Scott v. Hawit

RODOWSKY, J. Appellants, the plaintiffs in a medical malpractice action, are aggrieved by the transfer of their claim by the ⁶²³ Circuit Court for Baltimore City, on the theory of forum non conveniens, to the Circuit Court for Calvert County. 1 The claim is asserted against two defendants who are independent of each other and who allegedly committed, in separate counties, and at separate times, negligent acts or omissions that substantially contributed to the ultimate harm. For the reasons hereinafter set forth, we shall reverse and remand for further proceedings in the forum originally selected by the plaintiffs. The appellants are Tracy Scott and her minor son, Charlie Scott. Charlie was born June 3, 2001, at Calvert Memorial Hospital in Calvert County, Maryland.

One of the defendantappellees is Raja I. Hawit, M.D. Dr. Hawit is a pediatrician whose office is located in Huntingtown, Calvert County. He attended Charlie as a newborn at Calvert Memorial Hospital and thereafter treated him in that county for years. The other defendant-appellee is The Johns Hopkins Hospital (Hopkins), whose principal place of business is in Baltimore City. Appellants filed their complaint in the Circuit Court for Baltimore City on October 11, 2011.

In addition to the present appellees, it named two additional defendants, Carolyn J. Ogborn, M.D., and Tyler Reimschisel, M.D., both of whom were employed by Hopkins. Dr. Ogborn was served at Hopkins and Dr. Reimschisel, who had changed employment, was served in Tennessee. The complaint alleges that, on the day after the birth, Dr. Hawit diagnosed Charlie with jaundice and ordered testing for bilirubin levels. The measurements placed Charlie in the “medium to high risk for developing kernicterus.” 2 Charlie ⁶²⁴ was discharged home on June 5 with instructions to have bilirubin measured the next day.

Those levels were elevated and placed Charlie “in the high risk category for development of kernicterus.” On June 8, 2001, Charlie was admitted to Calvert Memorial Hospital for double phototherapy and discharged on June 9 for phototherapy at home. On June 9, Dr. Hawit advised discontinuing home phototherapy, with the patient to return to the doctor’s office in three to four weeks. On June 20, 22, and July 10, Mrs. Scott brought Charlie to Dr. Hawit’s office and described the child’s complaints. On July 11, 2001, she obtained a referral to Dr. Reimschisel at Hopkins.

Appellants’ allegations against Hopkins are more fully set forth in their first amended complaint, filed January 3, 2012. On November 4, 2011, appellants had voluntarily dismissed, ■without prejudice, Drs. Ogborn and Reimschisel as defendants, but the amended complaint continued to assert negligence by them, as well as by a physician’s assistant, Michele Daniels, for which Hopkins was said to be liable. Plaintiffs allege that Dr. Hawit had spoken by telephone with Dr. Reimschisel who agreed to evaluate Charlie.

Charlie was first seen by Ms. Daniels and then by Dr. Ogborn. Dr. Ogborn and Dr. Reimschisel separately discussed Charlie’s condition with the parents. Thereafter, Dr. Ogborn advised that Charlie was “a normally developing and healthy child” and that she and Dr. Reimschisel “also jointly agreed that ⁶²⁵ Charlie should be sent home from the Hospital without further evaluation, care or treatment.” Appellants further allege that, by August 21, 2001, Charlie’s condition had worsened and that he was referred to Children’s National Medical Center for evaluation of seizure activity. “As the months passed, Charlie was re-admitted to Children’s National Medical Center and other institutions for developmental problems and seizures seventeen to thirty-four times per day.” The complaint concludes its factual narrative by stating that Charlie is “extremely compromised both cognitively and physically. He receives twenty-four (24) hour per day care from his” parents “and his injuries are permanent due to kernicterus and his inappropriately treated elevated bilirubin levels and clinical signs and symptoms within the months following his birth.” Dr. Hawit, on November 21, 2011, responded to the complaint with a motion to transfer the action to the Circuit Court for Calvert County pursuant to Rule 2-327(c).

That Rule provides: “On motion of any party, the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice.” Hopkins answered the complaint on November 23, 2011. It filed its own motion to transfer the action on December 28, 2011. The two motions to transfer were heard on January 11, 2012. No evidence was taken.

Dr. Hawit’s motion is accompanied by his affidavit. There is no supporting affidavit for Hopkins’s motion. The hearing proceeded in large part on the allegations of the complaint and the representations of counsel. The basic factors are these: • The plaintiffs were and are residents of Calvert County. • Dr. Hawit’s medical office and residence are in Calvert County. ⁶²⁶ • The alleged negligence by Dr. Hawit occurred in Calvert County. • Dr. Hawit does not regularly practice in Baltimore City. • Hopkins’s principal place of business is in Baltimore City. • The alleged negligence by Hopkins’s agents occurred in Baltimore City. • Venue was proper in Baltimore City. 3 In the course of the hearing, the court inquired of counsel for Hopkins whether that defendant was “volunteering all of your agents to make the trip to Calvert County?” Counsel responded affirmatively and without qualification.

