*1 986A.2d BURNSIDE, Earlene et. ux. v. WONG,
Randall V. et al. Term, Sept. No. 2009. Appeals Maryland. Court of
Jan. *4 Maloney Office, Kensington, Law (Maloney Matthew P. MD), brief, on for Petitioners. for on behalf of Amicus Ass’n Justice Maryland
Brief of Kirk, MacAlister, Esquire K. Petitioners: James Saiontz & Baltimore, MD. (Neal
Anthony J. Breschi Brown, M. Brown of Waranch & LLC, Lutherville, MD; Agnus Carlo, Everton of Morgan, Everton, P.A., Downs & MD), brief, Hunt Valley, Respondents. BELL, C.J.,
ARGUED BEFORE HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
BATTAGLIA, J. areWe asked to consider whether venue in a medical action, malpractice coupled with a lack of informed consent complaint, will lie City Court, Baltimore Circuit it where filed, when the complainant lives Baltimore City, but alleged misdiagnosis, negligent treatment, medical failure to consent, obtain informed allegedly related to a degenerative condition, eye known as proliferative diabetic retinopathy,1 took place solely County, and the physician neither lives nor practices medicine in Baltimore City.
After the Respondent, Dr. Randall Wong, filed a Motion to
Dismiss for Improper
6-201(a)2
Venue on the basis of Sections
6-202(8)3
of the
Article,
Courts and Judicial Proceedings
According
Newsome,
1.
to the affidavit of Dr. David
filed in the trial
Petitioner,
by
proliferative
court
retinopathy
progress
diabetic
can
background
from
retinopathy. Retinopathy
diabetic
has been defined
a "[d]isease
as
or disorder of the retina.
usually
The term is
used to
damage
describe
by persistent
to the
hypertension
retina caused
(high
pressure)
blood
or diabetes mellitus." The American Medical Associa-
(Charles
Encyclopedia
ed.,
tion
dayman
Medicine 868
B.
Random
1989) (emphasis
original).
House
6-201(a)
Article,
Proceedings
of the Courts and Judicial
(1974,
Maryland
Repl.Vol.)
Code
pertinent part:
states
(a)
actions.—Subject
Civil
provisions
§§
to the
6-202 and 6-203
law,
provided and unless otherwise
brought
civil action shall be
resides,
county
in a
where the
regular
defendant
carries on a
busi-
ness,
employed,
habitually engages
ain vocation.
6-202(8)
Article,
3. Section
Proceedings
Courts and Judicial
(1974,
Maryland
Repl.Vol.)
Code
states:
(8)
negligence—Where
Tort action based on
the cause of action
arose;
*5
(1974,
Michel Pierson
Repl.Vol.),4Judge
Maryland Code
reasoning that at
County,
to
case
transferred the
filed, Wong
Dr.
neither resided nor
time the lawsuit
the
In a Motion to
City.
in Baltimore
regular
on a
business
carried
Burnside,
Reconsider, Alter,
the
Mrs.
ruling,
Amend or Revise
6-202(8),
time,
under
venue
asserted that
for the first
resided, because her
where she
City,
in Baltimore
proper
occurred there.
Wong’s
care”
eye injury while under
“first
Motion,
appealed
Burnside
the
and Mrs.
Judge Pierson denied
affirmed, holding that
which
Special Appeals,
the Court of
to
to
informed con
and failure
obtain
alleged misdiagnosis
sent,
retinopathy
diabetic
was al
Mrs. Burnside’s
whereby
worsen,
injury
such that
to
constituted
progressively
lowed
Burn
County.
“cause
action arose” Baltimore
certiorari,
granted,
we
this Court for
which
petitioned
side
(2009),
II. defendant’s with a at county contacts his considered in a alleged negligence time of be trial venue analysis, pursuant court’s to Md.Code Ann., 6-201(a)? § Cts. Proc. & Jud. physician’s privileges
III. Are a defendant active medical appointments hospitals and academic various and Maryland county medical schools located within a subject jurisdiction contact sufficient in that county, pursuant defendant venue Md. 6-201(a)? § Ann., Code Cts. Jud. Proc. & 6-201(a) 6-202(8) Statutory throughout references to Section are Article, (1974, Proceedings Maryland Code to the Courts and Judicial Volume, Repl.Vol.). Replacement All are to the 2002 references occurred, during dispute which was in effect the time the acts in 6-201(a) 6-202(8) although substantively have not been Sections changed Replacement in the 2006 Volume. 6-202(8) We shall hold that under Section of the Courts and *6 Article, Proceedings Judicial venue in proper is a medical and lack malpractice of informed consent action where the treatment, alleged misdiagnosis, negligent negligent or failure to, harm, inform, giving rise to the occurs. shall We further response in to II questions pursuant and III that hold to 6-201(a) of the Courts and Judicial Proceedings Arti- cle, venue determined when suit is and brought, medical and in privileges appointments Baltimore such City, as issue case, alone, present are insufficient to establish venue in City. Baltimore Background
I. 2005, 31, January On Earlene Burnside and her hus band, Johnny,5 complaint filed a in the Circuit Court for City against Dr. Randall Wong, alleging medical malpractice, consent,6 lack of informed and loss consortium. Mrs. Burnside’s malpractice medical claim was based on the allegations, in following pertinent part: September 2001, 5. In Plaintiff Earlene Burnside sought care ophthalmic and treatment from Defendant Wong for background, her retinopathy diabetic of her eyes. both litigation party 5. Mr. was a conjunction Burnside with Peti- brief, tioner’s loss consortium claim. In her Mrs. Burnside advises during proceedings longer party. that Mr. Burnside died and is no a action, 6. informed represents Lack of consent a cause of distinct from malpractice Maryland. McQuitty medical In Spangler, v. 18-19, (2009), recently A.2d opined we that: of informed and malpractice Breach consent medical claims both negligence, separate, disparate liability. sound in but are theories of alleging malpractice, patient a count medical a asserts that a provider duty a ordinary healthcare breached to exercise medical upon skill profession, care and based standard of care in count, complains a breach of patient while in informed consent a that provider duty a a healthcare breached to obtain effective consent to a procedure failing by divulge treatment or information would to, be material to about decision whether to submit or to his/her with, procedure. continue treatment (Internal omitted). citations coagulation laser Wong performed bilateral Defendant 15, 2001. on Burnside on November Ms. procedure to seek care ophthalmic continued 7. Ms. Burnside 2003, during Wong through Defendant June from treatment condition background, retinopathy diabetic time the which progress Wong Defendant eyes in her was allowed severe, known as threatening vision condition into a more retinopathy. proliferative surgical August performed Defendant
8. On left on Burnside’s coagulation a laser Ms. procedure a laser performed Defendant eye. On October eye, and then right on Ms. Burnside’s coagulation procedure coagula- another laser performed December he *7 right eye. Ms. Burnside’s procedure tion date, totally eye in her right To Ms. blind 9. Burnside eye. in her left legally and blind Dr. Wong’s alleged following, regarding further
She of her medical support of care breaches standards claim: malpractice and Wong comply failed to breached
13. Defendant he: duty negligent and was his (a) diagnosis for Plain- appropriate failed to establish the condition; ophthalmic tiff Burnside’s (b) Plaintiff Burn- manage failed to and treat properly condition; ophthalmic side’s
(c) of Plaintiff failed to halt the Burnside’s progression condition; clinically significant threatening vision (d) in timely failed treatment fash- perform surgical ion;
(e) for, and treat Plaintiff properly manage failed to care post-surgery; condition ophthalmic Burnside’s (f) technique dur- apply appropriate surgical failed to ing complications; to avoid surgery apply adequate approach failed to to treatment (g) complications; encountered
(h) recognize timely failed to and treat the Plaintiff Burn- side’s after surgery; condition and (i) was otherwise negligent. also alleged, Burnside of her informed support count,
consent that: 16. Defendant Preoperatively, Wong, individually and through agents employees, his and a duty had to inform the plaintiff of the probability proposed surger- success of ies, treatment, alternative methods of the risks of failure or affects, blindness, unfortunate including side the risks of and other factors which a reasonable patient would consider material making undergo surgeries. decision to her 17. to the Contrary accepted standards of medical and care, defendant, surgical individually through his and/or employees agents, failed inform Earlene Burnside of consequences, the risks of serious including but limited not' to blindness. If Plaintiff Burnside had been informed that there was
a material that she risk would suffer blindness vision and/or impairment, she would not have to undergo consented surgeries.
