Lead Opinion
Before us is a medical malpractice action that commenced in the Circuit Court for Baltimore City but was eventually tried in the Circuit Court for Anne Arundel County. Through his parents, the severely injured plaintiff, Darwin Green, sued respondents, North Arundel Hospital Association (NAHA) and Drs. Richard T. Fields, Stewart P. Axelbaum, and Hashad R. Mody. Because liability was in significant dispute and the injury allegedly resulting from the defendants’ conduct was severe, the court bifurcated the case, undoubtedly to avoid
Plaintiff appealed to the Court of Special Appeals, which affirmed the Circuit Court judgments. Green v. North Arun-del Hospital,
BACKGROUND
Darwin Green was born on February 12,1977 and was 20 at the time of trial. He was born with hydrocephalus — a medical condition in which abnormal accumulation of fluid in the cerebral ventricles causes increased brain pressure. Nine days after birth, a shunt was placed in the right cerebral ventricles of his brain to drain the extra fluid into other parts of his body and thereby relieve the cranial pressure. The shunt was revised once when Darwin was one year old, and a second shunt was placed in his brain at age four. Darwin had a limited intellectual capability but was able to attend school, take special education classes, and go on family vacations.
Darwin returned home but continued to complain of headaches. His father gave him another Vicodin tablet that evening. The next morning, August 19, Darwin’s headache persisted, and his father took him to Dr. Lee’s office in Anne Arundel County. Dr. Lee noted that, in addition to the headache, Darwin appeared drowsy and was staggering. After consulting with Darwin’s neurosurgeon, Dr. Lee arranged for Darwin to visit immediately the University of Maryland Hospital (UMH) located in Baltimore City. Darwin and his father arrived at UMH in late afternoon. Upon his arrival, Darwin’s shunt was tapped and another CT scan was per
DISCUSSION
Venue
This litigation began on October 13, 1989, with a claim filed on behalf of Darwin with the Health Claims Arbitration Office (HCAO).
The court concluded that § 6-202(8) was inapplicable and that, under the clear mandate of § 6-201(b), venue lay only in Anne Arundel County. Therefore, in March, 1992, it transferred the case to the Circuit Court for Anne Arundel County, which, in July, 1993, set a firm trial date of June 2, 1994. On May 17, 1994 — two weeks before the scheduled trial date and 26 months after the case was transferred — the plaintiff moved to stay trial on the ground that he wanted to add two additional defendants — Drs. Mody and Axelbaum. The trial date was postponed and plaintiff filed a new claim with HCAO against the two doctors, who had rendered service in connection with plaintiffs initial visit to NAHA. After arbitration was waived, HCAO transferred the case to the Circuit Court for Anne Arundel County.
Rather than proceeding apace in that court, where the scheduled trial had been postponed to allow the addition of the
Plaintiff pursued his claim of improper venue on appeal. The Court of Special Appeals held that the Circuit Court for Baltimore City, in the first proceeding, erred in concluding that § 6-202(8) was inapplicable.
The plaintiff applauds the Court of Special Appeals’ determination that § 6-202(8) applies and that the Circuit Court for
In Owens-Illinois v. Armstrong,
Most instructive with respect to the particular issue before us is Jones v. Speed,
The complaint contained 17 counts. The first count asserted negligence with respect to the first visit in July, 1978. The remaining 16 counts incorporated the allegations of the first count but asserted separate negligence with respect to each of the ensuing visits, through 1985. We agreed with Speed that all claims based on his failure to order appropriate diagnostic tests and on his failure to detect the tumor more than five years prior to the filing of the complaint were barred. That conclusion necessarily rested on the premise that the pain and disability that Ms. Jones continued to suffer from Speed’s failure to correctly diagnose the problem constituted an injury which, when joined with his negligence, gave the plaintiff a cause of action. We concluded further, however, that the claims based on Speed’s negligence at the later visits occurring within five years of the filing of the complaint were not barred and could proceed, although we suggested that they be
We most recently considered the question of injury in Rivera v. Edmonds,
In examining that issue, we quoted the view of the Court of Special Appeals that
“The 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.”
Id. at 215,
The record indicated that Ms. Edmonds had at least a Stage I cervical cancer — a tumor confined to the cervix — when the misdiagnosis occurred in July, 1983. Although there was a
With this background, we may quickly dispose of plaintiffs complaints that the Court of Special Appeals (1) engaged in impermissible appellate fact-finding, and (2) erred substantively in determining that Darwin suffered injury in Anne Arundel County. The two issues really coalesce, and we need go no farther than the plaintiffs own admissions. He states in his brief:
“After being released from [NAHA] at 3:05 p.m. on August 18, 1988 Darwin continued to complain of headache and that evening his father gave him another Viacodin as prescribed by Dr. Fields---- The next morning, August 19, 1988 Darwin still complained of a headache and his parents took him to his pediatrician, Dr. Lee.... Dr. Lee noted that Darwin had a headache, drowsiness and was now staggering, and he immediately arranged for Darwin’s parents to take him to University of Maryland Hospital.”
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.” Green v. North Arundel Hospital, supra,
Appearance at Trial
Just before trial, both sides filed motions in limine. NAHA moved to exclude Darwin’s presence from the trial. Plaintiff filed a motion to exclude (1) any evidence or argument concerning the plaintiffs settlement with UMH, and (2) any evidence or argument that UMH or any health care provider other than the defendants was negligent in the care rendered to Darwin. NAHA’s motion to exclude, which was supported by the other defendants, was based on the assertion that Darwin was in a vegetative state, unable to communicate, unable to participate or assist in any way with the presenta
Although the motion and the response seemed to assume that the plaintiff desired Darwin’s presence throughout the trial, at the hearing on the motion, the plaintiff indicated that “he is not going to be sitting here the entire time for trial.” It is not clear from the transcript of the hearing how long the plaintiff wished to have Darwin in court. Counsel noted that Darwin required his airway to be suctioned every two hours, but that it was not a noisy process and that Darwin would have a health care professional with him in the courtroom. Although in his appellate brief, the plaintiff now asserts that counsel “only sought his presence in the courtroom for a period of time less than an hour, on one day of the trial,” and, for purposes of this appeal, we shall assume that was the case, such a limitation is not at all clear from the record.
Although the court recognized that it could not arbitrarily deny a party the right to be present during trial because of the party’s appearance and that the defendants had the burden of establishing a basis for excluding Darwin, it concluded that the burden had been met and that, in the liability phase of the trial, the prejudice from Darwin’s presence would extend beyond “any instructions that could be offered.” For those reasons, it granted the motion. With the acquiescence of the defendants, the court granted the plaintiffs motion to exclude evidence regarding the settlement with UMH but denied the motion to preclude evidence and argument of negligence on the part of UMH or other health care providers.
