Kirby v. Johns Hopkins Hosp.
| Decision Date | 28 December 2016 |
| Docket Number | No. 2357,2357 |
| Parties | MELISSA KIRBY, et al. v. JOHNS HOPKINS HOSPITAL, et al. |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Wright, Beachley, Eyler, James, R. (Senior Judge, Specially Assigned), JJ.
Opinion by Beachley, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
This case arises from the granting of a motion to transfer for improper venue. On July 24, 2015, appellants, Melissa Kirby ("Mrs. Kirby") and her husband, Matthew Kirby, filed a two-count complaint in the Circuit Court for Baltimore City alleging medical malpractice and loss of consortium against appellees, Greater Baltimore Medical Center ("GBMC"), Charles Emergency Physicians, P.A. ("CEP"), Evan English, M.D. ("Dr. English"), David Vitberg, M.D. ("Dr. Vitberg"), Robert Stevens, M.D. ("Dr. Stevens"), and Johns Hopkins Hospital, Inc. ("Johns Hopkins"). All appellees moved to dismiss for improper venue or, in the alternative, to transfer venue to the Circuit Court for Baltimore County. By an Order dated December 1, 2015, the trial court granted the motion and ordered that the case be transferred to Baltimore County.
Appellants present a single question for our review, which we have rephrased: Did the circuit court err in determining that Baltimore City was not a proper venue pursuant to Md. Code § 6-202(8) of the Courts and Judicial Proceedings Article ("CJP")?
We answer this question in the negative and affirm the judgment of the circuit court.
On April 8, 2014, at approximately 7:30 p.m., Mrs. Kirby was running on a track when she suffered two apparent seizures. Emergency personnel transported her to GBMC in Baltimore County, where she was admitted at approximately 7:45 p.m. Mrs. Kirby was initially treated by Dr. English in the Emergency Department at GBMC. Dr. English's plan was to admit Mrs. Kirby to GBMC's intensive care unit, obtain a consultation from Dr.Vitberg, intubate her, and then transfer her to Johns Hopkins for continuous EEG monitoring.
At approximately 10:00 p.m. that evening, Dr. Vitberg evaluated and treated Mrs. Kirby. As part of his evaluation, Dr. Vitberg consulted by telephone with Dr. Stevens at the Neuro Critical Care Unit at Johns Hopkins in Baltimore City. Dr. Vitberg gave Dr. Stevens a full verbal report, after which Dr. Stevens accepted Mrs. Kirby for transfer to Johns Hopkins.
On April 9, 2014, at approximately 12:33 a.m., Mrs. Kirby arrived at Johns Hopkins. She first saw a neurologist at Johns Hopkins at 4:38 a.m.; an MRI was not performed until 1:42 p.m. that same day. The MRI results established that Mrs. Kirby suffered from multiple strokes. Mrs. Kirby suffered permanent physical and cognitive damage as a result of these strokes. She is extremely limited in movement, unable to verbally communicate, incontinent, and requires tube feeding.
On July 24, 2015, appellants filed a complaint in the Circuit Court for Baltimore City against all appellees alleging medical malpractice and loss of consortium. Appellants alleged that, as a result of the appellees' failure to timely diagnose Mrs. Kirby's stroke and the concomitant delay in treatment, she was "outside the acceptable window for tPA treatment to recover from the stroke."
On September 25, 2015, appellees filed a Motion to Dismiss, or in the Alternative, Transfer for Improper Venue. Appellees argued that Baltimore County was the only venue common to all defendants and therefore was the only venue appropriate under CJP § 6-201. They further argued that venue was not appropriate in Baltimore City under CJP § 6-202(8) because the cause of action did not arise in Baltimore City. A hearing on the motion was held on November 30, 2015. In an order dated December 1, 2015, the trial court granted appellees' motion, ruling that "[f]ailure to timely diagnose [Mrs. Kirby] with a stroke was the injury and that injury occurred in Baltimore County." The trial court therefore transferred the case to the Circuit Court for Baltimore County pursuant to Maryland Rule 2-327(b). Appellants timely noted this appeal.
Payton-Henderson v. Evans, 180 Md. App. 267, 276 (2008). Accordingly, we review the trial court's decision to transfer a case for improper venue de novo. LeCronier v. United Parcel Serv., 196 Md. App. 131, 137 (2010).
Appellants maintain that, under CJP § 6-202(8), venue is proper in Baltimore City as to all appellees because their cause of action against Dr. Stevens and Johns Hopkins arose in Baltimore City. Because § 6-202(8) provides for additional venue, we briefly examine the general venue statute, CJP § 6-201, for analytical context. Section 6-201 provides:
The parties do not dispute that Baltimore County is a proper venue under § 6-201 because, when the complaint was filed, all appellees either resided in or "carried on" regular business in Baltimore County. Thus, under § 6-201, appellants had the option to sue all of the health care providers in the Circuit Court for Baltimore County.
With that background, we proceed to address whether the additional venue provision set forth in § 6-202(8) permits appellants to sue any or all of the appellees in Baltimore City. Section 6-202(8) provides:
The elements of a cause of action for negligence are, (1) a duty on the part of the defendant to protect the plaintiff from injury, (2) a breach of that duty, (3) actual injury or loss suffered by the plaintiff, and (4) that such injury or loss resulted from the defendant's breach of duty. Hamilton v. Kirson, 439 Md. 523-24 (2014). "[A] cause of action in negligence arises when facts exist to support each element of the action." Green v. North Arundel Hosp. Ass'n., Inc., 366 Md. 597, 607 (2001) (citing Owens-Illinois v. Armstrong, 326 Md. 107, 121 (1992)). The Green Court further noted that "the elements of duty,breach, and causation tend naturally to precede the element of injury, which 'would seemingly be the last element to come into existence.'" Id.
The Court of Appeals' decision in Burnside v. Wong, 412 Md. 180 (2010) is instructive in our analysis. Mrs. Burnside suffered from retinopathy, a progressive and degenerative eye disease. She alleged that Dr. Wong, her doctor in Baltimore County, failed to properly diagnose and treat her disease, allowing it to progress to proliferative retinopathy, a more serious eye condition. Mrs. Burnside conceded that she visited Dr. Wong exclusively in Baltimore County for her eye appointments. Nevertheless, Mrs. Burnside argued that her eyes deteriorated to the point of proliferative retinopathy while living in Baltimore City. Because this deterioration took place in Baltimore City, Mrs. Burnside argued that her injury arose in Baltimore City. She therefore asserted that venue was proper in Baltimore City. The Court of Appeals disagreed, holding that "Mrs. Burnside's cause of action arose in Baltimore County, where Dr. Wong's alleged misdiagnosis, mistreatment, and failure to obtain informed consent occurred." Id. at 207.
The Burnside Court's holding is consistent with Green, which held that the minor plaintiff's cause of action against doctors located in Anne Arundel County arose in Anne Arundel County because he first experienced injury there as a result of their alleged medical negligence. 366 Md. at 612. Because all four elements of the minor plaintiff's claim against his Anne Arundel doctors coalesced while he was being treated in Anne Arundel Cou...
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