Margaret C. SMITH, Personal Representative of the Estate of Clater W. Smith, Jr., et al. v. A. Austin PEARRE, Jr., et al.
No. 1500, Sept. Term, 1992
Court of Special Appeals of Maryland
June 2, 1993
625 A.2d 349
JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY WITH DIRECTION TO AFFIRM THE DECISION OF THE BOARD OF APPEALS OF THE MARYLAND DEPARTMENT OF ECONOMIC & EMPLOYMENT DEVELOPMENT; APPELLANT TO PAY THE COSTS.
Ronald U. Shaw (Jeffrey G. Cook and Shaw & Brown, P.A., on the brief), Towson, for appellee, Pearre.
Susan T. Preston (Goodell, DeVries, Leech & Gray, Donald L. DeVries, Jr., and Carol L. Nicolette, on the brief), Baltimore, for appellee, Winnan.
Argued before BLOOM and FISCHER, JJ., and JAMES S. GETTY (retired), Specially Assigned.
BLOOM, Judge.
Margaret C. Smith, individually as surviving spouse of Clater W. Smith Jr., deceased, and as personal representative of her late husband‘s estate, appeals from the judgment of the Circuit Court for Frederick County that was entered upon a jury verdict in favor of appellees, Drs. A. Austin Pearre Jr. and Gerald R. Winnan and Gerald R. Winnan, M.D., P.A., in a medical malpractice action. Appellants assert error by the trial court
- in denying their request for removal;
- in denying their request for a new trial because the jury foreman, during the trial, violated the court‘s admonition not to watch media presentations involving the subject of malpractice;
- in denying their request for a new trial because one of the jurors failed to answer voir dire questions truthfully;
- in denying their request for a jury instruction to the effect that a patient who relies on a negligently arrived at diagnosis and, based on that diagnosis, does not return for a follow-up visit is not contributorily negligent; and
in not permitting a professor of surgery to express an opinion as to standards of care for practitioners of internal medicine and gastroenterology.
Perceiving no reversible error, we shall affirm the judgment of the circuit court.
Factual Background
The decedent, Clater W. Smith, became an associate judge of the Circuit Court for Frederick County on 31 May 1985. He was ultimately appointed administrative judge for that county. On 14 February 1988 Judge Smith noted rectal bleeding during a bowel movement. Later he experienced more severe rectal bleeding, which caused him to faint. His physician, appellee A. Austin Pearre Jr, an internist, instructed him to go to Frederick Memorial Hospital.
By the time Judge Smith was admitted to the hospital, he had lost so much blood that he required a transfusion. Appellee Gerald R. Winnan, a gastroenterologist, was called in as a consulting specialist. Judge Smith underwent a colonoscopy to determine whether any benign tumors, malignant tumors, or other pathologies were present in his colon. The colonoscopy revealed the apparent source of the bleeding to be a diverticulum (an out-pouching) in the colon. A lower gastrointestinal (GI) study disclosed no active bleeding. Appellees diagnosed Judge Smith as suffering from diverticulosis, a disorder with which Judge Smith was familiar because several of his friends had suffered from the same problem.
Judge Smith was discharged from the hospital on 21 February 1988 by Dr. Pearre‘s partner, Dr. Smith. At that time, Judge Smith understood or believed that he should again seek treatment from appellees only if the bleeding recurred. A year passed without incident. On 17 March 1989 Judge Smith suffered a similar bleeding episode and was again rushed to the emergency room. This time both upper and lower gastrointestinal series were performed; the upper GI series
On 6 April 1989 Judge Smith received treatment at The Johns Hopkins Hospital. A surgical procedure revealed that the leiomyosarioma (a type of cancer) of the stomach had metastasized to the diaphragm and throughout his body. Judge Smith died of cancer on 13 March 1991. Appellants produced evidence at trial to establish “with a high degree of medical probability” that if the cancerous ulcer had been detected by an upper GI study in February 1988 Judge Smith‘s cancer could have been cured.