19. As a and proximate direct result of the defendant’s failure to Ms. Burnside inform of the likelihood of blindness damage vision damages serious resulting and/or and/or therefrom, Earlene Burnside the surgery underwent suffered, suffer, has and will continue to perma- severe and *8 vision, nent her injury to mental anguish, physical impair- ment disfigurement, life, and loss of of enjoyment and will required expend large be to sums of money for and past future and medical rehabilitative services.
In response, Wong Dr. filed a to Motion Dismiss for Im- Venue, proper asserting that he held although privileges to Medical practice Mercy medicine Center Baltimore City, he had not the privileges used since and September he otherwise did not carry regular reside or on a business 6-201(a). Baltimore City, pursuant Wong to Section Dr. also 6-202(8), that argued under cause Mrs. Burnside’s of allegedly negli the County, Baltimore because arose in action consent, and treat informed diagnose, failure to obtain gent County office. place in his Burnside took Mrs. as a Thereafter, having joined Eye Specialists Omni after to defendant,7 filed an Motion Opposition Burnside then Venue, upon Dr. asserting, based Improper for to Dismiss regularly forty he examined testimony, that Wong’s deposition Mercy during Center month at Medical fifty patients per 2003, at the time of 2001 to December period September the City. venue Baltimore alleged negligence, supporting testimony upon relied follow Wong’s deposition ing: thing only So would Burnside]: for Mrs.
[Counsel I and through from 2000 changed have surgeries you amount actual going say am correct? performed, Wong]: Yes. Sure.
[Dr. activities, seeing patients But the amount [Counsel]: years? the same over those would have been same, sure, 2004,1 wasn’t Wong]: except About the [Dr. there. So, say through you would have seen let’s
[Counsel]: through you twenty would have seen in—from 2000 mean, fifty patients per month at sorry—forty to—I Mercy Hospital? Wong]: Sure.
[Dr. done, your Doctor. I’m almost And consulta- [Counsel]: same; activity? the same tions would have been the it’s Wong]: Yes. [Dr. held Wong because Dr. active- argued
Mrs. Burnside also Ophthalmology Department part-time privileges staff allegations Eye Specialists supporting joinder of Omni were: 7. The LLC, Omnisburg, Defendant 3. At all times relevant hereto d/b/a "Omni”), (hereinafter, Maryland Eye corpo- Specialists Omni Maryland. doing State of ration to and business in the authorized Wong was actual 4. At all relevant hereto Defendant times servant, agent, employee apparent of Defendant Omni. and/or *9 SI, 2001, at Hopkins Hospital through Johns August part- faculty appointment time in the Department as instructor Ophthalmology of Hopkins University Johns School of through April Medicine faculty held a volunteer- appointment University at the of Maryland School of Medi- cine, contacts, asserted, such she with coupled Dr. Wong’s Center, Mercy work at Medical were sufficient to render venue in City proper. Baltimore hearing
After a parties which the venue argued solely on 6-201(a), Judge signed basis of Pierson an Order transferring May action the Circuit Court for County. Baltimore He reasoned Dr. Wong’s that contacts City with at the suit brought Baltimore time was were insuffi- City: cient to confer venue in the I think don’t that the facts really subject are dispute purposes for of the venue And I think motion. facts are that Dr. Wong treating patients [in Baltimore City] quite regularly until 2003. up any There wasn’t basis that he dispute doing business City until that time.
Since that time he’s maintained various forms of privi- leges institutions, at Baltimore City but apparently has not examined, treated, consulted, or any any had contact with patients And apparently any since time. hasn’t had time, contact those institutions since that but has simply confined himself limiting those forms of affiliation on whatever advertising maybe well—listing those forms of part public affiliation as his me persona. Let put way. it that
Now, think, I question is, so the I required am to focus on the time I when should determine doing business. And let I
say me think I part reason to is that I have don’t merely think having privileges having staff hospital privi- leges doing any is sufficient be business. I haven’t found Maryland case law on that. *10 Pulcini v. that’s ... and of case one out state
There’s 702, which is N.W.2d Clinic, Mich.App. Doctor’s Michigan, court appellate of the intermediate opinion merely whether find on I could only opinion the which is ... aby doing business enough to be is having privileges it wasn’t. they said doctor fact that, more on the but the decision on I don’t rest
But doing anything not merely having privileges that And I connection. paper more than a nothing them can be think volume required or the continuity the it has don’t within doing business forum to constitute with the contact of the venue statute. meaning the the And statutory construction. matter of
I think it is a tense. present the phrased statute is that strong argument very a makes plaintiff And the only that’s the because necessarily dispositive not that’s per- in, completely I’m not it but they phrase could tense argument. that suaded if you in that important could be agree past
I do that the course of conduct engaging who was had an individual important could be regularity years that over a number do busi- continues to he or she determining whether ness____ picture. look at the entire I have to you think there factually me to a case where seems to be
But this in 2008. seeing patients stopped that he any dispute isn’t say I could because is a case where I don’t think this So infer that he’s to in the it would be basis past the conduct jurisdiction. ... in this doing business still makes plaintiff the argument In terms of fairness jurisdiction get out of the of foster a race this would sort to look at it would way The other get he could sued. before determine when power plaintiff’s it’s within the be say could you standpoint from that is sued. So defendant look at the time when just plaintiff as fair to it’s control who has plaintiff it’s the brought, because suit is much as it’s brought just as the suit is over when control he defendant who has over where or she conducts his activities or her activities.
And it to me that when seems the time suit is brought not an time to inappropriate doing measure business I think purposes though arguments of venue. Even could from a if standpoint be made that fairness someone is regularly business at the time he or doing she commits alleged tort fair to hold or she it’s that he could be sued jurisdiction. But you argue way could it the other ... equally, right which is what a valuable it is to be sued *11 say where you you reside. So could well it’s says fairness as of the you’re being time sued.
And since I it is clear from the think words of the statute that it is the time when suit is I brought, believe there is no City. venue Baltimore
Thereafter, Reconsider, Burnside filed Motion Mrs. a to Alter, Amend, or Revise thé to ruling transferring the action Baltimore County, relying for the first time primarily 6-202(8), arises, that a arguing cause action for the venue, when purposes support facts exist to each element claim, breach, a negligence namely, duty, injury. and Mrs. Burnside that injury asserted her “first Dr. eye under while Wong’s City, care” occurred at her residence Baltimore Newsome, relying on an affidavit executed Dr. David which, in relevant stated: part,
5. It to my opinion degree is a reasonable of medical (but the first probability only) eye injury that not that Mrs. Wong’s Burnside suffered while under Dr. care was when her allowed to to background retinopathy progress was proliferative retinopathy, condition, despite more severe likely indications for treatment that more than not would have prevented progression. my opinion that It that this background transition from to oc- proliferative retinopathy April curred September between and 2002. degenera- that Mrs. Burnside’s Dr. further opined Newsome retinopathy at proliferative to tive condition deteriorated eye City: her Baltimore residence proliferative retino- background This transition from that my understanding It is gradual
pathy process. 8, 2002 City April Burnside lived in Baltimore between as before and since as well September though my understanding It is timeframe. further her into coun- work activities took some of Mrs. Burnside’s times, far more City spent than Baltimore she ties other this County during other City any in Baltimore than time period. my under- assumptions, on the foregoing
7. Based
background
transition
standing
process
of the
from
my opinion
it is
to a reasonable
proliferative retinopathy,
eye
that Mrs. Burnside’s first
probability
medical
degree of
likely
Wong’s
under
care occurred more
injury while
of her time—in
spent
majority
not where she
the vast
than
City.
as-
complaint
then
a second amended
Mrs. Burnside
filed
6-202(8)
an alternative basis
that Section
serting
City,
Pierson denied the Motion
Judge
venue in Baltimore
but
Alter, Amend,
Reconsider,
or Revise his
transfer-
judgment
County. Mrs. Burnside filed
the case to Baltimore
ring
*12
which,
unreport-
of
in an
appeal
Special Appeals,
to the Court
judge.
ed
affirmed the decision of
circuit court
opinion,
venue
appellate
The intermediate
court considered whether
City
brought
at the time suit
under
Baltimore
existed
6-201(a)
6-202(8).
