Kerrigan v. Univ. of Md. Med. Sys. Corp.

BRANDON KERRIGAN, a minor by andthrough his parents and Next Friends,MICHAEL AND KIMBERLY KERRIGAN v. UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION, et al.

No. 1710

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

December 5, 2016

UNREPORTED

Eyler, Deborah S., Reed, Beachley, JJ.

Opinion by Eyler, Deborah S., J.

*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

In the Circuit Court for Baltimore City, Brandon Kerrigan, a minor, and his parents, Michael and Kimberly Kerrigan,¹ individually and as Brandon's next friends, the appellants, brought an action for medical negligence against the appellees, the University of Maryland Medical System Corporation d/b/a University of Maryland Medical Center ("UMMC") in Baltimore City; the University of Maryland Shore Regional Health, Inc. ("Shore Regional") in Talbot County; Delmarva Radiology, P.A. ("Delmarva Radiology") in Talbot County; Dayanand Bagdure, M.D. and Nicole Mallory, M.D, pediatricians employed by UMMC; David White, M.D., an emergency medical physician employed by Shore Regional; and Steven Sauter, D.O., a radiologist employed by Delmarva Radiology. The appellees jointly moved to transfer venue to the Circuit Court for Talbot County on the ground of forum non conveniens. The circuit court heard argument and granted the motion to transfer.

The Kerrigans appeal from that order, asking one question, which we have rephrased: Did the circuit court abuse its discretion by granting the motion to transfer venue? We answer that question in the affirmative and shall reverse.

LEGAL BACKGROUND

With exceptions not relevant here, "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 . . . . [and] a corporation . . . may be sued where it maintains itsprincipal offices in the State." Md. Code (1974, 2013 Repl. Vol.), section 6-201(a) of the Courts and Judicial Proceedings Article ("CJP"). If a plaintiff sues multiple defendants and "there is no single venue applicable to all defendants, . . . 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." CJP § 6-201(b). In the case at bar, there was no single venue applicable to all of the appellees and the Kerrigans chose to sue them in Baltimore City, where UMMC maintained its principal office and where Drs. Bagdore and Mallory were employed.

"[A]n action [may] be transferred to another appropriate venue even though a plaintiff's choice of venue is proper." Urquhart v. Simmons, 339 Md. 1, 10 (1995). Pursuant to Rule 2-327(c), "any party" may move to "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." "The party seeking transfer must present evidence weighing strongly in its favor, because when multiple venues are jurisdictionally appropriate, a plaintiff has the option to choose the forum." Cobrand v. Adventist Healthcare, Inc., 149 Md. App. 431, 439 (2003).

In assessing a motion to transfer,

"a court is vested with wide discretion. . . . . It is the moving party who has the burden of proving that the interests of justice would be best served by transferring the action . . . and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party."

Leung v. Nunes, 354 Md. 217, 223-24 (1999) (quoting Odenton Dev. Co. v. Lamy, 320 Md. 33, 40 (1990)) (other citations omitted). "[T]here are two basic factors to be considered by the court in ruling on a motion to transfer: convenience and the interests ofjustice, each with particularized sub-parts that have grown in the case law." Cobrand, 149 Md. App. at 438. "[T]he 'convenience' factor requires a court to review the convenience of the parties and the witnesses." Id. at 438 n.5. This factor "center[s] around where the parties and witnesses live[] and work[] in relation to the court." Murray v. TransCare Maryland, Inc., 203 Md. App. 172, 192 (2012). The "interests of justice" factor includes a public and private component. The "[p]ublic interests of justice include: (1) considerations of court congestion; (2) the burden of jury duty; and (3) local interest in the matter at hand[,]" whereas the private interests include: "(1) the relative ease of access to sources of proof; (2) availability of compulsory process for attendance of unwilling witnesses; (3) the cost of obtaining attendance of willing witnesses; (4) possibility of view of premises (the subject of the action or where the incident occurred), if view would be appropriate to the action; and (5) all other practical problems that make trial of a case easy, expeditious and inexpensive." Id. at 192-93.

FACTS AND PROCEEDINGS²

The Kerrigans live in Bozman, Talbot County. On August 13, 2013, Brandon, then age 15, went to see his pediatrician, Mark Langfitt, M.D., at his office in Easton. Brandon had had a dry cough for a month and was experiencing some shortness of breath. Dr. Langfit referred Brandon to Delmarva Radiology, also in Easton, for a chest x-ray.