Judge Smith and his wife filed a claim against appellees under the Health Care Malpractice Claims Act,
On 7 March 1991 appellee Pearre requested that Chief Judge Robert Murphy of the Court of Appeals temporarily assign a judge from another county to preside over the case before the Circuit Court for Frederick County, pursuant to the
Appellants assert that on or about 3 June 1991 LaVonna Vice, co-counsel for appellants, received a telephone call from Judge Arnold‘s secretary, requesting some dates for a hearing to determine “whether the Smith case will be tried before a
Appellants withdrew the removal petition on 12 July 1991, claiming that Judge Arnold had already made a predetermination of where the case would be tried. On 10 March 1992, one month and four days before the scheduled trial date, they filed a petition for the recusal of Judge Arnold, but within a week, on 16 March 1992, withdrew their recusal motion and filed a second petition for removal. Judge Arnold presided over a hearing on the new removal request on 7 April 1992 and denied the request. Judge Arnold again denied a renewed motion for removal on 13 April 1992, and the case proceeded to trial the following day.
Removal
Appellants initially requested that the case be removed to a county noncontiguous to Frederick County in part because the principal plaintiff, Judge Smith, had served as administrative judge for the Circuit Court for Frederick County, and because appellees might have patients in counties contiguous to Frederick County. That initial request for removal, filed on 4 February 1991, was withdrawn on 12 July 1991 as the result of a telephone call that led appellants’ counsel to believe that Judge Arnold had already decided not to remove the case any further than the adjacent county. A second motion requesting that the case be removed to a noncontiguous county was filed on 16 March 1992.
When Judge Arnold denied appellants’ second request for removal, shortly before the scheduled trial date, he ruled that if an impartial jury could not be empaneled he would revisit the issue.
In any action, and on issues from the Orphans’ Court, any party may file a motion for removal accompanied by an affidavit alleging that the party cannot receive a fair and impartial trial in the county in which the action is pending. If the court finds that there is reasonable ground to believe that the allegation is correct, it shall order that the action be removed for trial to a court of another county. Any party, including a party who has obtained removal, may obtain further removal pursuant to this Rule.
The rule unambiguously states that the removal issue may be raised more than once. See also Seth v. Chamberlaine, 41 Md. 186 (1874).
The right of removal afforded under
The discretionary power of the courts to remove a case originates from the common law of the King‘s bench:
It has always been held, that the county courts in this State, being the only courts of record with original common law jurisdiction, can rightfully exercise all the powers exercised in England, by the court of King‘s bench, so far as these powers are derived from rules and principles of the common law, and so far as the same are suited to the change in our
political institutions, and are not modified by our constitutional or statutory enactments. That the court of King‘s bench has rightfully exercised this power of removal as an acknowledged, if not essential part of its ordinary common law jurisdiction, both in respect to criminal and civil cases, does not seem to have been doubted in any cases in which its exercise is reported to us.
Price v. State, 8 Gill 295, 310-11 (Md.1849).2 The constitutional provision granting removal is liberally construed, Greenberg v. Dunn, 245 Md. 651, 657, 227 A.2d 242 (1967), overruled by, Parrott v. State, 301 Md. 411, 483 A.2d 68 (1984), and may be enlarged although not restricted by the legislature.3 Barnes v. Meleski, 211 Md. 182, 187, 126 A.2d 599 (1956). See Shreffler v. Morris, 262 Md. 161, 167, 277 A.2d 62 (1971). The manner in which the right of removal may be employed is similarly well defined:
It is equally well settled, however, that the right can be exercised only once, Price v. State, 8 Gill 295 (1849); that it may be expressly surrendered or waived, State v. Simms, 234 Md. 237, 198 A.2d 891 (1964); Caledonia Fire Ins. Co. of Scotland v. Traub, 86 Md. 86, 37 A. 782 (1897); or having been asserted may be withdrawn before removal, Seth v. Chamberlaine, 41 Md. 186, 194 (1874), and then renewed but only during the term in which the suggestion was stricken ...