The court evaluated
Sections
(a),
6-201
case law
present
language
tense
of Section
as well as
frame
the relevant time
interpreting
from sister jurisdictions
lang
statutes
similar
“doing business” under venue
time
for deter-
“proper
period
and concluded that the
uage,8
court,
filing
appellate
time
of its
at the
of the
The intermediate
analysis
unreported opinion,
of
in Nodeen
did not have the benefit
our
7,
178,
167,
(2009),
April
Sigurdsson,
1075
filed on
v.
408 Md.
968 A.2d
mining
whether
defendant carries on a regular
business
habitually
engages
a vocation is the time when the com
plaint is filed.” The court further noted that
Wong’s
privileges
medical
at Mercy Medical Center and teaching
privileges at the University Maryland
School Medicine
were insufficient to confer venue in
City
under
6-201(a),
because these privileges were not being used
2003,
since
in the
Mercy
Center,
case of
Medical
and the late
1990s, in the case of the University of
Maryland.
evaluat
ing whether venue was proper
6-202(8),
under Section
court
parties’
considered the
arguments regarding when a
cause of action arises in a medical malpractice action involving
an alleged misdiagnosis and lack of informed consent. Rely
ing on our discussion of the definition of
“injury”
related
contexts, as well as our
analysis
venue
in Green v. North
Association, Inc.,
Hospital
Arundel
597,
366 Md.
II. Standard of Review In statutory interpretation, our primary goal is “to discern the legislative purpose, the ends to be accomplished, or the evils to be particular remedied provision, it be statutory, constitutional or part of the Rules.” Barbre v. Pope, 402 Md. (2007); 935 A.2d Gen. Motors Corp. v. Seay, (2005). 879 A.2d See also Dep’t Health Hygiene and Mental Kelly, v. 399, 419-20, (2007). Md. begin We our analysis by looking normal, first plain meaning of the statute, language reading the statute as a whole to “ word, clause, ensure that ‘no sentence or phrase is rendered ” surplusage, superfluous, Barbre, meaningless or nugatory.’ persuasive analysis and found similar from other state courts. *13 We precedent. need not do so because of the Nodeen
195 420, at 708, Kelly, 397 Md. quoting 172, A.2d at at 935 402 Md. Prince Appeals v. Bd. also Kane 482. See 918 A.2d at of of (2005). 1060, 145, 167, A.2d 1073 887 390 Md. County, George’s we unambiguous, clear and is of the statute language If the analysis and our provisions the statute’s beyond not look need 708-09; Kelly, 397 Barbre, 402 Md. at ends. Pickett, 392 482; Frederick v. City 918 A.2d at Md. at of Slater, 383 (2006); v. Davis 411, 427, A.2d 237 897 Md. (2004). “Occasionally we see 599, 604-05, A.2d 81 861 Md. merely as intent legislative extrinsic sources fit to examine Robey v. language.” plain reading of a statute’s check of our a (2007), citing 449, 454, A.2d 502 State, 397 Md. (2005). State, A.2d 390 Md. Stanley v. statute, the context of instances, find useful may we “In such history scheme, legislative and archival statutory the overall Id. relevant enactments.”
III. Discussion with the case present are concerned We is one of Venue our venue statute. specific application competency to the relating concepts jurisprudential number of include judgment; a valid others to render generally of a court improper jurisdiction. While personal subject matter of an in the termination venue, not result generally, does does, and necessarily action, jurisdiction matter subject lack of can. jurisdiction lack of personal over a may jurisdiction exercise a court
Whether jurisdic personal on whether dependent putative defendant unlike jurisdiction, personal of lack of tion exists. The defense in a man unless raised is waived subject jurisdiction, matter 2-322(a)(l); Niemey motion, Paul V. Rule datory preliminary Schuett, Commentary Maryland Rules Linda M. er & (3rd terminate 2003), successfully may if ed. but raised Messerman, 706, 731-32, A.2d action. Bond v. (2006). 990, 1005-06 juris
Venue, subject personal matter and unlike to the nexus related diction, geographical largely focuses *14 196
appropriate county in which an may action proceed. John A. Lynch, Bourne, Jr. & Richard W. Modem Maryland Civil (2nd 2004). 2-111 Procedure ed. The defense of improper venue, moreover, is waived timely unless raised in a prelimi motion, nary 2-322(a)(2), Schuett, Rule Niemeyer & supra, at 202, and once raised may result in a transfer of the action to forum, proper rather than termination of the action alto 2-327(b) gether. 3-326(a); Rules see Odenton Dev. Co. v. 33, 41, Lamy, 320 Md. 1235, (1990); 575 A.2d 1238 Payton- Evans, 267, Henderson v. Md.App. 274, 654, 180 949 A.2d 657- (2008). present The ease involves the interpretation of two statutory (a) sections defining first, venue.9 The Section 6-201 part: states relevant
(a) actions.—Subject Civil to the provisions §§ 6-202 and 6-203 and law, unless otherwise provided by a civil action shall be brought a county where the ... defendant carries on a regular business ... or habitually engages vocation. second, 6-202(8)
The Section in pertinent part provides: (8) Tort action based on negligence—Where the cause of arose; action major case,
The
however,
focus of this
concerns when a “cause
6-202(8)
of action” arises under Section
of the venue statute.
Mrs.
posits,
Burnside
citing Green v. North
Hospital
Arundel
Ass’n.,
Md.
(2001),
369-70
cert.
denied,
U.S.
(2002),
S.Ct.
785 A.2d at action arises a cause of illness, retinopathy, diabetic such as progress, so symptoms permitted are patient’s when the in Baltimore Coun- of action arose Burnside’s cause that Mrs. mistreated and allegedly misdiagnosed, ty, when she prog- misinformed, retinopathy her background permitting ress. 6-202(8) history of Section legislative
A review of the 1945, in as part first enacted provision that the indicates added to Assembly venue statute. The General general of a (1939), the Code Maryland 157 of Article then Section language: following are in all of the defendants
In action ex delicto which any in, of, business nor carrying regular nor on not residents in one employment in avocation or engaged any habitually election, defen- sue all said may, the at his county, plaintiff cause action arose. county in the where the dants of added). An Laws, (emphasis 468 Maryland Chapter 1945 person either to the a tort done “imputes action “ex delicto” ” & Light Electric Stewart v. United of another.... property (1906). John P. Co., A. See Power Law 154 Common Poe, Pleading and Practice in Courts of (3rd 1897) as one encom- action ex delicto (describing ed.
passing case, trover, the six common law actions of trespass, dower). replevin, ejectment, and statute, In the then Section 158 of Article Mary- (1951), land Code was amended to permit an “ex delicto” action against multiple defendants also to be brought where any of the defendants reside:
In any action ex in delicto which all the defendants are not of, in, residents not carrying regular business or habitu- ally in engaged any avocation or in employment one county, election, the plaintiff may, at his sue all said defendants county where the cause of action arose or sue all said county where any one defendants defen- dants reside. Maryland Laws, Chapter 60 (emphasis original).
1961, the Assembly General provision, enacted a new adding the language negligence:
In any action ex delicto based upon negligence, plaintiff at his election may sue the defendant or defendants in the county where cause of action arose. Laws, added).10
1961 Maryland
Chapter
(emphasis
At no
history
time
this
was the phrase “cause of action
defined,
arose”
it
and was
this context that we first had the
*16
6-202(8)
to
opportunity
consider what the
in
phrase
Section
in
meant
the context of venue.
In Green v. North Arundel
Ass’n,
Hospital
597,
366
(2001),
Md.
