Md. high court reduces deference owed to plaintiff’s forum choice

The plaintiffs‘ choice of where to sue is owed little deference when they live in a different Maryland jurisdiction, a sharply divided Maryland high court has held in allowing an Eastern Shore family’s medical malpractice case against a Baltimore hospital to be transferred from the city to Talbot County at the defendants’ request.

In its 4-3 decision, the Court of Appeals reinstated a Baltimore City Circuit Court judge’s decision to transfer the Kerrigans’ lawsuit against the University of Maryland Medical System Corp., among other health care providers, for alleged negligence in the treatment of their then-15-year-old son, whose diagnosis of pneumonia ultimately resulted in a heart transplant.

The intermediate Court of Special Appeals reversed the transfer in an unreported opinion last year, saying deference is owed to the Kerrigans’ choice of Baltimore even if the Talbot County courthouse is closest to them.

But the Court of Appeals said Tuesday that the deference judges generally owe to plaintiffs declines when their chosen forum is far and the parties’ convenience and interests of justice weigh strongly in favor of transfer. In such cases, deference is owed to the judge who granted the defendants’ motion for transfer, the court added.

“Although the plaintiff’s chosen forum is the presumed convenient forum for the plaintiff, and, as such, is granted deference, that deference is by no means guaranteed as an absolute,” Judge Clayton Greene Jr. wrote for the majority.

“Not only is the privilege not absolute, but the deference owed may face significant diminishment to the point of non-existence, depending on the circumstance,” Greene added. “Accordingly, it is not our place as the reviewing court to second-guess the weighing of the evidence by the circuit court.”

The circumstances diminishing the Kerrigans’ choice of Baltimore included the fact they drove by the Talbot County Circuit Court on their way to and from Baltimore and that four of the seven named defendants reside in Talbot County, as do the plaintiffs, Kimberly and Michael Kerrigan and their son, Brandon, the high court stated, citing the circuit court judge’s conclusion.

The judge also found that the case could be heard more quickly in Talbot County, which has a less crowded docket than Baltimore City Circuit Court. In addition, the judge said Talbot County has a greater public interest in the healthcare-related case, as it is served by a single hospital whereas Baltimore has several.

The hearing judge “did not abuse his discretion in balancing the convenience of the parties and interests of justice and finding that the weight of the evidence strongly favored transfer,” Greene wrote. “We recognize that less weight is given to the plaintiff’s choice of venue when the plaintiff does not reside in that forum, and that choice, likewise, is given minimal weight when the forum has no meaningful ties to the controversy and no particular interest in the parties or subject matter. The facts of each case will dictate whether the plaintiff’s choice of venue will control the choice of forum.”

Judges Shirley M. Watts, Michele D. Hotten and Joseph M. Getty joined Greene’s opinion.

Judge Sally D. Adkins dissented, saying deference is owed to the plaintiffs’ choice of venue regardless of where they live.

“The majority today deals a heavy blow to our long-held recognition of a plaintiff’s right to choose a venue,” Adkins wrote. “This court has never held, until today, that a plaintiff’s choice of venue receives less deference when suing where he or she does not live.”

Adkins called it inappropriate for the court to tell plaintiffs it would be more convenient for them to be in a courthouse closer to their home, while accepting the argument from defendants – such as those who reside in Baltimore – that it would be less burdensome on them to litigate in a faraway courthouse, such as in Talbot County.

“When plaintiffs select a venue, they presumably make determinations of convenience for themselves,” Adkins wrote. “A trial court should not ignore the plaintiff’s choice when weighing convenience.”

Likewise, “we ought to look skeptically upon a trial court’s decision to use a plaintiff’s residence against him while not weighing the (defendant’s) desire to transfer in the same manner,” Adkins added.

She also discounted the significance of Baltimore having more hospitals than Talbot County.

“Presumably though, healthcare is equally important no matter where one lives or how many hospitals exist in a given municipality,” Adkins wrote. “For this reason, to the extent that the trial court implied that the citizens of Talbot County have a greater interest than Baltimoreans in assuring access to safe healthcare, I disagree.”

Adkins also provided reasons that Baltimore was an appropriate forum for the Kerrigans to choose, despite their teenager’s initial diagnosis and treatment in Talbot County: The heart transplant team works in the city — as do two of the doctors who were allegedly negligent – and the family made frequent trips to Baltimore during Brandon’s treatment and recovery.

Chief Judge Mary Ellen Barbera and Judge Robert N. McDonald joined Adkins’ dissent.

The Kerrigans’ appellate attorney, Adam Janet, assailed the court’s decision in an email statement.

“This opinion does an injustice to plaintiffs across Maryland by transferring this case out of the Kerrigans’ chosen forum,” wrote Janet, of Janet, Jenner & Suggs LLC in Baltimore.

“I respectfully believe that the dissent reflects the better analysis,” Janet added. “I have a hard time accepting that the people of Talbot County have a greater interest in this case, or a greater interest in the quality of healthcare, than citizens in Baltimore City. This decision runs counter to the interests of justice.”

Raymond L. Marshall, UMMS’s appellate attorney, hailed the court’s ruling.

“By taking (review), the Court of Appeals recognized that venue is an important issue for all parties in litigation,” said Marshall, of Chason, Rosner, Leary & Marshall LLC in Towson. “The opinion itself demonstrates that the trial court does have broad discretion in making venue-transfer decisions and that trial courts should apply an individualized fact-based approach that deserves deference on appeal.”

In August 2013, Brandon was diagnosed at Delmarva Radiology P.A. with pneumonia and was prescribed antibiotics. When symptoms persisted, he went to the University of Maryland Shore Regional Health Inc.’s emergency room, where he was diagnosed with potential heart failure and transferred by helicopter to UMMS, where the diagnosis of heart failure was confirmed. He received a heart transplant four months later.

The Kerrigans filed suit in Baltimore City Circuit Court in May 2015 against UMMS, Shore Regional, Delmarva Radiology and four doctors. The defendants moved to have the lawsuit transferred to Talbot County Circuit Court.

The high court approved the transfer in University of Maryland Medical System Corp. et al. v. Brandon Kerrigan et al., No. 3 September Term 2017.