Lead Opinion
We are asked to consider whether venue in a medical malpractice action, coupled with a lack of informed consent complaint, will lie in the Baltimore City Circuit Court, where it was filed, when the complainant lives in Baltimore City, but the alleged misdiagnosis, negligent medical treatment, and failure to obtain informed consent, allegedly related to a degenerative eye condition, known as proliferative diabetic retinopathy,
After the Respondent, Dr. Randall Wong, filed a Motion to Dismiss for Improper Venue on the basis of Sections 6-201(a)
I. Does a plaintiffs medical injury occur in the county where, and at the time that, a plaintiff suffers harm resulting from the negligent act of the defendant for the imposition of venue in that county, pursuant to MD. Code Ann., Cts. & Jud. Proc. § 6-202(8)?
II. May a defendant’s contacts with a Maryland county at the time of his alleged negligence be considered in a trial court’s venue analysis, pursuant to Md.Code Ann., Cts. & Jud. Proc. § 6-201(a)?
III. Are a defendant physician’s active medical privileges and academic appointments at various hospitals and medical schools located within a Maryland county sufficient contact with that jurisdiction to subject the defendant to venue in that county, pursuant to Md. Code Ann., Cts. & Jud. Proc. § 6-201(a)?
We shall hold that under Section 6-202(8) of the Courts and Judicial Proceedings Article, venue is proper in a medical malpractice and lack of informed consent action where the alleged misdiagnosis, negligent treatment, or negligent failure to, inform, giving rise to the harm, occurs. We shall further hold in response to questions II and III that pursuant to Section 6-201(a) of the Courts and Judicial Proceedings Article, venue is determined when suit is brought, and medical privileges and appointments in Baltimore City, such as in issue in the present case, alone, are insufficient to establish venue in Baltimore City.
I. Background
On January 31, 2005, Earlene Burnside and her husband, Johnny,
5. In September 2001, Plaintiff Earlene Burnside sought ophthalmic care and treatment from Defendant Wong for herbackground, diabetic retinopathy in both of her eyes.
6. Defendant Wong performed a bilateral laser coagulation procedure on Ms. Burnside on November 15, 2001.
7. Ms. Burnside continued to seek ophthalmic care and treatment from Defendant Wong through June 2003, during which time the background, diabetic retinopathy condition in her eyes was allowed by Defendant Wong to progress into a more severe, vision threatening condition known as proliferative retinopathy.
8. On August 21, 2003, Defendant performed a surgical and a laser coagulation procedure on Ms. Burnside’s left eye. On October 9, 2003, Defendant performed a laser coagulation procedure on Ms. Burnside’s right eye, and then on December 18, 2003, he performed another laser coagulation procedure on Ms. Burnside’s right eye.
9. To date, Ms. Burnside is totally blind in her right eye and legally blind in her left eye.
She further alleged the following, regarding Dr. Wong’s breaches of the standards of care in support of her medical malpractice claim:
13. Defendant Wong failed to comply with and breached his duty and was negligent in that he:
(a) failed to establish the appropriate diagnosis for Plaintiff Burnside’s ophthalmic condition;
(b) failed to properly manage and treat Plaintiff Burnside’s ophthalmic condition;
(c) failed to halt the progression of Plaintiff Burnside’s clinically significant vision threatening condition;
(d) failed to perform surgical treatment in a timely fashion;
(e) failed to properly care for, manage and treat Plaintiff Burnside’s ophthalmic condition post-surgery;
(f) failed to apply the appropriate surgical technique during surgery to avoid complications;
(g) failed to apply adequate approach to treatment of encountered complications;
(h) failed to timely recognize and treat the Plaintiff Burnside’s condition after surgery; and
(i) was otherwise negligent.
Mrs. Burnside also alleged, in support of her informed consent count, that:
16. Preoperatively, Defendant Wong, individually and through his agents and employees, had a duty to inform the plaintiff of the probability of success of the proposed surgeries, alternative methods of treatment, the risks of failure or unfortunate side affects, including the risks of blindness, and other factors which a reasonable patient would consider material in making a decision to undergo her surgeries.
17. Contrary to the accepted standards of medical and surgical care, the defendant, individually and/or through his employees and agents, failed to inform Earlene Burnside of the risks of serious consequences, including but not' limited to blindness.
18. If Plaintiff Burnside had been informed that there was a material risk that she would suffer blindness and/or vision impairment, she would not have consented to undergo the surgeries.
19. As a direct and proximate result of the defendant’s failure to inform Ms. Burnside of the likelihood of blindness and/or vision damage and/or serious damages resulting therefrom, Earlene Burnside underwent the surgery and has suffered, and will continue to suffer,severe and permanent injury to her vision, mental anguish, physical impairment and disfigurement, loss of enjoyment of life, and will be required to expend large sums of money for past and future medical and rehabilitative services.
In response, Dr. Wong filed a Motion to Dismiss for Improper Venue, asserting that although he held privileges to practice medicine at Mercy Medical Center in Baltimore City, he had not used the privileges since September 2003, and he otherwise did not reside or carry on a regular business in Baltimore City, pursuant to Section 6-201(a). Dr. Wong also argued that under Section 6-202(8), Mrs. Burnside’s cause of action arose in Baltimore County, because the allegedly negligent failure to diagnose, obtain informed consent, and treat Mrs. Burnside took place in his Baltimore County office. Thereafter, after having joined Omni Eye Specialists as a defendant,
[Counsel for Mrs. Burnside]: So the only thing that would have changed from 2000 through 2001, 2002, and 2003, and I am going to say 2004, is the amount of actual surgeries you performed, correct?
[Dr. Wong]: Sure. Yes.
[Counsel]: But the amount of activities, seeing patients would have been the same over those years?
[Dr. Wong]: About the same, sure, except for 2004,1 wasn’t there.
[Counsel]: So, let’s say through 2003 you would have seen in—from 2000 through 2003, you would have seen twenty to—I mean, sorry—forty to fifty patients per month at Mercy Hospital?
[Dr. Wong]: Sure.
[Counsel]: I’m almost done, Doctor. And your consultations would have been the same; it’s the same activity? [Dr. Wong]: Yes.
