Burnside v. Wong
| Decision Date | 07 January 2010 |
| Docket Number | No. 4, September Term, 2009.,4, September Term, 2009. |
| Citation | 986 A.2d 427,412 Md. 180 |
| Parties | Earlene BURNSIDE, et. ux. v. Randall V. WONG, et al. |
| Court | Court of Special Appeals of Maryland |
Matthew P. Maloney (Maloney Law Office, Kensington, MD), on brief, for Petitioners.
Brief of Amicus Maryland Ass'n for Justice on behalf of Petitioners: James K. MacAlister, Esquire Saiontz & Kirk, Baltimore, MD.
Anthony J. Breschi (Neal M. Brown of Waranch & Brown, LLC, Lutherville, MD; Agnus Everton of Morgan, Carlo, Downs & Everton, P.A., Hunt Valley, MD), on brief, for Respondents.
ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
We are asked to consider whether venue in a medical malpractice action, coupled with a lack of informed consent complaint, will lie in the Baltimore City Circuit Court, where it was filed, when the complainant lives in Baltimore City, but the alleged misdiagnosis, negligent medical treatment, and failure to obtain informed consent, allegedly related to a degenerative eye condition, known as proliferative diabetic retinopathy,1 took place solely in Baltimore County, and the physician neither lives nor practices medicine in Baltimore City.
After the Respondent, Dr. Randall Wong, filed a Motion to Dismiss for Improper Venue on the basis of Sections 6-201(a)2 and 6-202(8)3 of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2002 Repl.Vol.),4 Judge Michel Pierson transferred the case to Baltimore County, reasoning that at the time the lawsuit was filed, Dr. Wong neither resided nor carried on a regular business in Baltimore City. In a Motion to Reconsider, Alter, Amend or Revise the ruling, Mrs. Burnside, for the first time, asserted that under Section 6-202(8), venue was proper in Baltimore City, where she resided, because her "first eye injury while under Dr. Wong's care" occurred there. Judge Pierson denied the Motion, and Mrs. Burnside appealed to the Court of Special Appeals, which affirmed, holding that the alleged misdiagnosis and failure to obtain informed consent, whereby Mrs. Burnside's diabetic retinopathy was allowed to progressively worsen, constituted an injury such that the "cause of action arose" in Baltimore County. Mrs. Burnside petitioned this Court for certiorari, which we granted, Burnside v. Wong, 407 Md. 275, 964 A.2d 675 (2009), to address three questions, which we have renumbered:
I. Does a plaintiff's medical injury occur in the county where, and at the time that, a plaintiff suffers harm resulting from the negligent act of the defendant for the imposition of venue in that county, pursuant to MD. CODE ANN., CTS. & JUD. PROC. § 6-202(8)?
II. May a defendant's contacts with a Maryland county at the time of his alleged negligence be considered in a trial court's venue analysis, pursuant to MD.CODE ANN., CTS. & JUD. PROC. § 6-201(a)?
III. Are a defendant physician's active medical privileges and academic appointments at various hospitals and medical schools located within a Maryland county sufficient contact with that jurisdiction to subject the defendant to venue in that county, pursuant to MD.CODE ANN., CTS. & JUD. PROC. § 6-201(a)?
We shall hold that under Section 6-202(8) of the Courts and Judicial Proceedings Article, venue is proper in a medical malpractice and lack of informed consent action where the alleged misdiagnosis, negligent treatment, or negligent failure to inform, giving rise to the harm, occurs. We shall further hold in response to questions II and III that pursuant to Section 6-201(a) of the Courts and Judicial Proceedings Article, venue is determined when suit is brought, and medical privileges and appointments in Baltimore City, such as in issue in the present case, alone, are insufficient to establish venue in Baltimore City.
On January 31, 2005, Earlene Burnside and her husband, Johnny,5 filed a complaint in the Circuit Court for Baltimore City against Dr. Randall Wong, alleging medical malpractice, lack of informed consent,6 and loss of consortium. Mrs. Burnside's medical malpractice claim was based on the following allegations, in pertinent part:
5. In September 2001, Plaintiff Earlene Burnside sought ophthalmic care and treatment from Defendant Wong for her background, diabetic retinopathy in both of her eyes.
6. Defendant Wong performed a bilateral laser coagulation procedure on Ms. Burnside on November 15, 2001.
7. Ms. Burnside continued to seek ophthalmic care and treatment from Defendant Wong through June 2003, during which time the background, diabetic retinopathy condition in her eyes was allowed by Defendant Wong to progress into a more severe, vision threatening condition known as proliferative retinopathy.