At the conclusion of his argument, counsel for Hopkins clarified that his client was “willing to make the two physicians and nurse [Drs. Ogborn and Reimschisel and Ms. Daniels] who saw the patient in his one brief, hour visit to Hopkins on July 12th available for any action that may take place in Calvert County.” The court, in granting the motions to transfer, gave the following reasons for its decision. The interests of the plaintiffs in Baltimore City were “diminished” because (1) the plaintiffs “do not live here” and (2) “the allegations of negligent care weigh more heavily on Dr. Hawit’s care and the length both in duration and number of times that he saw the minor plaintiff[.]” The court said that those factors “weigh strongly” in favor of adjudication in Calvert County, where the plaintiffs live, Dr. Hawit is located, and “where the majority of the care that allegedly led to the injuries occurred.” The court’s further basis for the transfer was that “the one party that is as a party inconvenienced by transferring this case to Calvert County, Johns Hopkins Hospital, is ⁶²⁷ quite willing to accept that transfer, in fact, asks for it by separate motion.” This appeal followed. Additional facts will be stated in our discussion.

Discussion From the standpoint of venue, this action could have been brought in Baltimore City or in Calvert County. “[W]e note that there can be more than one appropriate venue in which an action may be filed. When this is the case, a plaintiff is entitled to select the forum in which to bring his or her action. Leung v. Nunes, 354 Md. 217, 224-25 , 729 A.2d 956, 959-60 (1999); Wilde v. Swanson, 314 Md. 80, 93-94 , 548 A.2d 837, 843-44 (1988).” Nodeen v. Sigurdsson, 408 Md. 167, 178 , 968 A.2d 1075, 1081-82 (2009). Thus, as this case comes to us, venue in Baltimore City is proper. 4 Thus, the issue is whether the circuit court erred in ordering the action transferred to Calvert County on the motions of Dr. Hawit and, later, of Hopkins, asserting forum non conveniens.

The rules governing this issue were summarized by the Court of Appeals in Nodeen, supra, where the Court said: ⁶²⁸ “A party who moves to transfer an action to an alternate forum under Maryland Rule 2-327, has the burden of demonstrating that the transfer to that forum better serves the interests of justice. Odenton Development v. Lamy, 320 Md. 33, 40 , 575 A.2d 1235, 1238 (1990). When a trial court considers the motion, the court must employ a balancing test whereby it weighs the convenience of the parties and witnesses along with the interests of justice. Id.

Although the court generally has wide discretion in deciding whether to grant the motion, it is an abuse of that discretion for the court to disturb a plaintiffs choice of venue when the balance does not weigh strongly in favor of the proponents of the transfer. See Leung, 354 Md. at 224 , 729 A.2d at 959-60 (‘Commentators on Rule 2-327(c) have recognized that “due consideration must ... be given to the plaintiffs selection of forum, and this selection will not be altered solely because it is more convenient for the party moving to be in another forum.” ’) (quoting P.V. Niemeyer & L.M. Schuett, Maryland Rules Commentary, 215-16 (2d ed.)); see also Cobrand v. Adventist, 149 Md.App. 431, 439 , 816 A.2d 117, 121 (2003) (‘To simply call it a balancing test ... is in some regards ... misleading because [our decisions] make it clear that “a motion to transfer should only be granted when the balance weighs strongly in favor of the moving party.” ’) (quoting Odenton, 320 Md. at 40 , 575 A.2d at 1238 ; Urquhart v. Simmons, 339 Md. 1 , 18 n. 7, 660 A.2d 412 , 420 n. 7 (1995); Leung, 354 Md. at 224 , 729 A.2d at 959 ).” Id. at 180-81, 968 A.2d at 1083 . The instant action is atypical of the Rule 2-327(c) cases seen in the last decade by this Court. In these more typical cases, there is a single tort, allegedly committed by a single defendant or organization against whom venue will lie in two or more counties, causing the plaintiff to select a forum that is perceived to be more advantageous, even though that forum might not be the situs of the tort, the residence of the plaintiff, or the principal place of business of the defendant.

See Smith v. Johns Hopkins Cmty. Physicians, Inc., 209 Md.App. 406 , 59 ⁶²⁹ A.3d 1070 (2013) (affirming transfer from Baltimore City to Baltimore County of wrongful death claim by Baltimore County widow, Harford County child and Delaware child against defendant corporation, having its principal office in Baltimore County, and against its agent, a resident of Baltimore County, where tort was committed in Baltimore County); Murray v. TransCare Md., Inc., 203 Md.App. 172 , 37 A.3d 987 (2012) (affirming transfer from Baltimore City to Talbot County of medical malpractice claim against parent and subsidiary corporations, having principal place of business in Baltimore County, where plaintiffs resided in Talbot County, the place of the allegedly tortious medical treatment), cert, granted, 426 Md. 427 , 44 A.3d 421 (2012); Nace v. Miller, 201 Md.App. 54 , 28 A.3d 737 (2011) (affirming transfer from Montgomery County back to Prince George’s County, the original forum, of legal malpractice claim against Montgomery County attorney who, as guardian of the property of the infant plaintiff, a Prince George’s County resident, failed to insure a building in Prince George’s County owned by the ward that was destroyed by fire), cert, denied, 424 Md. 56 , 33 A.3d 982 (2011); Thompson v. State Farm Mut. Auto. Ins.

