Green v. North Arundel Hospital Association, Inc.

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 *602potential prejudice to the defendants, and proceeded first on the issues of liability. At the conclusion of the plaintiffs 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 Arun-del 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.

*603On 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 sub-dural hygroma with a calcified cyst causing some mass effect in the left cerebral hemisphere, a large right parietal porece-phalic 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 per*604formed. 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).1 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 tortfea-sor release. The remaining parties then waived arbitration, which terminated the proceeding before HCAO.

*605Plaintiff 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 plaintiffs 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 *606two 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 against NAHA and Dr. Fields to Baltimore City. NAHA and Dr. Fields moved to dismiss the Baltimore City action and also sought sanctions and attorneys’ fees. The Baltimore City court granted the motion and imposed sanctions. The Anne Arundel County court denied the plaintiffs motion to transfer. Finally, in August, 1996 — more than two years after the case was scheduled to be tried — the plaintiff formally added Drs. Mody and Axelbaum to the Anne Arundel County case. The case proceeded to trial against all four defendants and ended with judgments in their favor.

Plaintiff pursued his claim of improper venue on appeal. The Court of Special Appeals held that the Circuit Court for Baltimore City, in the first proceeding, erred in concluding that § 6-202(8) was inapplicable.2 The intermediate appellate court went on to hold, however, that the error in that determination was essentially harmless, because the cause of action did not arise in Baltimore City and, for that reason, no venue lay there. The court determined that an action based on negligence arises where the injury first occurs. Upon examining the evidence presented by the plaintiff, it concluded that the injury to Darwin first occurred in Anne Arundel County.

The plaintiff applauds the Court of Special Appeals’ determination that § 6-202(8) applies and that the Circuit Court for *607Baltimore City erred in concluding otherwise, but he argues that the intermediate appellate court was wrong in then finding that the action arose in Anne Arundel County. He complains first that, as the Circuit Court made no finding on that issue (which, of course was unnecessary for it to do in light of its ruling that § 6-202(8) was inapplicable), the determination by the Court of Special Appeals constitutes impermissible appellate fact-finding. He also disagrees with that finding on the merits. Although acknowledging that a cause of action for medical malpractice arises when the plaintiff first experiences any injury from the allegedly negligent acts of a defendant, he maintains that no such injury occurred until he suffered his cardiac arrest in Baltimore City-that the defendants were never accused of causing the headaches or drowsiness that the Court of Special Appeals regarded as the requisite injury.

In Owens-Illinois v. Armstrong, 326 Md. 107, 121, 604 A.2d 47, 54 (1992), we concurred with the holding of the Court of Special Appeals in that case that a cause of action in negligence arises when facts exist to support each element of the action. The elements of a cause of action for negligence are (1) a legally cognizable duty on the part of the defendant owing to the plaintiff, (2) a breach of that duty by the defendant, (3) actual injury or loss suffered by the plaintiff, and (4) that such injury or loss resulted from the defendant’s breach of the duty. Brown v. Dermer, 357 Md. 344, 744 A.2d 47 (2000); Valentine v. On Target, Inc., 353 Md. 544, 727 A.2d 947 (1999). As we noted in Owens-Illinois, in a negligence action, 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.” Owens-Illinois, supra, 326 Md. at 121, 604 A.2d at 54. Accordingly, in determining when, in a time sense, a cause of action for negligence arises, the focus is often on when that last element of injury occurs. That, in turn, depends of how we define “injury.”