Americans With Disabilities Act
The Americans With Disabilities Act (ADA) broadly prohibits discrimination against disabled persons in employment, public services and programs offered by public entities, and public accommodations and services operated by private entities. We are concerned here with Title II of the ADA, dealing with public services offered by public entities. 42 U.S.C. §§ 12131-12165 (1994 & Supp.1999). Section 12132 states that, subject to the provisions of the subchapter, no qualified individual with a disability may, by reason of that disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.
Section 12131(1)(B) defines “public entity” as including any agency or other instrumentality of a State or local government, which clearly would include a State court. To date, ADA compliance issues with respect to courts have been principally in the context of requiring that courts make reasonable accommodations in their physical facilities or services to assure that those facilities are accessible to persons with disabilities. See Layton v. Elder,
It is not necessary in this case to resolve that issue, however, for, even if we were to conclude that the ADA provides a broader, more absolute right of presence than does the common law or the State or Federal Constitutions, reversal of the judgment and a new trial would not be a remedy for the statutory violation. Section 12133 limits the rights, remedies, and procedures available to a person alleging discrimination in violation of § 12132 to those set forth in 29 U.S.C. § 794a, which is part of the Vocational Rehabilitation and Other Rehabilitation Services Act, 29 U.S.C. §§ 701-796Z (1994 & Supp.1999). Section 794a, in turn, deals with two different kinds of disability discrimination complaints — those filed under 29 U.S.C. § 791with respect to Federal employment, and those filed under 29 U.S.C. § 794 regarding discrimination in programs receiving Federal financial assistance. Section 794a does not appear to cover complaints of discrimination in State or local government programs or services that do not receive Federal financial assistance.
There has, of course, been no showing in this case, or even an attempted showing, that either § 791 or § 794 is applicable here. To the extent that § 794 may conceivably be applicable on the basis that our State courts receive some Federal financial assistance, that section provides that the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) are available to any person aggrieved by any act or failure to act by a recipient of Federal assistance. Section 2000d-l authorizes each Federal agency empowered to extend financial assistance to adopt regulations to effectuate the provisions of § 2000d, and specifies that compliance with any agency requirement may be effected by termination or refusal to continue the assistance, or by any other means authorized by law. There is no provision in either Federal or State law, to the best of our knowledge — and none has been cited to us — authorizing the
As noted, public entities are subject to the ADA under § 12132 even if they do not receive Federal financial assistance. The remedies for violations, not otherwise covered by § 794a, are set forth in regulations adopted by the U.S. Department of Justice. 28 C.F.R. §§ 35.101-35.190 (2001). That department is responsible for receiving complaints of discrimination arising from programs dealing with the administration of justice, including the courts. Id. § 35.190. A person who believes that he or she has been subjected to discrimination on the basis of disability by a court may file a complaint with the Department of Justice, which investigates the complaint and attempts to resolve it informally. Id. §§ 35.170-35.172. If unable to effect a resolution, the Department issues findings of fact, following which the complainant may file a private lawsuit or the Department may seek voluntary compliance. Id. §§ 35.172-35.173. If neither occurs, the matter is sent to the U.S. Attorney General “with a recommendation for appropriate action.” Id. § 35.174.
Nowhere in these regulations is there stated, or even suggested, that, where the complaint concerns the exclusion of a disabled person from the courtroom by judicial ruling, reversal of the judgment entered in the case is a permissible remedy. The entire thrust of the administrative remedial sections is in forcing public entities to make reasonable accommodations in their facilities or in their programs to preclude the wrongful exclusion of persons with disability and are injunctive or forward-looking in nature. The remedies available in a private lawsuit, subject to Eleventh Amendment considerations,
For these reasons, whether or not the exclusion of Darwin constituted a violation of the ADA, reversal of the judgments is not an acceptable or available remedy.
Constitutional and Common Law Right
In concert with courts throughout the country, we have made clear that a party to civil litigation has a right to be present for and to participate in the trial of his/her case. Although we have not, in our previous cases, specifically identified the source of that right, it is clear that the right emanates, at least, from the common law of Maryland, from the due process clause of the Fourteenth Amendment to the U.S. Constitution, from the Maryland equivalent of that clause, Article 24 of the Declaration of Rights, and from Article 19 of the Declaration of Rights. We have also made clear, as have most other courts in the nation, that the right is not absolute — that there are circumstances in which a civil
In Gorman v. Sabo,
“It is not claimed in the brief, nor was it at the argument, that the appellants were hurt in fact by the failure of the court to allow a continuance of the case. It is not even claimed that Mrs. Gorman had planned to take the stand or that she would have been a helpful or persuasive witness. It is not said that she would testify as to any fact that was not brought out either on direct or cross examination of any witness. No actual prejudice was claimed, much less shown. The right of a party to a cause to be present throughout the trial is not an absolute right in a civil case and in the discretion of the court, with due regard to the circumstances as to prejudice, the case may be tried or finished when a party, including a defendant, is absent.”
Id. at 167,
The same point was made, although in a different context, in Safeway Stores, Inc. v. Watson,
‘We conclude that it is appropriate to presume prejudice from the wrongful exclusion of a party, or its representative, from a trial. Experienced trial attorneys and judges understand the importance of ‘humanizing’ a corporate defendant in a jury trial. Moreover, a party is entitled to be present to have a firsthand view of the proceedings for purposes of evaluating the constantly changing prospects or exigencies for settlement, and to participate in tactical decisions that must be made, sometimes quickly, in the course of a trial. Finally, the attorney for Safeway was deprived of the presence at his side of the principal investigator in the case. Whether we consider these facts as mounting up to the necessary proof of prejudice by Safeway, or simply consider them in determining that a presumption of prejudice is appropriate in this case, the result is the same. The claimant has not overcome the proof or presumption, and the result must be a new trial.”
Id. ah 184,
What emanates from these cases is that there is a right of presence, that the right is not absolute, and that a determination of whether exclusion of a party constitutes sufficient prejudice, either presumed or actual, to warrant a new trial depends, to some extent, on the circumstances. It is significant that, in Safeway Stores, we did not reverse summarily simply because of the exclusion but examined, instead,
Dickson v. Bober,
“None is authority for the proposition that the plaintiff in a personal injury action who can neither contribute evidence on the question of fault nor comprehend the proceedings is entitled as a matter of constitutional right to be present in court when the liability issue is litigated even though fully and adequately represented by counsel.”
Id. at 530.
The court went on to note that the plaintiffs rights were protected by his general guardian, who brought the action for him, and by the attorney. It concluded that “the determination of whether a plaintiff unable by reason of his injuries to contribute to or understand the trial proceedings should be permitted, nevertheless, to attend the trial must rest in the sound discretion of the trial court.” Id.
