgia at a
time when plaintiffs were Georgia
residents, thus involving only Georgia

residents. An action, which is still

50

pending, was originally brought by the defen-
dant in a Georgia court of limited juris-
diction ($25,000). At oral argument this
court was informed that, in order to prevent
the statute of limitations from running,
plaintiff has filed an action in Richmond
County Superior Court, a court of unlimited
jurisdiction. It appears, therefore, that
dismissal of the case brought in South
Carolina will not prejudice the plaintiff and
that Georgia is the logical forum.

We conclude, therefore, Hospital
Authority lacks suff: cient contacts with the
State of South Carolina to be subject to the
jurisdiction of its courts. To do so would
place a burden upon the defendant incon-
sistent with "traditional notions of fair
play and substantial justice."

REVERSED.

51

IN THE DISTRiCT COURT OF

THE UNITED STATES APPEALS
FOR THE DISTRICT OF SOUTH CAROLINA

AIKEN DIVISION
Civil Action 83-1533-6
ALAN W. WOLF and
GAIL S. WOLF,
Plaintiffs,

-versus- ORDER

RICHMOND COUNTY HOSPITAL
AUTHORITY,

Rd

Defendants.

This matter comes before the court
on motion of the defendant to dismiss for
lack of personal jurisdiction pursuant to
Fed.R.Civ.P. 12(b)2. In this action plain-
tiffs, formerly Georgia residents but now
residents of South Carolina, seek to recover

damages for injuries allegedly inflicted on

52

their infant son by agents of University
Hospital, a facility owned and operated by
the defendant, Richmond County Hospital
Authority. The defendant is a_ public
authority created under the Georgia Hospital
Authorities Law. University Hospital is
located in Augusta, Georgia.

The relevant allegations of the
Compalint are as follows: Plaintiffs' son,
Stephen Collin Wolf, was delivered by
Caesarian Section at University Hospital in
Augusta, Georgia. The plaintiffs allege that
Stephen was born a normal, healthy child and
that the delivering physician left written
orders for his care. Plaintiffs further
allege that due to the Hospital's failure to
provide adequate medical care and attention,
the child is now severely retarded and has
developed other serious complications.

Plaintiffs further contend that while

53

University Hospital is located in the State
of Georgia, the contacts University Hospital
Maintains with the State of South Carolina
are such that University Hospital is doing
business in South Carolina.

The question therefore before the
court is whether Hospital is doing business
in the State of South Carolina so as to
invoke this court's jurisdiction under South
Carolina's Long-Arm Statute, S.C. Code Ann.
Section 36-2-802 (1976). Section 36-2-802
(1976) provides in relevant part "[{A] court
may exercise personal jurisdiction over a
person. . .doing business. . .in this State
as to any cause of action." This court
concludes that University Hospital is doing
business in South Carolina so as to confer
this court's jurisdiction under Section
36-2-802 (1976).

The test for doing business within

54

the meaning of Section 36-2-802 was given in

Ratliff v. Cooper Laboratories, Inc., 444

F.2d 745 (4th Cir. 1971). In Ratliff the

Fourth Circuit declared that if a plaintiff's
injury does not arise out of some thing done
in the forum state, then other contacts bet-
ween the corporation and the state must be

fairly extensive. 444 F.2d at 748. That

court has also stated that "the sufficiency
of contacts threshold is elevated when the
cause does not arise in the forum state or
derive from the foreign corporation's tran-

Sactions in the state." O'Neal v. Hicks

Brokerage, 537 F.2d 1266, 1268 (4th Cit.

1976).

To determine what is "fairly exten-
Sive" the courts have differed to the stan-
dards imposed by the Due Process Clause of

the United States Constitution. Ratliff v.

Cooper, supra; O'Neal v. Hicks’ Brokerage

~

Company, supra; Nelepovitz v. Boatwright, 442

F.Supp. 1336 (D.C.S.C. 1977). As stated in
O'Neal, “South Carolina has extended the
jurisdiction of its courts to the outer peri-
meter allowed by due process." 537 F.2d at
267-268. The modern test for constitutional
assertion of personal jurisdiction over non-

residents was first espoused in International

Shoe Co. v. Washington, 326 U.S. 3160 (1945),

and remains the law in South Carolina today.

Shealey v. Challenger Manufacturing Co., 304

F.2d 102 (4th Cir. 1962). In International

Shoe, the United States Supreme Court held
that due process requires that before a
defendant who is not present in the forum
state may be subjected to the personal juris-
diction of that forum state, he must have
contacts with it such that maintenance of
the suit does not offend "traditional notions

of fair play and_ substantial justice.

56

International Shoe, 326 U.S at 316.

Therefore, since the defendant is not present
in South Carolina and the cause of action did
not arise in South C-solina, constitutionally
subjecting the defendant to jurisdiction in
this state requires the plaintiffs to show
defendant has sufficient contacts with the
State of South Carolina so as not to offend
"traditional notions’ of fair play and
substantial justice."