*608We have opined on that subject on a number of occasions in a variety of contexts. In Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860 (1982), where the issue was whether the plaintiff suffered a “medical injury,” and thus had a cause of action for medical malpractice, prior to the effective date of the Health Claims Arbitration Act, we adopted the view of the Wisconsin court that “injury” needed to be looked at in terms of “the effect on the recipient in the way of hurt or damage” and thus extended to, and included, “any hurtful or damaging effect which may be suffered by any one.” Id. at 94, 447 A.2d at 866 (quoting from McManus v. Board of Trustees of Policemen’s Pension Fund, 138 Wis. 133, 119 N.W. 806, 807 (1909)).3 We also cited with approval two decisions of the Court of Special Appeals, Dennis v. Blanchfield, 48 Md.App. 325, 428 A.2d 80 (1981), aff'd in part and modified on other grounds, 292 Md. 319, 438 A.2d 1330 (1982), and Johns Hopkins Hospital v. Lehninger, 48 Md.App. 549, 429 A.2d 538 (1981), cert. denied, 290 Md. 717 (1981), for the proposition that a medical injury occurs, for purposes of the Health Claims Arbitration Act, “even though all of the resulting damage to the patient has not been suffered prior to the Act’s effective date.” Oxtoby, 294 Md. at 97, 447 A.2d at 868. See also Hill v. Fitzgerald, 304 Md. 689, 696, 501 A.2d 27, 30 (1985) (confirming that view in *609response to certified questions from the United States District Court).

Most instructive with respect to the particular issue before us is Jones v. Speed, 320 Md. 249, 577 A.2d 64 (1990). The plaintiff, Jones, consulted the defendant doctor, Speed, for the first time in July, 1978, complaining of severe headaches and expressing a concern over possible intracranial abnormality. The doctor dismissed that concern and omitted ordering a CT scan or any other diagnostic test of the brain. The headaches continued. Ms. Jones remained under Speed’s care and returned for 16 further visits on a semi-annual basis until September, 1985. Although the headaches persisted throughout that time, Speed never ordered a diagnostic test of the plaintiff’s brain. In February, 1986, following a nocturnal seizure, a CT scan revealed a brain tumor, which was successfully removed. Jones filed a claim, based on the continuing negligence, in July, 1986. In response, Speed asserted the statute of repose codified in Maryland Code, § 5-109 of the Courts and Judicial Proceedings Article, which requires a medical malpractice action to be filed within five years after the time “the injury was committed.”

The complaint contained 17 counts. The first count asserted negligence with respect to the first visit in July, 1978. The remaining 16 counts incorporated the allegations of the first count but asserted separate negligence with respect to each of the ensuing visits, through 1985. We agreed with Speed that all claims based on his failure to order appropriate diagnostic tests and on his failure to detect the tumor more than five years prior to the filing of the complaint were barred. That conclusion necessarily rested on the premise that the pain and disability that Ms. Jones continued to suffer from Speed’s failure to correctly diagnose the problem constituted an injury which, when joined with his negligence, gave the plaintiff a cause of action. We concluded further, however, that the claims based on Speed’s negligence at the later visits occurring within five years of the filing of the complaint were not barred and could proceed, although we suggested that they be *610joined in a single count, in order to avoid res judicata and claim-splitting problems.

We most recently considered the question of injury in Rivera v. Edmonds, 347 Md. 208, 699 A.2d 1194 (1997), which, like Jones, involved the application of the statute of repose provision of § 5-109 to a failure-to-diagnose situation. Biopsy specimens taken by the plaintiffs physician in July, 1983, were allegedly misread by the defendant pathologists, who failed to diagnose invasive carcinoma evident in the microscopic slides. Ms. Edmonds remained free of medical complaints until August, 1988, when her gallbladder was removed. In May, 1989, she complained of severe pain in her right buttock, which the plaintiffs expert witness opined was due to nerve root irritation arising from the spread of a malignant cervical tumor. In October, 1989, a mass was discovered in her right pelvic area, and in November, she was diagnosed as having fully differentiated squamous cancer. She died in 1990. Suit was filed in April, 1993, and was met with the defense under § 5-109, which, on summary judgment, the trial court held was a bar to the action. The issue hinged on when injury occurred from the misdiagnosis.

