First news of 40,000 exposed to Hepatitis in Vegas and now authorities are reporting discovering what appears to be Ricin in a hotel. What's up in Vegas? Reminds me of an art exhibit I recently saw (still on display at the Barrick Museum there) that depicts scenes of apocalypse and absurdity with Vegas as the backdrop.

Barrick Museum Exhibit: http://hrcweb.nevada.edu/Museum/

According to Yahoo News, Ricin is made from the waste left over from processing castor beans, and can be extremely lethal. As little as 500 micrograms, or about the size of the head of a pin, can kill a human, according to the CDC.

I'll be back within a few hours with my update on the Hepatitis case and back later today with my blog about why that case illustrates what an unmitigated disaster tort reform's been for the citizens of Nevada.

Alright, let's get into this.

The subject of controversy is an entity known as Southern Nevada Endoscopy Center.

The Nevada Secretary of State indicates two limited liability companies registered under that name, both active:
The first reflects that Clifford Carrol, MD and the Hari Om Limited Partnership are officers.

The second company, which has the same name but is listed as Endoscopy Center of Southern Nevada II, lists Dipak Desai, MD and Vishvinder Sharma, MD as officers.

There are two entries at the Nevada Secretary of State for Hari Om Limited Partnership.

The first lists Dipak Desai, Kusum Desai and Dilip Patel as partners.

The second, Hari Om II, LLC, shows that it was dissolved on February 7, 2008.

The Nevada Board of Medical Examiners Site does not show disciplinary action for Dr. Carrol. He has had his license here since 1997.

The State Board has disciplined Dipak Desai, MD and the State site provides as follows:

FORMAL DISCIPLINARY ACTION TAKEN BY THE NEVADA STATE
BOARD OF MEDICAL EXAMINERS:

SEPTEMBER 13, 1996

The Investigative Committee of the Nevada State Board
of Medical Examiners filed a formal complaint against
Dr. Desai, the managing partner of Gastroenterology
Center of Nevada, alleging that he was advertising the
practice of medicine in a false, deceptive or misleading
manner by stating that certain members of the medical
group are Board Certified Gastroenterologists when in
fact they are not board certified in Gastroenterology.
Copies; Complaint 12 pages

OCTOBER 23, 1996

The Nevada State Board of Medical Examiners
accepted the Stipulation for Settlement and it was
Ordered that Dr. Desai, the managing partner of
Gastroenterology Center of Nevada, pay the sum of
$2,500 as disgorgement of payments which may
have been received by the group as a result of false
advertisment.

Copies; Order 4 pages Stipulation for Settlement 8 pages

Kusum Desai has been a licensed Nevada doctor (scope of practice listed as critical care, internal medicine and pulmonary disease) since 1980 and has no listed disciplinary actions.

The Board site does not pull up a listing for Dilip Patel.

An advanced search in Google reveals many Dilip Patel's, including an attorney, but it is not clear which Dilip Patel is listed with the Secretary of State.

A Clark County District Court inquiry shows one lawsuit in the mid 90s against a Dilip Patel (perhaps the same individual) in which Mr. Patel is listed as a defendant. This case went to arbitration

For more on the District Court case, see District Court Information on Patel Case

Vishvinder Sharma, MD is listed with the State, is licensed since 1994 and the Board lists no disciplinary actions.

This mess gained intial attention in January 2008 and widespread publicity as of yesterday.

The health district received notification of three acute cases of hepatitis C in January 2008 and subsequently identified a total of six cases to date. Five of the cases had procedures requiring injected anesthesia on the same day.

Following a joint investigation with the Nevada State Bureau of Licensure and Certification (BLC) and with consultation from the Centers for Disease Control and Prevention, the health district determined that unsafe injection practices related to the administration of anesthesia medication might have exposed patients to the blood of other patients.

There seems to be fairly universal acknowledgment that the malpractice that may have exposed as many as 40,000 to serious disease stems from the reuse of a syringe (not a needle) that was used to administer medication to a patient was reused on the same patient to draw up additional medication. The process of redrawing medication using the same syringe could have contaminated the vial from which the medicine was drawn with the blood of the patient. The vial, which was not labeled for use on multiple patients, was then used for a second patient (with a clean needle and syringe). If that vial was contaminated with the blood of the first patient, any subsequent patients given medication from that vial could have been exposed to blood borne pathogens.