Similar conclusions have been reached in Arizona, California, Connecticut, Indiana, New York, North Dakota, Oregon,
“If, in addition the plaintiffs physical condition, allegedly caused by the defendant, is so pitiable that the trial court determines the plaintiffs mere presence would prejudice the jury, then failure to exclude the plaintiff during the liability phase would deny the defendant’s right to an unbiased jury when the source of the bias is totally irrelevant to the liability issue.”
Id.
In Helminski v. Ayerst Labs., A Div. of A.H.P.C.,
Analyzing a party’s right of presence under the due process clause of the Fifth Amendment (this being a Federal case), the court held that a civil litigant’s right of presence was not absolute. It considered three types of cases — those involving a presumably healthy person, those involving the exclusion of a party due to physical injuries, and those in which the excluded party is unable to comprehend the proceedings or aid counsel. As to the first group, although the rule is usually
The third group, exemplified by Dickson and Morley, the court found persuasive, Avithin some limits. The court first set the general rule that, consistent Avith due process, “a plaintiff who can comprehend the proceedings and aid counsel may not be excluded from any portion of the proceedings absent disruptive behavior or a knoAving and voluntary waiver,” and that includes a plaintiff Avith a “solely physical abnormality ... even when the abnormality is due allegedly to the defendant’s Avrongful conduct.” Id. at 217. Turning then to the issue of prejudice, the court observed that “[t]he benchmark of our judiciary rests on the ability of the courts to provide all parties Avith a fair trial,” and that the court must safeguard the jury’s ability to decide the case based on the evidence presented rather than on emotional factors.” Id. In that regard, the court noted that, although the mere sight of a severely injured plaintiff may evoke jury sympathy, “juror sympathy alone is insufficient to establish juror prejudice” for, generally, a jury Avill follow the court’s instructions and decide the case solely on the facts. It added, however:
“On the other hand, there may be occasions when the mere presence of a party would render the jury unable to arrive at an unbiased judgment concerning liability. Should such a case arise and the presence of the party would not aid the fair administration of justice, the trial court can exclude the plaintiff or limit his presence. A party’s involuntary exclu*624 sion under these circumstances would not constitute a denial of due process.”
Id.
In the particular case, the trial judge excluded the plaintiff solely on the basis of his described condition, without ever observing the child to determine whether his presence would result in prejudice. Even defense counsel acknowledged that the child’s appearance was normal. Exclusion under that circumstance, the appellate court held, was wrong. It was not, however, reversible error. The court explained:
“If there is any indication that the plaintiffs presence could have assisted in the presentation of his case, we believe that his exclusion would require reversal. Under the facts of this case, however, where the Helminskis acted as Hugh’s next friends and legal representatives, where' all parties agree that Hugh was completely unable to comprehend the proceedings, and where Hugh because of his extremely low IQ could not aid his attorney in any meaningful way, we conclude that Hugh’s exclusion does not constitute reversible error.”
Id. at 218. See also In Re Richardson-Merrell, Inc.,
“A fair trial contemplates fairness to both sides. In accordance with [Federal Rule of Evidence] 403 a trial judge must always balance probative value against prejudicial effect, confusion of the issue or misleading the jury. The probative value of a deformed child or children in the courtroom on an issue of liability alone is nonexistent. The unfair prejudicial effect of the presence of that child is beyond calculation.”
Id. at 1224.
We need not prolong this opinion with like quotations from other cases. See Gage v. Bozarth,
There are, indeed, decisions holding that the exclusion of a party from a civil trial was error, but none of them involved the situation of a party who was (1) wholly unable to communicate or assist in the presentation of the case, (2) incapable of comprehending the proceeding, and (3) excluded only from the liability phase of a bifurcated trial, where his/her presence would likely be both prejudicial to the defendant and irrelevant, in an evidentiary sense, to any issue then before the jury.
A typical case in this regard, often cited, is Cary v. Oneok, Inc.,
We believe that the appropriate analysis in a case such as this is that employed by the Helrninski court. There is a right of presence, and it may not be denied, even in the liability phase of a bifurcated trial, solely because the party’s physical appearance may engender jury sympathy. The right is not absolute, however. It must be balanced against the defendant’s equivalent right to a fair trial. Our holding is a narrow one. In the liability phase of a bifurcated trial, the court has discretion to exclude a plaintiff where, after a hearing and an opportunity to observe the plaintiff, either in person or by other reliable means, the court determines, on the record, that: (1) the plaintiff is severely injured; (2) the plaintiff attributes those injuries to the conduct of the defendant(s); (3) there is a substantial prospect that the plaintiffs presence in the courtroom may cause the jury to side with the plaintiff out of emotional sympathy rather than on the evidence; (4) the plaintiff is unable to communicate or participate in the trial in any meaningful way; and (5) the plaintiff would be unable even to comprehend the proceeding. When all of those circumstances exist, as they did here, the plaintiffs presence is not truly an exercise of his/her right of presence, for the plaintiff is incapable of making a conscious decision in
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.
RODOWSKY, J., concurs and dissents, BELL, C.J., dissents.
Notes
. The claimant before HCAO and the plaintiff and petitioner in this action is Darwin. Because of his unfortunate condition, however, he has been unable directly to make any claims or assertions. All of the claims and assertions regarding his physical and medical status at the various relevant times and all of the actions taken in this litigation were made or done on his behalf by either his parents or his attorneys. We shall use Darwin’s name when referring specifically to him but otherwise use the term "plaintiff” to refer to Darwin or those acting on his behalf.
. The authority allowing a plaintiff to sue in the county where the cause of action arose is provided in both §§ 6-201(b) and 6-202(8). As noted, the authority contained in § 6-201(b) is limited to the situation in which there is no other single venue applicable to all defendants, which was not the case here. The authority provided by § 6-202(8) is limited to tort actions based on negligence. It provides an additional venue to the plaintiff irrespective of whether venue under § 6-201(b) is available. See Wilde v. Swanson,
. In Oxtoby, the plaintiff underwent surgery in 1974 for a complete hysterectomy, due to a concern over the prospect of ovarian cancer. The defendant surgeon allegedly did not remove all of an ovary and fallopian tube, and, in April, 1977, the plaintiff was diagnosed with cancer, which, in 1980, proved to be fatal. Suit against the surgeon was filed in 1980. The Health Claims Malpractice Act, which required all malpractice claims to be submitted to non-binding arbitration prior to any action in court, took effect July 1, 1976, and applied to all medical injuries occurring after that date. The question presented to us was whether Ms. Oxtoby suffered a medical injury prior to July 1, 1976 and therefore was not subject to the procedural requirements of the Act — whether the alleged failure to remove the entire ovary established a complete medical injury at the time of the surgery or not until she actually contracted the cancer. We concluded that it was unnecessary to resolve that issue, as there was evidence in the record that the cancer, though not diagnosed until 1977, was, in fact, contracted prior to July 1, 1976.