Shreffler v. Morris, 262 Md. at 167, 277 A.2d 62. Generally “the removal must be made before the trial or any part of it is commenced in the court ordering the removal.” Cooke v. Cooke, 41 Md. 362 (1875). See also Anne Arundel Co. v. Lichtenberg, 263 Md. 398, 283 A.2d 782 (1971).
As recognized by the Court of Appeals in Greenberg v. Dunn, 245 Md. 651, 654, 227 A.2d 242 (1967), the purpose of removal is to ensure that parties receive a fair and impartial trial:
The object was to get rid of the influence of local prejudice in the community from which the jury to try the case was to come, and thus, as far as practicable, to secure a fair and impartial trial by jury. Cooke v. Cooke, 41 Md. 362, 372 (1875).
See also Mayor of Baltimore v. Libowitz, 159 Md. 28, 31, 149 A. 449 (1930). In Greenberg the Court concluded that both actions heard by a court and actions heard by a jury are susceptible of removal. Id. 245 Md. at 660, 227 A.2d 242.
Appellants’ argument for removal is essentially threefold. They suggest that an impartial jury trial was impossible in Frederick County due to 1) the small number of practicing internists and gastroenterologists in Frederick County, (2) Judge Smith‘s prominence in the community as administrative judge, and 3) the media coverage of the suit by The News, a
The fact that Frederick County hosts a population of only 150,208, some 40,148 of whom reside in the City of Frederick, does not in and of itself prevent appellants from empaneling an impartial jury. The legislature has indicated a strong preference for such actions to be brought in “a county where the defendant resides, ... [or] is employed.”
Certainly a voir dire examination will satisfactorily determine whether the prospective juror would be outwardly influenced to the prejudice of the petitioners, and if so, then a challenge either for cause or peremptorily, may be utilized to eliminate that person from the panel.
Davidson v. Miller, 276 Md. 54, 84, 344 A.2d 422 (1975).
In this case, potential jurors who knew Judge Smith or who were treated by Dr. Winnan were struck for cause by Judge Arnold. In addition, nineteen of the twenty potential jurors who had heard of or been treated by Dr. Pearre or his medical colleagues at Internal Medicine Associates were also struck
Appellants have similarly failed to show the juror partiality allegedly caused by Judge Smith‘s prominence in the community. Because potential jurors who knew Judge Smith or had an association with him were struck from the panel for cause, an impartial jury was realizable. The media coverage of the case did not, apparently, intrude on the life of every Frederick County citizen so as to preclude the possibility of selecting an impartial jury. We find appellants’ demonstration of inherent partiality and irreparable taint of the juror pool to be insufficient and conclude that the voir dire examination addressed any potential prejudice and partiality. We find no error in the lower court‘s refusal to remove the case to a county noncontiguous with Frederick County.
The problem of having a fellow judicial colleague preside over the case was addressed by the order of Chief Judge Murphy appointing Judge Arnold, of the Circuit Court for Carroll County, to preside over the case. We find in the law no actual or implied absolute right of removal for a circuit court judge involved as a party in a civil jury trial. A plaintiff or defendant who also happens to be a judicial officer of the court must meet the same threshold requirements as any other party seeking removal. Because we find that appellants failed to show that a fair and impartial jury could not be empaneled, we need not reach the issue of whether appellants waived their right of removal by withdrawing their original request and then waiting until just before the scheduled trial date to renew it.
Viewing of “60 Minutes” by Jury Foreman
Maryland law has long held that a juror may not impeach his or her verdict, whether the offensive conduct be misbehavior or mistake. Oxtoby v. McGowan, 294 Md. 83, 101, 447
What appellant‘s counsel did in this case—employing an investigator to question the jurors in the hope of finding some basis for impeaching their verdict—is precisely what the rule attempts to avoid. Jurors should not be subject to such harassment, and the finality of judgments entered upon their verdicts should not be subject to such attacks, because these tactics do tend to erode public confidence in the judicial process.
