Scott v. Hawit

211 Md.App. 620

66 A.3d 60

Tracy SCOTT, as Mother and Next Friend of Charlie Scott, a Minor

v.Raja HAWIT, et al.

No. 2838, Sept. Term, 2011.

Court of Special Appeals of Maryland.

May 3, 2013.

Julia R. Arfaa, (Michael L. Sanders, Wais, Vogelstein, Bedigian and Arfaa, LLC, on the brief), Towson, MD, for Appellant.

Mary E. Kaslick & James F. Rosner, (Kaslick, Prete & Kelly, LLC, Frederick, MD, Jessica P. Butkera, Chason, Rosner, Leary & Marshall, LLC, Towson, MD), on the briefs, for Appellee.

Panel: DEBORAH S. EYLER, WATTS, LAWRENCE F. RODOWSKY, (Retired, Specially Assigned), JJ.

RODOWSKY, J.

Appellants, the plaintiffs in a medical malpractice action, are aggrieved by the transfer of their claim by the 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 defendant-appellees 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 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 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.

• 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 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:

“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 plaintiff's 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 plaintiff's 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...