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Bertolini-Mier v. Upper Valley Neurology Neurosurgery, P.C.

United States District Court, D. Vermont

September 13, 2017

KIM BERTOLINI-MIER and ROGER MIER, Plaintiffs,
v.
UPPER VALLEY NEUROLOGY NEUROSURGERY, P.C., DONALD W. AYRES, M.D., and ALICE PECK DAY MEMORIAL HOSPITAL, Defendants.

          OPINION AND ORDER (Doc. 19)

          Geoffrey W. Crawford, Judge

         In this diversity action, Plaintiffs Kim Bertolini-Mier and her husband Roger Mier sue Upper Valley Neurology Neurosurgery, P.C. ("UVNN"), UVNN physician Dr. Donald W. Ayres, and Alice Peck Day Memorial Hospital ("APD") for medical malpractice and loss of consortium. They allege that, between 2007 and 2011, APD improperly administered and interpreted radiologic studies as indicating that Ms. Bertolini-Mier suffered from multiple sclerosis (MS). (See Doc. 8.) Plaintiffs further allege that Dr. Ayres mistakenly relied on APD's findings, misdiagnosed her with MS, and improperly treated her with an MS drug that caused her harm, including a neurological event in 2014 that required extended hospitalization. (See id.) APD has filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(2), asserting that it is not subject to personal jurisdiction in Vermont. (Doc. 19.)

         In an Opinion and Order dated December 7, 2016, the court concluded that APD had not consented to personal jurisdiction and that APD is not subject to general jurisdiction in Vermont under the restrictive test announced in Daimler AG v. Bauman, 134 S.Ct. 746 (2014). (See Doc. 31.) The court granted Plaintiffs an opportunity to conduct jurisdictional discovery on the question of specific jurisdiction. (Id. at 13.) Plaintiffs have now completed that jurisdictional discovery, and have filed a supplemental opposition to APD's motion. (Doc. 41.) APD has filed a supplemental reply (Doc. 44), and the court agreed to consider Plaintiffs' sur-reply (Doc. 45) and APD's response (Doc. 47).

         Background

         The court reviews the relevant facts set forth in the December 7, 2016 Opinion and Order, with additional facts presented by the parties in their supplemental filings. Ms. Bertolini-Mier first met with Dr. Ayres on August 16, 2007, after being referred to him by her Vermont-based neurologist and primary care physician. (See Doc. 44-4 ¶ 2.) Dr. Ayres treated Ms. Bertolini-Mier between August 16, 2007 and April 22, 2014. (Id.) During that time, Dr. Ayres and other UVNN physicians ordered MRIs of Ms. Bertolini-Mier. (Id. ¶ 3; see also Doc. 44-6.) Some of those studies were performed at APD's facility in Lebanon, New Hampshire. (See Doc. 44-4 ¶ 4.) According to Mr. Mier, his wife was directed to APD for radiology services, not to any individual physician. (Doc. 41-1 ¶ 2.) Ms. Bertolini-Mier believed that APD was providing those services, and was not told by anyone at any time that she was receiving services from anyone who did not work for APD. (Id. ¶¶ 3, 5.)

         APD's principal place of business is in Lebanon, New Hampshire; it is a non-profit corporation incorporated in New Hampshire and registered in Vermont to do business as a foreign corporation. (See Doc. 8 ¶ 7; Doc. 19-1 ¶ 2; Doc. 21-1 ¶ 8, Doc. 21-7.) APD provides medical services to Vermont patients, advertises in Vermont, and consults with the Vermont Department of Health. (Doc. 8 ¶ 7.) APD has a radiology department, which it advertises on its website. (Doc. 41-8 at 2; Doc. 41-11 at 3.) The website states that APD's "experienced team performs imaging and interprets results-often serving as the first step to patients' improved health and recovery." (Doc. 41-8 at 2) According to the website, APD's radiology department is "staffed by skilled technologists and physicians who are invested in our community." (Id.) The website does not indicate that anyone in the radiology department is an independent contractor.

         In fact, APD has an arrangement with Valley Radiologists, P.A., under which APD runs the radiology department and produces images, and doctors employed by Valley Radiologists interpret (or "read") the images. (Doc. 41-4 at 5; Doc. 41-11 at 3; see also Doc. 44-4 ¶ 5 (the MRIs performed at APD were interpreted by radiologists affiliated with an independent entity that provides radiology services to APD); Doc. 44-5 ¶ 2.)[1] According to Valley Radiologists president Mark Hansberry, M.D., Valley Radiologists is a New Hampshire professional association of radiologists that performs interpretations for diagnostic imaging studies for the Mt. Ascutney Hospital in Vermont, plus three hospitals in New Hampshire, including APD. (Doc. 44-2 at 3; Doc. 44-5 ¶¶ 1-2.)

