Yesterday in Burnside v. Wong, the Maryland Court of Appeals affirmed the Court of Special Appeals and a Baltimore City trial judge’s finding that Baltimore County was the appropriate venue for a medical malpractice lawsuit filed in Baltimore City.
The doctor had two contacts with Baltimore City that Plaintiff’s malpractice lawyer argued constituted doing business in the jurisdiction. The doctor had privileges at Mercy Medical Center in Baltimore City, and he held active-staff part-time privileges and had a faculty appointment at Johns Hopkins Hospital.
The doctor argued he no longer was seeing patients in Baltimore City and that merely having privileges was not enough to constitute doing business. The Court of Appeals agreed, finding that the proper time period for determining whether a defendant carries on a regular business or habitually engages in a vocation in the venue is when the complaint is filed. The court also rejected the idea that the injury occurred in Baltimore City, in spite of the fact that a doctor provided an affidavit that showed to a reasonable degree of medical probability that Plaintiff’s injury more likely than not occurred in Baltimore City. In other words, while the misdiagnosis may have been elsewhere, the manifestation of injury was likely in Baltimore City.
I think this is a bad decision because I thought the idea in the big picture was to defer to Plaintiff’s choice of venue when in doubt. If the Plaintiff appeared to suffer injury in Baltimore City – and an affidavit said she did – that would seem good enough for me, particularly coupled with the fact that the doctor had privileges and appointments in the city. Believe me, if he testifies, you will hear a lot of throwing “professor at Johns Hopkins” around. Geography should matter a little here, too. Should this defendant doctor really be surprised to be amenable to suit in Baltimore City?
While six smart people obviously disagree with me, I’m heartened by the fact that at least Judge Bell agrees. He believes that under the majority’s interpretation, the venue statute loses it rightful voice in determining venue. From the court’s analysis, Judge Bell points out, every misdiagnosis medical malpractice case must be brought where the misdiagnosis occurred. This does not seem to be the intent of the venue statute. He argued that prior case law makes clear that a plaintiff who experiences pain before, during and after a misdiagnosis, suffers an “injury” for venue purposes. (I’m simplifying a bit, you need to read the opinion.)
- You can find the opinion here.
- On our website, you can see how our firm has battled on this issue.
- Venue where co-defendants have different value
- Here’s another venue case by the Maryland Court of Special Appeals two years later
- Why I think our venue lawyers are not being properly applied by Maryland courts in 2014