Simmons v. Urquhart

HARRELL, Judge. Angela C. Simmons, and her children, Sharon, David, and Mark Simmons, appellants, sued Joann Urquhart, M.D., Wil ⁸⁹ liam Tullner, M.D., and Maryland Cardiology Associates, P.A. (MCA), appellees, for wrongful death and survivorship malpractice following the death of Anthony Simmons, the husband and father of appellants. A jury in the Circuit Court for Montgomery County found that, although Dr. Urquhart negligently failed to advise Mr. Simmons that his condition required immediate medical attention, the decedent’s contributory negligence barred appellants’ ability to recover against appellees.

This appeal followed. ISSUES We have re-phrased the following issues raised by the Simmonses: I. The trial court abused its discretion when it held that venue was improper in Prince George’s County and, consequently, transferred the case to Montgomery County- A. Venue was proper in Prince George’s County. B. Appellees were precluded from arguing for a transfer based on forum non conveniens because they failed to argue that issue in their pleadings or during the hearing on their Motion to Dismiss or Transfer. C. The trial court failed to balance properly the convenience of the parties and witnesses, as well as other factors, in determining the appropriate forum.

II

The trial court committed reversible error by failing to give the “last clear chance” jury instruction requested by appellants. For reasons set forth below, we shall reverse the trial court’s decision regarding venue. Our reversal based on Issue I permits us to decline deciding Issue II. We shall consider Issue II, nevertheless, for the instructional benefit of the trial court on remand.

FACTS It is undisputed that, at the time the events giving rise to this appeal occurred, MCA maintained three offices. Two ⁹⁰ offices were located in the Montgomery County areas of Bethesda and Silver Spring, while the other was located in the Laurel area of Prince George’s County. The parties disputed whether MCA’s principal office was located in Montgomery County or Prince George’s County. 1 The cardiologists comprising MCA, including Drs. Tullner and Urquhart, enjoyed privileges at various hospitals located in both Montgomery and Prince George’s Counties.

Mr. Simmons, a resident of Prince George’s County, volunteer fireman, and former ambulance driver, visited MCA’s Laurel office on 25 February 1987 complaining of chest pains. On 4 March 1987, at the request of Dr. Tullner, Simmons was admitted to the Washington Adventist Hospital located in Montgomery County. On the following day, Dr. Tullner performed a cardiac catheterization on Mr. Simmons to determine the existence or extent of any arterial blockage. The procedure entails inserting a catheter, or thin tube, into the groin area, and advancing it through the body until it reaches the coronary arterial region.

Dye is then injected into the arteries through the catheter and x-rays are taken of the coronary area. The dye outlines the interior of the arteries so that blockages occurring are detectable on the x-rays. The x-rays of Mr. Simmons’s arterial passages demonstrated no significant blockage. Following his performance of Mr. Simmons’s catheterization, Dr. Tullner left the area to attend a medical convention.

Dr. Tariq Mahmood, the third physician associated with MCA, also attended the convention. The only MCA cardiologist remaining on duty in the vicinity was Dr. Urquhart, who, at the time of Mr. Simmons’s hospitalization, was approximately eight and one-half months pregnant. ⁹¹ Prior to discharging Simmons on 9 March 1987, Dr. Urquhart checked his hospital chart, evaluated his blood pressure, examined his heart and lungs, and gave Simmons routine discharge instructions and medications. Dr. Urquhart told Simmons to call her if he experienced any problems. She did not warn him specifically about post-catheterization symptoms, such as pain and fever, commonly associated with a potentially deadly condition known as pulmonary embolization.

Pulmonary embolization occurs when a blood clot forms in the leg near the catheterization site and then breaks loose and travels to the lung. On 13 March, seven days after the catheterization, Mr. Simmons died at Greater Laurel Beltsville Hospital in Prince George’s County. An autopsy determined the cause of death to be pulmonary embolism. Consequently, appellants commenced a wrongful death and survivorship malpractice action against appellees with the Health Claims Arbitration Office.

After preliminary discovery, the parties waived arbitration. On 5 September 1991, appellants filed a Complaint and Jury Demand in the Circuit Court for Prince George’s County. On 16 September 1991, appellees filed a Motion to Dismiss or, in the alternative, a Motion to Transfer the action to Montgomery County, alleging improper venue. Oral argument on the venue motion was held on 4 February 1992.

