This is the second part of what will be a three-part blog. See yesterday's blog for the issue that the following argument addresses:

A. The Fiduciary Shield Doctrine Is Not Law In Nevada And Even If It Were It Would Not Preclude An Exercise Of Jurisdiction

The fiduciary shield doctrine, a flawed legal theory that has generated confusion and countless inconsistent exceptions, provides that acts performed by an individual in his capacity as a corporate officer may not form the predicate for the exercise of jurisdiction over him as an individual. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 901 (2d Cir. 1981). The primary rationale in support of this doctrine is that "it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer." Id. at 902.

The purpose of the fiduciary shield doctrine is to protect individuals from unreasonable and unjust subjection to personal jurisdiction, not to protect them from liability. Merkel Assocs. v. Bellofram Corp., 437 F. Supp. 612, 618 (W.D.N.Y. 1977). Therefore, the issue that the fiduciary shield doctrine addresses is where a claim can be litigated, not whether a claim can be asserted. See The Fiduciary Shield Doctrine: Minimum Contacts in a Special Context, 65 B.U.L. Rev. 967 (1985).

Many legal commentaries assail the fiduciary shield doctrine as a product of misanalysis and mistake and advocate its total abandonment. Id. at 967.

Courts have sometimes stated that acts performed on behalf of a corporate employer cannot supply minimum contacts for the purpose of jurisdiction over the actor. See Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan. L. Rev. 813 (1986), citing Marine Midland Bank v. Miller, 664 F.2d 899, 902 (2d Cir. 1981); Wilshire Oil Co. v. Riffe, 409 F.2d 1277, 1281 & n.8 (10th Cir. 1969); Allen v. Toshiba Corp., 599 F. Supp. 381, 384 (D.N.M. 1984); Bulova Watch Co. v. K. Hattori & Co., 508 Supp. 1322, 1347 (E.D.N.Y. 1981).

While this approach has been termed the "fiduciary shield rule," the label is misleading for three reasons. First, this approach is usually applied to corporate employees alone, who comprise only a limited subset of all fiduciaries recognized in law. Id., citing Grove Press, Inc. v. CIA, 483 F. Supp. 132, 135-36 (S.D.N.Y. 1980) (fiduciary shield rule does not protect CIA agents from jurisdiction based on wrongful acts performed in their official capacity). See also Idaho Potato Comm'n v. Washington Potato Comm'n, 410 F. Supp. 171, 180-83 (D. Idaho 1975) (fiduciary shield rule does protect state potato commissioners). Second, this approach can operate in a variety of ways, not all of which actually shield an employee from jurisdiction that might otherwise exist. Third, and contrary to Petitioner's contention, the uncertain authority for this approach, and its random application, make it far less than a settled rule.

In fact, several U.S. Supreme Court opinions seem to reject outright the constitutional underpinnings of the rule.
In Calder v. Jones, 465 U.S. 783, 790 (1984), the Court upheld California's exercise of jurisdiction over a reporter who lived in Florida and who was employed by a Florida-based newspaper. The reporter had written an allegedly libelous article about a California resident, which the newspaper published and distributed in California. The Court said that the reporter's acts directed at California justified jurisdiction there. The Court also held that California had properly exercised jurisdiction over the newspaper's president, who had edited the article. In reaching these results, the Court stated that each defendant's contacts with the forum must be "assessed individually." The Court recognized that an employee is not subject to jurisdiction merely by virtue of the employer corporation's contacts with the forum. But it does not follow from this proposition, according to the Court, that an employee is never subject to jurisdiction when he acts in a corporate capacity. The Court did not mention the fiduciary shield rule by name, but held that defendants' "status as employees does not somehow insulate them from jurisdiction." Id.; See also Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan. L. Rev. 813 (1986).