Darwin’s filed suit Association, and City against Hospital more North Arundel Fields, the action for immediately who moved dismiss The Circuit Court concluded that under improper venue.11 (b), County, lay only 6-201 venue Anne Arundel Section to the Court for Anne Arundel transferred case Circuit judgments in favor of the County. trial ended When defendants, parents pursued improper Darwin’s the issue Green v. The Court of appeal. Special Appeals, venue Ass’n., Hospital North Arundel Md.App. (1999), erred in
A.2d held that the Circuit Court 6-202(8) that inapplicable, but determining error because the cause of action arose was harmless Anne Arundel County. provid- University Maryland Hospital and eleven health care
11. The originally respondents Hospital were named as before ers respondents, We noted that these Health Claims Arbitration Office. City.” "apparently Green v. either resided or did business in Baltimore *17 604, 361, Ass’n., 597, Hospital 366 Md. 365 North Arundel (2001). University ultimately Maryland respondents settled with The plaintiff pending while the case was arbitration. 200 granted
We
certiorari to consider the parents’ claim that the
“cause of action arose” when Darwin suffered
grievous
his
Green,
injury, the cardiac arrest in
City.
Baltimore
366 Md.
607,
however,
at
Although aside, seeks plaintiff now to brush it fact that, as a result of the alleged negligence of the Anne County Arundel defendants in failing diagnose the shunt malfunction and have Darwin sent immediately facility to a capable dealing with that problem, Darwin continued to headaches, drowsiness, suffer from and neurological deterio- ration. 612, at
Id.
Id. at
785 A.2d at
quoting
Md.App.
concluded, therefore,
201
(1982),
107,
Armstrong,
v.
326 Md.
A.2d 860
Owens-Illinois
(1992),
249,
In
v.
294 Md.
Dr. McGowan filed a
asserting
motion to
that the
claims needed to have been first submitted to arbitration. We
disagreed, concluding that there was evidence in the record
cancer,
that the
though
diagnosed
not
until
contract-
prior
ed
to the
effective date of the Act.
so
we
holding,
conceived
“injury”
terms of “the effect on the
recipient
way
of hurt or damage.”
(b)
$350,000
any action for
Limitation
established.—In
of
injury in which the
action
damages
personal
cause of
1, 1986, an
July
arises on or after
award for noneconomic
$350,000.
damages may not exceed
added).
case, Owens-Illinois,
In
manufac-
(Emphasis
Arm-
containing
turer of
asbestos contended that
products
1987,
in September
cause of action “arose”
of
when
strong’s
asbestosis,
diagnosed
first
so that his
Armstrong was
damages
subject
statutory
was
to the
award for noneconomic
rejected
relying
on the definition of
cap.
argument,
We
“arise,”
being;
which we added was “to come into
word
121,
Applying
In
that of
Speed,
the third case cited
Jones v.
(1990),
of the
Md.
(a) Limitations.—An damages action for for an injury aris- ing out of the rendering of or failure to render professional services aby § health care provider, as defined 3-2A-01 article, of this shall be filed within the earlier of: (1) years committed; Five of the time injury (2) Three years of the date the injury was discovered. 5-109(a) Maryland (1974, Code 1989 RepLVol.), Section of the Courts and Judicial Proceedings Article. Dr. Speed contend- ed “that the injury that is the gravamen complaint” occurred on July at the first visit when the initial misdiagnosis agreed, was made. noting negligence, We namely the misdiagnosis, produced “injury” July 1978, but, concluded, we relying on an affidavit Mrs. Jones’ *20 expert, every that successive misdiagnosis represented a sepa- rate injury:
Each time that Mrs. Speed, Jones saw Dr. a separate injury occurred, medical because of the Speed, failure of Dr. visits, at each of these to detect a progressively worsening and changing medical condition.
Each headache, severe and prolonged and the final sei- zure, grew out of a series of injuries directly medical caused by the carelessness of the treatment administered Dr. Speed. 256,
320 Md. at
Finally, our
analysis
Edmonds,
Rivera v.
(1997),
699 A.2d 1194
which
a
repose
the
of the statute of
to
application
also involved
claim;
5-
diagnose
malpractice
to
medical
failure
109(a)
Article
Proceedings
provided
and Judicial
Courts
within
claim must be filed
negligence
“[f]ive
that a medical
Rivera,
In
injury
the time the
was committed.”
years of
“fully differentiated
diagnosed
Edmonds was
Deborah
1989;
April
she died on
cancer” November
squamous
wrongful
child of Mrs. Edmonds filed
The widower and
Dr.
against
pathologists,
survival claims
two
death and
Rivera,
employers, Cytol-
and their respective
Jaffurs and
Mattei, M.D.,
and
R.
P.A.
Maryland,
Inc.
Ivan
ogy Services
that in 1983 Mrs. Edmonds underwent
alleged
The Edmonds
Rivera failed to
and that Drs. Jaffurs and
biopsies,
cervical
microscopic
evident
in the
“invasive carcinoma”
diagnose
for
Drs.
and Rivera moved
biopsies.
slides of those
Jaffurs
negligent
that “the
acts
judgment, asserting
alleged
summary
nearly
years
ten
by the defendants occurred
or omissions
time
complaint,
and were
barred.
prior”
filing
to
opposition
Darwin “first a result of the alleged negligence North Arundel Hospital failing defendants in diagnose shunt malfunc- tion, immediately steps and take to curb Darwin’s “neurologi- deterioration,” cal rather than at the time of his cardiac arrest in Baltimore 366 Md. at City. 785 A.2d 369-70. It is language injury” presents challenge this “first case, before, this because Mrs. Burnside asserts that well 8, 2002, April on she to Dr. presented Wong symptoms of background diabetic her retinopathy, but next office visit, 16, 2002, on September proliferative she had diabetic condition, a more retinopathy, severe and therefore she “first experienced worsened, injury” when the condition likely City. Wong by saying counters that Mrs. Burn- side’s diabetic retinopathy progressing existed and was April 2002 and any alleged misdiagnosis, failure to obtain consent, informed or mistreatment on that date constituted an injury Baltimore County. Special The Court of Appeals Jones, agreed, Rivera, Green, reasoning that under Burnside suffered injury, malpractice and thus her claim arose, Wong allegedly diagnose when Dr. failed to her condi- April tion on parties
Both before us are refuge able to seek holding regarding 6-202(8), Green’s because the cases where, upon which Green relied did not deal with but rather When, however, when an injury occurred.12 we articulate principles derived from the four fundamental upon cases which relied, Green we can parse applicability their to the instant case. In Oxtoby, “injury” we conceived in the context of a illness, cancer, progressive ovarian in terms of “the effect on recipient in the of hurt way damage,” and noted that “a limitations, stated, designed 12. A statute of we have foremost to "provide adequate diligent plaintiffs Georgia time for to file suit. ...” 59, 85, (2006), Corp. Benjamin, v. 394 Md. Pacific al., citing Corp., Pierce v. Johns-Manville Sales et (1983), timely A.2d recovery. and failure to file is a bar to not, hand, Improper recovery, venue does on the other bar because the complainant may damages requested, appro- still sue for the but in the priate county. *22 206 injury ... even all of the though resulting
medical
occurs
94,
Md. at
patient”
yet
to the
has not
occurred. 294
damage
Owens-Illinois,
866,
recognized
at
In
we
868.
being
of
when
into
that a cause
action arises
it comes
or
claim for
came into
originates,
being
such that the
asbestosis
Md. at
A.2d at 55. From
diagnosis.
to
326
604
prior
Jones,
can
that in the
of “a progressively
we
ascertain
context
condition,”
separate
and
medical
a
medi-
worsening
changing
injury
misdiagnosis.
occurs
each
In
the
of these
dictated that a
application
6-202(8) at the situs of
cause of action arose under Section
the
misdiagnosis
negligent
treatment
in a disease
alleged
pro-
the
and not
the
of
ultimate harm.
gression,
place
Although
injury
the
his
experienced
Darwin Green had
fullness of
when
City,
we
that venue
recognized
he arrested
Baltimore
was
in Anne
because
proper
County,
nevertheless
Arundel
the
occurred,
the
progression upon
misdiagnoses
which
disease
Green,
611-12,
there.