Mrs. Burnside also argued that because Dr. Wong held active-staff part-time privileges in the Department of Ophthalmology at Johns Hopkins Hospital through August SI, 2001, a part-time faculty appointment as an instructor in the Department of Ophthalmology at Johns Hopkins University School of Medicine through April 28, 2003, and held a volunteer- faculty appointment at the University of Maryland School of Medicine, such contacts, she asserted, coupled with Dr. Wong’s work at Mercy Medical Center, were sufficient to render venue in Baltimore City proper.
After a hearing in which the parties argued venue solely on the basis of Section 6-201(a), Judge Pierson signed an Order on May 23, 2005, transferring the action to the Circuit Court for Baltimore County. He reasoned that Dr. Wong’s contacts with Baltimore City at the time suit was
I don’t think that the facts really are the subject of dispute for purposes of the venue motion. And I think the facts are that Dr. Wong was treating patients [in Baltimore City] quite regularly up until 2003. There wasn’t any basis for dispute that he was doing business in the City of Baltimore until that time.
Since that time he’s maintained various forms of privileges at Baltimore City institutions, but apparently has not examined, treated, consulted, or had any contact with any patients since that time. And apparently hasn’t had any contact with those institutions since that time, but has simply confined himself to limiting those forms of affiliation on whatever advertising that maybe well—listing those forms of affiliation as part of his public persona. Let me put it that way.
Now, so the question is, I think, I am required to focus on the time when I should determine doing business. And let me say part of the reason I think I have to is that I don’t think merely having staff privileges or having hospital privileges is sufficient to be doing business. I haven’t found any Maryland case law on that.
There’s one out of state case ... and that’s Pulcini v. Doctor’s Clinic,158 Mich.App. 56 ,404 N.W.2d 702 , which is an opinion of the intermediate appellate court in Michigan, which is the only opinion I could find on whether merely having privileges is enough to be doing business ... by a doctor and they said it wasn’t.
But I don’t rest the decision on that, but more on the fact that merely having privileges and not doing anything with them can be nothing more than a paper connection. And I don’t think it has the continuity or the required volume of contact with the forum to constitute doing business within the meaning of the venue statute.
I think it is a matter of statutory construction. And the statute is phrased in the present tense.
And the plaintiff makes a very strong argument that that’s not necessarily dispositive because that’s the only tense they could phrase it in, but I’m not completely persuaded by that argument.
I do agree that the past could be important in that if you had an individual who was engaging in a course of conduct over a number of years that regularity could be important in determining whether he or she continues to do business____ I think you have to look at the entire picture.
But this seems to me to be a case where factually there isn’t any dispute that he stopped seeing patients in 2008. So I don’t think this is a case where I could say because of the conduct in the past it would be a basis to infer that he’s still doing business ... in this jurisdiction.
In terms of fairness the argument the plaintiff makes that this would sort of foster a race to get out of the jurisdiction before he could get sued. The other way to look at it would be it’s within the plaintiff’s power to determine when the defendant is sued. So from that standpoint you could say that it’s just as fair to the plaintiff to look at the time when suit is brought, because it’s the plaintiff who has control over when the suit is brought just as much as it’s the defendant who has control over where he or she conducts his activities or her activities.
And it seems to me that the time when suit is brought is not an inappropriate time to measure doing business for purposes of venue. Even though I think arguments could be made that from a fairness standpoint if someone is regularly doing business at the time he or she commits the alleged tort it’s fair to hold that he or she could be sued in the jurisdiction. But you could argue it the other way equally, which is ... what a valuable right it is to be sued where you reside. So you could say well fairness says it’s as of the time you’re being sued.
And since I think it is clear from the words of the statute that it is the time when suit is brought, I believe there is no venue in Baltimore City.
Thereafter, Mrs. Burnside filed a Motion to Reconsider, Alter, Amend, or Revise thé ruling transferring the action to Baltimore County, relying for the first time primarily on Section 6-202(8), arguing that a cause of action arises, for the purposes of venue, when facts exist to support each element of a negligence claim, namely, duty, breach, and injury. Mrs. Burnside asserted that her “first eye injury while under Dr. Wong’s care” occurred at her residence in Baltimore City, relying on an affidavit executed by Dr. David Newsome, which, in relevant part, stated:
5. It is my opinion to a reasonable degree of medical probability that the first (but not only) eye injury that Mrs. Burnside suffered while under Dr. Wong’s care was when her background retinopathy was allowed to progress to proliferative retinopathy, a more severe condition, despite indications for treatment that more likely than not would have prevented that progression. It is my opinion that this transition from background to proliferative retinopathy occurred between April 8, 2002 and September 16, 2002.
Dr. Newsome further opined that Mrs. Burnside’s degenerative eye condition deteriorated to proliferative retinopathy at her residence in Baltimore City:
6. This transition from background to proliferative retinopathy was a gradual process. It is my understanding that Mrs. Burnside lived in Baltimore City between April 8, 2002 and September 16, 2002, as well as before and since that timeframe. It is my further understanding that though some of Mrs. Burnside’s work activities took her into counties other than Baltimore City at times, she spent far more time in Baltimore City than in any other County during this period.
7. Based on the foregoing assumptions, and my understanding of the process of the transition from background to proliferative retinopathy, it is my opinion to a reasonable degree of medical probability that Mrs. Burnside’s first eye injury while under Dr. Wong’s care occurred more likely than not where she spent the vast majority of her time—in Baltimore City.
Mrs. Burnside then filed a second amended complaint asserting that Section 6-202(8) was an alternative basis for venue in Baltimore City, but Judge Pierson denied the Motion to Reconsider, Alter, Amend, or Revise his judgment transferring the case to Baltimore County. Mrs. Burnside filed an appeal to the Court of Special Appeals, which, in an unreported opinion, affirmed the decision of the circuit court judge.