The Southern Nevada Health District has an extensive question and answer on this subject on its site at Southern Nevada Health District and I will reprint that in another blog today.

IF YOU TEST POSITIVE FOR HEPATITIS C, B OR HIV, AND YOU WERE EXPOSED BY VIRTUE OF TREATMENT AT THE ENDOSCOPY CENTER OF SOUTHERN NEVADA, CHECK OUT OUR CREDENTIALS AND CONTACT US THROUGH INJURYBOARD.

The following important public health information is reprinted from the Southern Nevada Heatlh District: www.southernnevadahealthdistrict.com

The Southern Nevada Health District is advising patients who received injected anesthesia medication at the Endoscopy Center of Nevada (700 Shadow Lane) of a risk for possible exposure to hepatitis C and other bloodborne pathogens. The health district is recommending patients who had procedures requiring injected anesthesia at the clinic between March 2004 and January 11, 2008, contact their primary care physicians or health care providers to get tested for hepatitis C as well as hepatitis B and HIV.

Why is the health district making these recommendations?

The health district received notification of three acute cases of hepatitis C in January 2008 and has identified a total of six cases to date. Five of the cases had procedures requiring injected anesthesia on the same day.

Following a joint investigation with the Nevada State Bureau of Licensure and Certification (BLC) and with consultation from the Centers for Disease Control and Prevention, the health district determined that unsafe injection practices related to the administration of anesthesia medication might have exposed patients to the blood of other patients.

The exposures did not result from the medical procedures performed.

How were the cases discovered?

The cluster of illnesses came to the attention of the health district in January 2008.

These cases were reported to the health district by area physicians.

Nevada law requires that medical providers notify public health officials when they identify a number of different diseases, including hepatitis C.

The common link between cases was identified through the routine investigation of the cases reported by medical providers, which includes an interview of the patient.

Why did it take several months for this to come to the attention of the health district?

Most people infected with hepatitis C virus do not develop symptoms and do not know that they have been infected. As a result, these infections would not have been reported to the health district.

An infection with hepatitis C that results in the patient developing symptoms (acute disease) is rare so it is an unusual occurrence that brought this problem to the attention of the health district.

On average, two cases of acute hepatitis C are reported each year in Clark County. Six cases have been identified in relation to this investigation.

How were patients exposed?

A syringe (not a needle) that was used to administer medication to a patient was reused on the same patient to draw up additional medication.

The process of redrawing medication using the same syringe could have contaminated the vial from which the medicine was drawn with the blood of the patient.

The vial, which was not labeled for use on multiple patients, was then used for a second patient (with a clean needle and syringe).

If that vial was contaminated with the blood of the first patient, any subsequent patients given medication from that vial could have been exposed to bloodborne pathogens.

How did you determine the link between these cases?

Of the six known cases, five had procedures on the same day. Genetic testing on four of the cases from that day has identified they likely came from a common source.

The patient that had a procedure on a different day does not share a common source as the other four. This indicates the problem that allowed disease transmission to occur was not a one-time event, but had recurred over an extended period of time.

Investigation of the clinic practices identified common practices, which would allow disease to be transmitted in this manner.

What actions have been taken to correct the unsafe injection control practices?

The unsafe injection practices associated with these cases were identified during the investigation conducted in mid-January. The injection practices that lead to the exposure have been corrected, so no new patient exposures should be occurring.

As it can take several months for the symptoms of hepatitis C to appear, additional cases might be identified despite no ongoing transmission of disease.

Who performed the investigation?

The response was led by the Southern Nevada Health District, and the team included members of the Nevada State Bureau of Licensure and Certification and the Centers for Disease Control and Prevention.

Why is the health district also recommending testing for hepatitis B and HIV?

The investigation revealed practices that could have exposed patients to the blood of another patient. Although hepatitis C was the focus of the investigation, hepatitis B and HIV can be transmitted in the same manner.

How many people will be diagnosed with hepatitis C, B or HIV from this investigation?

