Smith v. Pearre

Decision Date01 September 1992
Docket NumberNo. 1500,1500
Citation625 A.2d 349,96 Md.App. 376
PartiesMargaret C. SMITH, Personal Representative of the Estate of Clater W. Smith, Jr., et al. v. A. Austin PEARRE, Jr., et al. ,
CourtCourt of Special Appeals of Maryland

Marvin Ellin (Jack D. Lebowitz, May-Lis Manley and Ellin & Baker, on the brief), Baltimore, for appellants.

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

1. in denying their request for removal;

2. 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;

3. in denying their request for a new trial because one of the jurors failed to answer voir dire questions truthfully;

4. 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 5. 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 disclosed an ulcer in the stomach, which was biopsied and diagnosed as cancerous.

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, Annotated Code of Maryland, Courts and Judicial Proceedings Article, §§ 3-2A-01 through 3-2A-09. Both appellees denied liability, and Dr. Pearre requested a change of venue. The case was moved to Harford County for a Health Claims Arbitration proceeding. Thereafter, the parties waived arbitration, and a complaint was filed by the Smiths in the Circuit Court for Frederick County on 4 February 1991. They also filed, at the same time, a petition to remove the case from Frederick County to a noncontiguous county, specifically, to Prince George's County, Baltimore City, or Baltimore County.

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 Maryland Constitution, Art. IV, § 18(b), Md. Rule 1200.a.1, and Md. Rule 1202.a.1. Chief Judge Murphy appointed Judge Francis Arnold, of the Circuit Court for Carroll County, to preside over the case.

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 jury in Frederick County or Carroll County." 1 Counsel for appellants concluded that Judge Arnold had prejudged the motion and had already decided that the trial would be held in either Frederick or Carroll counties.

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.

Appellees contend that, by withdrawing their original request for remand, appellants waived their right to seek removal. While the right of removal may be waived or surrendered, State v. Simms, 234 Md. 237, 198 A.2d 891 (1964), we believe that under the facts of this case appellants did not waive the right. We reject appellees' contention that once the issue of removal was raised, via the original request, it cannot be raised later a second time. Rule 2-505(a)(1) provides:

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 Courts and Judicial Proceedings Article § 6-204, Md.Code Ann. (1974, 1989 Repl.Vol.), and the Maryland Constitution art. IV, § 8, entitles a party to have a case removed to a court in another jurisdiction if the party can demonstrate that a fair and impartial trial is impossible in the court where the action was initially brought. Ezersky v. Ezersky, 40 Md.App. 713, 715, 394 A.2d 1225 (1978).

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...

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