         Valley Radiologists assigns its doctors to particular hospitals, and during the daytime the radiologists are "almost always" physically present at their assigned hospitals. (Doc. 44-2 at 4; see also Doc. 44-5 ¶ 3.) If the radiologist is on call and covering for colleagues, she might read images from one of the other hospitals. Sometimes a radiologist works from home to help with balancing the workload or when working only part of a day. During the nighttime, Valley Radiologists personnel work from home. (See Doc. 44-2 at 4; see also Doc. 44-5 ¶ 3.)

         Improved technology has made it possible for the radiologists to work remotely or from home. (See Doc. 44-2 at 4; Doc. 44-5 ¶ 3.) APD uses a system that allows radiology images (or "films") taken at one location to be read at another location. (See Doc. 41-4 at 3.) When a radiologist reads the images, she creates a report. (Id. at 3-4; see also Doc. 44-4 ¶ 5.) The reports are produced on APD letterhead. (See Doc. 41-12.) According to Valley Radiologists manager John Rousseau, there is no way to tell where a report was signed. (Doc. 41-11 at 6.)

         Mr. Rousseau describes the Valley Radiologists personnel as the "Medical Directors" or "Chief Medical Officers" of APD's radiology department. (Doc. 41-11 at 3; Doc. 44-3 at 4.) The Valley Radiologists personnel are not compensated by APD, nor are they employees of APD. (Doc. 41-4 at 6; Doc. 41-11 at 3; see also Doc. 44-5 ¶ 2.) For radiology patients, APD bills a "technical fee" for its service as the provider of the exam. (Doc. 41-11 at 4.) Valley Radiologists separately bills patients a "physician fee" for providing the reading. (Id.; see also Doc. 44-5 ¶ 2.)

         According to Dr. Hansberry, all but two of Ms. Bertolini-Mier's MRIs performed at APD were interpreted in New Hampshire by Valley Radiologists personnel. (Doc. 44-5 ¶ 3.) Dr. Hansberry states that, "[o]n October 5, 2010, Katherine Gerke, M.D., of Valley Radiologists, used a computer presumably at her home in Vermont when she interpreted Ms. Bertolini-Mier's MRI performed at Alice Peck Day Memorial Hospital the same date." (Id.) In a "Third Declaration" dated September 6, 2016, APD President Susan E. Mooney, M.D. concurs that Dr. Gerke read the October 5, 2010 MRI, and that she "most likely" did so from her residence in Vermont. (Doc. 29-1 ¶ 4.) Dr. Mooney asserts that, since Dr. Gerke passed away in July 2013, APD "is unable to say with absolute certainty where she was physically located at that time." (Id.) According to Dr. Hansberry, APD had no role in selecting who from Valley Radiologists would interpret the October 5, 2010 MRI or where the radiologist would be physically located when doing that interpretation. (Doc. 44-5 ¶ 3.)

         Plaintiffs criticize APD for misstating facts. (See Doc. 41 at 3; Doc. 45 at 1 n.l.) Plaintiffs note that in a prior declaration, Dr. Mooney had asserted that the radiology studies at issue were performed and interpreted "exclusively in New Hampshire." (Doc. 19-1 ¶ 4.) Plaintiffs further contend that Dr. Mooney's September 6, 2016 declaration is also inaccurate insofar as it asserts that the October 5, 2010 MRI was the only study that was interpreted outside of New Hampshire. It appears to be undisputed that, in addition to the image that Dr. Gerke read on October 5, 2010, an MRI of Ms. Bertolini-Mier was performed on September 14, 2011 and was read by Alexei Viazmenski, M.D., using a computer located at Mt. Ascutney Hospital in Vermont. (Doc. 41-5 at 3; Doc. 44-5 ¶ 3.) As with the October 5, 2010 MRI, Dr. Hansberry states that APD had no role in selecting who from Valley Radiologists would interpret the September 14, 2011 MRI or where the radiologist would be physically located when doing that interpretation. (Doc. 44-5 ¶ 3.)

         Finally, Plaintiffs suggest that Dr. Mooney cannot claim uncertainty about where the October 5, 2010 MRI was interpreted. Plaintiffs have presented evidence that the October 5, 2010 film was read on a computer identified as "GERKEDESKTOP." (Doc. 41-3 at 2.) Dr. Hansberry testified that, given the name "GERKEDESKTOP, " the computer was likely a desktop computer that belonged to Dr. Gerke located at her home in Vermont. (Doc. 41-4 at 3; see also Doc. 44-5 ¶ 3 (computer was "presumably" at Dr. Gerke's home in Vermont).)

         Aside from the issue of the location where MRIs were interpreted, Plaintiffs have supplied evidence that APD called Ms. Bertolini-Mier's health insurance carrier, Blue Cross Blue Shield of Vermont (BCBS), on a number of occasions between 2009 and 2014 seeking verification of ...


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