The University Hospital's contacts
with the State of South Carolina clearly
exceed the "fairly extensive" test set out in

the Ratliff case. The following list is

illustrative:

1. The South Carolina Department of
Health and Environmental Control (DHEC) has
authorized Augusta Hospital to receive
payment from the State of South Carolina for

residents of Aiken County, South Carolina,

57

NO a ee ee ee ee ee ee

seeking certain maternity and neonatal ser-

vices at University Hospital.

2. University Hospital received
payments from County Council as reimbursement
for treatment of residents of Aiken County
who are indigent.

3. Although Richmond County
Hospital Authority has no hospital or medical
facility located in South Carolina, the
University Hospital does receive
medicaid/medicare reimbursements for
qualified South Carolina residents treated at
University Hospital.

4. University Hospital is listed in
the yellow pages of the telephone directory
for North Augusta, South Carolina, a city
located in Aiken County, South Carolina.

5. University Hospital is under
coutract to provide laundry services to the

Edgefield County Hospital in South Carolina.

58

6. University Hospital derives a

Substantial amount of revenue from treatment
of South Carolina residents; defendant
admitted in oral argument that approximately
one-fifth (1/5) of University Hospital's
income is obtained from South Carolina resi-
dents.

7. University Hospital is a member
of the East Central Georgia Health Services
Agency, Inc. This agency was created to
coordinate health care needs in its district,
which district includes Aiken County, South
Carolina. This is the only such district in
South Carolina that crosses state lines.
While this agency does not directly have
jurisdiction over patient admission, the
effect of University Hospital's membership in
the agency is to require South Carolina resi-
dents in Aiken County as a practical matter

to receive secondary and tertiary level care

59

from University Hospital. This is because
the agency has jurisdiction over capital
expenditures and construction, as well as
issuing certificates of need. The purpose of
the agency is to avoid duplication of expen-
Sive facilities. Since University Hospital
is well equipped with such advanced medical
facilities and Aiken County Hospital is also
within the Agency's district, Aiken Community
hospital does not receive the advanced equip-
ment. The Agency's efforts to avoid duplica-
tion therefore require Aiken County residents
to seek secondary and tertiary level care
from the University Hospital in Augusta,
Georgia, since it is the closest and most
convenient facility of its kind.

Although it is true that “the suf-
ficiency of contacts threshold is elevated
when the cause of action does not arise in

the forum state or derive from the foreign

60

corporation's transactions in the _ state."
O'Neal at 1268; nevertheless, the contacts
that University Hospital maintains with South
Carolina clearly reach the elevated level.l
The rationale of the court in Lee v.

Walworth Valve Company, 482 F.2d 297 (4th

Cir. 1973), is supportive of this view. In
Lee the plaintiff, a South Carolina resident,
was the executrix of her husband's estate.
Her husband had been killed on the high seas
as a result of a defective valve manufactured
by the defendant. The defendant moved to
dismiss the action for lack of jurisdiction.
The court denied the motion and stated:
The interest of South Carolina is
substantial, however, for it has a
paterral interest in the recovery by
one of its citizens of appropriate
compensation, if there is a substan-
tive cause of action. To the extent

that Mrs. Lee, or she and her depen-
dents, deprived of the support of

lfhe defendant has urged Ratliff v.
Cooper, 444 F.2d 745 (4th Cir. 1971) as sup-
port for its theory that the elevated level
61

her husband, might become a public
charge or charges, South Carolina
has an immediate interest in her
vindication of any private right of
action she may have for the wrongful
death of her husband.

- « «+ Our holding in Ratliff was
dictated by the fact that South
Carolina had no interest in or con-
nection with the controversy. The
out-of-state plaintiffs sought to
maintain the action in South
Carolina solely for the purposes of

footnote | continued:

of minimum contacts has not been met. The
Ratliff decision, however, is easily
distinguishable from the case at bar.
Ratliff involved two plaintiffs who sued two
drug manufacturers for injuries sustained by
their products. The plaintiffs had no con-
nection whatsoever with South Carolina. The
plaintiffs were not South Carolina residents
and their causes of action arose outside of
the State of South Carolina. As the court
states in Ratliff:

Plaintiffs' only interest in South
Carolina in its relatively long statute of
limitations (six years), and Plaintiffs' only
contact with South Carolina is the bringing
of these lawsuits for the sole purpose of
availing themselves of that statute - the
limitation periods have run in all other sta-
tes having any connection with the claims
presented.

Such is not the case in the action at bar.

62

availing themselves of South

Carolina's relatively long statute

of limitations...

- « « The frequency and regularity

of (the defendant's) activity in

South Carolina make it fair to hold

is answerable in that State to Mrs.

Lee."

The frequency and regularity of
defendant's activity in South Carolina and
with South Carolina residents make it fair to
hold it answerable in South Carolina.

