Forehand v. Planned Parenthood of Md.

PATRICE D. FOREHAND v. PLANNED PARENTHOOD OF MARYLAND, et al.

No. 884-2021

Court of Special Appeals of Maryland

April 15, 2022

Circuit Court for Baltimore City Case No. 24-C-21-001333.

Beachley, Ripken, Kenney, James A., III (Senior Judge Specially Assigned), JJ.

OPINION^[*] ---------

Beachley, J.

1

¹] Ms. Forehand appeals from the Circuit Court for Baltimore City's order granting appellees' motion to transfer the case to the Circuit Court for Baltimore County on the basis of improper venue.

Ms Forehand raises the following question on appeal:

Did the [c]ircuit [c]ourt err when it found, as a matter of law, that [Ms. Forehand's] chosen venue of Baltimore City was improper and transferred the case to Baltimore County?

We shall vacate the circuit court's order of transfer and remand the case to that court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On August 10, 2010, Ms. Forehand underwent a procedure at a PPM facility in Baltimore City to implant a Paragard IUD. On October 30, 2018, Ms. Lovette, a nurse practitioner at PPM removed Ms. Forehand's IUD at a PPM facility in Baltimore County. During the removal procedure, one of the IUD's arms broke off, leaving a broken fragment in Ms. Forehand's uterus. A subsequent procedure to remove the remaining fragment was unsuccessful. Ultimately, Ms. Forehand underwent a hysterectomy on January 23, 2020.

On March 30, 2021, Ms. Forehand filed suit against Ms. Lovette and PPM, as well as Teva Pharmaceuticals USA, Inc., Teva Women's Health, Inc., and CooperSurgical, Inc. ("Product Defendants"), foreign corporations involved in the manufacture, marketing, and distribution of the Paragard IUD. The complaint alleged that Ms. Lovette was negligent in the removal of the IUD, that PPM was vicariously liable for Ms. Lovette's negligence, and that an unidentified PPM employee in 2010 and Ms. Lovette in 2018, respectively, failed to obtain Ms. Forehand's informed consent prior to the implantation and the removal of the IUD. The allegations against the Product Defendants included claims of negligence, strict liability, negligent and fraudulent misrepresentation, breach of express and implied warranties, and violations of consumer protection laws.

On June 11, 2021, Ms. Lovette and PPM filed a Motion to Dismiss or Transfer Plaintiff's Complaint for Improper Venue, or in the Alternative, to Transfer Based on Forum Non-Conveniens, seeking to have the case transferred to the Circuit Court for Baltimore County. The motion included an affidavit from Ms. Lovette stating that she only works in Baltimore County and that she neither works nor lives in Baltimore City. It is undisputed that PPM's principal place of business is located in Baltimore City and the agency does business in both Baltimore City and Baltimore County.

The Product Defendants did not join the motion, and no evidence was presented as to whether they do business in Baltimore County. The Product Defendants are all foreign corporations without a principal place of business in Maryland. Ms. Lovette and PPM argued that Baltimore County was the proper venue for the Product Defendants.

After a hearing on August 9, 2021, the court found that venue was improper in Baltimore City and transferred the case to the Circuit Court for Baltimore County. Ms. Forehand noted this timely appeal.

DISCUSSION

There are two statutes relevant to the issue of venue in this case: Md. Code (1974, 2020 Repl. Vol.), §§ 6-201 and 6-202 of the Courts and Judicial Proceedings Article ("CJP"). The general venue provisions in Maryland are found in CJP § 6-201:

(a)Subject to the provisions of §§ 6-202 and 6-203^[3] of this subtitle and unless otherwise provided by law, 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. In addition, a corporation also may be sued where it maintains its principal offices in the State.

(b) If there is more than one defendant, and there is no single venue applicable to all defendants, under subsection (a) of this section, 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.

Section 6-202 provides additional venue options for the plaintiff, which are not limited by the provisions in CJP § 6-201. See Wilde v. Swanson, 314 Md. 80, 93-94 (1988). CJP § 6-202 provides, in relevant part, that:

In addition to the venue provided in § 6-201 or § 6-203, the following actions may be brought in the indicated county:

. . .

(8) Tort action based on negligence -- Where the cause of action arose[.]

