Loose lips

Can a court in one state force you to become a party to litigation in another state? In other words, could a state other than your own have jurisdiction over you? This was the issue in Bentivegna v Lall-Trail , No. CV 146040266S (Fairfield Superior Ct, Conn; July 24, 2014).

Olivia Richardson, through her mother, sued her ophthalmologist, Dr Bentivegna, among other doctors, claiming not only negligent treatment, but also that he acted in a “reckless, willful, wanton, and malicious manner and with conscious disregard for Richardson’s safety.” Connecticut, like most states, requires an expert to review the records and render an opinion that the standard of care was breached and that an injury had resulted from the breach—ie, that negligent treatment was in fact rendered. This letter is called a certificate of merit. It is meant to dissuade frivolous suits from being brought, since the courts thus know that an expert has reviewed the records and found the claim to have merit. In this case, the plaintiff’s expert, an ophthalmologist from Virginia, drafted the opinion letter.

As the case progressed, the defendant was voluntarily dismissed from the suit. After being dismissed, Dr Bentivegna turned around and became the plaintiff in this case, suing the expert from Virginia for defamation and claiming that the statements made about his care of Richardson in the certificate of merit were false and made with “malice and bad faith.” The defendant, Dr Lall-Trail, then filed a motion to dismiss the defamation suit on the basis that he was from Virginia and had insufficient contacts with Connecticut to compel his presence in a Connecticut state court. Legally, for a person of one state to be compelled to appear in an action in another state, the other state must have what is called “personal jurisdiction” over him. The argument in this case was that merely penning a letter in Virginia about someone in Connecticut does not give Connecticut jurisdiction over the writer so that he can be forced to come to Connecticut to defend himself. For that to happen, legally, he would have to have “sufficient minimal contacts” with Connecticut to the extent that it could justify using what is called “long-arm jurisdiction” to compel his presence; hence the term “the long arm of the law.”

According to Lall-Trail’s affidavit in his motion to dismiss, he is a resident of Virginia, works in Virginia, does not do business in Connecticut, does not advertise or solicit business in Connecticut, is not licensed to practice in Connecticut, does not have an agent for service of process in Connecticut, does not own property in Connecticut, and does not maintain a post office box, telephone listing, or mailing address in Connecticut. In short he argues, there is no basis in law for personal jurisdiction to exist.

In discussing long-arm jurisdiction, the court noted that Section 52-59b of the Connecticut General Statutes states the following.

(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual … who in person or through an agent … (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act.

Section 33-929(f), (1) and (4), provides the following.

(f) Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) out of any contract made in this state or to be performed in this state … (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.

Although there may have been several arguments that the defense could have used, this case centered on one issue: were the defendant’s actions undertaken in or within Connecticut? The court stated that it is essential that the defendant “take action in or within the forum state,” and that actions outside the forum state “affect individuals within the forum state” such that “the defendant’s conduct caused injury within the forum state.” In deference to the defendants, the court noted that the long-arm provision requires a “defendant to take action in or within the forum state,” and that “communications sent to another jurisdiction, or to the world at large without specifically targeting the defendant in the forum state, will not suffice.”

In fashioning its decision, the court held that the defendant was “aware that the letter was destined for Connecticut and that it could be used to support a malpractice action in Connecticut.” In addition, the defendant wrote the opinion letter about the plaintiff and sent it to Connecticut, where the defendant knew that the plaintiff worked. In short, the defendant’s action is precisely the type that could be contemplated to have consequences in or within Connecticut; thus, long-arm jurisdiction can and should apply.

From a due-process perspective, the U. S. Supreme Court has noted that one state can have jurisdiction over a resident of another state whenever the defendant “has purposefully directed [its] activities at residents of the forum … and the litigation [has] result[ed] from alleged injuries that arise out of or relate to those activities.”

Deciding whether a defendant has sufficient minimal contacts with the forum state can also depend on a reasonableness test. A major component of reasonableness rests with the idea of whether the consequences of the activities in question would cause the defendant to reasonably foresee that he might be called to task for having undertaken those activities.

The next consideration deals with notions of “fair play and substantial justice.” Fair play and substantial justice are based on the following elements: “(1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies.”

In the end, the court denied the motion to dismiss, finding that minimal contacts did indeed exist, and it was not unreasonable nor did it offend notions of fairness that the defendant put himself in the position he was in and therefore should have foreseen and expected that his activities could have consequences in Connecticut to the extent that he might be called to answer for them.

Commentary

In World War II, a commonly heard catchphrase was “loose lips sink ships.” I, along with many of my colleagues in both the orthodontic and legal arenas, have expressed concerns about what transpires on the Internet. It seems that people today have no qualms about saying anything about anybody. Loose lips, to be sure. Whether it is patients maligning doctors, doctors maligning doctors, doctors maligning vendors and products … loose lips.

The facts of this case are commonplace. Doctors are asked all the time to review a set of records and, if they believe that there was negligence, to write a certificate of merit for the plaintiff’s attorney. Let’s assume that you do believe negligence was committed. When you write the letter, do it dryly and factually. There is no need to use defamatory language unless you honestly believe that the proposed defendant’s conduct was so outrageous as to shock one’s conscience. Even then, you’d best be sure.

When you are called on to write a second opinion, remember that it is above all else an opinion, and almost everybody has one. Yours may be just as wrong as the person’s you are about to defame. When you disagree with what a colleague is saying in the literature, in presentations, in whatever venue; when you are driven to the point where you want to open the window and scream, as Peter Finch portraying Howard Beale in Network did, “I’m mad as hell, and I’m not going to take this anymore”—don’t. One of the best pieces of advice I ever heard was when you are about to say something bad—really bad—about someone, take a deep breath and count to 10. Make sure that this tirade will give you the satisfaction you want because in the end it may turn around and give you a ton of tsuris that you don’t want. When you want to rail about ABC product, instrument, or whatever, stop. Don’t do it.

We can’t stop our patients from posting negative comments about us (well, we might be able to, as noted in my August 2014 column). We will be tempted to respond by pointing out that they are deadbeats, liars, blackmailers, and other niceties, but 2 defamations don’t cancel each other out.

As with most things, we are ultimately responsible for what we do, what we say, whom we say it about, and how we say it. If we do it in the just the right way (or wrong way, depending on your point of view), we may be called upon by the powers that be to answer for our oral spewings. If we cross state lines in the process, we may be grabbed by the long arm of the law and have to defend ourselves in places we might not want to visit, given the circumstances.

Loose lips can not only sink ships; they can also sink careers and reputations.

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Apr 4, 2017 | Posted by in Orthodontics | Comments Off on Loose lips
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