It is unknown how many people were infected at the clinic. Hepatitis C, B and HIV are routinely found in the population. A significant number of people might have been infected prior to their procedure. Although testing can determine if a person is infected, it cannot determine the source of the infection.

How serious are these illnesses?

Hepatitis C, B or HIV can result in a range of disease severity, and can eventually result in death.

It is important that patients speak with a physician or health care provider if you have one of these diseases. A physician will be able to address specific risks for serious illness and develop a plan to monitor your health.

How many cases of hepatitis C are reported to the health district each year?

On average, two cases of acute hepatitis C are identified each year in Clark County.

Most people who become infected with hepatitis C initially have mild or no symptoms and do not know that they have been infected unless they are tested by a doctor. Only a small percentage of people infected with hepatitis C develop acute disease and have any outward signs of infection.

What is the Southern Nevada Health District's role in the response?

The Southern Nevada Health District is responsible for investigating reports of illness in our community in order to take steps to protect the health and well-being of the public.

Once notified of a reportable disease the health district begins an investigation and works with the appropriate agencies to address any issues identified and make recommendations to help prevent this type of situation from occurring again.

As a patient how can I protect myself when getting these types of medical procedures?

It is important to remember the transmission of the disease in these cases were not related to the medical procedures, but rather to the anesthesia administered to the patient.

When proper injection practices are followed, medical procedures, including colonoscopies or similar procedures, are generally safe.

All health care professionals and medical facilities should follow safe injection practices and infection control procedures. Patients can and should ask their medical providers about the practices used in their facility.
Are these types of medical procedures safe?

Preventive medical procedures are an important part of protecting yourself against the development of diseases, including cancer. If recommended by your physician, there is no reason why you should avoid undergoing these types of medical procedures.

Although this investigation focused on a center that performed endoscopies, the source of the exposure was the way the anesthesia was administered.

What is being done to prevent this from happening again?

The Southern Nevada Health District, the Nevada State Health Division and the Bureau of Licensure and Certification are providing technical bulletins and educational materials to medical facilities and providers in an effort to educate the health care community and prevent these types of incidents from happening in the future.

What are the recommendations for people who test positive for hepatitis C, B or HIV?

Options for disease management and possible treatment options, as well as regular health monitoring, should be discussed with a physician, who can determine the appropriate next steps for the patient.

Nevadans, you were duped by the medical malpractice insurance industry when you voted for the KODIN Ballot Initiative a few years back.

Now those injured through the sheer negligence and stupidity of a group of Nevada doctors may find that they've limited their ability to collect compensation.

Consider, for instance, that damages for pain and suffering are now capped in Nevada at $350,000.00. Evidence of insurance payments can come into evidence. The statute of limitations is now reduced to a year in many situations. The list of penalties for victims goes on and on.

If you got Hepatitis or HIV as the result of medical negligence do you think that $350,000 (before attorneys fees and costs) was enough to compensate you?

Call your state representatives and let them know that KODIN is a mistake.

I discussed Dipak Desai, MD, several blogs ago in some detail.

The following useful article was referred to me by Susan E. Gallagher, an Associate Professor at the University of Massachusetts:

Nevada Law Journal Article on Dipak Desai Medical Malpractice:
http://nevadalawjournal.org/pdf/borgerVsLovett.pdf

Back tomorrow with the promised article on why this case of what appears to be plain and substantial medical malpractice reflects what a disaster medical malpractice reform is for Nevadans.

As many as 40,000 infected with Hep C in what looks like a potential mass negligence case against an endoscopy center and possibly a products manufacturer.

Stay tuned to this blog and I will bring you extensive independently researched details on this developing case.

You know, you might think that you could go the Center for Disease Control website and get some update on what certainly appears to be a full-blown health care crisis in Las Vegas (40,000! Exposed? That's a big number! And that's a preliminary number...).

But the CDC website, at least from my look around just now, is more about some form of static and slow thing. There may be something current somewhere on the site, but whatever it is doesn't jump out to the viewer. And they don't seem preoccupied with our potential Hep C epidemic right now, at least not site-wise.