The intermediate appellate court considered whether venue in Baltimore City existed at the time suit was brought under Sections 6-201(a) and 6-202(8). The court evaluated the present tense language of Section 6-201 (a), as well as case law from
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 remedied by a particular provision, be it statutory, constitutional or part of the Rules.” Barbre v. Pope,
III. Discussion
We are concerned in the present case with the specific application of our venue statute. Venue is one of a number of jurisprudential concepts relating to the competency of a court generally to render a valid judgment; others include subject
Whether a court may exercise jurisdiction over a putative defendant is dependent on whether personal jurisdiction exists. The defense of lack of personal jurisdiction, unlike subject matter jurisdiction, is waived unless raised in a mandatory preliminary motion, Rule 2-322(a)(l); Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary 202 (3rd ed. 2003), but if raised successfully may terminate the action. Bond v. Messerman,
Venue, unlike subject matter and personal jurisdiction, focuses largely on geographical nexus related to the appropriate county in which an action may proceed. John A. Lynch, Jr. & Richard W. Bourne, Modem Maryland Civil Procedure 2-111 (2nd ed. 2004). The defense of improper venue, moreover, is waived unless timely raised in a preliminary motion, Rule 2-322(a)(2), Niemeyer & Schuett, supra, at 202, and once raised may result in a transfer of the action to the proper forum, rather than termination of the action altogether. Rules 2-327(b) and 3-326(a); see Odenton Dev. Co. v. Lamy,
The present ease involves the interpretation of two statutory sections defining venue.
(a) Civil actions.—Subject to the provisions of §§ 6-202 and 6-203 and unless otherwise provided by law, a civil action shall be brought in a county where the defendant ... carries on a regular business ... or habitually engages in a vocation.
The second, Section 6-202(8) in pertinent part provides:
(8) Tort action based on negligence—Where the cause of action arose;
The major focus of this case, however, concerns when a “cause of action” arises under Section 6-202(8) of the venue statute. Mrs. Burnside posits, citing Green v. North Arundel Hospital Ass’n.,
Mrs. Burnside had symptomatic background retinopathy in September 2001 when she first saw Dr. Wong; she had symptomatic background retinopathy when she saw him on April 8, 2002. By the next office visit, on September 16, 2002, Mrs. Burnside had proliferative retinopathy, a more severe condition,meaning the worsening took place after April 8 and before September 16.
Dr. Wong counters, also relying on Green,
A review of the legislative history of Section 6-202(8) indicates that the provision was first enacted in 1945, as part of a general venue statute. The General Assembly added to then Section 157 of Article 75, Maryland Code (1939), the following language:
In any action ex delicto in which all of the defendants are not residents of, nor carrying on regular business in, nor habitually engaged in any avocation or employment in one county, the plaintiff may, at his election, sue all said defendants in the county where the cause of action arose.
1945 Maryland Laws, Chapter 468 (emphasis added). An action “ex delicto” “imputes a tort done either to the person or property of another.... ” Stewart v. United Electric Light & Power Co.,
In 1954, the statute, then Section 158 of Article 75, Maryland Code (1951), 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 delicto in which all the defendants are not residents of, not carrying on regular business in, or habitually engaged in any avocation or employment in one county, the plaintiff may, at his election, sue all said defendants in the county where the cause of action arose or sue all of the said defendants in the county where any one of the defendants reside.
1954 Maryland Laws, Chapter 60 (emphasis in original). In 1961, the General Assembly enacted a new provision, adding the language of negligence:
In any action ex delicto based upon negligence, the plaintiff at his election may sue the defendant or defendants in the county where the cause of action arose.
1961 Maryland Laws, Chapter 603 (emphasis added).
At no time in this history was the phrase “cause of action arose” defined, and it was in this context that we first had the opportunity to consider what the phrase in Section 6-202(8) meant in the context of venue. In Green v. North Arundel Hospital Ass’n,
Darwin’s parents filed suit in the Circuit Court for Baltimore City against North Arundel Hospital Association, and Dr. Fields, who immediately moved to dismiss the action for improper venue.
We granted certiorari to consider the parents’ claim that the “cause of action arose” when Darwin suffered his grievous injury, the cardiac arrest in Baltimore City. Green,
Although the plaintiff seeks now to brush it aside, the fact is that, as a result of the alleged negligence of the Anne Arundel County defendants in failing to diagnose the shunt malfunction and have Darwin sent immediately to a facility capable of dealing with that problem, Darwin continued to suffer from headaches, drowsiness, and neurological deterioration.
Id. at 612,
It is evident that the Court of Special Appeals reached the only conclusion possible—that “because appellant’s own evidence showed that Darwin first experienced injury in the form of ‘neurological deterioration’ and pain and suffering inAnne Arundel County, the cause of action arose in that county.”
Id. at 612,
In so concluding that the phrase “where the cause of action arose” did not refer to the site of the ultimate injury, but to the disease progression, we explored cases in which venue was not in issue, those being Oxtoby v. McGowan,
In Oxtoby v. McGowan,
Dr. McGowan filed a motion to dismiss, asserting that the claims needed to have been first submitted to arbitration. We disagreed, concluding that there was evidence in the record that the cancer, though not diagnosed until 1977, was contracted prior to the effective date of the Act. In so holding, we conceived “injury” in terms of “the effect on the recipient in the way of hurt or damage.”
In Owens-Illinois v. Armstrong,
(b) Limitation of $350,000 established.—In any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for noneconomic damages may not exceed $350,000.
(Emphasis added). In the case, Owens-Illinois, the manufacturer of products containing
In the third case cited in Green, that of Jones v. Speed,
(a) Limitations.—An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01 of this article, shall be filed within the earlier of:
(1) Five years of the time the injury was committed; or
(2) Three years of the date the injury was discovered.
Maryland Code (1974, 1989 RepLVol.), Section 5-109(a) of the Courts and Judicial Proceedings Article. Dr. Speed contended “that the injury that is the gravamen of the complaint” occurred on July 17, 1978, at the first visit when the initial misdiagnosis was made. We agreed, noting that negligence, namely the misdiagnosis, produced an “injury” on July 17, 1978, but, we concluded, relying on an affidavit of Mrs. Jones’ expert, that every successive misdiagnosis represented a separate injury:
Each time that Mrs. Jones saw Dr. Speed, a separate medical injury occurred, because of the failure of Dr. Speed, at each of these visits, to detect a progressively worsening and changing medical condition.