8. On August 21, 2003, Defendant performed a surgical and a laser coagulation procedure on Ms. Burnside's left eye. On October 9, 2003, Defendant performed a laser coagulation procedure on Ms. Burnside's right eye, and then on December 18, 2003, he performed another laser coagulation procedure on Ms. Burnside's right eye.
9. To date, Ms. Burnside is totally blind in her right eye and legally blind in her left eye.
She further alleged the following, regarding Dr. Wong's breaches of the standards of care in support of her medical malpractice claim:
13. Defendant Wong failed to comply with and breached his duty and was negligent in that he:
(a) failed to establish the appropriate diagnosis for Plaintiff Burnside's ophthalmic condition;
(b) failed to properly manage and treat Plaintiff Burnside's ophthalmic condition;
(c) failed to halt the progression of Plaintiff Burnside's clinically significant vision threatening condition;
(d) failed to perform surgical treatment in a timely fashion;
(e) failed to properly care for, manage and treat Plaintiff Burnside's ophthalmic condition post-surgery;
(f) failed to apply the appropriate surgical technique during surgery to avoid complications;
(g) failed to apply adequate approach to treatment of encountered complications;
(h) failed to timely recognize and treat the Plaintiff Burnside's condition after surgery; and
(i) was otherwise negligent.
Mrs. Burnside also alleged, in support of her informed consent count, that:
16. Preoperatively, Defendant Wong, individually and through his agents and employees, had a duty to inform the plaintiff of the probability of success of the proposed surgeries, alternative methods of treatment, the risks of failure or unfortunate side affects, including the risks of blindness, and other factors which a reasonable patient would consider material in making a decision to undergo her surgeries.
17. Contrary to the accepted standards of medical and surgical care, the defendant, individually and/or through his employees and agents, failed to inform Earlene Burnside of the risks of serious consequences, including but not limited to blindness.
18. If Plaintiff Burnside had been informed that there was a material risk that she would suffer blindness and/or vision impairment, she would not have consented to undergo the surgeries.
19. As a direct and proximate result of the defendant's failure to inform Ms. Burnside of the likelihood of blindness and/or vision damage and/or serious damages resulting therefrom, Earlene Burnside underwent the surgery and has suffered, and will continue to suffer severe and permanent injury to her vision, mental anguish, physical impairment and disfigurement, loss of enjoyment of life, and will be required to expend large sums of money for past and future medical and rehabilitative services.
In response, Dr. Wong filed a Motion to Dismiss for Improper Venue, asserting that although he held privileges to practice medicine at Mercy Medical Center in Baltimore City, he had not used the privileges since September 2003, and he otherwise did not reside or carry on a regular business in Baltimore City, pursuant to Section 6-201(a). Dr. Wong also argued that under Section 6-202(8), Mrs. Burnside's cause of action arose in Baltimore County, because the allegedly negligent failure to diagnose, obtain informed consent, and treat Mrs. Burnside took place in his Baltimore County office. Thereafter, after having joined Omni Eye Specialists as a defendant,7 Mrs. Burnside then filed an Opposition to Motion to Dismiss for Improper Venue, asserting, based upon Dr. Wong's deposition testimony, that he regularly examined forty to fifty patients per month at Mercy Medical Center during the period of September 2001 to December 2003, at the time of the alleged negligence, supporting venue in Baltimore City. Dr. Wong's deposition testimony relied upon was the following:
[Counsel for Mrs. Burnside]: So the only thing that would have changed from 2000 through 2001, 2002, and 2003, and I am going to say 2004, is the amount of actual surgeries you performed, correct?
[Dr. Wong]: Sure. Yes.
[Counsel]: But the amount of activities, seeing patients would have been the same over those years?
[Dr. Wong]: About the same, sure, except for 2004, I wasn't there.
[Counsel]: So, let's say through 2003 you would have seen in — from 2000 through 2003, you would have seen twenty to — I mean, sorry — forty to fifty patients per month at Mercy Hospital?
[Dr. Wong]: Sure.
[Counsel]: I'm almost done, Doctor. And your consultations would have been the same; it's the same activity?
[Dr. Wong]: Yes.
Mrs. Burnside also argued that because Dr. Wong held active-staff part-time privileges in the Department of Ophthalmology at Johns Hopkins Hospital through August 31, 2001, a part-time faculty appointment as an instructor in the Department of Ophthalmology at Johns Hopkins University School of Medicine through April 28, 2003, and held a volunteer faculty appointment at the University of Maryland School of Medicine, such contacts, she asserted, coupled with Dr. Wong's work at Mercy Medical Center, were sufficient to render venue in Baltimore City proper.
After a hearing in which the parties argued venue solely on the basis of Section...
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