In the companion case of Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984), the Court reversed a lower court decision that it did not have jurisdiction over a corporate publisher in a libel action. In a footnote, the Court discussed whether the individual owner and publisher of the magazine might also be subject to jurisdiction. The Court stated, "[i]n Calder v. Jones.... we today reject the suggestion that employees who act in their official capacity are somehow shielded from suit in their individual capacity. Id. at 781, n. 13; See also Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan. L. Rev. 813 (1986)

Courts have frequently expressed dissatisfaction with the results of a blanket application of the fiduciary shield rule. Some courts have recognized that the fiduciary shield rule may represent an improper deviation from minimum contacts analysis. Others have stated that the fiduciary shield is an equitable doctrine that should be applied with discretion. Still other courts have articulated various explicit exceptions to the rule. See Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan. L. Rev. 813, 823 (1986).

One thing that is clear is that the fiduciary shield doctrine is not the law of Nevada. Under Nevada law, the inquiry as to whether a state may assert personal jurisdiction over a nonresident defendant entails a two-pronged analysis. First, a court must determine whether Nevada's long-arm statute authorizes the assertion of jurisdiction under the given set of facts. Second, the application of the long-arm statute to those facts must satisfy the constitutional demands of due process. If both requirements are met, then jurisdiction over the nonresident defendant exists.

In its Order denying Defendant's Motion to Dismiss, the District Court held that Plaintiff must establish a prima facie showing of personal jurisdiction and cited to Trump v. Eighth Judicial Dist. Court, 109 Nev. 687, 694, 857 P .2d 740, 744-745 (1993). See Order Denying Motion to Dismiss, p.2.

The District Court further recognized that "[d]ue process requires 'minimum contacts' between the defendant and the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Order, p. 2;109 Nev. at 694. The defendant must have sufficient contact with the forum such that he or she could reasonably anticipate being haled into court there. Id. The defendant must purposefully avail herself of the privilege of acting in the forum state or of causing important consequences in that state. The cause of action must arise from the consequences in the forum state of the defendant's activities, and those activities, or the consequences thereof, must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Id.

A state may exercise specific personal jurisdiction only where: (1) the defendant purposefully avails herself of the privilege of serving the market in the forum or of enjoying the protection of the laws of the forum, or where the defendant purposefully established contacts with the forum state, and (2) the cause of action arises from that purposeful contact with the forum or conduct targeting the forum. Id.

The guarantee of due process contained in the fourteenth amendment has been construed as limiting the jurisdiction of state courts to enter judgments affecting the rights or interests of nonresident defendants. Kulko v. Superior Court, 436 U.S. 84, 91 (1978). The parameters for such a constitutional exercise of jurisdiction have been set by the minimum contacts standard.

Here's a plug for Trial Guides at www.trialguides.com. The following interesting news comes from their enewsletter of today's date.

This week, Florida Insurance Commissioner Kevin McCarty announced that he is suspending Allstate Insurance companies from writing new insurance in Florida. McCarty's choice follows Allstate's refusal to comply with subpoenas served October 16 by the Office of Insurance Regulation.

The subpoenas seek disclosure of the McKinsey Documents, in which McKinsey & Co. instructed Allstate how to systematically underpay claims starting in the mid 1990s. The content of the documents is so explosive that Allstate has already ignored a $25,000 per day fine in Missouri for its ongoing failure to provide the McKinsey Documents in that state.

Trial Guides landmark book, From Good Hands to Boxing Gloves, is the only book that provides a full discussion, as well as reproductions, of the McKinsey documents. Written by the only lawyer who has obtained the McKinsey Documents unprotected, David Berardinelli, the book gives plaintiff lawyers the edge in personal injury and bad faith claims by disclosing the content of the McKinsey Documents and how you can use them in trying or settling your case. From Good Hands to Boxing Gloves has been the most widely publicized legal book of 2007, serving as a source for feature stories with CNN, PBS, BusinessWeek, Bloomberg, and many more. More media coverage is coming in 2008, following the suspension of Allstate in Florida.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents

I will get back to my three-part series on the Nevada jurisdictional question we were analyzing on Monday or Tuesday. First, though, since I've recently mentioned the insurance industry's fraud on the Nevada voters otherwise known as KODIN, I reprint below Nevada's highly restrictive statute of limitations.