Appellees claimed that any “contacts” that would arise in the case occurred in various areas of Montgomery County. Appellee’s counsel argued that the “totality of the circumstances” involved demonstrated the need to transfer the venue. Specifically, appellees’ counsel argued the following “contacts” with Montgomery County: 1) all three physicians associated with MCA were residents of Montgomery County; 2 2) two of MCA’s three offices, including its principal office, were located in Montgomery County; 3) the catheterization took ⁹² place in Montgomery County; 4) telephone conversations between an MCA receptionist and the Simmonses prior to Mr. Simmons’s death involved the MCA Silver Spring office; and, 5) relevant telephone conversations between Mr. Simmons and his treating physician, Dr. Wayman W. Cheetham, involved Dr. Cheetham’s Takoma Park office located in Montgomery County. In turn, appellants argued that they were entitled to proceed in Prince George’s County because appellees carried on regular business there at their main office in Laurel and practiced at Greater Laurel-Beltsville Hospital where Mr. Simmons died.

Appellants emphasized that while many incidents occurred in Montgomery County, the contacts with Prince George’s County were sufficient to afford them the election to file there. The judge recognized that, although appellees’ counsel.attempted to prove his cause on the grounds of venue, his argument actually was based on the doctrine of forum non conveniens. In this regard, the court stated, “So, your response to that particular [venue] statute and his argument that he’s entitled to proceed in Prince George’s County on that basis is essentially a forum non conveniens argument.” To which, appellees’ counsel replied I think you could probably draw that analogy. I think that there has to be some discretion on your part in evaluating the venue in this case and that is why[,] in presenting my oral argument to you[,] I’m trying to present it to you with the totality of circumstances that are involved.

The court transferred the action to Montgomery County, stating: The Court has reviewed 6-201 and 6-202 [Md.Code (1974, 1989 Repl.Vol.), §§ 2-601, 2-602 of the Courts and Judicial Proceedings Article] as well as heard the arguments of counsel and read the memorandums and as well as the exhibits and the- Court feels that the motion for—obviously I’m not going to dismiss the case, but I do believe it should ⁹³ be transferred to Montgomery County and I will sign an order to that effect. At the jury trial conducted in the Circuit Court for Montgomery County, the parties vigorously disputed the number and substance of the communications between Dr. Urquhart, the MCA office in Bethesda, and the decedent following his hospital discharge. Appellants argued that Dr. Urquhart negligently failed to respond to Mr. Simmons’s messages indicating his severe physical condition and negligently failed to diagnose his ailment when she finally did contact him. Appellees defended by arguing that Mr. Simmons’s repeated refusals to seek immediate medical attention amounted to contributory negligence.

The parties’ respective versions of the facts relevant to this appeal follow. Appellants’ Case According to the testimony of both Mrs. Simmons and Ms. Sharon Siegler, the MCA Bethesda office manager, Mr. Simmons repeatedly called the MCA Bethesda office in attempts to reach Dr. Urquhart. 3 Despite testimony from Siegler that Mr. Simmons’s messages were given to Dr. Urquhart as recorded, Dr. Urquhart never returned his calls. Mr. Simmons called his diabetes physician, Wayman W. Cheetham, M.D., because he was concerned about the symptoms he was experiencing following the catheterization and distressed over his inability to reach his cardiologist. Dr. Cheetham told Mr. Simmons that “it was very important for him to try to contact his physician directly.

And given the circumstances that he was describing, if he was unable to do ⁹⁴ so, that he had to make arrangements to be seen by someone.” Dr. Cheetham instructed Mr. Simmons that if he could not contact his cardiologist, the emergency room would be “appropriate.” Mrs. Simmons testified to her recollection of the conversation finally held between her husband and Dr. Urquhart on 12 March 1987. As she picked up an extension phone in the residence and listened, she heard Mr. Simmons inform Dr. Urquhart that he had been trying to reach her without success. He then recited his symptoms, including leg pain and soreness, as well as swelling and increased discomfort in the groin area. Dr. Urquhart, after hearing the symptoms, simply replied, “it is normal to have discomfort after a procedure like you had.

The reason you didn’t feel any pain in the hospital is because we had you so heavily sedated to keep your blood pressure under control.” Mr. Simmons expressed concern over the possibility of a blood clot or blood poisoning, but Dr. Urquhart reassured him, concluding, “No, Mr. Simmons. If you had a blood clot or blood poisoning, we would not have let you leave the hospital.” Mr. Simmons replied, “Well, I just wanted your reassurance.” At that moment in the conversation, Mrs. Simmons interrupted and inquired, ‘Well what about your leg? What about the pain in your leg and your knee?” But before Dr. Urquhart could reply, Mr. Simmons interjected, stating, “That’s all right. I’ll just wait till Monday and see Dr. Tullner.” Following that response, Mrs. Simmons hung up the telephone and heard her husband once again tell Dr. Urquhart that he just wanted her reassurances.