. In making that assertion, the plaintiff cites to pp. 105-06 of the record extract, which is part of the transcript of the hearing on the motion in limine. Although counsel did state to the court that Darwin "is not going to be sitting here the entire time for trial,” nowhere did he indicate that Darwin’s presence was to be limited to less than an hour on one day. The assertion now made, so far as we can tell, finds no support in the record. Although this disparity has no ultimate significance, it presents a somewhat different posture of the case to us than may have been presented to the trial court. If, as the colloquy suggests, the intent was to have Darwin in the courtroom for longer than two hours, the court may well have been concerned about the disruptive effect of suctioning his air tube — the noise and the jerking movement that the court observed on the video. If, as we are now told, the intent was to have him brought in on one day for less than an hour, the implication is even stronger that his presence would simply be as an exhibit, not to implement his Constitutional, statutory, or common law right to be present.
. Since the decision of the Supreme Court in Board of Trustees v. Garrett,
Dissenting Opinion
Dissenting Opinion by
part III of which is joined by RODOWSKY, J.
Today, the majority holds that a plaintiff, who is disabled and has not waived the right to be present in court, may be excluded from the liability phase of his civil action even though his presence would not be disruptive.
“After being released from [NAHA] at 3:05 p.m. on August 18, 1988 Darwin continued to complain of headache and that evening his father gave him another Viacodin as prescribed*628 by Dr. Fields.... The next morning, August 19, 1988 Darwin still complained of a headache and his parents took him to his pediatrician, Dr. Lee.... Dr. Lee noted that Darwin had a headache, drowsiness and was now staggering, and he immediately arranged for Darwin’s parents to take him to University of Maryland Hospital.”
In so ruling, the majority affirms the judgment of the Court of Special Appeals, which, in turn, affirmed the judgment of the Circuit Court for Anne Arundel County.
I.
Darwin Green was born with a medical condition called hydrocephalus, in which excessive accumulation of fluid causes increased pressure on the brain. Shortly after he was born, a shunt
The events giving rise to this action occurred when Darwin was eleven years old. He complained of a headache and began vomiting and feeling nauseous. Concerned, his father took him to the emergency room of North Arundel Hospital Association, Inc. (“NAHA”), where Dr. Richard T. Fields was the emergency room physician on duty. Dr. Fields ordered an emergency CT scan, which was interpreted by Dr. Stewart P. Axelbaum, a radiologist. Although Dr. Axelbaum observed, and noted the presence of, shunts in Darwin’s brain as well as a number of other abnormalities, including an old hygroma and a porencephalic cyst, he interpreted those abnormalities as old changes, consistent with pathology related to congenital malfunctions. Dr. Fields also consulted, by telephone, Dr. Harshad R. Mody, the neurologist on call for the hospital. Dr. Mody opined that Darwin could be discharged when his headache subsided. Darwin was discharged without a shunt malfunction having been diagnosed when, after taking a pain medicine prescribed by Dr. Fields, he reported that his headache was gone.
After his release from NAHA, Darwin again complained of a headache and he continued to do so. Therefore, at the direction of his pediatrician, whom he consulted the next day at the suggestion of Dr. Fields, he was taken to the University of Maryland Hospital (“UMA”), where his condition was correctly diagnosed. Before the doctors at UMA operated to correct the condition, however, Darwin went into cardiac arrest, which left him in a chronic vegetative state.
Darwin, by his parents, and his parents filed in the Circuit Court for Baltimore City a medical malpractice action naming Dr. Fields and NAHA, two of the respondents, as defendants. In the suit, they alleged that the respondents’ negligence caused Darwin’s injuries, that the respondents breached the applicable standard of care by failing to diagnose the alleged malfunction of the shunt in Darwin’s brain, and that a proper diagnosis would have prevented his subsequent cardiac arrest.
While pending in the Circuit Court for Anne Arundel County, two additional defendants, Drs. Axelbaum and Mody, the latter of whom regularly conducted business and maintained an office in the City of Baltimore, were joined in the proceedings. This did not occur until after the petitioners’ second medical malpractice action filed in the Circuit Court for Baltimore City, this one naming Drs. Mody and Axelbaum, in
The respondents moved in limine to exclude the plaintiff from the courtroom during the liability phase of the trial. The respondents relied on the plaintiffs physical disability and the medical evidence concerning the nature and extent of his physical condition. The respondents described Darwin as being, or likely to be, wheelchair bound, with a tracheotomy that allowed him to breathe through a hole in his neck, a feeding tube, and an ambubag to provide supplemental oxygen, and requiring assistance by periodic suctioning. They argued, and they reiterated on appeal, that because Darwin’s mere appearance before the jury at trial would prejudice them, his exclusion was permissible within the trial court’s discretion and did not contravene the ADA or the federal and state constitutions. In further support of their argument, the respondents emphasize that Darwin is in a chronic vegetative state and, therefore, “will not be able to understand the
The Circuit Court granted the respondents’ motion. After considering the arguments and viewing a videotape of a day in the life of Darwin, it found that Darwin was virtually motionless and had to be fed by a feeding tube and suctioned from the neck every two hours. Moreover, the court determined that Darwin did not have the ability to communicate with his attorneys, nurses, or parents; that he would be unable to provide any assistance to his attorneys in preparing his case; and that he would not understand or comprehend any portion of either the trial proceedings or the pleadings.
The case-was tried on the merits and ultimately presented to the jury for a decision on liability. The court having granted NAHA’s and Dr. Mody’s motions for judgment, made at the conclusion of the plaintiffs case, the jury returned a verdict in favor of the respondents, Drs. Fields and Axelbaum, concluding that neither “departed from accepted standards of care in the treatment of Darwin Green.”
The Court of Special Appeals affirmed. It applied the analysis employed by the United States Court of Appeals for the Sixth Circuit in Helminski v. Ayerst Labs.,
The majority agrees that the appropriate analysis is that of the Helminsld court. Op. at 655. Characterizing it’s holding as “a narrow one,” the majority announces:
“In the liability phase of a bifurcated trial, the court has discretion to exclude a plaintiff where, after a hearing and an opportunity to observe the plaintiff, either in person or by other reliable means, the court determines, on the record, that: (1) the plaintiff is severely injured; (2) the plaintiff attributes those injuries to the conduct of the defendant(s); (3) there is a substantial prospect that the plaintiff’s presence in the courtroom may cause the jury to side with the plaintiff out of emotional sympathy rather than on the evidence; (4) the plaintiff is unable to communicate or participate in the trial in any meaningful way; and (5) the plaintiff would be unable even to comprehend the proceeding. When all of those circumstances exist, as they did here, the plaintiffs presence is not truly an exercise of his/her right of presence, for the plaintiff is incapable of making a conscious decision in that regard. His presence is rather as an exhibit — a piece of evidence — that is both irrelevant and prejudicial, and thus invokes the balancing process enunciated in Maryland Rule 5-403.”