In examining that issue, we quoted the view of the Court of Special Appeals that

“The patient could suffer an ‘injury’ as a result of a negligent misdiagnosis, when (1) he or she experiences pain or other manifestation of an injury; (2) the disease advances beyond the point where it was at the time of the misdiagnosis and to a point where (a) it can no longer effectively be treated, (b) it cannot be treated as well or as completely as it could have been at the time of the misdiagnosis, or (c) the treatment would entail expense or detrimental side effects that would not likely have occurred had treatment commenced at the earlier time; or (3) the patient dies.”

Id. at 215, 699 A.2d at 1198.

The record indicated that Ms. Edmonds had at least a Stage I cervical cancer — a tumor confined to the cervix — when the misdiagnosis occurred in July, 1983. Although there was a *61110-15% chance of lymph node involvement in a Stage I cancer, the extent of any invasion could not be measured. The five-year cure rate in July, 1983 for an invasive cancer, with proper treatment, was 75-85%. By the time the cancer was actually diagnosed in 1989, however, it had progressed to a Stage IV, for which the cure rate was O. Although the defendants, seeking to establish that the plaintiff had a cause of action immediately, asserted that any delay in a failure to diagnose cancer (and certainly a protracted delay) constitutes injury, a view with which we said that “[ojrdinarily we would have no disagreement,” we noted that there was evidence that the particular cancer that should have been detected in July, 1983, could remain dormant for as long as five years. Because the case was resolved on summary judgment, we concluded that the plaintiff was entitled to that favorable inference, and, in the absence of any evidence of pain or other manifestation of injury, that there was the reasonable prospect that injury did not occur until July, 1988. We thus affirmed the determination of the Court of Special Appeals that summary judgment was inappropriate.

With this background, we may quickly dispose of plaintiffs complaints that the Court of Special Appeals (1) engaged in impermissible appellate fact-finding, and (2) erred substantively in determining that Darwin suffered injury in Anne Arundel County. The two issues really coalesce, and we need go no farther than the plaintiffs own admissions. He states in his brief:

“After being released from [NAHA] at 3:05 p.m. on August 18, 1988 Darwin continued to complain of headache and that evening his father gave him another Viacodin as prescribed by Dr. Fields---- The next morning, August 19, 1988 Darwin still complained of a headache and his parents took him to his pediatrician, Dr. Lee.... Dr. Lee noted that Darwin had a headache, drowsiness and was now staggering, and he immediately arranged for Darwin’s parents to take him to University of Maryland Hospital.”

*612That admission is fully supported by the evidence. In answers to interrogatories, the plaintiff averred that, after leaving NAHA and before reporting to UMH the next afternoon, Darwin suffered a continued “neurological deterioration” from the ever-increasing intracranial pressure. Athough the plaintiff seeks now to brush it aside, the fact is that, as a result of the alleged negligence of the Anne Arundel County defendants in failing to diagnose the shunt malfunction and have Darwin sent immediately to a facility capable of dealing with that problem, Darwin continued to suffer from headaches, drowsiness, and neurological deterioration. That constitutes a “hurtful or damaging effect” (Oxtoby); it is the kind of harm we recognized in Jones as constituting an injury; and it clearly falls within the scope of “pain or other manifestation of an injury” under Rivera. Clearly, Darwin, through his parents, could have sued the NAHA defendants on August 19, 1988.

It is evident that the Court of Special Appeals reached the only conclusion possible — that “because appellant’s own evidence showed that Darwin first experienced injury in the form of ‘neurological deterioration’ and pain and suffering in Anne Arundel County, the cause of action arose in that county.” Green v. North Arundel Hospital, supra, 126 Md.App. at 414, 730 A.2d at 232. Venue thus lay in Anne Arundel County, and no error was committed by the Circuit Court for Baltimore City in transferring the case.