Each severe and prolonged headache, and the final seizure, grew out of a series of medical injuries directly caused by the carelessness of the treatment administered by Dr. Speed.
Finally, our analysis in Green also included reference to Rivera v. Edmonds,
After exploring the nature of microscopic cervical cancer, we concluded that “the cancer that allegedly should have been detected in Mrs. Edmonds in July 1983 could remain dormant for as long as five years,” so that Mrs. Edmonds suffered “no additional adverse consequences if the microscopic tumor remain[ed] unchanged.” Therefore, she could have suffered an injury as late as July 1988, such that her claim was timely. We recognized, however, that “any delay, and certainly a protracted delay, caused by a misdiagnosis is a harm,” in cases such as Jones, in which the disease is “progressing and worsening during the period following the misdiagnosis, even if the cancer was asymptomatic.”
In Green, in reliance on these four cases, we concluded that Darwin “first experienced injury” in Anne Arundel County as a result of the alleged negligence of the North Arundel Hospital defendants in failing to diagnose the shunt malfunction, and immediately take steps to curb Darwin’s “neurological deterioration,” rather than at the time of his cardiac arrest in Baltimore City.
Both parties before us are able to seek refuge in Green’s holding regarding Section 6-202(8), because the cases upon which Green relied did not deal with where, but rather when an injury occurred.
In Green, the application of these principles dictated that a cause of action arose under Section 6-202(8) at the situs of the alleged misdiagnosis or negligent treatment in a disease progression, and not at the place of the ultimate harm. Although Darwin Green had experienced the fullness of his injury when he arrested in Baltimore City, we recognized that venue was nevertheless proper in Anne Arundel County, because the disease progression upon which the misdiagnoses occurred, was there. Green,
Application of the fundamental principles underlying Green to the present case yields the conclusion that the instant cause of action arose in Baltimore County. The failure to obtain informed consent could only occur at the site of the omission. The progressively worsening retinopathy and the potentiality of the ultimate harm, the proliferative type, had to coexist at the time of the alleged misdiagnosis, so that the allegation of failure to properly diagnose and treat could not arise absent the presence of the disease and its potentiality.
We turn now to the next issue, namely, whether venue in Baltimore City is proper under Section 6-201(a), which provides in pertinent part:
(a) Civil actions.—Subject to the provisions of §§ 6-202 and 6-203 and unless otherwise provided by law, a civil action shall be brought in a county where the defendant ... carries on a regular business ... or habitually engages in a vocation.
Mrs. Burnside argues that venue should be determined as of the time the alleged negligence occurred, rather than at the time suit was brought, relying on Simmons v. Urquhart,
Dr. Wong counters, relying on both the legislative history of Section 6-201(a) as well as our recent decision in Nodeen v. Sigurdsson,
We begin by analyzing the plain meaning of Section 6-201(a). As the Court of Special Appeals noted, the provision is cast entirely in the present tense. The use of the words, “carries” and “engages,” coupled with the phrase, “a civil action shall be brought,” evinces the intent of the Legislature to establish a time requirement in the present for determining the proper venue. In other words, a civil action, in this regard, may be filed only in a county where the defendant, at the time of filing, carries on a regular business, or habitually engages in a vocation.
This conclusion is consistent with our recent decision in Nodeen,
(5) Action relating to custody, guardianship, maintenance, or support of a child—Where the father, alleged father, or mother of the child resides, or where the child resides;
When a non-custodial mother filed a complaint for modification of custody in Calvert
Although Mrs. Burnside argues that the present tense wording of section 6-201 (a) “pragmatically encompasses the entire period of viability of a negligence case—the point when the defendant breaches his/her duty—through the period when the breach causes an injury—through the expiration of the statute of limitations or the filing of the Complaint,” this contention is misplaced. Mrs. Burnside relies on Simmons,
On the 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.
Rule 2-327(c). In Simmons, Mrs. Simmons and her three children filed a wrongful death and survival action against Dr. Urquhart, Dr. Tullner, and Maryland Cardiology Associates, P.A. in Prince George’s County Circuit Court, following the death of Mr. Simmons from a pulmonary embolism. Maryland Cardiology Associates maintained three offices, two located in Montgomery County and one located in Prince George’s County. The cardiologists filed a motion to dismiss, or in the alternative, a motion to transfer the action to Montgomery County, alleging improper venue.
During oral argument on the venue motion, the Circuit Court judge recognized that defense counsel’s argument was premised on the doctrine of forum non conveniens and ultimately transferred the action to Montgomery County. After the jury determined that the decedent’s contributory negligence barred the Simmons’ recovery, on appeal, the Simmons argued that the Circuit Court judge lacked authority to transfer the case on his own initiative because the Rule states that a trial court may transfer the action “[o]n motion of any party.” Rule 2-327(e). The intermediate appellate court disagreed, reasoning on the bases of meeting minutes of the Rules Committee and federal precedent interpreting the federal statute authorizing case transfers, that “Maryland trial courts possess the authority to transfer cases sua sponte under Rule 2-327(c).”
We reversed, reasoning that “because the express language of Md. Rule 2-327(c) requires that a party first make a motion prior to a case being transferred on the grounds of forum non conveniens, a trial court may not act on its own initiative in transferring a case under that rule.”
Mrs. Burnside makes much of the fact that the Court of Special Appeals, in its recitation of facts, noted “[i]t is undisputed that, at the time the events giving rise to this appeal occurred, [Maryland Cardiology Associates] maintained three offices.”
We conclude that, generally, the proper time for determining venue dependent on where a defendant carries on a regular business or habitually engages in a vocation is at the time suit is brought, which in the present case is Baltimore County.
Our final task, then, is to consider whether Dr. Wong’s professional contacts with Baltimore City at the time suit was brought are sufficient to sustain venue there. Mrs. Burnside argues that Dr. Wong maintained “active privileges” at Mercy Medical Center and “teaching privileges” at the University of Maryland School of Medicine, even after the initial complaint was filed. Mrs. Burnside further notes that Dr. Wong held himself out as a retina specialist to the public, particularly Baltimore City residents, and these contacts taken together permit venue in Baltimore City.