Id. at 626-27.
II.
Venue describes the proper court in which to bring an action. Under Maryland Code (1973, 1998 RepLVol.), §§ 6-201 and 6-202 of the Courts and Judicial Proceedings Article, venue is proper in the county where the defendant resides, carries on a regular business, is employed, habitually engages in a vocation, or where the cause of action arose. Thus, a plaintiff may bring his or her action in any county where any one of the prerequisites apply. The petitioners initiated their action in the Circuit Court for Baltimore City. That court
“[I]t is clear to me that the cause of action arose in Anne Arundel County. The defendants are all residents of Anne Arundel County.
The fact that the result of their negligence became apparent in some other jurisdiction doesn’t transfer the jurisdiction to that county or subdivision as the case may be.”
When pressed as to whether the ruling was that Darwin could have sued NAHA for damages, noting that such a determination was “an issue of fact based on the allegations,” the court clarified that it “found that the negligence occurred in Anne Arundel County.” It transferred the case to Anne Arundel County and the petitioners challenged that ruling on appeal arguing, in particular, that the cause of action arose in Baltimore City.
In addressing that issue, the Court of Special Appeals perceived the critical issue to be the meaning of the phrase, “where the cause of action arose,” as used in §§ 6-201 (b) and 6-202(8). On that point, the respondents successfully argued to the Baltimore City Circuit Court that venue in a tort action or a contract action arises where the alleged breach occurs. The intermediate appellate court rejected that argument, after applying the same analysis to the determination of where the cause of action arose as applies to the determination of when it arose. The court thus reversed the judgment of the Baltimore City court on that point. Nevertheless, it proceeded to address the merits of the petitioners’ argument with respect to where the cause of action arose.
Critical to that determination was the meaning of “injury” as used in the statutes. In search of a viable definition, the Court of Special Appeals adopted the definition enunciated in Edmonds v. Cytology Sendees,
“ ‘A patient sustains an ‘injury’ ... when, as a result of the tort, he or she first sustains compensable damages that can*635 be proven with reasonable certainty. Therefore, the 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. This is not, of course, an exhaustive checklist; the overriding inquiry in all cases must be when the patient first sustained legally compensa-ble damages. In any event, the injury occurs, as we have observed, when legally compensable tort damages first occur, regardless of whether those damages are discoverable or undiscoverable.’ ”
Green,
The Circuit Court for Baltimore City had determined that Darwin’s cause of action arose in Anne Arundel County, not because his injury manifested there, but because the alleged negligence occurred there. The Court of Special Appeals rejected that determination, holding instead, as the petitioners argued, that it is the occurrence of the injury that is disposi-tive. Rather than remanding the case for a new trial on that point, however, the intermediate appellate court determined the issue itself. In so doing, it erred. And the majority compounds the error by affirming.
“ ‘The word ‘injury,’ in ordinary modern usage, is one of very broad designation. In the strict sense of the law, especially the common law, its meaning corresponded with its etymology. It meant a wrongful invasion of legal rights and was not concerned with the hurt or damage resulting from such invasion. It is thus used in the familiar law phrase damnum absque injuria. In common parlance, however, it is used broadly enough to cover both the dam-num and the injuria of the common law, and indeed is more commonly used to express the idea belonging to the former word, namely, the effect on the recipient in the way of hurt or damage, and we cannot doubt that at this day its common and approved usage extends to and includes any hurtful or damaging effect which may be suffered by any one.’ ”
Generally, the determination of when an “injury” occurs is a question of fact, Rivera,
“[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) or 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.... ”
“[T]he 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 [the plaintiffs expert’s] statement is junk science. Nor did the Defendants develop from him the probability of the undiagnosed condition’s remaining dormant for five years.”
Rivera,
Here, the Circuit Court for Baltimore City made no findings of fact as to when the injury suffered by Darwin occurred. Indeed, the court was adamant that it did not have to make any such findings of fact.
In any event, that finding of fact is error under the test of Edmonds v. Cytology Services. That 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 asyptomatic 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.
If all that is required to satisfy the definition of “injury” is the continuation of the pain already being experienced before
When Darwin presented at the hospital, he already was exhibiting symptoms of the condition it is alleged that the respondents misdiagnosed: he was experiencing pain and complaining of a headache. The question thus was, when he was discharged, had the condition progressed beyond the point at which it was when he presented? In other words, had the condition progressed to the prescribed extent so as to constitute an injury? Certainly, the presence of pain, the continuation of what already was being experienced, cannot be enough; where treatment has not been given, and, indeed, could not have been, because the nature of the condition was not diagnosed, the mere continuation of the experiencing of pain may or may not suffice to establish injury for purposes of the venue statute.
At best, the interrogatory answer on which the Court of Special Appeals placed, and the majority places, dispositive significance was, at best, conclusory; it simply was not sufficient to establish the extent of the deterioration in Darwin’s condition and, in particular, when his condition reached the point at which such deterioration became an injury. It must be kept in mind that the interrogatory was not part of a record on summary judgment nor, at the time it was given, accepted as true or uncontradicted. Certainly, the answer was not such as to require the entry of summary judgment in the petitioners’ favor. Indeed, the respondents did not so contend. In fact, and rightly so, more satisfactory proof was required. Compare Jones v. Speed, supra.
In Jones v. Speed, the plaintiff visited the defendant physician sixteen times, on each occasion complaining of severe
In this case, rather than decide the merits of whether and where Darwin suffered injury and, therefore, the proper venue for his action, the Court of Special Appeals should have determined only whether the Circuit Court for Baltimore City applied the proper test in reaching its venue decision. Accordingly, I believe that a new trial is required to be conducted in the proper venue, for the determination of which this case should be remanded.