Appellants produced evidence at trial to suggest that Dr. Urquhart, after receiving the urgent message to call the Simmons’ residence on 12 March, waited a number of hours before calling. ⁹⁵ Appellees’ Case Appellees’ version of the facts painted a different picture of the events leading up to Mr. Simmons’s death. Siegler and Dr. Urquhart both testified that they repeatedly urged Mr. Simmons to seek medical attention, but he consistently refused. Although Dr. Urquhart admitted receiving the messages from Ms. Siegler, she denied that Siegler ever informed her of the symptoms indicating existence of a blood clot. Dr. Urquhart testified that she spoke with Mr. Simmons by telephone on the evening of 11 March as well as 12 March.

On 11 March, after Mr. Simmons described his symptoms to her, she pleaded with him to go to the emergency room. Mr. Simmons repeatedly refused, despite her warnings that he had “a life-threatening problem.” Based on his stubborn unwillingness to seek immediate medical attention, Dr. Urquhart told Mr. Simmons that he was required to visit the MCA Bethesda office on the following morning for a checkup. He agreed. On the following morning, 12 March, Dr. Urquhart was informed by a receptionist that Mr. Simmons had called to inform her that he was feeling better and would not be coming to his appointment.

Dr. Urquhart’s recollection of the 12 March conversation directly contradicted the version offered by Mrs. Simmons. According to Dr. Urquhart, the telephone conversation on the evening of 12 March was “very similar” to the one held on the previous night. After Mr. Simmons informed her that his femoral artery “hurt when he pressed” it, Dr. Urquhart instructed him to go to the emergency room at Washington Adventist. Mr. Simmons, however, downplayed the significance of his pain and refused to go to the emergency room.

Initially, Mr. Simmons only agreed to attend his routine check up with Dr. Tullner scheduled for Monday, 16 March. Dr. Urquhart convinced him to visit Dr. Tullner at MCA’s Laurel office on the following morning, 13 March, if he absolutely refused to go to the emergency room. Mr. Simmons agreed to that arrangement. ⁹⁶ Testimony concerning Mr. Simmons’s repeated refusals to seek medical attention also was supported by Mrs. Simmons, who admitted that, prior to and following his conversation with Dr. Urquhart, she repeatedly begged him to go to the emergency room. He refused. ****** Mr. Simmons never made it to the MCA Laurel office on 13 March 1987.

Following his conversation with Dr. Urquhart on the evening of 12 March, Mr. Simmons went to bed. Mrs. Simmons testified that she was awakened in the middle of the night by her husband’s screams. She found him lying in the hallway. Mrs. Simmons called 911, and Mr. Simmons was taken by ambulance to Laurel-Beltsville Hospital.

He was pronounced dead at 3:25 a.m. on 13 March 1987, approximately seven hours after speaking with Dr. Urquhart. Following presentation of the evidence, the parties submitted their requested instructions to the jury. Appellants submitted an instruction, inter alia, regarding the doctrine of last clear chance. Apparently based on a discussion held in the trial judge’s chambers, the court refused to give the requested instruction.

Following the court’s actual instructions to the jury, appellants’ counsel noted his objection to the court’s refusal to instruct on the doctrine of last clear chance, citing a recent Court of Special Appeals decision in Myers v. Alessi. The court, relying on a statement in Myers, denied appellants’ request, concluding: “In addition, the fresh negligent act must come [at] a time when the defendant can but the plaintiff cannot avoid the accident.” [Myers v. Alessi, 80 Md.App. 124, 135 , 560 A.2d 59 (1989).] I find from the facts in this case that ... there is a good deal of evidence that shows that the deceased, had he gone to the hospital, ... that he still could have avoided.this and he still would have lived, but he didn’t. He did not go to the hospital despite the fact that his wife told him to do it---Dr. Cheetham told him to go to the hospital---- That is independent evidence that is essentially unrebutted. So, ⁹⁷ clearly, in my view, the deceased had an opportunity after, let’s say 8:00 o’clock or even 9:00 o’clock ... to do something himself.

It wasn’t precipitous, except that several hours later he did die. But, he didn’t do anything. He just simply didn’t do it. So, in my view, last clear chance simply would not apply.

On 27 May 1993, the jury returned a verdict. They found appellees negligent, but also found Mr. Simmons contributorily negligent. Accordingly, judgment was entered in favor of appellees. On 24 June 1993, appellants noted a timely appeal.