Dr. Wong contends, conversely, that at the time that Mrs. Burnside instituted her action, he did not have the requisite business contacts with Baltimore City, as required by Section 6-201(a).
In Dodge Park Enterprises, Inc. v. Welsh,
In the present case, Judge Pierson determined that Dr. Wong was not carrying on a regular business or habitually engaging in the practice of medicine in Baltimore
[Counsel for Dr. Wong]: Do I understand from the questions that we’ve been through today that the last time that you saw a patient for a medical anything was in September of '03 at Mercy Medical Center?
[Dr. Wong]: That is correct.
[Counsel]: And since that time you have not seen, cared for, treated, consulted or provided medical services for anybody in the city of Baltimore, is that correct?
[Dr. Wong]: That’s correct.
[Counsel]: You saw the plaintiff in this case, Mrs. Burnside, and provided medical treatment to her; did any of that medical care and treatment occur, to your knowledge, in Baltimore City?
[Dr. Wong]: Did not.
Similarly, Barbara Elizabeth Rose, the Manager of Medical Staff Services at Mercy Medical Center, testified in her deposition that despite maintaining medical privileges at Mercy Medical Center from December 15, 1993 through April 13, 2005, Dr. Wong had no actual involvement at the facility since 2003:
[Counsel]: Do you know whether Dr. Wong participated in any medical education through Mercy Medical Center?
[Ms. Rose]: No, he did not.
[Counsel]: And to the best of your knowledge, Dr. Wong never participated in any teaching involving any residents or fellows? [Ms. Rose]: That’s correct.
[Counsel]: And have you looked to see whether Dr. Wong participated in teaching any continuing medical education courses?
[Ms. Rose]: I did check. He did not participate in any [continuing medical education] programs nor did he teach at any.
[Counsel]: What types of volunteer work are there, clinics and things like that that you have?
[Ms. Rose]: There’s clinics. That I think would be the most where he would be involved but there was no—he didn’t participate.
Moreover, although Dr. Wong maintained teaching privileges at the University of Maryland School of Medicine at the time the present action was instituted, the record indicates that he had not taught, volunteered, or participated in research at the school since around 1997. Specifically, Dr. Wong, in his deposition, described his involvement with the University of Maryland School of Medicine between 2000 and 2004 as “zero.”
Finally, Judge Pierson’s findings are supported in the record by the deposition testimony of Dr. Wong, regarding his contacts with Johns Hopkins, or lack thereof, at the time the suit was brought:
[Counsel for Mrs. Burnside]: Then let’s go to Johns Hopkins for this entry on your C.V. What is incorrect about that?
[Dr. Wong]: I am pretty sure I lost my ophthalmic privileges to [the Wilmer Eye Institute at Johns Hopkins] in the nineties or at the very least I haven’tbeen to Johns Hopkins to see patients probably since 1997 or 1998.
Therefore, Judge Pierson concluded that “listing those forms of affiliation as part of [Dr. Wong’s] public persona” were insufficient to confer venue in Baltimore City. Judge Pierson’s findings are clearly supported by the record and his conclusions are sound.
In a similar situation, a Michigan intermediate appellate court has addressed whether merely holding, but not actively utilizing, medical privileges constitutés “conducting business” for the purposes of venue. In Pulcini v. Doctor’s Clinic, P.C.,
In this case, [the doctor] had merely the right to admit patients to two Wayne County hospitals operated by the Detroit Osteopathic Hospital Corporation. He never exercised that right. It is not disputed that he was a member of the corporation only so that he could participate in the residency training program. He did not have a “real presence” or systematic or continuous business dealings in Wayne County.
Id. at 704. This analysis is consistent with our reasoning today. Because Dr. Wong merely held privileges at Baltimore City institutions, without more, his ties to Baltimore City were insufficient to confer venue there.
Therefore, we conclude that venue was proper in Baltimore County, because the cause of action arose there pursuant to Section 6-202(8), and because at the time suit was brought, when venue is properly determined under Section 6-201(a), Dr. Wong had only incidental connections to Baltimore City, while he regularly practiced medicine in Baltimore County.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.
BELL, C.J., dissents and files opinion.
Notes
. According to the affidavit of Dr. David Newsome, filed in the trial court by the Petitioner, proliferative diabetic retinopathy can progress from background diabetic retinopathy. Retinopathy has been defined as a "[d]isease or disorder of the retina. The term is usually used to describe damage to the retina caused by persistent hypertension (high blood pressure) or diabetes mellitus." The American Medical Association Encyclopedia of Medicine 868 (Charles B. dayman ed., Random House 1989) (emphasis in original).
. Section 6-201(a) of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2002 Repl.Vol.) states in pertinent part:
(a) Civil actions.—Subject to the provisions of §§ 6-202 and 6-203 and unless otherwise provided by law, a civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation.
. Section 6-202(8) of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2002 Repl.Vol.) states:
(8) Tort action based on negligence—Where the cause of action arose;
. Statutory references to Section 6-201(a) and 6-202(8) throughout are to the Courts and Judicial Proceedings Article, Maryland Code (1974, 2002 Repl.Vol.). All references are to the 2002 Replacement Volume, which was in effect during the time the acts in dispute occurred, although Sections 6-201(a) and 6-202(8) have not been substantively changed in the 2006 Replacement Volume.
. Mr. Burnside was a party to the litigation in conjunction with Petitioner’s loss of consortium claim. In her brief, Mrs. Burnside advises that Mr. Burnside died during the proceedings and is no longer a party.
. Lack of informed consent represents a cause of action, distinct from medical malpractice in Maryland. In McQuitty v. Spangler,
Breach of informed consent and medical malpractice claims both sound in negligence, but are separate, disparate theories of liability. In a count alleging medical malpractice, a patient asserts that a healthcare provider breached a duty to exercise ordinary medical care and skill based upon the standard of care in the profession, while in a breach of informed consent count, a patient complains that a healthcare provider breached a duty to obtain effective consent to a treatment or procedure by failing to divulge information that would be material to his/her decision about whether to submit to, or to continue with, that treatment or procedure.
(Internal citations omitted).
