Plaintiff’s Venue: Scott v. Hawit

The Baltimore Medical Malpractice Lawyer Blog discusses issues in Maryland medical malpractice cases. This post is on a case involving multiple medical providers across different jurisdictions that contribute to a patient’s catastrophic injury. Where can—and where should—the resulting medical malpractice lawsuit be tried? This is a fundamental question of venue selection and the doctrine of forum non conveniens. It sits at the heart of Maryland civil procedure. This post uses the case, Scott v. Hawit, 211 Md. App. 620 (2013). The Court of Special Appeals of Maryland (now the Appellate Court of Maryland) decided it. They addressed whether the trial court abused its discretion. The lower court had transferred a multi-defendant medical malpractice action away from the plaintiffs’ chosen venue.

This post provides an analysis of the Scott decision. It examines the factual background, the arguments raised by the parties, and the appellate court’s ruling. The post also gives a legal commentary. It explains why this case was decided correctly to safeguard plaintiffs’ statutory venue rights.

Factual Background on Plaintiff’s Choice of Venue in Medical Malpractice

The litigation arose from alleged medical negligence resulting in severe, irreversible brain damage. It happened to a minor child due to untreated hyperbilirubinemia and subsequent kernicterus. Kernicterus is a rare, preventable neurological condition. It is caused by extremely high levels of bilirubin accumulating in brain tissue. It then leads to permanent cognitive and physical impairment, profound developmental delays, and severe seizure disorders.

The minor plaintiff was born on June 3, 2001, at a county hospital in Calvert County, Maryland. The day after birth, an attending pediatrician practicing in Calvert County diagnosed the infant with jaundice . They then ordered bilirubin testing, which placed the child in the medium-to-high-risk category for kernicterus. The child was discharged home on June 5 with instructions for follow-up testing, which subsequently confirmed elevated high-risk bilirubin levels. On June 8, the child was readmitted to the county hospital. He received double phototherapy and was discharged the following day for home phototherapy. However, on June 9, the pediatrician advised discontinuing the home phototherapy and instructed the parents to return in three to four weeks. Despite multiple office visits in June and July during which the mother voiced significant clinical concerns, the child’s condition went improperly addressed.

Care Transferred to Baltimore

On July 11, 2001, the mother obtained a referral to specialists at a major medical center in Baltimore City. The pediatrician consulted by telephone with a specialist at the hospital, and the child was evaluated in Baltimore City on July 12 by a physician assistant and attending doctors. Following this evaluation, the hospital medical personnel advised the parents that the child was “normally developing and healthy” and discharged him without further evaluation, care, or diagnostic testing.

Regrettably, by August 21, 2001, the child’s condition had dramatically deteriorated, requiring emergency referral for seizure activity. Over subsequent months and years, the minor plaintiff readmitted to specialized pediatric facilities. This happened between 17 and 34 times per day for ongoing seizure management and severe developmental impairment. It also required round-the-clock lifelong care. On October 11, 2011, the mother, acted individually and as mother and next friend of her minor son. She filed a medical malpractice action in the Circuit Court for Baltimore City. It was against both the pediatrician and the hospital. She asserted that separate, independent acts of negligence by both healthcare providers substantially contributed to the minor child’s ultimate permanent brain damage.

The Parties’ Arguments on Plaintiff’s Choice of Venue in Medical Malpractice

Defendants’ Motions to Transfer (Seeking Calvert County Venue)

The pediatrician moved under Maryland Rule 2-327(c) to transfer the action to the Circuit Court for Calvert County on the grounds of forum non conveniens. The hospital subsequently joined in seeking the transfer. The defendants presented several core arguments in support of removal from Baltimore City:

• Foreign Plaintiffs Weight: The defendants argued that because the plaintiffs resided in Calvert County, their choice of Baltimore City as a forum was entitled to significantly less deference under established case law.
• Locus of Treatment & Volume of Care: The defendants emphasized that the primary pediatric care occurred in Calvert County over fifteen to sixteen visits, whereas the treatment provided by the hospital consisted of a single, brief visit in Baltimore City lasting only a few hours. They argued that thousands of medical records resided in Calvert County compared to a sparse medical record at the hospital.
• Convenience of Defendants and Witnesses: The pediatrician resided and practiced exclusively in Calvert County. To overcome the inconvenience to the Baltimore City entity, the hospital offered to waive its own inconvenience and guaranteed that it would produce its medical staff and treating physicians in Calvert County for trial.
• Public Interest & Jury Burden: The defendants argued that citizens of Baltimore City had no public interest in judging the quality of outpatient pediatric care rendered in Calvert County.

Plaintiffs’ Opposition (Maintaining Baltimore City Venue)

The plaintiffs vigorously opposed the transfer, establishing that:

• Proper Statutory Venue: Venue was unquestionably proper in Baltimore City under Maryland Code, Courts & Judicial Proceedings Article § 6-201(b). The hospital’s principal place of business was located in Baltimore City and a key negligent omission occurred there.
• Substantial Contact and Treatment History: The plaintiffs identified eighteen treating physicians and specialists in Baltimore City who had provided ongoing medical care to the child over eleven years, balancing out any witness convenience arguments.
• Equipoise of Factors: The plaintiffs asserted that when two independent tortfeasors commit distinct negligent acts in different jurisdictions contributing to a single indivisible injury, the factors supporting each venue cancel each other out. Consequently, the balance does not “weigh strongly” in favor of transfer.