In cases involving juror error, misconduct, or mistake, consideration of a motion for new trial based upon that conduct requires a proper balancing. As Judge Rodowsky noted in Wernsing:
Where ... the precise extraneous matter is known but direct evidence as to its effect on the deliberation is not permitted, a sound balance is struck by a rule which looks to the probability of prejudice from the fact of the extraneous matter in relation to the circumstances of the particular case. It is the function of the trial judge when ruling on a motion for a new trial to evaluate the degree of probable prejudice and whether it justifies a new trial. That judgment will not be disturbed but for an abuse of discretion.
In the instant case, a juror allegedly violated the court‘s instruction that all jurors refrain from watching or listening to local television and radio. On 27 April 1992 Judge Arnold instructed the jury as follows:
I will remind you, as I must, that you should not look at television or listen to radio or news broadcasts concerning any medical trials or any medical subjects and do not discuss this case with anyone, including your fellow jurors.
Later, on 1 May 1992, the jury was again admonished with respect to reading newspapers, listening to the radio, or watching television:
Please do not listen to any news broadcasts or read anything about this case or medicine in general or anything about civil suits and do not discuss this case with anyone, including your fellow jurors.
The evidence presented at the hearing on the motion for new trial revealed that the May 10th “60 Minutes” program included a segment on physicians who had left the profession.7
The jury foreman‘s observance of the program constitutes extraneous material that occurred outside the sanctity of the jury room. See Harford Sands, 320 Md. at 145, 577 A.2d 7. Therefore, evidence of the foreman‘s observance of the program may be properly considered by the trial court, but the court may not consider what occurred during jury deliberations. Id. In determining whether “the extraneous matter could have a tendency to influence the jury in arriving at its verdict in a manner consistent with the legal proofs and the court‘s charge,” Wernsing, 298 Md. at 419, 470 A.2d 802, quoting Palestroni v. Jacobs, 10 N.J.Super. 266, 77 A.2d 183 (1950), we find the rationale of the Court of Appeals in Harford Sands to be instructive. In Harford Sands, Judge Adkins pointed out that the Court did not know whether the jury had applied the information obtained in violation of the trial court‘s instruction or made the information available to other members of the jury. Harford Sands, 320 Md. at 147, 577 A.2d 7. Likewise, we do not know whether the jury foreman took the “60 Minutes” segment to mean that the upper GI series was unnecessary.
MR. SAFER: The lawyers will say why didn‘t you do it?
MR. SCHAROFF: The lawyers will say, “Why didn‘t you do it?”
MR. SAFER: (Voiceover) A Catch-22. Many doctors feel immobilized by it, trapped by insurers’ dictates, lawyers’ threats and hospital administrations’ bean counters.
...
MR. HENDRIX: ... What‘s happening now is is that money has become so important to everyone involved—patient, doctor, lawyers, insurance company, the hospital administrator—that‘s what‘s generating the system.
Keeping in mind that we must balance “the probability of prejudice from the fact of the extraneous matter in relation to the circumstances of the particular case,” we conclude that while it was possible that the “60 Minutes” segment influenced the jury foreman we are not convinced that it probably resulted in prejudice. We find no abuse of discretion in the trial court‘s decision to deny a motion for new trial. Compare Braun v. Ford Motor Co., 32 Md.App. 545, 550-51, 363 A.2d 562 (1976) (juror who knew member of law firm representing appellee not asked to disclose acquaintance during voir dire).
Failure to Reveal Personal Philosophy in Voir Dire
At the hearing on their motion for a new trial, appellants proffered that, after the trial, an investigator hired by their counsel engaged one of the jurors in conversation and the juror said, “I don‘t believe in suing people. Mistakes are made.”
Appellants contend that the failure of one juror to reveal during voir dire his personal philosophy against “people suing people” and that “mistakes are made” deprived them of an automatic disqualification of that juror for cause and infringed upon their right to a fair trial. We disagree. We first note that this issue is not preserved for our review because it was not included in appellants’ motion for new trial.