We shall address the venue issue as follows. First, if Ms. Forehand is correct that her negligence actions arose in Baltimore City, then, pursuant to CJP § 6-202(8), she would be permitted to bring her cause of action against all defendants in that jurisdiction. If, however, Ms. Forehand's negligence claims did not arise in Baltimore City pursuant to CJP § 6-202(8), then pursuant to CJP § 6-201(b), she could only bring her action in that venue if there is no single venue applicable to all defendants. As we shall explain, we conclude that Ms. Forehand's negligence claims arose in Baltimore County, thereby precluding her from asserting venue in Baltimore City under CJP § 6-202(8). Nevertheless, we must vacate and remand this matter because the court failed to explain why all defendants could be sued in Baltimore County.

We begin our analysis pursuant to CJP § 6-202(8). The elements of a cause of action for negligence are, (1) a duty on the part of the defendant to protect the plaintiff from injury, (2) a breach of that duty, (3) "actual injury or loss" suffered by the plaintiff, and (4) that such injury or loss resulted from the defendant's breach of duty. Hamilton v. Kirson, 439 Md. 501, 523-24 (2014) (quoting Taylor v. Fishkind, 207 Md.App. 121, 148 (2012)). "[A] cause of action in negligence arises when facts exist to support each element of the action." Green v. N. Arundel Hosp. Ass'n., Inc., 366 Md. 597, 607 (2001) (citing Owens-Illinois v. Armstrong, 326 Md. 107, 121 (1992)). The Green Court further noted that "the elements of duty, breach, and causation tend naturally to precede the element of injury, which 'would seemingly be the last element to come into existence.'" Id. (quoting Owens-Illinois, 326 Md. at 121). A claim for failure to provide informed consent is a type of negligence action. McQuitty v. Spangler, 410 Md. 1, 18 (2009).

The Court of Appeals's decision in Burnside v. Wong, 412 Md. 180 (2010), is instructive. Mrs. Burnside suffered from retinopathy, a progressive and degenerative eye disease. Id. at 186. She alleged that Dr. Wong, her doctor in Baltimore County, failed to properly diagnose and treat her disease, allowing it to progress to proliferative retinopathy, a more serious eye condition. Id. at 187. Mrs. Burnside visited Dr. Wong exclusively in Baltimore County for her eye appointments. Id. at 184. Nevertheless, Mrs. Burnside argued that her eyes deteriorated to the point of proliferative retinopathy while she was living in Baltimore City. Id. at 185. Because this deterioration took place in Baltimore City, Mrs. Burnside argued that her injury arose in Baltimore City, thereby providing venue in Baltimore City. Id. The Court of Appeals disagreed, holding that, because "the disease must have been germinating" after Dr. Wong's initial misdiagnosis, "Mrs. Burnside's cause of action arose in Baltimore County," where all of the elements of her cause of action occurred. Id. at 207.

The Burnside Court's holding is consistent with Green, which held that the minor plaintiff's cause of action against doctors located in Anne Arundel County arose in Anne Arundel County because he first experienced injury there as a result of their alleged medical negligence. 366 Md. at 612. Because all four elements of the minor plaintiff's claim against his Anne Arundel doctors coalesced while he was being treated in Anne Arundel County, his cause of action arose there pursuant to CJP § 6-202(8). Id. at 607, 612. That the minor plaintiff later suffered a cardiac arrest and brain damage while being treated in Baltimore City did not make the Anne Arundel doctors subject to suit in Baltimore City because, under CJP § 6-202(8), the cause of action had already ripened in Anne Arundel County. Id. at 612.

With these precepts in mind, we turn to the negligence counts in Ms. Forehand's complaint. In Counts XI through XIV, Ms Forehand alleges negligence and lack of informed consent against Ms. Lovette and PPM. In the complaint's "Facts Common to All Counts," Ms. Forehand asserts that "[w]hen Nurse Lovette attempted to explant the Paragard IUD, she met difficulty and/or resistance, and the IUD did break as she proceeded with the removal, leaving one 'arm' within Ms. Forehand's uterus." She further alleges that a "total abdominal hysterectomy" was ultimately required to remove the IUD fragment. Because it is undisputed that Ms. Lovette provided healthcare to Ms. Forehand only at PPM's facility in Baltimore County, it is clear that the "injury" element of Ms. Forehand's negligence claims against Ms. Lovette (and vicariously against PPM) first arose during or after the October 30, 2018 procedure in Baltimore County. Pursuant to CJP § 6-202(8), Baltimore County is the proper venue for the negligence and informed consent counts against Ms. Lovette and PPM.^[4] In Counts I, V, IX, and X of her complaint, Ms. Forehand alleges negligence, negligent misrepresentation, gross negligence, and negligent failure to warn against the Product Defendants. As claims sounding in negligence, each cause of action carries the requisite "injury" element. ...