Green v. NORTH ARUNDEL HOSPITAL ASSOCIATION, INC., 88

Decision Date27 November 2001
Docket NumberNo. 88,88
Citation366 Md. 597,785 A.2d 361
PartiesDarwin GREEN, A Minor, et al., v. NORTH ARUNDEL HOSPITAL ASSOCIATION, INC., et al.
CourtMaryland Court of Appeals

Suzanne C. Shapiro (Saul E. Kerpelman & Associates, P.A., on brief), Baltimore, for petitioners.

Larry A. Ceppos (Sharon A. Marcial of Armstrong, Donohue, Ceppos & Vaughan, Chartered, Rockford), Gregory L. VanGeison (E. Dale Adkins, III, Lynne B. Malone of Anderson, Coe & King, LLP, Baltimore), Luther Zeigler (Richard McMillan, Jr., and Cheryl A. Solomon of Crowell & Moring, LLP, of Washington, DC, Kurt D. Karsten, Curtis H. Booth of Cowdrey, Thompson & Karsten, P.A. of Annapolis), on brief, for respondents.

Stephen E. Sachs, Stuart F. Delery, Laura Fein, R. Kevin Bailey, Wilmer, Cutler & Pickering, Washington, DC, brief of Public Justice Center, Maryland Adapt, Maryland Disability Law Center, MCIL Resources for Independent Living on behalf of petitioners, amicus curiae.

George S. Tolley, III, Timonium, brief of Maryland Trial Lawyers Ass'n on behalf of petitioners, amicus curiae.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,1 RAKER, WILNER, CATHELL and HARRELL, JJ WILNER, Judge.

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 potential prejudice to the defendants, and proceeded first on the issues of liability. At the conclusion of the plaintiff's case as to liability, the court dismissed the action against NAHA and Mody on the ground that there was legally insufficient evidence of negligence on their part that contributed to Darwin's injury, and at the end of the entire case on liability, the jury returned a verdict in favor of the other two defendants, Drs. Fields and Axelbaum. The issue of damages was thus never submitted to the jury.

Plaintiff appealed to the Court of Special Appeals, which affirmed the Circuit Court judgments. Green v. North Arundel Hospital, 126 Md.App. 394, 730 A.2d 221 (1999). We granted certiorari to consider two basic issues: (1) whether the Circuit Courts in Baltimore City and Anne Arundel County properly concluded that venue lay in Anne Arundel County, and (2) whether the trial court erred in precluding Darwin, who, as a result of his injury, was essentially in a motionless vegetative state, unable either to communicate or to understand the proceeding, from being brought into the courtroom for a period of less than an hour during the two-week trial as to liability, to be exhibited to the jury "to demonstrate his current condition." Convinced that there was no error in either regard, we affirm the judgment of the Court of Special Appeals.

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.

On the morning of August 17, 1988, Darwin began to experience a headache, which continued despite his taking Tylenol. Later that day, he began to vomit and feel nauseous. His symptoms continued the following day, and he seemed drowsy. Concerned, his father took Darwin to the NAHA emergency room around 11:00 a.m., where Dr. Fields, the physician on duty, examined him at 1:00 p.m. Because Darwin was complaining of a severe headache, Dr. Fields ordered several laboratory tests, including an emergency CT scan. Dr. Axelbaum, a radiologist at NAHA, reviewed and interpreted Darwin's CT scan. He noted the presence of shunts in Darwin's brain and a number of other abnormalities?€”a subdural hygroma with a calcified cyst causing some mass effect in the left cerebral hemisphere, a large right parietal porecephalic cyst, and possible aqueductal stanosis. Nevertheless, he concluded, and informed Dr. Fields, that those conditions reflected "old" changes. Dr. Fields then consulted with Dr. Hashad R. Mody, a neurologist, who advised that Darwin could be discharged once the headache was relieved. Around 1:30 p.m., Darwin was given a prescription painkiller, Vicodin. By 2:45, the pain was gone, and just after 3:00, he was discharged. Prior to releasing Darwin, Dr. Fields spoke twice with the child's primary care pediatrician, Dr. Lee, who indicated that he would see Darwin either later that day or the next day for a follow-up. The clinical impression noted on the hospital record was "vascular headache," with an instruction for Darwin to see his primary care pediatrician. 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 performed. Doctors at UMH concluded that Darwin had increased intracranial pressure and, therefore, probably had a shunt malfunction, which required surgical correction. At 11:00 p.m., Darwin was admitted to the neurosurgery service of UMH where he remained overnight. The UMH Progress Note revealed that, at 12:30 p.m. the next day, Darwin's status had "acutely deteriorated," and he was moved to the intensive care unit. There, he suffered a cardiac arrest, which left him severely brain-damaged. He was, and remains, in an essentially vegetative state, unable to communicate with anyone, and functions at the level of a one-month old infant.

DISCUSSION

Venue

This litigation began on October 13, 1989, with a claim filed on behalf of Darwin with the Health Claims Arbitration Office (HCAO).2 Named as respondents in that claim were NAHA, Dr. Fields, UMH, and 11 health care providers at UMH. Of those respondents, NAHA and Fields resided and did business only in Anne Arundel County. The UMH respondents apparently either resided or did business in Baltimore City. The plaintiff averred that he was injured by negligent medical care on August 19, 1988 in the NAHA emergency room and on August 19-20 while a patient at UMH. While the case was pending before HCAO, plaintiff settled with the UMH respondents and, in exchange for $1,489,000, executed a joint tortfeasor release. The remaining parties then waived arbitration, which terminated the proceeding before HCAO.

Plaintiff commenced the action now before us by filing suit in the Circuit Court for Baltimore City against NAHA and Dr. Fields?€”the two Anne Arundel County defendants. Those defendants moved to dismiss the action for want of proper venue. Maryland Code, ? 6-201(a) of the Courts and Judicial Proceedings Article, provides that, subject to ?? 6-202 and 6-203, "a civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation." Section 6-201(b) adds that, "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." Section 6-202(8) provides that a tort action based on negligence may be brought where the cause of action arose. It was not disputed that there was a single venue applicable to both defendants, in Anne Arundel County, and that the alternatives stated in ? 6-201(b) were therefore inapplicable. Plaintiff asserted, however, that venue could lie under ? 6-202(8) where the cause of action arose and contended that, under applicable case law, the cause of action arose in Baltimore City.

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 plaintiff's 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 two doctors, the plaintiff filed a new action against all four defendants in Baltimore City, on the ground that Dr. Mody practiced in the city. The claims asserted against NAHA and Dr. Fields were identical to those pending in Anne Arundel County. Contemporaneously, the plaintiff filed a motion in the Anne Arundel County court to transfer the case...

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