Although the importance of the trial right, whether by jury or the court, is well established in both the Maryland Constitution, see art. 24, Maryland Declaration of Rights;
Our conclusion is consistent with the decisions rendered by the majority of courts that have considered the issue. See Rubert-Torres v. Hospital San Pablo, Inc.,
Some of these cases do not permit the requested exclusion and, so, do not spell out the circumstances under which exclusion would be upheld. Thus, they do not define, with specificity, the limits of the trial court’s discretion but, rather, they simply recognize that the right to be present is not absolute, stating the general and non specific rule that “[a]b-sent a voluntary waiver . .. only in the case of extreme circumstances may a party be excluded from the proceedings.” Cary ex rel Cary, supra,
On the other hand, Whitfield v. Roth, supra,
“Oklahoma has never held, nor do we so hold here, that a party’s right to be present in the courtroom is absolute. We can contemplate situations in which the disruptive behavior of a party would necessitate the party’s exclusion from the courtroom, and a trial may proceed after a party has voluntarily waived the right to be present. However, we find no authority for the proposition that a party may be excluded solely by reason of his disfigurement. Absent a voluntary waiver we hold that only in the case of extreme circumstances may a party be excluded from the proceedings ....
A party’s physical appearance cannot be the sole basis for exclusion from the courtroom, and does not amount to an ‘extreme circumstance’ permitting exclusion. We agree with the Florida Supreme Court which stated:
‘One who institutes an action is entitled to be present when it is tried. That, we think, is a right that should not be tempered by the physical condition of the litigant. It would be strange, indeed, to promulgate a rule that a plaintiffs right to appear at his own trial would depend on his personal attractiveness, or that he could be excluded from the court room if he happened to be unsightly from injuries which he was trying to prove the defendant negligently caused.’ ”
Most of the cases holding that party presence is not absolute recognize that “under limited circumstances a party’s involuntary exclusion might be justified,” i.e., where the mere presence of that party would prejudice the other party with regard to liability and that party’s presence, because the party is unable to understand, participate in or contribute to, the proceedings, would not aid the fair administration of justice. See, e.g., Helminski,
Helminski is representative. It involved an injury that resulted in the plaintiff, who was an autistic child with an extremely low IQ and unable to speak, needing daily, twenty-four hour care. The defendants moved to exclude the plaintiff from the liability phase of the trial, arguing that his appearance before the jury would be prejudicial to their case. See
“In short, the defendant who seeks to exclude a handicapped plaintiff must establish at a hearing that the plaintiffs presence would prevent or substantially impair the jury’s performance of its fact-finding task. The requisite showing of prejudice cannot be satisfied simply by establishing that a plaintiff has a physical or mental injury; the party seeking exclusion must establish that the party’s*646 appearance or conduct is likely to prevent the jury from performing its duty. We reiterate that a party’s ability to comprehend the proceedings or assist counsel is not the relevant inquiry at this juncture — the issue is whether the party’s presence will unfairly prejudice the proceedings in his favor.
Should the district court determine that the party’s mere presence would be prejudicial, the court must next consider whether the party can understand the proceedings and aid counsel. If the trial court concludes that the party can comprehend the proceedings and assist counsel in any meaningful way, the party cannot be involuntarily excluded regardless of prejudicial impact; in such a case, cautionary instructions will protect the interests of the defendant in a fair trial. Exclusion of a party who is able to comprehend the proceedings and aid his attorney would infringe upon the ‘fundamental standards of fairness which every litigant before a federal court has a right to expect,’ Drayton v. Jiffee Chemical Corp.,591 F.2d 352 , 361 (6th Cir.1978), and hence, would constitute a deprivation of due process which could be remedied only by granting a new trial.”
I’d. at 218.
The premise on which the court proceeded is that “[a]n essential component of a fair trial is ‘a jury capable and willing to decide the case solely on the evidence before it,’ ” that the court has the responsibility to “safeguard the jury’s ability to decide the case based upon the evidence presented rather than on emotional factors.” Id. at 217. The court recognized, however, that there is a difference between juror sympathy that presents the potential for juror prejudice and juror sympathy that actually results in juror prejudice, “juror sympathy alone [being] insufficient to establish juror prejudice.” Id. The court also noted that, “[generally, the jury will follow the court’s instructions and fulfill its promise to decide the case solely on the facts.” Id. Thus, only when the mere presence of a party would render the jury unable to arrive at an unbiased judgment concerning liability, the court made clear, would the rule it enunciated be invoked. Id. Further,
Although the minority position, there also are cases holding that a plaintiff has an absolute right to be present at his or her civil trial.
From the foregoing lines of cases, several things are clear. The right to be present may be waived. The involuntary exclusion of a party from that party’s trial or part thereof is disfavored. Those courts that permit involuntary exclusion, in which the right of a party to be present is held not absolute, agree on this point. Those that are most liberal in involun
In any event, the physical appearance or condition of a party may not alone justify exclusion. To justify the involuntary exclusion of a party, there must be shown prejudice to the opposing party to the extent that the opposing party will not be able to obtain a fair trial. Further, the party seeking exclusion bears the burden of showing that only through exclusion can a lair trial be obtained. Helminski,
This Court has twice addressed the question of proceeding with a trial in the absence of a party. On each occasion, the context was the denial of a request for continuance. In both cases, we upheld the trial court’s exercise of discretion. In neither case was there a motion by one party to exclude the other. In Gorman, having observed that the defendants did not argue, either in brief or at oral argument, that their case would be harmed by the refusal to allow the continuance, in short, that “[n]o actual prejudice was claimed, much less shown,”
In Casson, it was the plaintiff who was absent. We described the circumstances surrounding the continuance request as follows:
“On the first day of trial, February 20, 1961, she testified fully, in both direct and cross examination. That night she had a heart attack, and her counsel sought a continuance. Upon being informed that other witnesses were not available, because they had been told by the plaintiffs not to*650 appear, the trial court stated that the case would be carried over until February 23rd, but that no further continuance would be granted. On February 23rd, counsel requested a further continuance on the ground that Mrs. Casson was unable to appear; that he had summoned other witnesses, but learned that Mrs. Casson had told them to disregard the summons; that Mr. Casson was present but declined to testify unless his wife was present.”
Safeway Stores, Inc. v. Watson,
At issue in Safeway Stores was the interpretation of Maryland Rule 2-513, which provided:
“On motion of any party made before testimony begins the court shall order that witnesses other than parties be excluded from the courtroom before testifying, and it may do so on its own initiative or on motion of any party made after testimony begins. The court may continue the exclusion of a witness following the testimony of that witness if a party*651 indicates that the witness may be recalled to give further testimony. A party that is not a natural person may designate a representative to remain in the courtroom, even though the representative may be a witness. An expert witness who is to render an opinion based on testimony given at the trial shall be permitted to remain during that testimony.”
The Court next considered whether the error was reversible. The claimant argued that the burden was on Safeway to prove both the error and the prejudice emanating from it. Safeway, on the other hand, acknowledging the accuracy of the claimant’s statement of the general rule, argued that where a party is denied an important right that is very likely prejudicial to it and actual prejudice is difficult to prove, the burden should be on the “party advantaged by the erroneous disqualification to prove that the disqualification did not influence the outcome of the litigation.”