If you've been injured as a result of Nevada medical malpractice, the statute below means that you must move fast to secure your rights or your rights will be gone.

NRS 41A.097 Limitation of actions; tolling of limitation.

1. Except as otherwise provided in subsection 3, an action for injury or death against a provider of health care may not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for:

(a) Injury to or the wrongful death of a person occurring before October 1, 2002, based upon alleged professional negligence of the provider of health care;

(b) Injury to or the wrongful death of a person occurring before October 1, 2002, from professional services rendered without consent; or

(c) Injury to or the wrongful death of a person occurring before October 1, 2002, from error or omission in practice by the provider of health care.

2. Except as otherwise provided in subsection 3, an action for injury or death against a provider of health care may not be commenced more than 3 years after the date of injury or 1 year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for:

(a) Injury to or the wrongful death of a person occurring on or after October 1, 2002, based upon alleged professional negligence of the provider of health care;

(b) Injury to or the wrongful death of a person occurring on or after October 1, 2002, from professional services rendered without consent; or

(c) Injury to or the wrongful death of a person occurring on or after October 1, 2002, from error or omission in practice by the provider of health care.

3. This time limitation is tolled for any period during which the provider of health care has concealed any act, error or omission upon which the action is based and which is known or through the use of reasonable diligence should have been known to him.

4. For the purposes of this section, the parent, guardian or legal custodian of any minor child is responsible for exercising reasonable judgment in determining whether to prosecute any cause of action limited by subsection 1 or 2. If the parent, guardian or custodian fails to commence an action on behalf of that child within the prescribed period of limitations, the child may not bring an action based on the same alleged injury against any provider of health care upon the removal of his disability, except that in the case of:

(a) Brain damage or birth defect, the period of limitation is extended until the child attains 10 years of age.

(b) Sterility, the period of limitation is extended until 2 years after the child discovers the injury.

(Added to NRS by 1971, 366; A 1975, 407; 1977, 857, 954, 1082; 1985, 2011; 1989, 424; 1991, 1131; 1993, 2224; 1995, 2350; 1999, 5; 2001, 1107; 2002 Special Session, 8; 2004 initiative petition, Ballot Question No. 3)

ISSUE: Whether a doctor practicing medicine in Nevada remotely over the Internet, for a California medical group that contracts with a Nevada medical group to render medical services remotely over the Internet and contractually agrees to be bound by the laws of Nevada, is subject to the jurisdiction of the Nevada courts?

This is the issue of first impression that presents itself in the context of an Answering Brief to a Writ of Prohibition that I'm getting ready to file in the Nevada Supreme Court. This case involves the question of whether the fiduciary shield doctrine will become law in Nevada and will shield doctors who treat Nevada patients over the Internet from the jurisdiction of the Nevada courts. Nationally, the fiduciary shield doctrine has been adopted by many states. But the doctrine's potential broad sweep makes it a mistake for Nevada.

I will provide portions of our brief over the course of the next two or three blogs.

Any attorney who works in medical malpractice law in Nevada (and there are fewer and fewer of us) knows that difficult issues arise every week.

Many of these issues are presented by people who are searching for attorneys.

A common issue, after the unfortunate passage of the so-called KODIN legislation, is whether the statute of limitations has run in a particular medical malpractice case.

We often receive calls from prospective clients who are unaware that the general statute of limitations to file a medical malpractice case was reduced to a year (with certain exceptions).

Prospective clients are often surprised (dismayed) to learn that their case may be time-barred.

This week and for the next several weeks I will discuss some of the cases on which we are working to illustrate some of the thorny issues that arise in the context of medical malpractice.

The first "issue study" will be presented in two parts beginning tomorrow.

Does Nevada have jurisdiction over an out-of-state doctor who provides medical services for a Nevada patient over the Internet?