Jurisdiction by South Carolina
Courts over the defendant is further
buttressed by the fact that foreseeability is

important in a due process analysis. As

stated by the Supreme Court in World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286

(1980), the foreseeability that is critical
to due process analysis is whether the defen-
dant's conduct with the forum state is such
that he should reasonably anticipate being

haled into court there. World-Wide at 567.

63

University Hospital has such a regular course
of conduct with South Carolina that being
haled into court in this State should come as
no surprise.

The recent case of Lemke v. St.

Margaret Hospital, 552 F.Supp. 833 (N.D. Ill.

1982), further supports this conclusion. In
Lemke the court held that an Indiana doctor
who regularly treated Illinois patients in a
hospital located in Indiana that regularly
treated and solicited patients could be
deemed to be "doing business" in Illinois for
purpose of personal juris-diction. The court

declared:

a ee ae eee

- « « to the extent that the hospi-
tal regulary solicits and refers
Illinois patnents[sic] for Dr.
Patel, as a member of the hospital
staff, he may be considered as pur-
posefully holding himself out to
Illinoise residents as a provider of
medical care. 552 F.Supp. 833, 838.
(1982).

The Lemke court continued:

\

- « « it appears that a significant

64

Ee

Ete eb Se Oe, a ea NA

Se Bm

Sl ER BR Te Sa ET ast: soit Pattee Des

a ei.

portion of the patients he treats
live in nearby Illinois. Thus, it
should be of no surprise when one of
his Illinois patnents bring suit.
552 F.oupp. at 839.

It is in this state border context
and with university Hospital's continuous and
multiple contacts with South Carolina citiz-

nes that form the basis of jurisdiction.2

2pefendant cites the case of Kennedy
v. Zeisman, 526 F.Supp. 1329 (E.D.Ky. 1981)

for the proposition that merely because a
physician's name is listed in a foreign sta-
te's phone book, the physician is not subject
to suit in that state. This court agrees
that this alone is not sufficient to confer
jurisdiction in South Carolina. In the case
at bar, however, a phone listing is not the
sole contact University Hospital has with the
State of South Carolina. This court does not
hold that each individual contact University
Hospital has with South Carolina is alone
sufficient to confer jurisdiction. What this
court does hold is that looking at all of the
contacts University Hospital has with the
State of South Carolina, it does not offend
"traditional notions of fair play and
substantial justice," to subject them to suit
here. International Shoe, 326 U.S. at 316.

65

ee

Therefore, jurisdiction is properly
before the court and the Motion to Dismiss is
denied.

This court is of the_- opinion,
however, that this Order involves controlling
question of law to which is a substantial
difference of opinion. An immediate appeal
from the ground for Order may materially
advance the ultimate termination of the liti-
gation, therefore, pursuant to 28 U.S.C.
Section 1292(b), I hereby certify this Order
for application to the Court of Appeals for
an immediate appeai.

AND IT IS SO ORDERED.

Columbia, S. C.

October 25, 1983. Charles E. Simons, Jr.

UNITED STATES DISTRICT

JUDGE

66

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 84-1024

ALAN W. WOLF and GAIL S. WOLF,

Appellees,
vs
ICHMOND COUNTY HOSPITAL AUTHORITY,
Appellant.

Appeal from the United States
District Court for the District of South
Carolina, at Aiken. Charles E. Simons, Jr.
District Judge.

The appellee's petition for
rehearing and suggestion for rehearing en
banc were submitted to this Court. In a
requested poll of the Court, Judges Widener,
Murnaghan, Sprouse and Ervin voted to renear
the case in banc; and Judges Winter, Russell,
Hall, Phillips, Chapman, Wilkinson and
Sneeden voted against rehearing the case in
banc. As a majority of the judges voted to
deny rehearing in banc, and

As the panel considered the petition

67

for rehearing and is of the opinion that it
should be denied,

IT IS ADJUDGED AND ORDERED that the
petition for rehearing and suggestion for
rehearing in banc are denied.

Entered at the direction of Judge

Murnaghan.

For the Court,

March 6, 1985 John M. Greacen, Clerk

68

AFFIDAVIT OF SERVICE

In accordance with Rules of the
Supreme Court of the United States, I hereby
certify that I have this l7thday of June, 1985
mailed the required copies of this Petition
for Writ of Certiorari in the Clerk's Office
of the Supreme Court of the United Stated and
further certify that I have mailed this l7thiay
of June, 1985 three copies to Wyck A. Knox,
Jr., Esquire and Ted H. Clarkson, Esquire, of
the Law Firm of KNOX & ZACKS, P.C., Attorneys
for the Respondent, Post Office Box 2043,
Augusta, Georgia 30903.

py: Aarhus ¢- LS FOOe,

Lawyers Printing Co.
Post Office Box 1645
Richmond, Virginia 23219

This the l7thday of June , 1985.

Sworn to before thisl7 day of June , 1985.

69

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0343%3A1. Public record. Not legal advice.