“Experienced trial attorneys and judges understand the importance of ‘humanizing’ a corporate defendant in a jury trial. Moreover, a party is entitled to be present to have a firsthand view of the proceedings for purposes of evaluating the constantly changing prospects or exigencies for settlement, and to participate in tactical decisions that must be made, sometimes quickly, in the course of a trial. Finally, the attorney for Safeway was deprived of the presence at his side of the principal investigator in the case. Whether we consider these facts as mounting up to the necessary proof of prejudice by Safeway, or simply consider them in determining that a presumption of prejudice is appropriate in this case, the result is the same. The claimant has not overcome the proof or presumption, and the result must be a new trial.”
Id. at 184,
Therefore, albeit by rules action, Maryland courts have no discretion to interfere with the choice of representatives made by parties who are non-natural persons. Indeed, they may exclude such party designated representatives only “to preserve decorum or to continue the orderly proceedings of the court.” Thus, their ability to affect the trial presence of such parties is quite limited.
The Safeway Stores analysis informs the resolution of the question this case presents because it demonstrates this Court’s reluctance to permit the trial courts to interfere with a civil party’s decision as to whether to attend trial. Certainly, if a trial court may not exclude the representative designated by a party that is a non natural person, even one that will testify at the trial when there is a sequestration order in effect, by parity of reasoning, a similar restriction must exist with respect to the court’s power to exclude parties who are natural persons. Permitting the court to involuntarily exclude a party who is a natural person on the basis of that party’s appearance and mental condition is to give the court more
Applying the Safeway Stores analysis, I agree with the approach adopted by Cary v. Oneok, supra. In that case, as indicated, the Court rejected the proposition that a party could be excluded solely on the basis of appearance and, acknowledging a party’s right voluntarily to waive presence, permitted the involuntary exclusion of a party “only in the case of extreme circumstances.”
I am not persuaded by Helminski and those cases permitting the exclusion of parties who are unable to aid counsel or understand the proceedings and whose physical appearance is determined to be prejudicial to the other party. Helminski recognizes a category of cases in which the mere presence of a party would prevent the jury from reaching an unbiased
“There may need to be a re-examination of those cases, including Helminski, which hold that a disfigured plaintiff may be excluded if he or she cannot aid the attorney or comprehend the proceedings. These cases were decided before the enactment of the Americans with Disabilities Act, a law that specifically prohibits discrimination on the basis of a physical or mental handicap. Title 42 U.S.C. § 12132 (1990). Those cases which followed this reasoning and were decided after the ADA’s enactment did not address the issue.”
Further, “a stereotypical assumption that a party’s disability will prejudice the jury,” see Mason,
Finally, voir dire is the process by which prospective jurors are examined to determine whether cause exists for their disqualification. See Boyd v. State,
To be sure, Helminski quite correctly recognizes that there is a difference between juror sympathy and juror prejudice. Stated differently, the likelihood of jury sympathy is not the equivalent of prejudice. “A juror’s sympathetic feeling toward a party does not necessarily lead to the conclusion that the jury will disregard the law to reach a verdict based on sympathy alone.” Cary,
In Wood, the question was whether a juror with lung cancer should have been stricken for cause. In Fowlkes, the controversy was over whether the court abused its discretion in refusing to propound a voir dire question on sympathy. In that regard, Fowlkes, on which Wood relied, observed:
“The purpose of voir dire is to ferret out bias or prejudice conceived prior to entry into the courtroom that would prevent a juror from fairly and impartially deciding the case based on the evidence presented in the courtroom. The appellate courts of this State have rightfully presumed that a person with racial, ethnic, or gender bias cannot render such a fair and impartial verdict but, in our view, sympathy falls into a different category. The question, with respect to a specific bias, is whether the bias exists. If determined to exist, a trial judge may excuse a prospective juror even if the person purports to be able to render a fair verdict. In contrast, we expect normal people to experience sympathy, and the question in that instance is whether the person will be unduly swayed by sympathy. In other words, a jury is expected to decide a case without bias or prejudice; it is not expected to do so without sympathy but is expected to follow the court’s instruction that it not be unduly swayed by it. In most cases, it would be difficult for a prospective juror to know the degree to which feelings of sympathy would be aroused until the evidence is presented. In every case, there are factors that may evoke feelings of sympathy.”
Here, Darwin Green did not voluntarily waive the right to be present at trial. Nor was he excluded “to preserve decorum or to continue the orderly proceedings of the court” or because he engaged in, or was likely to engage in, disruptive conduct. Rather, Darwin was excluded because of his appearance and because of his inability to understand the proceed
“The burden of persuasion is to the moving party, and they have carried that burden in this instance. The Defendant who seeks to exclude a handicapped plaintiff must establish that the presence of the plaintiff would prevent and substantially impair the jury’s performance. The impairment or the prejudice must be so great that the jury instructions would not likely correct that prejudice.
And having viewed the tape, the Court is convinced that any viewing of the Plaintiff in person or by a video would leave any party in a position to be emotionally struck and otherwise feeling sympathy for the Plaintiff.”22
The court was overly sensitive that the jury would be sympathetic to the petitioner and, more to the point, without any basis for so concluding except the viewing of the video, concluded that the jury would be unduly swayed by that sympathy to the prejudice of the respondents. The record does not reflect any basis for that conclusion. Certainly, it does not appear that the jurors were voir dire on the effect that Darwin’s presence in the courtroom would have or whether they could, despite any sympathetic feelings, decide the case solely on the facts and the law, as instructed. In short, there is absolutely no basis in this record for the court to conclude that the jury could not “decide the case solely on the evidence before it.” Helminski,
Neither the trial court, nor the Court of Special Appeals, nor even the majority has articulated any reasons or analyses of how the plaintiffs presence would evoke more than the expected feelings of sympathy. And we have not been told how his presence in the courtroom for the limited time the petitioners wished would render the jury incapable of returning a verdict decided solely on the facts.
I would hold that the trial court erred in excluding Darwin Green from the liability phase of his trial.
Judge Rodowsky has authorized me to state that he concurs with the views expressed in Part III of this dissenting opinion.
. The Petition for Certiorari filed by the plaintiff and his parents, the petitioners, framed the issue in terms of a violation of the Americans With Disabilities Act, 42 U.S.C. §§ 12101-213 (1994 & Supp.1999), and whether the plaintiffs exclusion from the liability phase of his trial violated the United States and Maryland Constitutions. The Court sua sponte requested that the parties address whether the trial court has discretion to exclude a party and, if so, whether that discretion was abused in this case.