Come back tomorrow and find out (maybe).

According to a New York Times article dated January 3, 2008, in one out of three cases of cardiac arrests in hospitals, the staff takes too long to respond and increases the risk of brain damage and death in the patient.

This study was based on 6,789 patients in 369 different hospitals whose hearts stopped but could have been resuscitated with an electric shock.

The study concludes that these delays in response may result in thousands of deaths a year. According to general guidelines, shock should be given to the patient within two minutes of the heart stopping. The study found that it took longer in 30 percent of the cases.

When the response by hospital staff was delayed past this two-minute mark, only 22.2 percent of patients survived as opposed to 39.3 percent when the shock was given on time.

The study found that this delay in response was more prominent if the patient's heart stopped at night or on the weekend, if the patient was admitted for a non-cardiac illness, or if the patient was admitted to a hospital with fewer than 250 beds or with a limited number of heart monitor units. Black patients also had a higher risk for delayed response by hospitals.

The study's next step is to discover how a hospital's response time to cardiac arrests can be improved. It will look at what the hospitals that performed the best in the study did to ensure a rapid response to their patients.

One suggestion is to equip most hospital rooms with an auto-defibrillator, which senses electrical activity in the heart and automatically delivers a shock if necessary. These defibrillators are often used in airports or other public areas by lay people in case of an emergency. Nurses in the hospital could improve their response time because they would not have to wait for a doctor to deliver the electrical shock.

On January 4th, one of the worst storms in recent history hit the Sierra Nevadas, knocking out power, causing flooding and forcing people to evacuate their homes. The storm initially dropped roughly six to ten inches of rain, which turned to snow later on that evening. After 44 inches of snow followed the rain, the levees in Fernley, Nevada were stressed to their breaking point, causing them to overflow and break. About three feet of water from the levee was released and flowed through their streets, leaving some 3,500 people stranded. Rescuers were using school buses, boats and helicopters, although no injuries were reported.

"It was a mess up there last night," said Chuck Allen of the Nevada Department of Public Safety. "It's so cold here. The snow is about 2 inches in depth and the temperatures are right near the frigid mark both for the rescuers and rescuees."

In addition, there was an evacuation order given for four valleys near Orange County in Southern California for about 3,000 residents. The possibility of a flash flood was high, though it is unclear as to how many obeyed the order. Homeowners in Southern California stacked sandbags around their homes in preparation for the water. A voluntary evacuation was in effect at an apartment complex northwest of downtown Los Angeles because of flooding and a small mudslide.

According to the California Department of Transportation Interstate 80, the main east-west link between Northern California and Nevada, was reopened Saturday, but tire chains were mandatory on a 60-mile stretch. While the highway was shut down during the night, the Red Cross set up a 200-bed shelter in Truckee for stranded motorists.

In case of heavy snow and possible dangerous driving conditions there are several precautions you can take:

1) Equip your vehicle with chains or snow tires. Both allow your tires to get a better grip on the road and prevent the "smooth on smooth" driving of snow-filled grooves in regular tires that occurs when they are filled with snow while driving on a heavy snow-laden road.

2) Listen to the emergency radio station that has the local weather forecasts and conditions as well as driving advice for traveling motorists. The National Weather Service (NWS) broadcasts warnings, watches, forecasts and other non-weather related hazards information 24 hours a day. During an emergency, NWS forecasters interrupt routine broadcasts and send a special tone activating local weather radios. Weather radios equipped with a special alarm tone feature sound an alert to give you immediate information about a life-threatening situation.

3) If you find yourself starting to spin while driving on a snowy or icy road, be sure to turn your wheels away from the direction that you are spinning. If for example you are spinning to the left you will want to turn your wheels to the right. This will keep your wheels parallel to the road and in the direction that you want to be going. If you turn your wheels in the wrong direction it is entirely possible to begin spinning in circles depending upon your speed.