At Delmarva, appellee Dr. Sauter reviewed Brandon's chest x-ray and diagnosed him with atypical pneumonia. He communicated this diagnosis to Dr. Langfitt, who prescribed a 5-day course of antibiotics to treat Brandon.

Four days later, on August 17, 2013, Brandon's symptoms had worsened. The Kerrigans took Brandon to the emergency department at Shore Regional just after 9 p.m. He was suffering from fatigue, shortness of breath, and chest and abdominal discomfort. Appellee Dr. White treated Brandon. Shortly after 10 p.m., Dr. White ordered that Brandon receive fluids by IV over two hours; a chest x-ray; and a "stat" blood test for the presence of brain natriuretic peptide ("BNP"), a hormone secreted when a patient is in heart failure. The fluid bolus was started at 10:48 p.m. and completed at 12:47 a.m. the following day. By 11:15 p.m., Dr. White had received the lab test results showing that Brandon's BNP was very elevated. Around 11:40 p.m., Brandon was given fluids by mouth.

In their complaint, the Kerrigans allege that the administration of fluids is contraindicated if heart failure is suspected. Rather, the standard of care calls for absolute fluid restriction and the administration of diuretics.

Just after midnight on August 18, 2013, Dr. White spoke to appellee Dr. Bagdure, the attending physician on duty at the UMMC Pediatric Intensive Care Unit ("PICU"). Dr. White advised that Brandon had been diagnosed with dilated cardiomyopathy and heart failure and made arrangements for Brandon to be transferred to UMMC. Brandon was administered a diuretic at Shore Regional just before 1:00 a.m. Sometime after 1:35 a.m., Brandon was transported by helicopter to UMMC. During the flight, he went into cardiac arrest, but was successfully resuscitated. He was admitted to UMMC at 2:35 a.m. Dr. Bagdure and appellee Dr. Mallory, a resident physician, took over his care. Lab results at UMMC revealed an even more elevated level of BNP, which, according to the Kerrigans' allegations, confirmed that Brandon was in serious heart failure. Despite that test result, and as the Kerrigans allege in violation of the standard of care, Brandon received four liters of fluids over the first eight hours he was in the PICU.

Fourteen hours after Brandon was admitted to UMMC, he was administered diuretics and his fluids were restricted. He remained at UMMC for five months and ultimately required a heart transplant. He continues to receive follow-up treatment at UMMC on a monthly basis.

On May 8, 2015, the Kerrigans filed the instant medical negligence action in the Circuit Court for Baltimore City. In Count I, they allege, on behalf of Brandon, that Dr. Sauter breached the standard of care by failing to properly interpret Brandon's initial chest x-ray and that Delmarva Radiology was vicariously liable for that breach; that Dr. White breached the standard of care by failing to restrict Brandon's fluids until a diagnosis of heart failure was ruled out, by failing to stop fluids and administer diuretics and other appropriate medications once heart failure was confirmed, and by failing to appropriately communicate Brandon's diagnosis to UMMC, and that Shore Regional was vicariously liable for those breaches; and that Drs. Bagdure and Mallory breached thestandard of care by, inter alia, failing to timely diagnose Brandon, failing to timely restrict fluids and administer diuretics, and by administering excess fluids, and that UMMC was vicariously liable for those breaches. The Kerrigans allege that as a direct and proximate result of the joint and several negligent acts of all the appellees, Brandon suffered irreversible damage to his heart muscle, necessitating a heart transplant, and that he will likely require additional surgeries and possibly additional heart transplants in the future.

In Count II, the Kerrigans allege on behalf of themselves that the negligence of all the appellees directly and proximately caused them to incur medical expenses and loss of services. With respect to venue, the Kerrigans allege that there is no venue applicable to all of the defendants, but that Baltimore City is an appropriate venue because UMMC has its principal place of business there; Dr. Bagdure, and Dr. Mallory are employed there; and the "irreversible injuries proximately caused by the alleged negligence . . . occurred [there.]" In each count, the Kerrigans seek damages in excess of $30,000.

On June 16, 2015, the appellees jointly moved to transfer venue to the Circuit Court for Talbot County on the basis of forum non conveniens. Under the "convenience factor," they asserted that transfer was appropriate...