I. Appellants argue that the Circuit Court for Prince George’s County abused its discretion by ruling that venue was improper and transferring the case to Montgomery County. Appellants further maintain that appellees’ mistaken reliance on the venue statute during the hearing on the motion to dismiss or transfer precludes them from now arguing that the Circuit Court for Prince George’s County made the proper decision to transfer, nevertheless, based on the doctrine of forum non conveniens. We agree that venue was proper in Prince George’s County. The record sufficiently demonstrates, however, that the hearing court made its finding based on the doctrine oí forum non conveniens.

While we conclude the independent determination by the hearing court in this regard did not constitute an abuse of discretion, we hold that the court ultimately erred in concluding that transfer was appropriate. A. The relevant venue statute provides, in pertinent part, that: (a) A civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation. ⁹⁸ (b) If there is more than one defendant, and there is no single venue applicable to all defendants, under subsection (a), all may be sued in a county in which any one of them could be sued, or in the county where the cause of action arose. Md.Code (1974, 1989 Repl.Vol.), § 6-201 of the Courts and Judicial Proceedings Article. One who engages regularly in business in one county may be sued there even though his principal place of business is in another county.

Dodge Park Enters. v. Welsh, 237 Md. 570, 573 , 207 A.2d 503 (1965). Appellees maintain that section (b) of § 6-201 prohibited appellants from suing them in Prince George’s County. More than one venue was applicable to all appellees, however, and therefore section (b) did not apply. It was undisputed that Drs.

Urquhart and Tullner, and MCA, “carried on regular business” in Prince George’s County through the Laurel office of the MCA practice. It was also undisputed that all three carried on regular business in Montgomery County through their Bethesda and Rockville offices. Both Prince George’s County and Montgomery County constituted appropriate venues under the statute. If multiple venues are proper under section 6-201, then the plaintiff possesses the right to choose the one in which to proceed.

See Wilde v. Swanson, 314 Md. 80, 94 , 548 A.2d 837 (1988). Consequently, appellants properly exercised their option under § 6-201(a) to sue in Prince George’s County where all appellees carried on regular business. B. Appellants argue that our analysis should cease at this juncture because appellees based their motion solely on the grounds of venue and failed to raise specifically the issue of forum non conveniens. Although they share some characteristics, the concepts of venue and forum non conveniens indeed are procedurally distinct. ⁹⁹ Generally, the right to change the venue of an action is purely statutory.

See 92 C.J.S. Vendor & Purchaser § 127 (1955). Therefore, once a plaintiff has chosen a proper forum as defined by the relevant venue statutes, the court maintains no discretion to alter the plaintiffs decision based on a lack of venue. See id.; see also Wilde, 314 Md. at 93-94 , 548 A.2d 837 . In comparison, forum non conveniens refers to the discretionary power of a court to transfer an action whenever it appears that the cause may be tried more appropriately in another valid venue.

See Md.Rule 2-327(c). Forum non conveniens is based on the assumption that both the original court and some other court fulfill all the applicable venue requirements. 5 The Guide to American Law, at 286 (West 1984). In effect, forum non conveniens provides the defendant with the opportunity to prove that although a plaintiffs choice of forum may be valid under a given venue statute, private and public interest factors weigh heavily in favor of transferring the action to another appropriate forum. See id.

Accordingly, forum non conveniens allows the court, when certain conditions exist, to override the plaintiffs choice of forum. In Maryland, the doctrine of forum non conveniens is embodied in Rule 2-327(c), which states that “On the 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 interest of justice.” Md.Rule 2-327(c). The record indicates that appellees raised their motion to transfer based on the venue statute rather than Rule 2-327(c). In a memorandum, accompanying their Motion to Dismiss or Transfer, appellees expressly stated that “plaintiffs’ reliance on a forum non conveniens case is misplaced; Odenton [Odenton Development v. Lamy, 320 Md. 33 , 575 A.2d 1235 (1989) ] is a case that relies on Annotated Code of Md.Rule 2-327(c) and not Cts. and Jud.Proc.

Art. § 6-201 (a) as cited by defendants.” Moreover, during the hearing, appellants’ counsel ¹⁰⁰ used words and phrases such as “contacts” and “totality of the circumstances”, and repeatedly cited the venue statute as the basis for appellees’ motion. Indeed, when the court inquired as to whether appellees’ were suggesting a transfer based on forum non conveniens, appellees’ counsel replied, “I think you could probably draw that analogy. I think there has to be some discretion on your part in evaluating the venue in this case____” It is clear that appellees did not raise sufficiently the issue of forum non conveniens as a grounds for transfer. Our analysis does not end here as appellants request because the record demonstrates that the court, on its own initiative, invoked the doctrine of forum non conveniens as a basis for transfer. 4 We have not considered previously the question this conduct poses.