We turn now to the next namely, whether venue in 6-201(a), City proper Baltimore is under Section which pro- vides in pertinent part:
(a) actions.—Subject Civil to provisions §§ of 6-202 and 6-203 law, and unless otherwise provided by a civil action brought county shall be in a where the defendant ... carries on a regular business ... or habitually in engages a vocation.
Mrs. Burnside
that
argues
venue should be determined as of
occurred,
the time the alleged negligence
rather than at the
time suit was brought, relying on Simmons v. Urquhart, 101
85,
(1994).
Md.App.
Professor
City.
all
Alterna-
filing
complaint,
Baltimore
of
time
if we conclude that the
suit
posits
she
that even
tively,
regarding
venue
brought
analyzing
determinative
or
in a vocation under
regular
engaging
on a
business
carrying
6-201(a),
City,
Baltimore
because
proper
venue is
Section
Mercy
Medical
privileges
Dr.
maintained medical
Wong
Center,
Maryland
at the
teaching
University
privileges
School,
public
held
out to the
as
generally
and
himself
Medical
Baltimore area.
serving
greater
a
physician
counters,
history
both
Wong
relying
legislative
Dr.
6-201(a)
our
in Nodeen v.
well as
recent decision
Section
as
(2009),
This conclusion is consistent our Nodeen, 1075, in which we 408 Md. at at word “resides” mandates consider- considered whether the case, In that at was instituted. we ation of venue the time suit 6-202(5) the Courts and venue under Section of analyzed (1973, Article, Maryland Repl. Proceedings Code Judicial Vol.), provides: which
(5) maintenance, relating custody, guardianship, Action father, father, support or of a the or alleged child—Where resides, resides; mother of the child the where child When a non-custodial mother filed a for complaint modification resided, of custody County Calvert where she the Circuit Court County, transferred action Anne Arundel reason- ing that the Circuit Court for Anne County Arundel was the original custody situs of the order. disagreed, concluding We 6-202(5), pursuant that County Section Calvert was a venue, proper because mother complaint filed her county she at the filing. where resided time of further We held legal sufficiency of the forum is “[t]he selected filing.” determined at the time at of 968 A.2d at present 1082. The regular tense versions of “carries on a business ... or habitually engages 6- vocation” 201(a), mandates the result. same
Although argues Burnside the present tense (a) wording “pragmatically of section 6-201 encompasses the entire period viability negligence when point case—the the defendant duty—through breaches the period his/her when the breach injury—through causes an the expiration of the statute of limitations or the filing Complaint,” this Simmons, contention misplaced. Mrs. Burnside relies on Md.App. 643 A.2d at in which the Court of Special Appeals considered whether a circuit possessed court authority inherent to transfer an action on the basis of forum conveniens, non 2-327(c). embodied Rule That Rule stat- ed:
On the motion of any party, may the court any transfer any action to other circuit court might where action brought have been if the transfer is convenience of the parties and witnesses serves the justice. interests of *25 Simmons, 2-327(c). Rule Mrs. Simmons and three her children a filed wrongful death and action against survival Dr. Urquhart, Tullner, Associates, and Maryland Cardiology P.A. in Court, Prince George’s County following Circuit death of Mr. Simmons a pulmonary from Mary- embolism. offices, three two locat- maintained Cardiology Associates
land
George’s
County
one located
Prince
and
Montgomery
ed
dismiss,
in the
a motion to
cardiologists filed
County. The
Montgomery
the action
alternative, motion to transfer
to
a
venue.
County, alleging improper
motion, the
on the venue
Circuit
During
argument
oral
argument
recognized that defense counsel’s
judge
Court
ulti-
non
the doctrine
conveniens
premised on
forum
After
County.
Montgomery
the action to
mately transferred
contributory negli-
that the decedent’s
jury
determined
recovery,
appeal,
the Simmons
barred the Simmons’
gence
trans-
judge
authority
lacked
argued that the Circuit Court
that
because the Rule states
fer the
on his own initiative
case
any
transfer
action
motion of
may
“[o]n
a trial court
2-327(e).
court
appellate
The intermediate
party.” Rule
meeting
on the bases of
minutes
disagreed, reasoning
the fed-
precedent interpreting
Rules Committee and federal
transfers,
that
trial
authorizing
“Maryland
case
eral statute
sponte
transfer
authority
cases sua
possess
courts
2-327(c).”
A.2d at 496.
Md.App.
under
Rule
however,
that
Appeals,
concluded
Special
The Court of
discretion,
County was an abuse of
Montgomery
transfer to
proof
failed
adduce
cardiologists
the defendant
because
George’s County
in Prince
would
regarding how an action
106-07,
any potential witnesses.
Id. at
inconvenience them or
We 2-327(c) a make a motion requires party Md. Rule that first non being grounds to a transferred on prior case forum conveniens, on its initiative trial court not act own may Simmons, Urquhart under that rule.” v. transferring a case (1995). conclud- 1, 15, We further however, support sufficient to ed, that defendants’ motion was conveniens, the trial transfer non therefore for forum Finally, own did transfer the action on its initiative. court not discretion held “the trial court was within its we weighted] convenience] the balance determining [of
211 strongly favor of the action to transferring Montgomery County.” A.2d Id. at at 420.
Mrs. the Burnside makes much of fact that the Court of facts, Special Appeals, its recitation of noted is undis- “[i]t that, puted at the time the events rise to giving appeal this occurred, [Maryland Cardiology maintained three Associates] Md.App. offices.” 101 at 643 A.2d at (emphasis added Burnside), by Mrs. that an inference can posits be drawn period from that case that “the when a cause of action accrues consideration,” applicable is an venue because the intermedi- appellate ate court referred to that expressly period. We Simmons, In disagree. addition the that in fact the Court of Special Appeals considered the contours doctrine of conveniens, non rather than venue under Section 6- forum 201(a), posited the language merely a factual reference dispositive rather than a consideration. that, generally,
We conclude time proper the determining dependent venue on where a defendant carries on a regular business or habitually engages in a vocation at the brought, time suit is present which case is Baltimore County. task, then,
Our final is to consider whether Dr. Wong’s professional contacts with City Baltimore at the time suit was are brought sufficient to sustain venue there. Mrs. argues Burnside that Dr. Wong maintained “active privileges” at Mercy Medical “teaching Center and privileges” University Medicine, Maryland School of even after the complaint initial was filed. Mrs. Burnside further notes that Dr. Wong held himself as specialist out a retina public, particularly residents, City Baltimore and these contacts taken together permit venue in Baltimore City. contends, Wong conversely, at the time that action,
Burnside instituted her did requisite he not have business contacts with City, required as by 6-201(a). Welsh, Md. Inc. v. Dodge Enterprises, Park (1965), we considered lawsuit whether attorneys County three Montgomery against filed
properly The George’s County. in Prince whose office was located law attorneys generally practiced complaint alleged that Mont particular, Maryland, State throughout *27 The Court George’s Counties. Circuit gomery and Prince dismiss, to and we remanded determine granted the motion profession their as attorneys “regularly pursue[d] whether 573, 504. Id. 207 A.2d at lawyers County.” in at Montgomery avoca “the business or habitual regular that emphasized We 6-201(a)] in contemplated by employment’ [Section tion or * * or pursuit calling of some the continuous cluded of ordinarily in as a means engaged such as is profession, ” gain of or Id. at purpose profit.’ or for the livelihood Steele, Bank Baltimore v. at National quoting A.2d of (1923). Thereby, 487, 122 A. “continu a calling profession” prerequisite of or pursuit ous some 6-201(a). under Section Dr. case, that Pierson determined present Judge habitually or regular not on a business
Wong carrying was in at the City in the of medicine Baltimore practice engaging “I Judge emphasized, time Pierson brought suit having having hospital merely privileges don’t think staff business,” further doing sufficient to be privileges is them found, anything and not “having privileges doing conclu- nothing paper than connection.” These can be more testified, Wong amply sions are record. supported he held medical deposition although his example, Center, he had not exercised Mercy at Medical privileges them 2003: since I from the Wong]: ques- Do understand for Dr.