And there's no analogous state site in Nevada to report on this sort of (seemingly) urgent issue. At least none easily found.

I'm sure some government entity somewhere may have some sort of information about this

In the meantime let's look to one of our great democratic institutions, the private press:

USA TODAY reports that:

The Las Vegas Sun has a statement from the company: On behalf of the Endoscopy Center of Southern Nevada, we want to express our deep concern about this incident to the many patients who have put their trust in us over the years. As always, our patients remain our primary responsibility and we have already corrected the situation.

http://blogs.usatoday.com/ondeadline/2008/02/health-departme.html

It's especially comforting that they've "already" corrected the situation. After only 40,000 potential errors! That's attention. That is diligence...

I'll blog tomorrow morning on how Nevada's recent ill-advised adoption of medical malpractice tort reform could prevent thousands from compensation for what appears to be not only negligence but abject stupidity.

The facts are still coming in; we'll reserve judgment as good Americans do.

But make no mistake: Nevada's adoption of the so-called KODIN (Keep Our Doctor's in Nevada) ballot initiative was a catastrophic mistake whose effects are just now being seen. Nevadans were convinced that they were taking a shot at the trial lawyers when all they were really doing was negating their own right to compensation in serious medical malpractice injury cases.

Come back tomorrow and let's talk about the value of tort reform when it comes to cases like Endoscopy Center of Southern Nevada.

I reprint here a summary from the recent important decision in Riegel v. Medtronic. This comes directly from the People Over Profits Grassroots Action Center:

Riegel v. Medtronic

In this case, Charles Riegel received a balloon catheter made by Medtronic which subsequently ruptured due to overinflation. Riegel developed a heart block and underwent emergency surgery. The Riegels later brought claims against Medtronic in the United States District Court for the Northern District of New York. The court found that the Riegels claims were preempted under the Medical Device Act, and the Second Circuit Court affirmed the decision. In this opinion, the Supreme Court affirms.

Summary

- The Supreme Court holds that state law claims regarding medical devices are preempted under the Medical Device Amendments (MDA) where the device manufacturer complied with federal requirements.
- The Court notes that review of the MDA turns on the definition of "requirements" in the statute. The decision states: "Absent other indication, reference to a State's 'requirements' includes its common-law duties." Thus, the holding expands beyond conflicting State regulations and statutes, which Congress was addressing in the MDA.

Limits of the Decision

It appears that the Court tried to limit the decision in several ways.

- The opinion applies to medical devices only (not approved drugs) based on the preemption language included in the Medical Device Amendments.
- The Court draws a distinction between state law claims made regarding devices approved under substantial equivalent review requirements and section 510(k) pre-market approval requirements.
- The Court discusses the extensive FDA review process for Class III medical devices only, rendering the application of the opinion to Class I and II devices uncertain.
- The Court expressly states that the decision does not apply to cases where the manufacturer did not comply with federal requirements.
- In her dissent, Justice Ginsburg's first footnote states that the "Court's holding does not reach an important issue outside the bounds of this case: the preemptive effect of section 360k(a) where evidence of a medical device's defect comes to light only after the device receives premarket approval."

Attacks on the Civil Justice System

This decision makes several derogatory claims about the civil justice system:

- Justice Scalia claims that the "Dalkon Shield failure and its aftermath demonstrated the inability of the common law tort system to manage the risks associated with dangerous devices."
- The opinion claims that lay juries do not appreciate the benefits of medical devices. "A jury, on the other hand, sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court."

As many Nevadans know, Nevada is earthquake country.

This just in this morning:

A 6.3 magnitude earthquake hit northeastern Nevada this morning with reports of property damage but no injuries so far. The quake had its center approximately 10 miles from the Utah border.

Good news so far regarding injuries; though the area that the quake affected is largely unpopulated.

As an aside: Elko County is beautiful country (how could any place that boasts the "Ruby Mountains" be otherwise?).

Washoe District Court Judge Robert Perry has reduced the recent landmark jury award against pharmaceutical giant Wyeth arising from Wyeth's development and marketing of Prempro.

Judge Perry cut the award from $134 million to $58 million. $23 million is allocated toward compensatory damages and $35 million is punitive damages. Wyeth wanted the Judge to reduce the total award to $4 million.

