Monday, July 8, 2013

Maryland Courts Employ a Balancing Test When Deciding Motions to Transfer Venue

           The Court of Special Appeals recently reviewed various factors to consider when determining the appropriate forum for pending matters. Appellants Tracy Scott and her minor son, Charlie Scott appealed the judgment granting transfer of their claim from the Circuit Court for Baltimore City to the Circuit Court for Calvert County under the theory of forum non conveniens.  The Court of Special Appeals held that the transfer was improper, and reversed and remanded the case to the forum that was originally selected by the plaintiffs. 
            Appellants Tracy Scott and Charlie Scott filed suit in Baltimore City Circuit Court alleging negligence on the part of Raja I. Hawit, M.D., Johns Hopkins Hospital and Johns Hopkins Hospital employees Carolyn J. Ogborn, M.D. and Tyler Reimschisel, M.D in a medical malpractice action.  The claims against Ogborn and Reimschisel were subsequently dismissed.  Dr. Hawit is a pediatrician that provided medical care to Charlie as a newborn and years thereafter at Calvert Memorial Hospital.  Mr. Hawit’s practice is located is Hungtingtown, Calvert County.  Johns Hopkins Hospital’s principal place of business is in Baltimore City.   
            In the Complaint, Appellants alleged that Dr. Hawit diagnosed Charlie Scott with jaundice and ordered tests for bilirubin on June 3, 2001, the day after Charlie’s birth.  The test results placed Charlie in the “medium to high risk for developing kernicterus” category.   Complications such as brain damage and hearing loss may occur when extremely high levels of bilirubin are found in the body.   Charlie was tested again the next day and results indicated that he was placed in the “high risk category for development of kernicterus.”   On June 8, 2001, Charlie was admitted to Calvert Memorial Hospital for double phototherapy and eventually discharged for administration of the treatment at home.  On June 9, 2001, Dr. Hawit advised against the continuation of the at-home treatment and instructed Mrs. Scott to bring Charlie in for a follow up visit in three to four weeks. 
            Charlie was subsequently seen by Dr. Ogborn and Dr. Reimschisel and Johns Hopkins Hospital.  Drs. Ogborn opined that Charlie was “a normally developing and healthy child” and stated that she and Dr. Reimschisel agreed that he did not require further evaluation or treatment. 
            By August 21, 2001, Charlie’s condition had worsened.  Charlie was admitted to Children’s National Medical Center for seizures.  Plaintiffs filed suit in Baltimore City Circuit Court alleging that Charlie’s injuries were permanent and due to inappropriately treated elevated bilirubin levels.
            Dr. Hawit and John Hopkins Hospital responded to the Complaint by individually filing motions to transfer the action to Calvert County Circuit Court pursuant to Maryland Rule 2-327(c).  A hearing regarding the motions took place in January 2012.  The factors considered were: (1) plaintiffs’ residency in Calvert County, (2) Dr. Hawit’s medical office and residence were located in Calvert County, (3) the alleged tortious act took place in Calvert County, (4) Dr. Hawit does not regularly practice in Baltimore City, (5) Hopkins’ principal place of business is in Baltimore City, (6) the alleged negligence on the part of Hopkins’ agents took place in Baltimore City, and (7) venue was proper in Baltimore City.  At the conclusion of arguments, the Circuit Court granted the motions to transfer, finding that the factors weighed strongly in favor of the case being tried in Calvert County: the residency of the plaintiffs, Dr. Hawit’s location and where the majority of the care at issue occurred. 
            The Court of Special Appeals held that the case could have been heard in either Baltimore City or Calvert County.  The Court cited the Court of Appeals’ opinion in Nodeen v. Sigurdsson:
            “Although the court generally has wide discretion in deciding whether to grant the motion [to transfer], 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.”

Nodeen v. Sigurdsson, 408 Md. 180-81, 968 A.2d 1075, 1081-82 (2009).
            The Court in the instant matter held that there was a meaningful connection to Baltimore City:  it is the situs of one of the alleged torts said to produce Charlie Scott’s ultimate harm as well as the situs of the principal place of business of one of the defendants.  The only factor that pointed solely toward Calvert County was the residence of the plaintiffs, yet the plaintiffs had been traveling from Calvert County to Baltimore City for treatment for several years.  The Court further held that Baltimore City and its jurors would have an interest in the quality of medical care rendered there just as a Calvert County jury would.  Although plaintiffs were “foreign” as Calvert County residents filing suit in Baltimore City,  this factor did not tip the balance to support the holding that the "balance weighed strongly in favor of Calvert County.”
            The Circuit Court judgment was reduced and the case remanded for further proceedings.

Article contributed by Danielle Williamson 


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