The Court’s Ruling on Plaintiff’s Choice of Venue in Medical Malpractice

The Circuit Court for Baltimore City granted the defendants’ motions, transferring the case to Calvert County. The trial court reasoned that the plaintiffs did not reside in Baltimore City, that the majority of care leading to the injury occurred in Calvert County, and that the hospital was willing to accept the transfer to Calvert County.

The Court of Special Appeals of Maryland reversed the circuit court’s transfer order and remanded the case back to the Circuit Court for Baltimore City. The CSA emphasized the following key legal principles:

1. Plaintiff’s Choice of Forum and Deference: Under Maryland Rule 2-327(c), a motion to transfer for forum non conveniens should be granted only when the balance weighs strongly in favor of the moving party. While a foreign plaintiff’s choice receives somewhat less deference, that choice is still entitled to significant weight where the chosen forum has a substantial and meaningful connection to the litigation.
2. Meaningful Ties to Baltimore City: Unlike cases where a forum has zero connection to the dispute, Baltimore City was the principal place of business of the hospital defendant and the physical situs of one of the independent acts of alleged malpractice.

Additional Points

1. Irrelevance of Comparative Negligence or Care Volume: The trial court erred in focusing on the volume of visits in Calvert County versus Baltimore City. Under Maryland law, joint and several liability applies if both defendants’ negligence substantially caused the indivisible injury. It is immaterial which party saw the patient more often. If the hospital’s single failure to diagnose was a substantial factor in causing the harm, the hospital is fully liable.
2. Improper “Thumb on the Scale” by Co-Defendant: The appellate court held that the trial court committed an abuse of discretion. It allowed the hospital to “put its thumb on the scale” by volunteering to travel to Calvert County. A defendant cannot artificially manipulate the forum non conveniens balancing test by waiving its own local venue conveniences to force a transfer away from a plaintiff’s properly chosen forum.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Plaintiff’s Choice of Venue

There are three primary legal pillars that demonstrate why this case was decided correctly:

1. Preservation of Statutory Venue and Protection Against Strategic Defense Manipulation

Maryland law grants plaintiffs the initial privilege to choose among proper statutory venues. A plaintiff sues multiple independent corporate and individual defendants. He can pick a forum where one defendant maintains its principal place of business and where actionable negligence occurred. That choice is a statutory right. The trial court’s initial ruling allowed defense tactics to unfairly subvert this right. It allowed the institutional hospital defendant to “volunteer” its witnesses for travel to another county. Thus, the court effectively permitted two defendants to collude to strip away a venue that was completely lawful and convenient for the plaintiff. As the appellate court correctly observed, allowing a corporate defendant to waive its own locality advantages converts an objective convenience analysis into a subjective tactical maneuver.

2. Alignment with Joint and Several Liability Doctrines

The trial court relied on the “duration and number of visits” as a basis for transfer. This represented a flaw in tort doctrine analysis. Maryland is a traditional joint and several liability jurisdiction without comparative fault among joint tortfeasors. Whether a doctor saw a patient fifteen times or a hospital saw a patient once for two hours is legally irrelevant to liability. There is liability if both acts of negligence constituted a substantial proximate cause of the indivisible harm (kernicterus). The CSA clarified that trial judges should not conduct a pseudo-comparative fault or “quantified care” analysis at the preliminary motion stage. The CSA ensured that venue transfers remain tied to genuine witness convenience rather than judicial speculation about trial strategy.

3. Proper Application of the “Near Equipoise” Standard

The cornerstone of forum non conveniens jurisprudence is that the court will generally not overthrow a plaintiff’s selection of forum. The exception is when the balance of public and private convenience factors weighs strongly in favor of transfer. Where two independent torts occur in two different jurisdictions, witness locations, medical records, and local public interests are inherently divided between the two forums. Under such conditions, the convenience factors exist in near equipoise. When factors evenly balance, the legal tie breaks in favor of the plaintiff’s chosen forum. Reversing the transfer restored the proper legal burden back onto moving defendants.

Key Takeaways for Medical Malpractice Practitioners

• Multiple Defendants & Multiple Venues: If malpractice occurs in more than one county across independent healthcare providers, venue is proper in any county where a corporate defendant resides/conducts business or where an act of negligence took place.
• Defense Waivers Cannot Alter Balance: A co-defendant cannot manipulate the venue balancing test under Rule 2-327(c) by offering to waive its own local inconvenience.
• Focus on Substantial Causation: Do not let defense counsel minimize an institutional defendant’s liability during venue hearings based on the duration of care. A single negligent consultation can establish full joint and several liability.

Caveat: UM v. Kerrigan

Maryland courts continue to cite Scott v. Hawit. However, practitioners dealing with a motion to transfer based on forum non conveniens should consider the Court of Appeals (now Maryland Supreme Court) decision in UM v. Kerrigan. You can read the Blog post on it: Plaintiff’s Forum: UM v. Kerrigan. The court emphasized that Scott does not create a blanket rule keeping non-resident cases in Baltimore City simply because of subsequent medical care. It also reaffirmed that trial judges enjoy wide discretion in deciding transfer motions.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.