[Counsel time that through today that last tions that we’ve been in patient anything September for a medical you saw Mercy Medical Center? '03 at is correct. Wong]: That [Dr. seen, for, have you And since time not cared
[Counsel]: treated, provided consulted or medical for anybody services Baltimore, in the city is that correct? Wong]: That’s correct.
[Dr. case, Burnside, plaintiff You saw this [Counsel]: provided her; medical any treatment did of that occur, medical your care and treatment knowledge, City? not. Wong]: Did [Dr. Rose,
Similarly, Elizabeth Manager Barbara Medical Center, Mercy Staff Services at Medical in her depo- testified sition that medical despite maintaining privileges Mercy Medical Center from December 1993 through April 2005, Dr. no Wong facility had actual involvement at the since 2003: you
[Counsel]: Do know Dr. Wong participated whether any medical Mercy education through Medical Center? *28 No, he [Ms. Rose]: did not. And to the your
[Counsel]: best of Dr. knowledge, Wong never in participated any teaching involving any residents or fellows? [Ms. Rose]: That’s correct. have you
[Counsel]: And to see looked whether Dr. Wong in participated teaching any continuing medical education courses? I did check. did
[Ms. Rose]: He not participate any [continuing medical nor he teach programs education] did at any. types there, What of volunteer
[Counsel]: work are clinics things you like that that have? I [Ms. Rose]: There’s clinics. That think would be the most where he be would involved but there was no—he didn’t participate.
Moreover, although Wong teaching privi- maintained at Maryland of Medicine the University at School leges the instituted, the action was record indicates present time the volunteered, in re- participated he not or taught, had Specifically, Dr. school since around 1997. search at his involvement with the Wong, deposition, in his described 2000 and Maryland Medicine between University of School 2004 as “zero.” in the rec- findings supported Pierson’s are
Finally, Judge testimony Wong, regarding of Dr. his deposition ord thereof, the time the Johns lack at Hopkins, contacts with brought: suit go Hop- Then let’s to Johns Burnside]: for Mrs.
[Counsel entry is incorrect about your kins for this C.V. What that? my ophthalmic privi- I am sure I lost Wong]: pretty
[Dr. Institute at Johns leges Eye Hopkins] to Wilmer [the I very least haven’t been Johns nineties or 1997 or 1998. Hopkins patients probably to see since Therefore, “listing concluded that those forms Judge Pierson public were part Wong’s] persona” of affiliation as of [Dr. City. Pierson’s Judge to confer venue Baltimore insufficient conclu- clearly by the record and his findings supported are sions are sound. situation, appellate
In a intermediate Michigan similar not merely holding, actively court addressed whether but has business” utilizing, privileges “conducting medical constitutés Clinic, P.C., Pulcini v. Doctor’s purposes venue. (1987), plaintiffs argued 404 N.W.2d Mich.App. the defen Wayne County proper because venue participate him to privileges, entitling dant doctor held *29 pa admit residency training program and to ophthalmology tients, County hospitals.15 the defen- Wayne Although at two Michigan proper provides that is 15. The venue statute venue in relevant resides, business, county place or has a "[the] in which a defendant business, registered or in office of defendant conducts which dant those he had paid annually privileges, doctor to have patients hospital taught never admitted to the and had never there. Id. at 703. The trial court concluded that venue was that “a has the Wayne County proper, ruling doctor who privilege patients Wayne hospital to admit to a County doing Wayne Appeals Id. The County.” business Court of reversed, Wayne an im- Michigan reasoning County was proper venue for the lawsuit: case,
In this merely right [the had admit doctor] patients Wayne hospitals to two County operated Osteopathic Hospital Corporation. Detroit He exer- never cised It right. is not that he a member of disputed was corporation only he so that could participate residency training did program. pres- He not have a “real ence” or systematic dealings or continuous business Wayne County.
Id. at analysis 704. This is consistent with our reasoning today. Wong Because Dr. held merely privileges at Baltimore institutions, City more, without ties to City his Baltimore were insufficient to confer venue there.
Therefore, we conclude venue proper County, because the cause of action arose there pursuant 6-202(8), to Section at the suit because time brought, properly when venue is determined under Section 6- 201(a), Wong had only incidental connections Baltimore City, while regularly practiced he medicine in Baltimore Coun ty.
JUDGMENT OF THE OF COURT SPECIAL APPEALS AFFIRMED. IN COSTS COURT AND IN THE THIS COURT OF SPECIAL TO BE APPEALS PAID BY PETI- TIONER.
BELL, C.J., dissents and files opinion. corporation Clinic, P.C., is located.” Mich.App. Pulcini v. Doctor’s (1987). 404 N.W.2d n. 3 *30 BELL, Judge. Chief
Dissenting Opinion by action, Burnside At of this Mrs. Earlene the commencement Maryland for more than twen City, had in Baltimore resided 2001, sought ophthalmic she ty-five years. September, retinopathy, diabetic background, care and treatment for eyes,1 Wong, from Dr. Randall present which was both V. 15, 2001, Dr. office. On November County his Baltimore by a bilateral laser Wong performing treated Mrs. Burnside subsequently, during He noted coagulation procedure. 8, visit, acuity visual was office that Mrs. Burnside’s April Thereafter, Mrs. Burnside September stable. on a more retinopathy, diabetic diagnosed proliferative Wong Dr. treated this retinopathy. advanced form of diabetic on by performing coagulation procedures laser new condition care from Dr. receiving and treatment eyes.2 both While City. in Baltimore Wong, Mrs. Burnside continued reside in her totally right eye legally blind in her and blind Then her filed Circuit left Mrs. Burnside and husband eye, Wong, Dr. City against a complaint Court Baltimore of informed consent and loss alleging negligence, breach dismiss, arguing, pursuant Dr. moved to Wong consortium. Vol) 6-201(a)3 (1973, § § and 6- Maryland Repl. Code retinopathy by 1. was defined the court below: Diabetic 2006) (28th Dictionary entry ed. entitled in Stedman’s Medical "The changes, retinopathy' general definition as ‘retinal 'diabetic states exudates, mellitus, microaneurysms, occurring marked diabetes ” (citations hemorrhages, by neovascularization.' and sometimes omitted). Wong performed surgical August laser and 2. On Dr. and eye. procedure coagulation on Mrs. Burnside's left On October Wong performed coagulation procedure a laser And, right eye. performed on December he Burnside’s coagulation right eye. procedure on her another laser 6-201(a) (1973, Vol) Repl. § and Maryland Code the Courts Proceedings provides: Judicial Article §§ actions.—Subject provisions 6-202 6-203 of to the "Civil law, provided by a civil action shall this subtitle and unless otherwise resides, brought county on a be in a where the defendant carries business, habitually engages regular employed, vocation.” in a 202(8)4 Article, of the Courts and Judicial Proceedings improper. (a), venue was Addressing only section 6-201 as the done, parties hearing had court ruled that venue in City improper transferred the case to *31 County. Reconsider, Baltimore In her Alter, Motion to Amend or Revise the trial ruling, court’s Mrs. Burnside argued 6-202(8). that venue was proper under section support of position, Mrs. Burnside attached the affidavit Newsome, of an expert, Dr. opined who that Mrs. Burnside more likely than not subject eye suffered the injury Balti more City. Specifically, he said: It is my opinion to a degree reasonable of medical “5. (but
probability that the first not only) eye injury that Mrs. Burnside suffered while under Dr. Wong’s care was when her background retinopathy was progress allowed to to proliferative retinopathy, condition, a more severe despite indications for treatment that more than likely not would prevented have that progression. my It is opinion that this transition from background to proliferative retinopathy oc- curred during April 2002 and September 2002.
“6. This transition from background proliferative to retino- pathy gradual was a process. It my is understanding that Mrs. Burnside lived in Baltimore City April between 2002 and September as well as before and since that timeframe. It my is further understanding though some of Mrs. Burnside’s work activities took her into coun- ties other times, than Baltimore City at spent she far more time City Baltimore than in any other County during this period.