. The allegations supporting the joinder of Omni Eye Specialists were:
3. At all times relevant hereto Defendant Omnisburg, LLC, d/b/a Omni Eye Specialists (hereinafter, "Omni”), was a Maryland corporation authorized to and doing business in the State of Maryland.
4. At all times relevant hereto Defendant Wong was the actual and/or apparent agent, servant, and employee of Defendant Omni.
. The intermediate appellate court, at the time of the filing of its unreported opinion, did not have the benefit of our analysis in Nodeen v. Sigurdsson,
. The parties have presented only Section 6-201(a) and Section 6-202(8) for our analysis.
. The statute was amended in 1966, so that Section 75 of Article 75, Maryland Code (1957, 1969 Repl.Vol.) then read:
(c) In any action ex delicto based upon negligence, the plaintiff at his election may sue the defendant or defendants in the county where the cause of action arose.
In 1973, the General Assembly repealed Section 75 of Article 75 and enacted Section 6-202 of the Courts and Judicial Proceedings Article; the newly enacted Section 6-202(8) contained "new language derived from Art. 75, § 75(c)." Revisor’s Note, 1973 Md. Laws, Special Session, Chap. 2.
. The University of Maryland Hospital and eleven health care providers at that Hospital were originally named as respondents before the Health Claims Arbitration Office. We noted that these respondents, "apparently either resided or did business in Baltimore City.” Green v. North Arundel Hospital Ass’n.,
. A statute of limitations, we have stated, is designed foremost to "provide adequate time for diligent plaintiffs to file suit. ...” Georgia Pacific Corp. v. Benjamin,
. The dissent asserts, without record basis, that Mrs. Burnside’s condition was "asymptomatic,” and that as a result, “[y]ou cannot simultaneously have an asymptomatic injury resulting from a failure to diagnose.” In fact, however, Dr. Newsome, Mrs. Burnside’s expert, opined that she presented to Dr. Wong with symptoms of background diabetic retinopathy, from which proliferative retinopathy gradually progressed.
. In her brief in this Court, Mrs. Burnside contends that her allegation "is not that Dr. Wong misidentified her condition as of April 8, 2002.... Rather, he should have followed her more closely after April 8, 2002—seeing her well before September 16, 2002—thereby observing and acting upon the 'indications for treatment that more likely than not would have prevented her progression to proliferative retinopathy.' ” (citations omitted). Mrs. Burnside appears to be asserting a claim for medical monitoring, which we have not recognized, nor have been called upon to do in the present case.
. The relevant Michigan venue statute provides that venue is proper in "[the] county in which a defendant resides, or has a place of business, or conducts business, or in which the registered office of a defendant corporation is located.” Pulcini v. Doctor’s Clinic, P.C.,
Dissenting Opinion
Dissenting Opinion by
At the commencement of this action, Mrs. Earlene Burnside had resided in Baltimore City, Maryland for more than twenty-five years. In September, 2001, she sought ophthalmic care and treatment for background, diabetic retinopathy, which was present in both eyes,
Then totally blind in her right eye and legally blind in her left eye, Mrs. Burnside and her husband filed in the Circuit Court for Baltimore City a complaint against Dr. Wong, alleging negligence, breach of informed consent and loss of consortium. Dr. Wong moved to dismiss, arguing, pursuant to Maryland Code (1973, 2002 Repl. Vol) § § 6-201(a)
“5. It is my opinion to a reasonable degree of medical probability that the first (but not only) eye injury that Mrs. Burnside suffered while under Dr. Wong’s care was when her background retinopathy was allowed to progress to proliferative retinopathy, a more severe condition, despite indications for treatment that more likely than not would have prevented that progression. It is my opinion that this transition from background to proliferative retinopathy occurred during April 8, 2002 and September 16, 2002.
“6. This transition from background to proliferative retinopathy was a gradual process. It is my understanding that Mrs. Burnside lived in Baltimore City between April 8, 2002 and September 16, 2002, as well as before and since that timeframe. It is my further understanding that though some of Mrs. Burnside’s work activities took her into counties other than Baltimore City at times, she spent far more time in BaltimoreCity than in any other County during this period.
“7. Based on the foregoing assumptions, and my understanding of the process of the transition from background to proliferative retinopathy, it is my opinion to a reasonable degree of medical probability that Mrs. Burnside’s first eye injury while under Dr. Wong’s care occurred more likely than not where she spent the vast majority of her time—in Baltimore City.”
The motion was denied, prompting Mrs. Burnside’s appeal to the Court of Special Appeals. That court affirmed the trial court’s ruling, explaining:
“In our view, the teachings of Jones [v. Speed,320 Md. 249 ,577 A.2d 64 (1990)], Rivera [v. Edmonds,347 Md. 208 ,699 A.2d 1194 (1997)], and Green [v. North Arundel Hospital Association, Inc.,366 Md. 597 ,785 A.2d 361 (2001)] compel the conclusion that Mrs. Burnside suffered an injury, and thus her malpractice claim arose, when Dr. Wong allegedly failed to diagnose her condition on April 8, 2002, in Baltimore County.
“Just as the plaintiff in Jones, Mrs. Burnside sustained an ‘injury’ when Dr. Wong allegedly failed to diagnose the worsening of her diabetic retinopathy in his office in Baltimore County on April 8, 2002. As explained in Rivera, ‘any delay1 caused by the misdiagnosis is harm where the medical condition was progressing and worsening after the misdiagnosis. Finally, just as the plaintiff in Green, Mrs. Burnside’s injury occurred on April 8, 2002, even though all of the resulting damage had not occurred at that time. Therefore, we hold that, under section 6-202(8), venue is proper only in Baltimore County.”