Wyeth is up against 5300 similar lawsuits throughout the United States.

It will be interesting to see what the Nevada Supreme Court has to say about this case since it is almost certainly bound for full appeal.

A new study that appears in the Journal of the American Medical Association concludes that the graveyard shift in hospitals is the most dangerous time for a patient to require a "code blue" for a stopped heart. Researchers found that among the late night cases studied, there were a higher portion of instances where patients were discovered with no heart electrical activity; that is, too late to deliver a lifesaving shock.

According to the Associated Press, "Everyone who works in a hospital is going to look at this and say, 'Are we doing everything we should be?'" said Dr. Charles Porter, a cardiologist at the University of Kansas Hospital in Kansas City, Kansas.

This sounds a bit disingenuous in my experience since nearly every doctor or nurse I've ever talked to is perfectly aware that care declines at night. Among other things, this is common sense.

In fact, and as some readers know, I've previously blogged on the subject of the danger of hospitals at night and on weekends. Doctors know this; nurses know this; even lawyers know this.

If you need hospitalization, try to need it on a weekday.

On December 27, 2007 the Nevada Supreme Court clarified in Awada v. Shuffle Master, Inc., 123 Nev. Adv. Op. No. 57, the manner in which a Nevada District Court may handle mixed claims for legal and equitable relief at trial and found as follows:

In this appeal, we consider the primary issue of whether a district court has the authority to bifurcate the legal and equitable claims presented in a single action, conduct a bench trial on an equitable claim, and then use the findings of fact and conclusions of law from that bench trial to dispose of the case. On this issue of first impression, we conclude that Nevada district courts have discretion to bifurcate legal and equitable claims in a single action and to first conduct a bench trial on an equitable claim. Furthermore, a district court that exercises such discretion may then use its findings of fact and conclusions of law as a basis for disposing of claims remaining in the case, so long as it does so in a manner consistent with Nevada law and our rules of civil procedure.

We also consider whether the district court abused its discretion by sua sponte disposing of the remaining claims in a summary judgment-like manner after conducting a bench trial on respondents' counterclaim for rescission. In this case, the district court did not abuse its discretion when it first considered respondents' counterclaim for rescission and rescinded the parties' agreement. Based on its findings and conclusions, the district court properly disposed of all of appellants' contract-based claims against respondent Shuffle Master, Inc., because those claims could not stand absent a valid contract. However, the district court improperly granted summary judgment as to the claims against respondent Mark Yoseloff and appellants' remaining claims against Shuffle Master because those claims can survive absent a valid contract between the parties. Additionally, the district court erred in resolving those claims without satisfying the procedural requirements of NRCP 56.

Accordingly, we affirm the district court's judgment as to appellants' claims for breach of contract and contract-based claims for breach of the implied covenant of good faith and fair dealing; we reverse the district court's judgment as to appellants' claims for fraud, civil conspiracy, conversion, unjust enrichment, and tortious interference with contractual relations/prospective economic advantage and as to appellants' claims against Yoseloff; and we remand this case to the district court for further proceedings consistent with this opinion.

In the ongoing squabble over Allstate defense attorney Phil Emerson's repeated misconduct in arguing cases at trial, the Nevada Supreme Court rendered its latest decision on January 17, 2008.

In its introduction to Lioce v. Cohen, 124 Nev. Adv. Op. No. 1, the Court stated:

On December 28, 2006, this court issued an opinion in these consolidated appeals.[2] The defendants in each of the four underlying personal injury cases were represented by the same attorney, who gave substantially the same closing argument on behalf of his clients at each trial. Asserting that defense counsel's closing arguments constituted misconduct, the plaintiffs sought new trials, with varying success.