Appellants argue that Judge Arnold‘s request that the jurors reveal anything that might influence them in rendering a verdict makes the juror‘s failure to reveal his personal philosophy a deception. We disagree. Prior to that question, nothing else had been asked that would have indicated to the juror that his personal philosophy would prevent him from being impartial. It is entirely possible that the juror thought that he was capable of impartiality despite his dislike of lawsuits and his personal belief that people generally should not sue each other. On the basis of the record before us, we are unable to conclude that the juror deceived counsel. See also Murphy v. Board of County Comm‘rs, 13 Md.App. 497, 513, 284 A.2d 261 (1971) (holding that potential juror‘s employ-
Request for Jury Instruction
Appellants’ claim that the court‘s failure to give a requested instruction based upon Chudson v. Ratra, 76 Md.App. 753, 548 A.2d 172 (1988), cert. denied, 314 Md. 628, 552 A.2d 894 (1989), was in error. The Chudson case addressed an issue as to whether a patient‘s contributory negligence must be concurrent with or subsequent to a physician‘s negligence in order to bar recovery. In Chudson, we adopted the principle expressed in 70 C.J.S. Physicians and Surgeons § 80(c):
A patient who, after receiving treatment, fails to return to the physician or surgeon for further treatment, as instructed, is guilty of contributory negligence preventing recovery for injurious consequences from such failure. However, where the physician considers the treatments ended, and does not instruct the patient to return, the patient is not chargeable with negligence for failure to return.
Chudson, 76 Md.App. at 773-74, 548 A.2d 172. We specified that the test for contributory negligence is not “simultaneity but whether the plaintiff‘s dereliction has significantly contributed to the injury.” Id. at 774, 548 A.2d 172. We were careful to explain that breast cancer in particular requires the patient, upon instruction from her physician, to engage in periodic examinations and to report any suspicious changes or lump developments; the law of contributory negligence will not excuse patients who have been so instructed by their physicians, after detection of a condition that the doctor has indicated should be monitored, from failing to meet these self-examination requirements.
In the instant case, appellants requested that the court give the following contributory negligence instruction to the jury, and they now assert that the court‘s failure to give the instruction was in error:
If a patient is given a negligently arrived at diagnosis on which the patient relies and believes that his condition is a minor and/or benign condition and free from any danger, and further, should you find that relying upon the purported minor nature of the diagnosis given the patient, that patient does not return for any additional visits, then I instruct you that the physicians, the Defendants in this case, cannot rely on contributory negligence ...
In addressing this issue we must determine whether the requested instructions were fairly covered by the instructions actually given. Myers v. Estate of Alessi, 80 Md.App. 124, 132, 560 A.2d 59, cert. denied, 317 Md. 640, 566 A.2d 101 (1989). In the case at bar, the jury was instructed that, if a patient is told by the doctor to return and fails to, then he may be charged with contributory negligence; if the doctor does not tell a patient to return, then the patient is not contributorily negligent.9 We believe that the instructions given by the court adequately covered the material contained in appellants’ proposed instruction. Thus, the court‘s decision to refuse to give appellants’ requested instruction was not in error.
Expert Testimony
Appellants also contend that the trial court‘s exclusion of testimony by Dr. Charles F. McKhann, M.D., Professor of Surgery at Yale University School of Medicine, was in error. We believe, based upon Dr. McKhann‘s own admission regarding his practice and knowledge of the fields of gastroenterology and internal medicine, that the exclusion of the testimony was proper. The trial court did not permit Dr. McKhann to
Appellants presented the testimony of eight expert witnesses, Drs. Trelstead, Stein, Battle, McKhann, Decosse, Bonadona, De Silva, and Morse, four of whom expressed opinions as to the appropriate standard of care. Appellees argue that the testimony of Dr. McKhann on the standard of care would merely be additional cumulative evidence under
During both deposition and trial, Dr. McKhann testified that he did not perform colonoscopies or endoscopies10 and is unfamiliar with the appropriate standard of care applied to gastroenterologists and internists:
Q. I don‘t mean, sir, to imply that you don‘t have your own experience and please don‘t interpret my question that way. My question, though, was whether, with regard to the matters—for example, I‘ll read you from page 116 of your deposition to refresh your recollection.