“7. Based on the foregoing assumptions, and my under- standing process of the transition background from proliferative retinopathy, it my opinion ato reasonable degree of medical probability that Mrs. eye Burnside’s first 6-202(8), captioned, permitted,” provides: “Additional venue 6-203, provided “In addition to § the venue § 6-201 or
following may brought actions county: be in the indicated “(8) Tort negligence—Where action based on the cause of action arose[J” more Wong’s likely under Dr. care occurred injury while majority the vast of her time—in spent than not where she City.” Baltimore denied, Burnside’s prompting appeal
The motion That affirmed the Special Appeals. the Court of court trial ruling, explaining: court’s view, teachings Speed,
“In our
Jones
Md.
[v.
Edmonds,
(1990)],
[v.
II majority The holds that: 6-202(8) of the and Judicial Pro Courts
“[U]nder
Article,
malpractice
in medical
ceedings
proper
venue is
a
the alleged
lack of informed consent action where
and
treatment,
misdiagnosis,
negligent
or
failure
negligent
harm,
inform, giving rise to the
occurs.”5
(2009).
180,186,
427, It reasons:
412 Md.
986 A.2d
and the
progressively worsening retinopathy
potential-
“The
harm,
ity
proliferative type,
of the ultimate
had to
alleged misdiagnosis,
coexist at the time of the
so that the
of failure to
could
allegation
properly diagnose
treat
not
presence
arise absent the
of the disease and its potentiality.
Accepting, for our
that the transition from back-
purposes,
ground
proliferative
retinopathy represents
diabetic
Dr.
gradual process,
suggests,
as
Newsome
the disease
germinating,
must have been
as
the disease in
Owens-
Illinois,
Armstrong,
Inc. v.
interpreted
where we also
[107,]
[47,]
language
arising, 326 Md.
604 A.2d
[(1992)],for Wong’s negligent
acts to constitute misdiag-
Therefore,
nosis and mistreatment.
Mrs. Burnside’s cause
of action arose in Baltimore County,
Wong’s
where Dr.
mistreatment,
alleged misdiagnosis,
and failure to obtain
(footnotes omitted).
informed consent occurred.”
206-07,
Id. at
Under the Courts and Judicial Proceedings
plain-
bring
tiff must
a tort claim
negligence
based on
either:
defendant, resides,
business,
“where the
carries on a regular
vocation,”
employed,
habitually engages
6-201(a),
§
or
in a
6-202(8).
“[w]here
§
the cause of action arose.”
When section
6-202(8)
venue,
Court,
is the
basis
the trial
as a threshold
matter, has to
question,
resolve the factual
Rivera v. Ed-
monds,
208, 220,
(1997);
347 Md.
699 A.2d
Hill v.
Fitzgerald,
(1985),
of where
*33
“
the “injury” first occurred.
injuries’...
‘Medical
refers
legally cognizable
or
wrongs
damage arising or resulting from
the rendering
care,”
or failure to render health
Oxtoby v.
majority
6-201(a)
pursuant
5. The
further holds "that
to Section
Article,
Proceedings
Courts and Judicial
venue is determined when suit
brought,
privileges
appointments
is
and medical
City,
in Baltimore
case, alone,
present
such as in issue in the
are insufficient to establish
186,
City.”
venue in Baltimore
McGowan, 447 A.2d 866 294 Md. interests legally protected invasion of “concerned with the has faced the previously harm.” Id. This Court coupled when, resolving a critical issue for exactly deciding of issue venue, “injury” an has determining where, the purpose a person of when make the determination occurred. To out follows the test set “injury,” this Court sustains an Edmonds, There, the intermediate quoting supra. v. Rivera v. Services Cytology Edmonds opinion court’s appellate Inc., 681 A.2d Md.App. Maryland, (1996),we observed: result of a ‘injury’ as a could suffer patient
“[T]he (1) pain experiences he or she misdiagnosis, when negligent (2) advances injury; of an the disease manifestation or other misdiagno- the it was at the time of point where beyond (a) effectively be longer it can no point and to a where sis (b) as treated, completely as well or as it cannot be treated (c) or misdiagnosis, at the time of it could have been or detrimental side effects expense entail treatment would com- had treatment likely not have occurred that would (3) time; dies.” patient at the earlier menced at 1198. Court Significantly, at 699 A.2d summary vacated the Special Appeals noted that the Court defendants, emphasizing in favor of the judgment entered so: doing court’s rationale for that Ms. any expert opinion proffer did not
“[Plaintiffs] any prior April at time spread cancer had not Edmonds’s (i.e., filing of the years prior five to the the date claim) (i.e., 11,1985 years prior date five to Ms. April death). any not advance But did [Defendants] Edmonds’s assertions, that Ms. evidence, to show beyond conclusory time during periods. advanced those Edmonds’s cancer had any suffered contend that Edmonds do [Defendants] Nor 1988. There- prior August from the cancer symptoms ” court erred.... fore, that the circuit we conclude 215-16, Edmonds v. quoting A.2d at 347 Md. at Services, at 565. The Md.App. Cytology
221 a similar rationale to its proceeded apply Court then resolution of that case: microscopic turns on the nature of
“The decision this case cancer, by as the record. Because the cervical revealed for radiation treatment surgery standard of care calls the diagnosed, when the condition is Defendants contend any delay, certainly protracted delay, caused a harm within the of Hill. misdiagnosis meaning is a Ordi- narily disagreement we would have no with that assessment case, Speed, such as Jones v. 320 Md. summary judgment where the uncontradicted evidence on undiagnosed progressing worsening that the cancer was the if during period following misdiagnosis, the even the Id. at asymptomatic. cancer was A.2d “Here, however, the evidence most favorable to the party summary is that the cancer that opposing judgment alleged- ly July should have been detected in Mrs. Edmonds in could remain dormant as The long years. as five inference plaintiff most favorable to the is that there are no if consequences microscopic additional adverse tumor unchanged. remains The Defendants have not attempted to demonstrate that Dr. is junk Rocereto’s statement science. Nor did the Defendants from him the develop probability undiagnosed remaining condition’s dormant for five years.” 222-223,
the Circuit Court for City or the Circuit Court for Anne Arundel County, properly belonged. venue Both courts had concluded that lay County.6 venue Anne Arundel presented 6. The Court was also as issue to whether the trial who, precluding injured plaintiff, court erred in as a result of his state, injury, essentially vegetative in a motionless unable either to proceeding, being brought communicate or to understand from into period during the courtroom for a of less than an hour the two-weelc Green, was born with “a medical condition injured party, fluid in the cerebral ventri- in which abnormal accumulation of *35 he morning, increased brain One pressure.” cles caused headache, day, began a and later that to began experience to continued on symptoms and feel nauseous. When his vomit him to the North- Arundel following day, his father took (NAHA) After exam- emergency Association’s room. Hospital Green, reviewing emergency the results of an CT scan ining examining gave a doctor consulting neurologist, and with him discharged pain him and once the prescription painkiller Green, day, complaining The still of gone. following headaches, in Anne Arundel taken to a doctor’s office immediately University Maryland and then to the of County (UMH) UMH, he City. in Baltimore While at suf- Hospital arrest, him severely damaged. a cardiac which left brain fered Baltimore City Green filed an action the Circuit Court for NAHA, al- examining physician NAHA and the against only County business Anne Arundel though both did there. He his choice of venue physician premised resided 6-202(8), on the fact that it was Balti- relying on Section arrest, cardiac which he City more that he suffered his to of action. injury giving maintained was the rise his cause 6-201(a), ruled that agree. The trial court did not It Section 6-202(8), applicable provision rather than was the that, section, lay to that venue in Anne Arundel pursuant or did business. County, where the defendants resided and/ Appeals held that Section 6- Although Special Court 202(8) defendants, applied, judgment it affirmed the for the injury occurred in Anne Arundel concluding Green’s court, this affirming appellate the intermediate County. explained: Court that, interrogatories, plaintiff
“In averred answers the next leaving reporting after NAHA and before to UMH afternoon, ‘neurologi- suffered a continued [Green] Darwin pres- intracranial ever-increasing cal deterioration’ from the liability, jury to be exhibited to the "to demonstrate his trial as current condition.” aside, it the fact Darwin seeks not to brush Although sure. Anne that, alleged negligence as a result of the is failing diagnose the shunt County Arundel defendants immediately facility sent to a plaintiff malfunction and have Darwin continued to dealing problem, capable headaches, drowsiness, and deterio- neurological suffer from damaging effect’ ration. That constitutes ‘hurtful ( n Oxtoby); of harm in Jones as recognized it is the kind we clearly scope and it falls within the construing injury; injury’ manifestation of an under Rivera. ‘pain or other Darwin, have sued the Clearly, through parents, his could day they defendants on saw [the Darwin].” NAHA The Court further stated: Special Appeals
“It
evident that the Court of
reached the
because
own evi-
only
possible—that
appellant’s
conclusion
*36
in
injury
that Darwin
the
experienced
dence showed
first
in
pain
suffering
deterioration’ and
and
‘neurological
form of
County, the cause of action arose in that
Anne Arundel
in
no
County.
lay
County,
thus
Anne Arundel
Venue
by the
Court for Baltimore
error was committed
Circuit
(citations omitted)
inCity
transferring the case.”