. The petitioners have never challenged the Court of Special Appeals,' and now this Court’s, interpretation of Maryland Code (1973, 1998 Repl.VoL), § 6-202(8) of the Courts and Judicial Proceedings Article, as permitting tort actions to be brought “where the cause of action arises” or its holding that "where the cause of action arises is the place where all the elements of the negligence claim (duty, breach, causation, and injury) are satisfied. In negligence cases, because injury is the last element to come into existence, a cause of action in negligence arises where the injury first occurs.” Green v. North Arundel Hosp. Ass’n, Inc.,
. A shunt is a mechanical excreting device used to bypass or divert accumulations of fluid. See Stedman’s Medical Dictionary 1282 (24th ed.1982).
. As to this ruling, the Court of Special Appeals commented:
"All parties agree with Judge Rombro's finding that, at the time the complaint was filed in Baltimore City, both NAH[A] and Dr. Fields were Anne Arundel County residents who maintained their offices and conducted their business solely in that County. As such, neither party disputes that Anne Arundel County was the only proper venue under CJ § 6-201, because it provided "a single venue applicable to all defendants." Nevertheless, appellants note that CJ §§ 6-202(8) provides an alternative venue in negligence actions, allowing plaintiffs to bring suit in the county where the cause of action arose.”
Green v. North Arundel Hosp. Ass’n, Inc.,
Section 6-201 provides:
"(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----
(b) Multiple Defendants. — If there is more than one defendant, and there is no single venue applicable to all defendants, under subsection (a), all may be sued in a county in which any one of them could be sued, or in the county where the cause of action arose."
As relevant, § 6-202 instructs:
“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....”
. In addition to dismissing the case, the Circuit Court for Baltimore City imposed sanctions on the petitioners' counsel. Neither of the rulings was appealed. No issue has been made, or presented, in this appeal as to the effect of the Circuit Court for Baltimore City’s dismissal of the second Baltimore City case, in which Dr. Mody was named as a defendant.
. To the Court of Special Appeals, it was important to the correctness of the Circuit Court for Anne Arundel County’s venue ruling that Dr. Mody, whom everyone conceded provided a basis for venue being set in Baltimore City, was not added as a defendant until after the ruling on the motion to transfer to Baltimore City and that the motion to transfer was not renewed after Dr. Mody was added. Dr. Mody certainly subscribes to that view; in fact, that is essentially his argument in support of affirmance of the venue decision as to him. To the petitioners, Dr. Mody’s joinder and their failure to renew the motion to transfer after his joinder simply are irrelevant, the critical issue being the determination of where Darwin's injury occurred.
. The court specifically rejected the petitioners' argument that it is not known whether Darwin could understand the process, noting that any such ability to understand "is not conveyed in any fashion to his parents or to the attorneys that will be representing him.”
. Maryland Code (1974, 1984 Repl.VoL), § 5-109 of the Courts Article provides:
"An action for damages for an injury arising out of the rendering of or failure to render professional services by a physician shall be filed (1) within five years of the time the injury was committed or (2) within three years of the date when the injury was discovered, whichever is the shorter.”
. At issue in Oxtoby was section 5 of Ch. 235, Acts of 1976, which provided that the Health Care Malpractice Claims Act adopted by Ch. 235 "shall take effect July 1, 1976, and shall apply only to medical injuries occurring on or after that date.” In Hill, the Court construed § 2 of Chapter 545, Acts of 1975, which provided that Maryland Code (1974, 1995 Repl.VoL), § 5-109 of the Courts and Judicial Proceedings Article, enacted by that Chapter, "shall apply only to injuries occurring after July 1, 1975.” We have held that there is "no substantive distinction in the legal application” of "injuries occurring” for purposes
. This is reflected in the following colloquy:
"MR. KERPLEMAN: Your Honor, may I ask a question, just for the record? Is the Court finding that at that instant that the child left the hospital that he, in fact, did have a—
THE COURT: Mr. Kerpleman, I—
MR. KERPLEMAN: — that he could have sued'—
*639 THE COURT: I’ve said—
MR. KERPLEMAN: North Arundel Hospital?
THE COURT: I don't have to decide that, Mr. Kerpleman. I’ve said what I—
MR. KERPLEMAN: Well, I think you do, Your Honor. As a predicate to your decision you must have decided that at the instant he left Anne Arundel Hospital, he could have sued North Arundel Hospital, and I just want clear on the record if that is your finding.
THE COURT: I don't have to—
MR. KERPLEMAN; Because it’s an issue of fact based on the allegations.
THE COURT: Mr. Kerpleman, I don’t have to make such a finding. I found that he negligence occurred in Anne Arundel County. That’s where it happened, nd that’s the proper venue for the suit.
MR. KERPLEMAN: Irrespective of where the injury occurred?
THE COURT: I don't want to argue the point with you____”
. The plaintiffs expert’s affidavit stated:
"It is my opinion that if a CT Scan had been performed by Mrs. Jones’ doctor, Dr. Speed, at any time during their eight year professional relationship, that the brain tumor would certainly have been detected.
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.”
Jones v. Speed,
. Doctor Mody and NAHA were granted judgment at the conclusion of the petitioners’ case, the court concluding that there was insufficient evidence of their culpability to go to the jury. It is well settled that,
. That section provides:
"That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”
. Amendment XIV, Section 1 to the United States Constitution, declares, in relevant part,
"[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
. Gallavan v. Hoffner,
. Although a recent Connecticut trial court decision, Wozniak v. New Britain General Hospital,
. Addressing the issue in that case, the right of a party to a civil action to be present during jury voir dire, the Court stated: “We have assumed that a plaintiff in a personal injury action has a personal right to be present during voir dire, so long as he does not ‘disturb the orderly business of the court.' "
. Rejecting the defense argument that the presence of a widowed plaintiff and her children would have a tendency to arouse sympathy in the jury that would induce it, on that basis, to find for her, the court stated:
“It may be true that the presence of the widow and these children would tend to enlist the sympathy of the jury in their behalf, but the widow and children are interested parties in the result of this suit;*648 whatever judgment is obtained belongs to them and we know of no law that prevents interested persons from being present at the hearing of their case, even though their unfortunate condition was such as to enlist the sympathy of the jury, and we have not been referred by counsel to any case that, as we think, announces a different principle.”
. Compare Gage v. Bozarth,
. More recently, the Michigan Court of Appeals, in Florence v. Wm. Moors Concrete Products, Inc.,
. Continuing, the court opined that even if it were to conclude that the Helminski standard survived the ADA and was the preferable approach, it still would not have been satisfied in the context of the case.
. As phrased, it appears that the court determined only that the jury likely would be emotionally struck and sympathetic, rather than prejudiced in favor of the petitioners.
Concurrence Opinion
concurring in part and dissenting in part.
I join the opinion of the Court on the venue issue, and I join in Part III of the dissenting opinion by Chief Judge Bell on the issue of the plaintiffs exclusion from the courtroom.