“Question: So you‘re not prepared to render an opinion to a reasonable medical probability that standards of care of gastroenterologists nationwide would require an upper endoscopy to be done if the site of bleeding is identified?
Answer: I think that the gastroenterologists would have to speak for themselves with that.
Question: You‘re not going to render an opinion about that?
Answer: No.”
Do you recall that testimony sir?
A. I recall that testimony.
Q. And you will stand by that testimony here today?
A. I do not know what the standard by gastroenterologists the country over are. I know what the standards at Yale are. That‘s all.
Q. Pardon?
A. I know what the standards at Yale are for things like this, but I don‘t know the country over for gastroenterologists. I have no idea.
Q. So you will agree that you are not prepared to express an opinion on that subject as to the standard of care of gastroenterologists practicing nationwide; is that right sir?
A. I am not prepared to, you‘re right.
We believe that in evaluating his knowledge of the standards of care for gastroenterologists Dr. McKhann eliminated his own standard of care opinion testimony. If a medical professor is unwilling to offer an expert opinion on the nationwide standard of care for practitioners in fields other than his own, we see no reason to compel him to do so or to find error in the court‘s refusal to let him testify to that medical standard. While it is well established that a physician may render an opinion on a medical standard of care outside his own specialty, the witness must nevertheless possess the necessary qualifications and sufficient knowledge. Spence v. Wiles, 255 Md. 98, 102, 257 A.2d 164 (1969); Radman v. Harold, 279 Md. 167, 172 n. 2, 367 A.2d 472 (1977). “We perceive no reason why a person who has acquired sufficient knowledge in an area should be disqualified as a medical expert merely because he is not a specialist or merely because he has never personally performed a particular procedure.” Radman, 279 Md. at 171, 367 A.2d 472. Any witness who testifies as an expert, however, must have sufficient knowledge, skill, and experience to make a well-informed opinion. Id. at 171 n. 2, 367 A.2d 472.
In the instant case Dr. McKhann is well-qualified as an expert surgeon, and is very familiar with the practices associated with gastroenterology but not, by his own admission, familiar with the standard of care of gastroenterologists na-
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
FISCHER, J., dissenting.
I concur with the majority with respect to all issues raised except as to issue I. Since I believe this case should have been removed from Frederick County for trial, I respectfully dissent.
To appreciate fully the necessity for removal in order to ensure a fair and impartial trial, a brief recitation of some facts is helpful. The decedent, Clater W. Smith, Jr., was Administrative Judge of the Circuit Court for Frederick County. Judge Smith had practiced law in Frederick County for twenty-one years prior to his appointment to the bench in 1985. Frederick had a population of 150,208 at the time of the hearing on the motion. Appellant1 argued that due to Judge Smith‘s prominence in the community, his activity in civic affairs, his membership in the country club, and his involvement in the church, he was very well known in the county. The appellees are part of a small medical community, are prominent physicians and are also extremely well known. Appellant averred that due to these factors, removal was essential in order to ensure a fair and impartial trial.
At the outset of the litigation, both parties agreed that removal was essential. The Health Claims Arbitration was, therefore, removed to Harford County. After waiver of Health Claims Arbitration, suit was filed. Appellees decided that they wanted the case tried in Frederick County, while
Apparently, because a circuit court judge was a party to this action, this case was handled in a somewhat unusual fashion. Appellees wrote to Chief Judge Murphy on March 7, 1991 and requested that a judge outside of Frederick County be assigned to the case and that the trial be held in Frederick County. In response, Chief Judge Murphy, on April 15, 1991, assigned Judge Francis M. Arnold to hear the removal motion filed by appellant. According to the appellant,2 Judge Arnold‘s secretary telephoned one of her attorneys, attempted to arrange a hearing date, and stated that the purpose of the hearing was to determine whether the case would be tried in Frederick County or Carroll County. Since appellant‘s desire was that the case be tried in a noncontiguous county and since Carroll County borders Frederick County, appellant withdrew her motion on July 12, 1991.