Green,
Ill Green, case, determine, in the instant as we must for the 6-202(8), purpose establishing venue under Section where An injury injury may Mrs. Burnside’s occurred. be either symptomatic asymptomatic. Webster’s Third New Interna- (2002), Dictionary symptomatic tional defines a condition disease; characteristic, as of a indicative.” “being symptom condition, hand, An asymptomatic “pre- the other is one senting subjective no of disease.” Id. at 136. evidence was, held,
The in the in injury majority symp- Green effect plaintiffs painful symptomatic tomatic. The headaches were injury of an and evidence that the had suffered an plaintiff misdiagnosis at NAHA a result of he injury negligent as the Burn- alleged. symptom injury There is no such with diabetic is not retinopathy side’s case. That she suffered retinopathy progressed proli- That her diabetic dispute. Moreover, the retinopathy dispute. ferative also is not accompanied not reflect that this progression record does that it by any tangible occurring. visible or manifestation contrary, progression proliferative retinopathy On the the it was any apparent symptoms; asymptomatic. was without when, did, therefore, question, point The critical is at what retinopathy beyond Mrs. Burnside’s diabetic disease advance misdiagnosis point it at the time of to a point where was (b) (a) longer effectively where it could no be treated or it longer completely could no be treated as well or as as it could v. misdiagnosis. Cytology have been the time of Edmonds Services, at 564. Md.App. at before, a plaintiff experiences pain
Green teaches that
who
for venue
during
misdiagnosis,
“injury”
and after
suffers
6-202(8);
injury
misdiagnosis
under Section
purposes,
majority
coincide.7
“[The circumstances, an determining when existing the ing upon sure, applies alternative one occurred. To be ‘injury’ has manifestation of or other experiences pain plaintiff the when against juxtaposed must be that alternative injury. an But injury progressed the has when applies alternative that the it such that diagnosis, it was at the at which beyond point more difficult would be treated or treatment cannot then be the must to apply alternative The latter expensive. asymptomatic is of an misdiagnosis the situation which test, least as difficult at a different injury. Logically, misdiagnosed condition that is when the apply must prove, submit, test, proof I require must That symptomatic. is a deterioration of indicates being experienced that the pain diagnosis the was it was when beyond where condition made.”
Green, A.2d at 386. 366 Md. at the “effect on the “injury” we stated that Oxtoby, 94, 447 294 Md. at damage.” of hurt or recipient way damage being experienced only at 866. The hurt or A.2d misdiagnosed condition was Burnside when her suffering; already with which she background retinopathy to a that, existing eye disease not the deterioration treatment pros- or Mrs. Burnside’s point affecting treatment itself of the condition resulting progression or the pects only condition that coexisted proliferative retinopathy, was Indeed, expert there was Wong’s misdiagnosis. with Dr. background of Mrs. Burnside’s progression evidence that the time occurred some proliferative retinopathy retinopathy injury. of her discovery and before the after the misdiagnosis of section 6- contemplation within the “injury,” To be an 202(8), of Mrs. Burnside’s progression there have must been condition; to more serious background retinopathy have deteriorated must retinopathy status of Mrs. Burnside’s faulty diagnosis was from it was when the significantly what objective and overt pain there is no or other made. Where “beyond means deterioration injury, manifestation of that it cannot then be diagnosis, it such point at which was *38 226
treated or treatment would be more difficult or expensive,”
Green,
(Bell, C.J.,
Moreover, it is well settled that an ‘injury’ “refers to a
legally cognizable wrong or damage resulting from the render
ing or failure to render health care.” Oxtoby,
The cancer, illness, ovarian of a progressive in the context ‘injury’ hurt or way in the of recipient effect on the in terms of ‘the ... occurs even injury medical noted that ‘a and damage,’ yet has not patient’ to the damage resulting all of the though I do not 205-06, A.2d at 442. at occurred.” with the disagree I simply disagree with this statement. to the instant Oxtoby decision majority’s application occurred injury Burnside’s that Mrs. case. I do not contend background retinopathy her that at the time she discovered retinopathy; injury-deteriora- progressed proliferative had diagnosis-undoubtedly of the disease at quo of the status tion Moreover, I agree discovery. to that prior had occurred Rivera, holding, its majority support cites to which the cancer, cervical microscopic of we rested “on the nature which at 1202. 699 A.2d record.” 347 Md. by as revealed case, likewise, on the nature and must rest The decision this proliferative retinopa- symptom retinopathy simply a of diabetic is not thy. displaying symptoms of surprising was It is not that Mrs. Burnside surprising, retinopathy. Similarly, is not not to background it diabetic symptoms proliferative logical, displaying she was not mention that suffering, was retinopathy, progression which the condition she not, could, develop. question when did this The gradually but need contempla- injury within the process gradual progression become an McGowan, Edmonds, supra Oxtoby meaning and v. of Rivera v. tion and words, 860?; when, symptoms in other did Md. proliferative develop symptoms of background retinopathy into diabetic light of the fact that the retinopathy? question answered in That must acuity following April diagnosis Burnside’s visual of Mrs. office visit was that it was stable. involves, note, majority’s protestations that this case On another Green, there is a symptomatic is concession condition like result, depending upon analysis perhaps which— difference in happens it is to be. If symptomatic asymptomatic—the condition concession, majority only why bothers to wonder not a one can at all. raise the issue the progression of Mrs. Burnside’s proliferative retinopathy, by as revealed the record. And the record in this case expert contains opinion, Burnside, offered Mrs. that she injured when her existing eye injury, the background retinopathy, was progress allowed to to proliferative retinopa- thy, that a gradual process occurred April between that, 2002 and September 2002 and during period, this Mrs. Burnside “resided Baltimore City spent nearly all of her leisure time there.” She estimated that “she spent more than seventy-five percent ... of the total hours in any given week in City.” There is no other “medical opinion, record, medical or medical testimony” suggest otherwise.
The
evidence
this case is
opposite
the exact
of that found
in Jones
Speed,
v.
“where ...
the uncontradicted evidence on
summary judgment was that
the undiagnosed cancer was
progressing
worsening
during
period
following the
if
misdiagnosis,
Rivera,
even
the cancer
asymptomatic.”
My view is consistent with how jurisdictions other have defined “injury” resulting from a misdiagnosis. Estate of Co., Genrich v. OHIC Ins. 318 Wis.2d 769 N.W.2d (2009) (“... injury actionable arises when the [negli- gent act or greater omission] causes a harm than [that which] existed at the time of [negligent omission]”); act or Paul (2001) (“[T]he v. Skemp, Wis.2d 625 N.W.2d misdiagnosis malpractice medical [in is the negligent action] act or omission. The misdiagnosis is not the The injury. misdiagnosis may or not may and, result in an injury; injury may occur concurrently, or there may be a delay between the misdiagnosis and the injury.”).
I dissent, Green, continue of the I expressed, view majority’s interpretation renders the “venue statute a nullity any of’ misdiagnosis an action analysis] its [under because nec- “would asymptomatic, condition, symptomatic whether misdiagno- brought where to be always, have essarily, Therefore, I A.2d at occurred.” sis dissent.