In that opinion, we revised the standards under which district courts are to evaluate requests for new trials based on attorney misconduct. Next, we reversed the denial of the motions for new trials in Lioce v. Cohen and Lang v. Knippenberg, and affirmed the grant of new trials in Castro v. Cabrera and Seasholtz v. Wheeler. Additionally, we determined that the defendants' attorney's closing arguments in Castro and Seasholtz amounted to misconduct, and we remanded those cases with instructions to the district courts to calculate and impose monetary sanctions on defense counsel and his clients.[3] Finally, we referred defense counsel to the State Bar of Nevada for disciplinary proceedings. This petition for rehearing followed. Having considered the petition, answers, amici curiae briefs, and the replies, we conclude that en banc rehearing is warranted in part under NRAP 40(c). We therefore grant the petition in part, vacate our prior opinion in this matter, and issue this opinion in its place. On rehearing, we reach substantially the same conclusion as in our prior opinion, but we decline to impose monetary sanctions on defense counsel and his clients.

Because defense counsel's closing arguments encouraged the jurors to look beyond the law and the relevant facts in deciding the cases before them, we agree that they amounted to misconduct. In determining whether the district courts properly decided that this misconduct warranted new trials or not, we take the opportunity to revise our attorney misconduct jurisprudence. New trial requests based on attorney misconduct must be evaluated differently depending upon whether counsel objected to the misconduct during trial. When a party successfully objects to the misconduct, the district court may grant a subsequent motion for a new trial if the moving party demonstrates that the misconduct's harmful effect could not be removed through any sustained objection and admonishment. With respect to unobjected-to misconduct, we conclude that the district court may grant a motion for a new trial only if the misconduct amounted to plain error, so that absent the misconduct, the verdict would have been different. When ruling on a motion for a new trial based on attorney misconduct, district courts must make express factual findings, applying the above standards.

In these consolidated appeals, we conclude that in Castro and Seasholtz, the district courts did not abuse their discretion by granting the plaintiffs' motions for a new trial, and therefore, we affirm the district courts' orders in those matters. In Lang and Lioce, however, we are unable to ascertain from the record whether the district courts abused their discretion in denying the plaintiffs' motions for a new trial. Accordingly, we vacate those orders and remand those two matters for a new decision on the new trial motions, based on the standards announced today. In addition, we refer defense counsel to the State Bar of Nevada.

This is the last part of my three-part series on the issue of whether Nevada has jurisdiction over a doctor who practices medicine over the Internet from a different state.

1. Many States Have Recognized The Propriety Of Exercising Jurisdiction Over Nonresident Doctors

Courts have found jurisdiction over nonresident doctors where they purposefully directed their actions at plaintiffs' states. For example, where doctors or hospitals have sought business from a state, courts have held jurisdiction over them to be proper in that state. See, e.g., Cubbage v. Merchant, 744 F.2d 665 (9th Cir.1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985); Pijanowski v. Cleveland Clinic Found., 635 F.Supp. 1435 (E.D.Mich.1986); Lemke v. St. Margaret Hosp., 552 F.Supp. 833 (N.D.Ill.1982). Whether a party solicited the business interface in the first place is irrelevant, so long as defendant then directed its activities to the forum resident. Lanier v. American Bd. of Endodontics, 843 F.2d 901, 910 (6th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988).

In Texas, specific jurisdiction is established if the defendant's alleged liability arises from or is related to its contacts within the forum. To establish specific personal jurisdiction over a nonresident physician who treats an unsolicited Texas patient outside of Texas, the patient must show that the nonresident physician, by his actions, knowingly interjected himself into the patient's treatment in Texas. See Clark v. Noyes, 871 S.W.2d 508, 514-16 (Tex.App.-Dallas 1994); see also Kennedy v. Freeman, 919 F.2d 126, 129 (10 th Cir.1990); Wright v. Yackley, 459 F.2d 287, 288-89 (9 th Cir.1972).

The rationale for this rule involves a balancing of the State's interest in the maintenance of the quality of medical care rendered to Texans with the need for Texas residents to have access to the best available medical care regardless of state lines. See Clark, 871 S.W.2d at 516.

In Bullion v. Gillespie, 895 F.2d 213 (5 th Cir.1990), a Texas patient visited a urologist in California, who enrolled the patient in an experimental drug treatment program. The patient then returned to Texas. The California doctor mailed the experimental drugs to the patient in Texas. The drugs injured the patient. See Id. at 215. The Fifth Circuit held that an allegation that the doctor was shipping the drugs to the patient was sufficient to create a prima facie case establishing personal jurisdiction in Texas over the California doctor. See Id. at 217.