Co., 196 Md.App. 235 , 9 A.3d 112 (2010) (affirming transfer from Baltimore City to Anne Arundel County of claim on uninsured/underinsured motorist coverage where plaintiff resided in Anne Arundel County, the situs of the accident and of treatment for injuries); Payt on-Henderson v. Evans, 180 Md.App. 267 , 949 A.2d 654 (2008) (affirming transfer from Baltimore City to Baltimore County of claim by a student at Randallstown High School in Baltimore County, who was shot there, alleging negligence against principal, Board of Education, Baltimore County, its police department, and a police officer, and joining the two shooters, both of whom were in prison but one of whom resided in Baltimore City at the time of the shooting); Smith v. State Farm Mut. Auto. Ins. Co., 169 Md.App. 286 , 900 A.2d 301 (2006) (affirming transfer from Baltimore City to Montgomery County of claim on uninsured/underinsured motorist coverage by Montgomery County insured where situs of the accident and treatment was Montgomery County); Slid- ⁶³⁰ ham v. Morris, 161 Md.App. 562 , 870 A.2d 1285 (2005) (affirming transfer from Prince George’s County to Baltimore County of motor tort claim against Pennsylvania residents where plaintiff resided in Baltimore County, the situs of the accident and treatment); Cobrand v. Adventist Healthcare, Inc., 149 Md.App. 431 , 816 A.2d 117 (2003) (affirming transfer from Prince George’s County to Montgomery County of claim on behalf of infant plaintiff, who resided, alternately, with father in Prince George’s County and mother in Montgomery County, asserting medical malpractice in Montgomery County, where defendant corporation had its principal office, and where, of eighteen prospective witnesses from defendant’s staff, eight resided in Montgomery County and only one in Prince George’s County).

Here, unlike the cases reviewed above, the appellants assert liability on the part of two defendants, who are independent of each other, based on their separate, allegedly negligent conduct, taking place at different times but causing a single harm. If Hopkins alone were sued on the facts alleged as to it, Baltimore City would clearly be a convenient forum. If Dr. Hawit alone were sued on the facts alleged as to him, Calvert County would clearly be a convenient forum. We now turn to how the parties and the court below addressed the mix of the two.

We begin our analysis with the explanation, given by the Court of Appeals in Leung v. Nunes, 354 Md. 217 , 729 A.2d 956 (1999), of the burden on the party seeking transfer under Rule 2-327(c). “Proper regard for the plaintiffs choice of forum is the reason why ‘a motion to transfer [from the forum chosen by the plaintiff] should be granted only when the balance weighs strongly in favor of the moving party.’ Urquhart v. Simmons, 339 Md. 1 , 18 n. 7, 660 A.2d 412 , 420 n. 7 (1995) (citing Odenton, 320 Md. at 40 , 575 A.2d at 1238 ). Commentators on Rule 2-327(c) have recognized that ‘due consideration must ... be given to the plaintiffs selection of forum, and this selection will not be altered solely because it is more convenient for the moving party to be in another ⁶³¹ forum.’ P.V. Niemeyer & L.M. Schuett, Maryland Rules Commentary 215-16 (2d ed. 1992) (Niemeyer & Schuett)”. “This respect for the plaintiffs choice of forum is derived largely from federal law developed under Title 28 U.S.C. § 1404 (a).[ ] See Urquhart, 339 Md. at 10 , 660 A.2d at 416 ; Niemeyer & Schuett at 215. See also Doe v. Connors, 796 F.Supp. 214, 221 (W.D.Va.1992) (‘[T]he plaintiff has the primary right to choose his forum and that selection is not to be easily overthrown.’); M. Moore, Federal Practice § 111.13[1][c][i], at 111-67 (Mathew {sic ] Bender 3d ed. 1997) (Moore) (‘As a general rule, the plaintiffs choice of forum is given significant weight____’); Annotation, Questions as to Convenience and Justice of Transfer Under Forum Non Conveniens Provision of Judicial Code (28 U.S.C. § im(a)), 1 A.L.R. Fed. 15 , 49-50 (1969) (‘Unless the balance of convenience is strongly in favor of the defendant, or such balance weighs heavily in favor of the defendant, the plaintiffs choice of forum should not, or should rarely, be disturbed.’). The plaintiffs choice, however, is not an absolute and uncontrolled privilege that is determinative under present forum non conveniens law. 1 A.L.R. Fed. at 51.” 354 Md. at 224-25 , 729 A.2d at 959-60 .

Dr. Hawit argued that the case against Hopkins related to “one emergency room visit soon after the child was born.” When the court pointed out, based on pre-hearing memoranda, that the appellants claimed that Charlie “received extensive treatment at