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Shaughnessy v. Southern

United States District Court, D. Connecticut

April 30, 2019

JAMES W. SHAUGHNESSY, Plaintiff,
v.
EDWARD SOUTHERN, et al., Defendants.

          RULING ON MOTION TO DISMISS

          Michael P. Shea, U.S.D.J.

         Plaintiff James W. Shaughnessy brings this suit against Defendants Edward Southern, MD, Parkway Health, the Institute for Western Surgery, and the Central Hospital of Foshan in connection with Dr. Southern's alleged medical malpractice in performing a March 2016 back surgery on Shaughnessy in China.[1] Shaughnessy brings claims against Southern for lack of informed consent and medical malpractice arising from the surgery and post-operative treatment. (ECF No. 1 (hereinafter “Compl.”).) Southern now moves to dismiss the complaint for lack of personal jurisdiction, expiration of the applicable statute of limitations, and operation of the prior pending action doctrine due to a similar action in China. (ECF No. 12.) For the following reasons, Southern's motion to dismiss for lack of personal jurisdiction is GRANTED.

         I. Factual Background

         A. Allegations

         The facts below are drawn from the complaint and, where relevant, documents incorporated therein or of which the Court may take judicial notice.

         Shaughnessy is a citizen of Connecticut with a residential address in Sherman, Connecticut. (Compl. at 1, 3.) Southern is a citizen of Minnesota. (Id. at 3.) Parkway Health is a Chinese corporation with its principal place of business in Shanghai, China. (Id.) The complaint does not allege the citizenship of the other defendants, though it lists a business address for The Institute for Western Surgery in Shanghai, China and for the Central Hospital of Foshan in Foshan City, China. (Id. at 2.)

         Shaughnessy works for Praxair, Inc., a company headquartered in Connecticut. (Compl. at 4.) In April 2014, Praxair transferred Shaughnessy to its Shanghai office. (Id.) Shaughnessy began feeling pain in his back in the winter of 2015, and so went to see Southern. (Id.) Southern at the time worked for Parkway Health, a medical care facility in Shanghai that advertises itself as a Western-style medical facility, charges U.S. prices, accepts U.S. insurance (including insurance from Aetna, which the complaint asserts is a company based in Hartford, Connecticut), and actively markets its services to U.S. expatriates. (Id.)

         Southern ordered an MRI, which showed a herniation at ¶ 4 and L5 as well as severe spinal stenosis. (Id.) Southern told Shaughnessy that the remedial laminotomy surgery was simple and had a 1% complication rate, meaning that in only one percent of cases would a dural tear occur, and that such a tear could easily be repaired during surgery. (Id.) Southern stated that he could tell from the MRI that Shaughnessy's surgery would be a success. (Id.) At no point did Southern mention that the complications of the surgery included numbness, lack of bowel, urinary or sexual function, or difficulty walking. (Id.)

         Southern performed the laminotomy on Shaughnessy at the Central Hospital of Foshan on March 17, 2016. (Id.) The surgery resulted in what Southern described as a one-centimeter dural tear, which was repaired with a porcine patch. (Id.) About 12 hours after the surgery, Shaughnessy began to experience numbness on his right side. (Id.) Although Southern was puzzled, he declined to order an MRI and told Shaughnessy that the only thing to worry about was developing a headache. (Id.)

         As time progressed, Shaughnessy's symptoms became worse. (Id.) In the months after the surgery, Shaughnessy experienced difficulty walking, urinating, and with bowel movements, developed a limp, and could not feel anything on the right side of his body. (Id.) During this time, Southern repeatedly declined to order an MRI, saying that Shaughnessy's symptoms were the result of the dural tear. (Id.) Two months after the surgery, however, Southern ordered an MRI and diagnosed Shaughnessy with arachnoiditis. (Id.) Southern told Shaughnessy that he would never recover fully and recommended that Shaughnessy see Dr. Annand at Cedars-Sinai in Los Angeles, California. (Id.)

         Shaughnessy traveled to Los Angeles and saw Dr. Annand. (Id.) Annand disagreed with Southern's reading of the MRI and believed that Shaughnessy should have been given an MRI immediately upon feeling numbness and a revision surgery within the first couple of weeks. (Id.) Annand and another surgeon performed a revision surgery on Shaughnessy. (Id.) They reported that the injury to Shaughnessy's L4, L5, and sacral area was inconsistent with Southern's report of a simple dural tear, and that any tear had to be larger than one centimeter. (Id.) Although the revision helped with Shaughnessy's walking, he continues to have loss of bowel function, urination with the assistance of a catheter, no sexual function, and no feeling in the right half of his body from his waist to his knee. (Id.)

         Shaughnessy asserts two claims against Southern: one claim for lack of informed consent for failing to tell him that the surgery could result in difficulty walking, loss of bowel, bladder, and sexual function, and numbness; and another claim of malpractice for the “botched surgery, the reckless failure to investigate Mr. Shaughnessy's post-operative recovery symptoms[, ] which were inconsistent with a mere dural tear[, ] and his failure to order an MRI in a timely manner[, ] which would have allowed Mr. Shaughnessy to travel to Cedar-Sinai immediately for a revision.” (Id. at 5.) He seeks $1, 500, 000 for out-of-pocket medical and travel expenses, $10, 000, 000 in damages for pain and suffering, and $20, 000, 000 in punitive damages. (Id.)

         Shaughnessy also asserts claims against the corporate defendants. (Id.) In particular, he alleges that Parkway Health employed Southern, and that all pre- operative, post-operative, and diagnostic procedures took place in its Shanghai office. (Id.) In addition, the complaint alleges that Aetna paid Southern and Parkway Health, which in turn actively markets its services to U.S. citizens covered by health insurance provided by U.S. corporations. (Id.) He also alleges that the Institute for Western Surgery “actively facilitates and enables physicians with U.S. licenses . . . to acquire practicing privileges in China, ” and that it promoted Southern in its advertising. (Id.) Lastly, he alleges that Southern performed the March 17, 2016 surgery at the Central Hospital of Foshan, which “ha[s] responsibility for damages that result from surgeries that took place at their institution.” (Id.) Shaughnessy asserts claims against these three corporate defendants for lack of informed consent, negligence during the March 17, 2016 operation and during pre- and ...


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