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Case Of Independent Acts By Separate Defendants Contributing To A Single Harm Not Transferrable For Forum Non Conveniens

Scott v. Hawit, LLC.
No. 2838 (Md. App., 2013)

by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Plaintiffs, Tracy Scott and her minor son, Charlie Scott, argued in a medical malpractice action that the transfer of their case by the Circuit Court for Baltimore City, on the theory of forum non conveniens, to the Circuit Court for Calvert County, was in error. Plaintiffs’ claims were asserted against two defendants who were 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.

Charlie was born at Calvert Memorial Hospital in Calvert County, Maryland. Defendant, Raja I. Hawit, M.D., was a pediatrician whose office was located in Calvert County. He attended Charlie as a newborn at Calvert Memorial Hospital and thereafter treated him in that county for years. The other defendant was The Johns Hopkins Hospital (“Hopkins”), whose principal place of business is in Baltimore City.

Plaintiffs filed their complaint in the Circuit Court for Baltimore City. The complaint also named two additional defendants, Carolyn J. Ogborn, M.D., and Tyler Reimschisel, M.D., both of whom were employed by Hopkins. The complaint alleged 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.” Charlie was discharged with instructions to have bilirubin measured the next day. Those levels were elevated and placed him “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 Charlie to return to the doctor’s office in three to four weeks. On June 20, 22, and July 10, Charlie was taken to Dr. Hawit’s office and described the child’s complaints. On July 11, 2001, she obtained a referral to Dr. Reimschisel at Hopkins.

On November 4, 2011, Plaintiffs 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 alleged 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.”

By August 21, 2001, Charlie’s condition had allegedly worsened and he was referred for evaluation of seizure activity. The complaint concluded its factual narrative by stating that Charlie had been “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 MD. RULE 2-327(c). Hopkins then filed its own motion to transfer. The basic factors of the motions and related oppositions by Plaintiffs were as follows: Plaintiffs were and are residents of Calvert County; Dr. Hawit’s medical office and residence were in Calvert County; the alleged negligence by Dr. Hawit occurred in Calvert County; Dr. Hawit did not regularly practice in Baltimore City; Hopkins’s principal place of business was in Baltimore City; the alleged negligence by Hopkins’s agents occurred in Baltimore City; and venue was proper in Baltimore City. The motions to transfer venue were granted.

On appeal, the Court of Special Appeals agreed that venue was proper in either Baltimore City or Calvert County. Thus, the issue was 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 Court of Special Appeals also recognized that the instant action is atypical of the MD. RULE 2-327(c) cases seen in the last decade. In these more typical cases, there is a single tort, allegedly committed by a single defendant or organization against whom venue will lie in two or more counties, causing the plaintiff to select a forum that is perceived to be more advantageous, even though that forum might not be the situs of the tort, the residence of the plaintiff, or the principal place of business of the defendant. Here, unlike typical transfer of venue cases, Plaintiffs asserted liability on the part of two defendants, who were independent of each other, based on their separate, allegedly negligent conduct, taking place at different times, but causing a single harm. If Hopkins alone were sued on the facts alleged as to it, Baltimore City would clearly have been a convenient forum. If Dr. Hawit alone were sued on the facts alleged as to him, Calvert County would clearly have been a convenient forum.

The Court of Special Appeals reversed the trial court decision, and held that Baltimore City, and its jurors, had an interest in the quality of medical care rendered there, just as Calvert County, and its jurors, had an interest in the quality of medical care rendered there. The factor of court congestion was a standoff. The only factor pointing solely toward Calvert County was the residence of Plaintiffs, which resulted in attributing less weight to their choice of Baltimore City than if they had sued in Calvert County. The court hold that, under the facts of this case, the reduced weight to be given to the Plaintiffs’ choice of a foreign forum was insufficient to support a finding that the “balance weighs strongly in favor of” Calvert County. The factors weighed in near equipoise.

It appeared that the circuit court was influenced in transferring the action by Hopkins’s agreement to accept the inconvenience to it in trying the case in Calvert County, and its agreement that it would produce its liability witnesses there. By accepting that agreement the circuit court, in a sense, allowed Hopkins to put its thumb on the scale in favor of Calvert County. Allowing Hopkins to waive the inconvenience of leaving the jurisdiction of its principal place of business in effect treated Hopkins as a resident of Calvert County with Dr. Hawit. Instead of weighing the factors under the actual facts, the transferor court allowed Hopkins to eviscerate the indicia of convenience to it that pointed to Baltimore City in this two-defendant case, and to overload the balance in favor of Calvert County. This was an abuse of discretion.

The Court of Special Appeals held that when it eliminated from consideration Hopkins’s waiver of facts favorable to Plaintiffs’ statutorily conferred choice of venue, the case remained one of near equipoise, so that the transfer was error. Accordingly, the judgment of the circuit court was reversed, and the case was remanded for further proceedings.


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