Appearance at Trial

Just before trial, both sides filed motions in limine. NAHA moved to exclude Darwin’s presence from the trial. Plaintiff filed a motion to exclude (1) any evidence or argument concerning the plaintiffs settlement with UMH, and (2) any evidence or argument that UMH or any health care provider other than the defendants was negligent in the care rendered to Darwin. NAHA’s motion to exclude, which was supported by the other defendants, was based on the assertion that Darwin was in a vegetative state, unable to communicate, unable to participate or assist in any way with the presenta*613tion of his case, unable even to understand what would be transpiring in court, that, in the absence of being able to perform any such function, his presence would be overwhelmingly prejudicial, that he required continuing nursing care and extensive medical equipment, and that the equipment would generate noise and distract the jury. Although acknowledging that Darwin’s presence might be relevant to the issue of damages, NAHA asserted that his presence was irrelevant to the issue of liability. The plaintiff opposed the motion and denied the allegations in the motion.

Although the motion and the response seemed to assume that the plaintiff desired Darwin’s presence throughout the trial, at the hearing on the motion, the plaintiff indicated that “he is not going to be sitting here the entire time for trial.” It is not clear from the transcript of the hearing how long the plaintiff wished to have Darwin in court. Counsel noted that Darwin required his airway to be suctioned every two hours, but that it was not a noisy process and that Darwin would have a health care professional with him in the courtroom. Although in his appellate brief, the plaintiff now asserts that counsel “only sought his presence in the courtroom for a period of time less than an hour, on one day of the trial,” and, for purposes of this appeal, we shall assume that was the case, such a limitation is not at all clear from the record.4

*614NAHA urged below, and maintains now, that its motion was not based simply on the fact that Darwin’s appearance might be upsetting to the jury, but rather that, because of his condition, Darwin was unable to communicate, participate, assist counsel, or even comprehend what would be transpiring, and that, as a result, his presence in the courtroom could have no meaning other than to prejudice the jury against the defendants. In response, the plaintiff asked the court to watch a “day-in-the-life” video of Darwin, to observe his condition and his capabilities, which the court proceeded to do. The video, the court said, shows Darwin virtually motionless, except for some eye blinking and some movement during suctioning or changing his feeding tube. At that point, it noted, there is a jerking movement that lifts Darwin’s legs and extends his arms above and about the bed. After watching the video and reviewing relevant deposition transcripts and medical records, the court found as a fact that Darwin did not have the ability to communicate in any fashion with counsel or his parents or nurses, that he would not be able to aid his attorneys in prosecuting the case or offer “any sort of input.” The court found further that Darwin would not understand or comprehend any part of the trial. It concluded that Darwin was “reduced to the vegetable state” and that “there can be no purpose in presenting [him] short of prejudice to the Defendants’ case.”

Although the court recognized that it could not arbitrarily deny a party the right to be present during trial because of the party’s appearance and that the defendants had the burden of establishing a basis for excluding Darwin, it concluded that the burden had been met and that, in the liability phase of the trial, the prejudice from Darwin’s presence would extend beyond “any instructions that could be offered.” For those reasons, it granted the motion. With the acquiescence of the defendants, the court granted the plaintiffs motion to exclude evidence regarding the settlement with UMH but denied the motion to preclude evidence and argument of negligence on the part of UMH or other health care providers. *615In this appeal, the plaintiff complains that the exclusion of Darwin from the trial violated his rights (1) under the Americans With Disabilities Act (42 U.S.C. §§ 12101-12213 (1994 & Supp.1999)), and (2) to due process of law under the Federal and State Constitutions. He avers that a trial court “does not have unbridled discretion to exclude a party from the courtroom, and, therefore, the trial court abused its discretion under the circumstances of this case.”

Americans With Disabilities Act

The Americans With Disabilities Act (ADA) broadly prohibits discrimination against disabled persons in employment, public services and programs offered by public entities, and public accommodations and services operated by private entities. We are concerned here with Title II of the ADA, dealing with public services offered by public entities. 42 U.S.C. §§ 12131-12165 (1994 & Supp.1999). Section 12132 states that, subject to the provisions of the subchapter, no qualified individual with a disability may, by reason of that disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.

