This case is a summer camp lawsuit and the decision looks at venue and jurisdiction; however the complaint alleges medical malpractice against a camp!

Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

I really wish I could find out how this case resolved

This case covers a fact pattern that probably occurs weekly during the summer. The camper started suffering some illness. The camper was treated at camp by the camp physician and camp nurse then sent to a local hospital.

The parents sued the camp, camp physician, camp nurse and the treating physicians at the hospital for medical malpractice. The specific claim against the camp and its nurse and physician was a failure to “…timely recognize and properly care for and treat Jordan’s condition.”

In order to enroll the child in the camp, the parents were required to sign a camp contract. The contract covered many different details but was never identified by the court as a release.

The mother sued the camp in New York for the alleged injuries to her son.


The second paragraph of the camp contract gave the camp permission to treat the child for any medical surgical or dental issues.

If it is necessary to obtain off-camp medical/surgical/dental services for the camper, such as expenses shall be paid by the parent except the portion supplied by the camp medical staff. Authority is granted without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper. The parent is responsible for all pre-existing medical conditions, out of camp medical/surgical/hospital/pharmaceutical/allergy expenses and for providing adequate quantities of necessary medications and allergy serums to camp in pharmacy containers with doctor’s instructions. The parent(s) or legal guardian(s) hereby states that the camper is in good, normal health and has no abnormal physical, emotional, or mental handicaps”.

(For other articles looking at the medical issues of camps and outdoor activities see Texas makes it easier to write a release because the law is clear, North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations, ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp, Adult volunteer responsibility ends when the minor is delivered back to his parents.)

The basis of the legal arguments on appeal were the jurisdiction and venue of the lawsuit. (For more articles on venue and jurisdiction see Four releases signed and all of them thrown out because they lacked one simple sentence!, A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit., Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court., The legal relationship created between manufactures and US consumers.). The camp was located in Pennsylvania and the jurisdiction and venue clause required any suit to be in Pennsylvania.

The venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania”

The camp operated out of an office in Pennsylvania in the summer where the camp was located, but it had an office in New York during the winter. When the child was ill, he was taken to a hospital which was located in New York.

The camp, camp nurse and camp physician filed motions to dismiss the complaint based on the jurisdiction and venue clause in the contract. The hospital and other physicians being sued also filed motions to dismiss based on the jurisdiction and venue clause in the contract. The contract stated, “the forum selection clause applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party

To void a jurisdiction and/or venue clause the party opposing it must prove that the clause is:

…unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.

Without proof of such an issue, then jurisdiction and venue clause are valid and enforceable and will not be set aside. The plaintiff did not prove to the court any of the necessary elements to have the clause set aside.

Thus, the contract allowed the court to dismiss the camp, camp nurse and camp physician’s as defendant and force the plaintiff to re-file the lawsuit in the Wayne County Pennsylvania court. “Accordingly, since the forum selection clause addresses jurisdiction and contains mandatory venue language, the clause fixing venue is enforceable…”

Third Parties – non camp employees

The physicians and hospital argued the language in the contact and the relationship between themselves and the camp then extended the jurisdiction and venue of the contact to them. As such they should be sued in the Common Pleas court of Wayne County Pennsylvania. However, the court found the parties to the original contract, the camp and the parents did not foresee the contract extending that far to third parties.

To reach to third parties in such a case the contract must.

…there are three sets of circumstances under which a non-party may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a ‘global transaction’ who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by virtue of the relationship between them.

Because the parties to the original contract did not contemplate in their formation of the contract, that hospital and physicians would be part of the agreement, the court could not extend the agreement to them in the suit.

So Now What?

This is a good discussion and points out the importance of having a forum selection clause in your documents and especially your release.

The scary and still unanswered part of the decision is the claims of medical malpractice can still be raised against the camp in Pennsylvania.

Make sure you contact your insurance agent and verify that you would be covered if a medical-malpractice  claim is brought against you in a case like this. If you have or employee physicians, nurses or other licensed health care providers, you will need to have specific medical-malpractice  coverage to cover them if you are sued. However, coverage for a non-entity such as a camp is rarely written into a policy.

What do you think? Leave a comment.

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