II
The majority holds that:
“[U]nder Section 6-202(8) of the Courts and Judicial Proceedings Article, venue is proper in a medical malpractice and lack of informed consent action where the alleged misdiagnosis, negligent treatment, or negligent failure to inform, giving rise to the harm, occurs.”5
“The progressively worsening retinopathy and the potentiality of the ultimate harm, the proliferative type, had to coexist at the time of the alleged misdiagnosis, so that the allegation of failure to properly diagnose and treat could not arise absent the presence of the disease and its potentiality. Accepting, for our purposes, that the transition from background to proliferative diabetic retinopathy represents a gradual process, as Dr. Newsome suggests, the disease must have been germinating, as was the disease in Owens-Illinois, Inc. v. Armstrong, where we also interpreted the language of arising, 326 Md. [107,] 121, 604 A.2d [47,] 54 [(1992)], for Dr. Wong’s negligent acts to constitute misdiagnosis and mistreatment. Therefore, Mrs. Burnside’s cause of action arose in Baltimore County, where Dr. Wong’s alleged misdiagnosis, mistreatment, and failure to obtain informed consent occurred.” (footnotes omitted).
Id. at 206-07,
“[T]he patient could suffer an ‘injury’ as a result of a negligent misdiagnosis, when (1) he or she experiences pain or other manifestation of an injury; (2) the disease advances beyond the point where it was at the time of the misdiagnosis and to a point where (a) it can no longer effectively be treated, (b) it cannot be treated as well or as completely as it could have been at the time of the misdiagnosis, or (c) the treatment would entail expense or detrimental side effects that would not likely have occurred had treatment commenced at the earlier time; or (3) the patient dies.”
“[Plaintiffs] did not proffer any expert opinion that Ms. Edmonds’s cancer had not spread at any time prior to April 9, 1988 (i.e., the date five years prior to the filing of the claim) on April 11,1985 (i.e., the date five years prior to Ms. Edmonds’s death). But [Defendants] did not advance any evidence, beyond conclusory assertions, to show that Ms. Edmonds’s cancer had advanced during those time periods. Nor do [Defendants] contend that Edmonds suffered any symptoms from the cancer prior to August 1988. Therefore, we conclude that the circuit court erred.... ”
“The decision in this case turns on the nature of microscopic cervical cancer, as revealed by the record. Because the standard of care calls for surgery or radiation treatment when the condition is diagnosed, the Defendants contend that any delay, and certainly a protracted delay, caused by a misdiagnosis is a harm within the meaning of Hill. Ordinarily we would have no disagreement with that assessment in a case, such as Jones v. Speed,320 Md. 249 ,577 A.2d 64 , where the uncontradicted evidence on summary judgment is that the undiagnosed cancer was progressing and worsening during the period following the misdiagnosis, even if the cancer wasasymptomatic. Id. at 256, 577 A.2d at 67 . “Here, however, the evidence most favorable to the party opposing summary judgment is that the cancer that allegedly should have been detected in Mrs. Edmonds in July 1983 could remain dormant for as long as five years. The inference most favorable to the plaintiff is that there are no additional adverse consequences if the microscopic tumor remains unchanged. The Defendants have not attempted to demonstrate that Dr. Rocereto’s statement is junk science. Nor did the Defendants develop from him the probability of the undiagnosed condition’s remaining dormant for five years.”
In Green, we granted certiorari to resolve in which court, the Circuit Court for Baltimore City or the Circuit Court for Anne Arundel County, venue properly belonged. Both courts had concluded that venue lay in Anne Arundel County.
Green, the injured party, was born with “a medical condition in which abnormal accumulation of fluid in the cerebral ventricles caused increased brain pressure.” One morning, he began to experience a headache, and later that day, began to vomit and feel nauseous. When his symptoms continued on the following day, his father took him to the North- Arundel Hospital Association’s (NAHA) emergency room. After examining Green, reviewing the results of an emergency CT scan and consulting with a neurologist, the examining doctor gave him a prescription painkiller and discharged him once the pain was gone. The following day, Green, still complaining of headaches, was taken to a doctor’s office in Anne Arundel County and then immediately to the University of Maryland Hospital (UMH) in Baltimore City. While at UMH, he suffered a cardiac arrest, which left him severely brain damaged.
Green filed an action in the Circuit Court for Baltimore City against NAHA and the examining physician at NAHA, although both did business only in Anne Arundel County and the physician resided there. He premised his choice of venue on Section 6-202(8), relying on the fact that it was in Baltimore City that he suffered his cardiac arrest, which he maintained was the injury giving rise to his cause of action. The trial court did not agree. It ruled that Section 6-201(a), rather than Section 6-202(8), was the applicable provision and that, pursuant to that section, venue lay in Anne Arundel County, where the defendants resided and/ or did business. Although the Court of Special Appeals held that Section 6-202(8) applied, it affirmed the judgment for the defendants, concluding that Green’s injury occurred in Anne Arundel County. In affirming the intermediate appellate court, this Court explained:
“In answers to interrogatories, the plaintiff averred that, after leaving NAHA and before reporting to UMH the next afternoon, Darwin [Green] suffered a continued ‘neurological deterioration’ from the ever-increasing intracranial pressure. Although Darwin seeks not to brush it aside, the fact isthat, as a result of the alleged negligence of the Anne Arundel County defendants in failing to diagnose the shunt malfunction and have plaintiff sent immediately to a facility capable of dealing with that problem, Darwin continued to suffer from headaches, drowsiness, and neurological deterioration. That constitutes a ‘hurtful or damaging effect’ (■Oxtoby); it is the kind of harm we recognized in Jones as construing an injury; and it clearly falls within the scope of ‘pain or other manifestation of an injury’ under Rivera. Clearly, Darwin, through his parents, could have sued the NAHA defendants on [the day they saw Darwin].”
The Court further stated:
“It is evident that the Court of Special Appeals reached the only conclusion possible—that because appellant’s own evidence showed that Darwin first experienced injury in the form of ‘neurological deterioration’ and pain and suffering in Anne Arundel County, the cause of action arose in that County. Venue thus lay in Anne Arundel County, and no error was committed by the Circuit Court for Baltimore City in transferring the case.” (citations omitted)
Green,
Ill
In the instant case, as in Green, we must determine, for the purpose of establishing venue under Section 6-202(8), where Mrs. Burnside’s injury occurred. An injury may be either symptomatic or asymptomatic. Webster’s Third New International Dictionary 2318 (2002), defines a symptomatic condition as “being a symptom of a disease; characteristic, indicative.” An asymptomatic condition, on the other hand, is one “presenting no subjective evidence of disease.” Id. at 136.