In McGee v. Riekhof, 442 F.Supp. 1276 (D.Mont.1978), McGee, the plaintiff, traveled from Montana to Minnesota to obtain treatment from the defendant doctor for a detached retina. The plaintiff then returned to Montana. At the doctor's direction, the plaintiff kept the doctor updated on his condition. After a few weeks, the doctor told the plaintiff he could return to work. The plaintiff did so and suffered a retinal redetachment with a massive retinal tear of the right eye. See Id. at 1277. The plaintiff sued the doctor in Montana.

The Montana federal district court determined it had personal jurisdiction over the Minnesota doctor because the plaintiff was in Montana when the doctor committed the negligent act for which he was sued: advising the patient he could return to work. The court stated: "[b]ased upon the fact the medical service in this case amounts to a new diagnosis, and was rendered to plaintiff while he was in Montana, this court concludes that exercise of personal jurisdiction in this situation is not unreasonable, and comports with the tenets of due process." Id. at 1279. The court stated that "it would be fundamentally unfair to patients to permit doctors to telephonically render services and treatment in Montana, yet shield them from suit in Montana" (emphasis added). Id.

In Kennedy v. Freeman, 919 F.2d 126 (10 th Cir.1990), an Oklahoma patient had a lesion removed by her Oklahoma physician, who sent it to the Texas defendant, Freeman, for a special measurement. See Id. at 127. Freeman measured it and sent a report to the Oklahoma physician that the lesion measure 0.2 millimeters. In fact, the lesion measured 1.2 millimeters. Based on Freeman's incorrect measurement of the lesion, the plaintiff's Oklahoma physician determined no treatment or follow-up care was necessary. Four years later, the plaintiff learned that malignant melanoma had spread over her entire body. See Id. The Tenth Circuit noted that Freeman willingly accepted the sample from Oklahoma, signed a report purporting to establish the size of the lesion and sent it to Oklahoma, and he sent his bill to Oklahoma. Freeman knew the extreme significance of his work and that it would be the basis of the plaintiff's further treatment in Oklahoma. See Id. at 129. The Tenth Circuit ruled that "when a doctor purposefully directs her activities at the forum state, that state has a greater interest in deterring medical malpractice against its residents." Id.

An employee does not himself lack the requisite contact with a forum merely because he acts on behalf of a corporation. Nor does he lack the requisite contact because independent actions of the corporation contribute to events in the forum that give rise to the lawsuit. Courts can constitutionally exercise jurisdiction over a nonresident individual, regardless of his status as an employee, if his actions are a contributing cause of lawsuit-related events that occur in the forum, and if he is reasonably aware that his actions may have an impact in the forum.

Doctors are independently licensed professionals; many are their own corporations. In an age when electronic communication is becoming ubiquitous, doctors will inevitably stretch the limits of their licenses and extend their services to those in other states. Doctors who provide services to nonresident patients may reasonably expect to be hailed into court in whatever jurisdiction they might commit malpractice.

V. CONCLUSION

Why should Nevada adhere to a blanket rule that will result in less protection for Nevada residents in our increasingly electronic age?

The application of the fiduciary shield rule often results in deviation from the law governing personal jurisdiction. In obtaining jurisdiction over a corporate agent, courts must pursue reasoned analysis under the minimum contacts standard rather than reaching easy but incorrect results under the fiduciary shield rule. Courts properly have great discretion in asserting jurisdiction and personal jurisdiction is entirely appropriate in this instance.

I've been wrapped up in litigation lately and otherwise trying to take advantage of the epic snow that we've been seeing; and I've therefore been remiss in finishing the last of the series I started. I will do that within a day or two.

In the brief time I've been away there have been major medical discoveries, the Internet went down for one side of the world, Blackberry stopped working for a time, Barack Obama is further ahead and Mike Huckabee is a worrisome nuisance for the presumptive nominee. A lot happens in a short space nowadays. And I didn't even mention the Superbowl.

I have many interesting blogs in store over the coming weeks. Stay tuned and thanks for visiting.