Does a trial court have the authority, under Rule 2-327(c), to transfer an action on its own initiative? Appellants argue that, under Rule 2-327(c), trial courts do not possess the authority to transfer cases on their own initiative because the rule states that a trial court may transfer the action “on the motion of any party.” Md.Rule 2-327(c). The language of the rule neither prohibits conclusively the court from transferring an action on its own initiative, nor provides the court the affirmative license to do so. Accordingly, we must look to sources beyond the rule to interpret its meaning.

The Court of Appeals’ Standing Committee on Rules of Practice and Procedure (the Committee) briefly considered the issue before us. Attorneys involved in asbestos litigation requested that the Committee amend Rule 2-327(c) “to clarify the power of the court to do on its own initiative what the rules provide may be done on motion.” Minutes of the Rules Committee, meeting of 18-19 May 1990, at 9. The Committee ¹⁰¹ tabled the issue for more in-depth consideration at a later date. See Minutes of the Rules Committee, meeting of 15-16 June 1990, at 44.

Unfortunately, final resolution of the confusion surrounding the trial court’s inherent authority to transfer, inter alia, apparently never occurred. 5 Minutes from the 15-16 June meeting reflect the Committee’s general desire to eliminate the confusion surrounding the trial court’s authority to act on its own initiative. See Minutes of the Rules Committee, meeting of 15-16 June 1990, at 42-43. In addition, various comments by Committee members suggest support for granting trial courts such authority. For example, Mr. Sykes emphasized that the essence of the issue lay in the “substance of the rules” rather than the differences in “language formulas.” Id. at 43.

Chief Judge Wilner of this Court, and Chairman of the Committee, proposed a “general rule which provides that unless prohibited by rule, the court can do on its own initiative what it can do on motion.” Id. When Mr. Lombardi stated that “it could also be worded vice versa,” Chief Judge Wilner replied that “chances are that there would be more situations where the court can act on its own.” Id. Finally, Judge Kaplan of the Circuit Court for Baltimore City suggested an option similar to some federal caselaw that would provide for the court to act on its own initiative only “after a hearing, allowing for due process.” Id. Chief Judge Wilner also cited Goins v. State, 293 Md. 97 , 442 A.2d 550 (1982), as precedential support for the position that courts may already possess the inherent authority to transfer on their own initiative.

In Goins , the Court of Appeals held that a trial court has inherent authority to control its docket except as expressly limited by statute. Goins, 293 Md. at 111 , 442 A.2d 550 . Goins , a criminal defendant, appealed the trial court’s decision to postpone his trial date beyond the statutorily imposed limitation period where no party had moved to do so. Id. at 100 , 442 A.2d 550 . ¹⁰² The rule at issue in Goins , the former Rule 736, contained the same “on the motion of a party” language as Rule 2-327(c).

Recognizing the importance of a trial court’s authority to control its own docket, the Goins Court concluded that “[a] rule authorizing a litigant to file a procedural motion for this purpose in one respect or another should not be construed to prohibit the court from accomplishing the same object sua sponte unless such construction is compelled by clear language.” Id. at 111 , 442 A.2d 550 ; see also Toney v. State, 74 Md.App. 397, 410 , 537 A.2d 1218 (1988), rev’d on other grounds, 315 Md. 122 , 553 A.2d 696 (1989) (citing Goins in its recognition that court may move by its own initiative under Rule 736). 6 The Court’s conclusion was supported by a Supreme Court decision to the same .effect. See Goins, 293 Md. at 111 , 442 A.2d 550 , quoting, Link v. Wabash Railroad Company, 370 U.S. 626 , 82 S.Ct. 1386 , 8 L.Ed.2d 734 (1962) (holding that a trial court was permitted to sua sponte dismiss an action, despite language contained in Federal Rule 41(b), providing that the “defendant may move for dismissal of an action”). Federal caselaw interpreting the federal statute authorizing case transfers, 28 U.S.C. § 1404 (a), is additionally instructive because Rule 2-327(c) was derived from it. See Md.Rule 2-327, comments; see also Paul V. Niemeyer and Linda M. Richards, Maryland Rules Commentary, at 164 (1984) (Rule 2-327(c) “is derived from 28 U.S.C. § 1404 (a), and is intended to incorporate the body of law construing that statute.”).

In contrast to Rule 2-327(c), however, an initial reading of section 1404(a) does not appear to prohibit a court from transferring a ease sua sponte. See 28 U.S.C. § 1404 (a) (“For the