Subsequently, on March 10, 1992, appellant filed with Chief Judge Murphy and with Judge Arnold a petition requesting Judge Arnold‘s recusal. The petition averred that appellant could not receive a fair trial in Frederick County and claimed that Judge Arnold had prejudged the initial removal petition. Before Chief Judge Murphy addressed the petition, however, appellant withdrew her motion seeking Judge Arnold‘s recusal.
Approximately one month prior to the trial date, appellant filed a new petition for removal. Among the allegations of the petition were that Judges Dwyer and Stepler, the remaining judges in Frederick County, were to testify at the trial and that it would be virtually impossible to impanel in Frederick County persons who did not have contact with the parties involved. The court denied the motion by written order dated April 8, 1992.
Prior to the decision of the Court of Appeals in Davidson v. Miller, 276 Md. 54, 344 A.2d 422 (1975), citizens of this State enjoyed an absolute Constitutional right of removal of a civil case by filing a suggestion in writing under oath that a fair and impartial trial could not be obtained in the jurisdiction. Section 8 of Art. IV, Constitution of Maryland. In view of the fact that the exercise of the right of removal brought different results in Baltimore City than the exercise in the various counties, the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution was violated.3 The Court of Appeals solved the Constitutional problem by abolishing the automatic right of removal. Davidson, 276 Md. at 82, 344 A.2d 422.
The Court in Davidson realized, of course, that it made a far reaching change in the Maryland law, and in reassuring the Maryland Bar stated at 83, 344 A.2d 422:
The effect of this ruling, we hasten to point out, will in no way deprive or otherwise curtail the circuit courts of the counties or the circuit-level civil law Courts of Baltimore City from exercising their common law discretionary power
(which is subject to appellate review for abuse) to remove an action to another jurisdiction, within or without the circuit, in order to rid the case of any prejudicial barnacles which, because of local prejudice, passion or interest, may have attached; thus as near as is reasonably possible, an action‘s consideration by a fair and impartial jury can be insured. (Citations omitted.)
The Court of Appeals has consistently held that removal provisions are to be liberally construed. In Bullock v. State, 230 Md. 280, 283, 186 A.2d 888 (1962), the Court stated, “[I]t has invariably been held that the removal clauses are to be liberally construed in favor of the right.”
The majority is satisfied that appellant‘s concerns over impaneling an impartial jury were resolved by the use of voir dire. I am not so easily assured. It is my experience that voir dire is a helpful tool, not a panacea. If voir dire were a total remedy, removal would never be necessary. Even removal cannot totally eliminate the possibility of a prejudiced juror, but it certainly improves the odds and is the best solution available.
While it is apparent that appellant unduly complicated the trial judge‘s decision by insisting on removal to a noncontiguous county, it is clear that appellant was not given the option of removal from Frederick County to any other county, contiguous or noncontiguous, and that appellant at no time refused any offer of removal from Frederick County.
It appears to me that the instant case is one of those rare matters that may present itself every ten to fifteen years that fairly cries out for removal. To refuse removal under circumstances such as these is, in my opinion, an abuse of discretion. If a refusal to remove a case of this compelling nature can be viewed a valid exercise of discretion, as the majority holds, then we have moved from an absolute Constitutional right of removal to an almost nonexistent right of removal subject to the unbridled discretion of the trial judge.
Notes
MR. SCHAROFF: And the physicians would come down and talk to me about being careful how I dictated my reports. “Don‘t recommend too many studies, other studies, because if you recommend them on one hand, the insurance company or the hospital will say you can‘t do this. On the other hand, if it‘s in a report, and it‘s—becomes a lawsuit, and we haven‘t done the test...”
You are instructed that a patient who, after receiving treatment, fails to return to the physician for further treatment as instructed, is guilty of contributory negligence, preventing recovery for the injurious consequence from such failure. However, where the physician considers the treatments ended and does not instruct the patient to return, the patient is not chargeable with negligence for failure to return.