The injury in Green was, the majority in effect held, symptomatic. The plaintiffs painful headaches were symptomatic of an injury and evidence that the plaintiff had suffered an injury at NAHA as a result of the negligent misdiagnosis he alleged. There is no such symptom of injury in Mrs. Burnside’s case. That she suffered with diabetic retinopathy is not in dispute. That her diabetic retinopathy progressed to proliferative retinopathy also is not in dispute. Moreover, the record does not reflect that this progression was accompanied by any visible or tangible manifestation that it was occurring. On the contrary, the progression to proliferative retinopathy was without any apparent symptoms; it was asymptomatic. The critical question, therefore, is when, at what point did, Mrs. Burnside’s diabetic retinopathy disease advance beyond the point where it was at the time of misdiagnosis to a point where it (a) could no longer effectively be treated or (b) it could no longer be treated as well or as completely as it could have been at the time of misdiagnosis. Edmonds v. Cytology Services,
Green teaches that a plaintiff who experiences pain before, during and after a misdiagnosis, suffers an “injury” for venue purposes, under Section 6-202(8); the injury and misdiagnosis coincide.
“[The Edmonds] test provides alternative methods, depending upon the existing circumstances, of determining when an ‘injury’ has occurred. To be sure, one alternative applies when the plaintiff experiences pain or other manifestation of an injury. But that alternative must be juxtaposed against the alternative that applies when the injury has progressed beyond the point at which it was at diagnosis, such that it cannot then be treated or treatment would be more difficult or expensive. The latter alternative must apply to the situation in which the misdiagnosis is of an asymptomatic injury. Logically, a different test, at least as difficult to prove, must apply when the condition that is misdiagnosed is symptomatic. That test, I submit, must require proof that the pain being experienced indicates a deterioration of the condition beyond where it was when the diagnosis was made.”
Green,
In Oxtoby, we stated that an “injury” is the “effect on the recipient in the way of hurt or damage.”
Moreover, it is well settled that an ‘injury’ “refers to a legally cognizable wrong or damage resulting from the rendering or failure to render health care.” Oxtoby,
The majority states, further, that “[i]n Oxtoby, we conceived ‘injury’ in the context of a progressive illness, ovarian cancer, in terms of ‘the effect on the recipient in the way of hurt or damage,’ and noted that ‘a medical injury occurs ... even though all of the resulting damage to the patient’ has not yet occurred.”
The evidence in this case is the exact opposite of that found in Jones v. Speed, “where ... the uncontradicted evidence on summary judgment was that the undiagnosed cancer was progressing and worsening during the period following the misdiagnosis, even if the cancer was asymptomatic.” Rivera,
My view is consistent with how other jurisdictions have defined “injury” resulting from a misdiagnosis. Estate of Genrich v. OHIC Ins. Co.,
I continue of the view I expressed, in dissent, in Green, the majority’s interpretation renders the “venue statute a nullity because [under its analysis] an action for misdiagnosis of’ any condition, whether symptomatic or asymptomatic, “would necessarily, and always, have to be brought where the misdiagnosis occurred.”
. Diabetic retinopathy was defined by the court below:
"The entry in Stedman’s Medical Dictionary (28th ed. 2006) entitled 'diabetic retinopathy' states the general definition as ‘retinal changes, occurring in diabetes mellitus, marked by microaneurysms, exudates, and hemorrhages, sometimes by neovascularization.' ” (citations omitted).
. On August 21, 2003, Dr. Wong performed a surgical and laser and coagulation procedure on Mrs. Burnside's left eye. On October 9, 2003, Dr. Wong performed a laser coagulation procedure on Mrs. Burnside’s right eye. And, on December 18, 2003, he performed another laser coagulation procedure on her right eye.
. Maryland Code (1973, 2006 Repl. Vol) § 6-201(a) of the Courts and Judicial Proceedings Article provides:
"Civil actions.—Subject to the provisions of §§ 6-202 and 6-203 of this subtitle and unless otherwise provided by law, a civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation.”
. Section 6-202(8), captioned, “Additional venue permitted,” provides:
“In addition to the venue provided in § 6-201 or § 6-203, the following actions may be brought in the indicated county:
“(8) Tort action based on negligence—Where the cause of action arose[J”
. The majority further holds "that pursuant to Section 6-201(a) of the Courts and Judicial Proceedings Article, venue is determined when suit is brought, and medical privileges and appointments in Baltimore City, such as in issue in the present case, alone, are insufficient to establish venue in Baltimore City.”
. The Court was also presented with the issue as to whether the trial court erred in precluding the injured plaintiff, who, as a result of his injury, was essentially in a motionless vegetative state, unable either to communicate or to understand the proceeding, from being brought into the courtroom for a period of less than an hour during the two-weelc trial as to liability, to be exhibited to the jury "to demonstrate his current condition.”
. I did not agree with Green when it was decided—I dissented—and I continue to be skeptical of its accuracy. For purposes of this dissenting opinion, however, I accept its teaching. As I explain, infra, Green does not support the majority's analysis or the result it reaches.
. The majority apparently believes that the critical condition for the purpose of determining when injury occurred is Mrs. Burnside’s background diabetic retinopathy, the symptom of which simply progressively worsened. Thus, the majority disputes that Mrs. Burnside’s condition was asymptomatic, relying, for support, on Mrs. Burnside’s expert's affidavit that indicated that "she presented to Dr. Wong with symptoms of background diabetic retinopathy, from which proliferative retinopathy gradually progressed.” Burnside v. Wong,
It is not surprising that Mrs. Burnside was displaying symptoms of background diabetic retinopathy. Similarly, it is not surprising, not to mention logical, that she was not displaying symptoms of proliferative retinopathy, a progression to which the condition she was suffering, gradually could, but need not, develop. The question is when did this process of gradual progression become an injury within the contemplation and meaning of Rivera v. Edmonds, supra and Oxtoby v. McGowan,
On another note, the majority’s protestations that this case involves, like Green, a symptomatic condition is concession that there is a difference in analysis and perhaps result, depending upon which— symptomatic or asymptomatic—the condition happens to be. If it is not a concession, one can only wonder why the majority bothers to raise the issue at all.