4) It is useful to have a flashlight and fresh batteries in your car. If you do have to leave your vehicle to put chains on your tires in the dark or flag down a tow truck it will be much easier for you to see what you are doing or for them to see you at the same time.

5) You will want to keep your gas tank full or close to it. In the winter, if you do get stuck or stranded, the engine will be your only source of heat aside from your clothes. You can run the engine indefinitely at idle to stay warm for as long as you have gas. No harm will be done to the engine.

6) Make sure your batteries are properly charged and ready to go. A short in the electrical system in your car while traveling between two states 50-100 miles from help is nothing less than disastrous.

7) Bring a cell-phone with you. While driving it is hazardous to use your phone to make calls, but if for some reason you become stranded communication will be your key to getting help, being located and getting out of your situation. At the very least it could save you from having to walk to the next town in the snow or waiting overnight in your car for the sun to rise.

8) Make sure your windshield wipers are in good condition. If they are unable to clear away snow or rain your visibility will be hampered while you are driving, potentially leading to accidents.

9) Make sure that you have proper engine coolant in the proper amounts. Although it is cold outside it is still possible for your car to overheat. You will also want to make sure you have sufficient windshield wiper fluid as you can go through quite a bit of it in an average drive, interstate drives not withstanding.

10) You will need to make sure that your car is tuned and has been seen by a mechanic. Any problems that occur in the summer are only multiplied during the winter when the temperatures drop. If your car has difficulties starting in the summer those difficulties may be overwhelming in the snow and cold.

11) And finally, in the snow and ice drive slowly. The postulate that "whatever is in motion tends to stay in motion" is especially true on snowy and icy roads. If you hit the brakes eventually you will be able to stop, but the question is always about timing and place. During summer months it is advisable to give at least 3 car lengths to the person in front of you for safe driving. During heavy snow you may wish to give up to five or 10. It's better to be able to stop before you hit the car in front of you than be stopped by the rear of that car.

Good luck and safe travels!

Last week Georgette Watson, principal of Brentano Math and Science Academy in Chicago, died while undergoing a root canal in her dentist's chair. It wasn't the physical surgery that killed her, however. The blame is being placed upon her anesthesia, which put her in a state between unconsciousness and being awake, a state known as "twilight sedation." In this condition patients are typically groggy though they can talk and are aware of their surroundings.

There are about 17 million root canals performed in the United States every year, but resulting deaths due to anesthesia are relatively rare. "I would think that she had to have some kind of underlying health problem," said Dr. Christopher Wenckus, chief of the department of endodontics at the University of Illinois at Chicago. "Healthy people just don't die from heart attacks." Unfortunately, in this case her exact condition is unclear because the autopsy report came back inconclusive, pending further investigation by Illinois state medical examiners.

Watson, who lived in Skokie, was pronounced dead at Advocate Illinois Masonic Medical Center Monday, a Cook County medical examiner's office spokesman said. She went into cardiac arrest about 10:30 a.m. at the offices of Feldman & Feldman DDS, police said.

Watson had the same procedure in December 2006 on a different tooth with the same sedation with no adverse effects, according to the police.

Both dentists had their licenses placed on probation for 18 months starting in July after the Illinois Department of Financial and Professional Regulation alleged that a "crown and bridge treatment" performed by their office was substandard. They were also cited for poor record keeping. The two men did not admit guilt in their settlement.

About 30 minutes into the procedure in this case both dentists noticed that Watson's breathing had become irregular and that her oxygen levels were low. They then attempted to reverse the anesthesia, but without success. They are also unsure as to what point she became completely unresponsive. Both dentists are properly licensed to sedate patients, according to Illinois state officials.

The American Association of Endodontists said Tuesday that root canal procedures are safe when administered by appropriately-trained dental professionals. "As with any medical or dental procedure, there is a certain amount of risk," the Chicago-based group said, "so it is important to speak with your dental professional about any existing or previous health conditions, current medications and allergic reactions."

Online you can refer to the state Department of Professional Regulations to check the professional standing of your dentist.