Section 12131(1)(B) defines “public entity” as including any agency or other instrumentality of a State or local government, which clearly would include a State court. To date, ADA compliance issues with respect to courts have been principally in the context of requiring that courts make reasonable accommodations in their physical facilities or services to assure that those facilities are accessible to persons with disabilities. See Layton v. Elder, 143 F.3d 469, 472-73 (8th Cir.1998); Matthews v. Jefferson, 29 F.Supp.2d 525, 534 (W.D.Ark.1998); Galloway v. Superior Court of the District of Columbia, 816 F.Supp. 12, 18-19 (D.D.C.1993); People v. Caldwell, 159 Misc.2d 190, 603 N.Y.S.2d 713, 715-16 (Crim.Ct. 1993) Whether the exclusion of a disabled person from a civil court trial, not by reason of some physical barrier but in order to avoid disruption or prejudice, would constitute a violation of the ADA is as yet unclear. No case deciding that issue has *616been cited to us by any of the parties or amici, and, like the Court of Special Appeals, we have been unable to find one.

It is not necessary in this case to resolve that issue, however, for, even if we were to conclude that the ADA provides a broader, more absolute right of presence than does the common law or the State or Federal Constitutions, reversal of the judgment and a new trial would not be a remedy for the statutory violation. Section 12133 limits the rights, remedies, and procedures available to a person alleging discrimination in violation of § 12132 to those set forth in 29 U.S.C. § 794a, which is part of the Vocational Rehabilitation and Other Rehabilitation Services Act, 29 U.S.C. §§ 701-796Z (1994 & Supp.1999). Section 794a, in turn, deals with two different kinds of disability discrimination complaints — those filed under 29 U.S.C. § 791with respect to Federal employment, and those filed under 29 U.S.C. § 794 regarding discrimination in programs receiving Federal financial assistance. Section 794a does not appear to cover complaints of discrimination in State or local government programs or services that do not receive Federal financial assistance.

There has, of course, been no showing in this case, or even an attempted showing, that either § 791 or § 794 is applicable here. To the extent that § 794 may conceivably be applicable on the basis that our State courts receive some Federal financial assistance, that section provides that the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) are available to any person aggrieved by any act or failure to act by a recipient of Federal assistance. Section 2000d-l authorizes each Federal agency empowered to extend financial assistance to adopt regulations to effectuate the provisions of § 2000d, and specifies that compliance with any agency requirement may be effected by termination or refusal to continue the assistance, or by any other means authorized by law. There is no provision in either Federal or State law, to the best of our knowledge — and none has been cited to us — authorizing the *617reversal of a judgment in a civil case or the awarding of a new trial as a remedy.

As noted, public entities are subject to the ADA under § 12132 even if they do not receive Federal financial assistance. The remedies for violations, not otherwise covered by § 794a, are set forth in regulations adopted by the U.S. Department of Justice. 28 C.F.R. §§ 35.101-35.190 (2001). That department is responsible for receiving complaints of discrimination arising from programs dealing with the administration of justice, including the courts. Id. § 35.190. A person who believes that he or she has been subjected to discrimination on the basis of disability by a court may file a complaint with the Department of Justice, which investigates the complaint and attempts to resolve it informally. Id. §§ 35.170-35.172. If unable to effect a resolution, the Department issues findings of fact, following which the complainant may file a private lawsuit or the Department may seek voluntary compliance. Id. §§ 35.172-35.173. If neither occurs, the matter is sent to the U.S. Attorney General “with a recommendation for appropriate action.” Id. § 35.174.

Nowhere in these regulations is there stated, or even suggested, that, where the complaint concerns the exclusion of a disabled person from the courtroom by judicial ruling, reversal of the judgment entered in the case is a permissible remedy. The entire thrust of the administrative remedial sections is in forcing public entities to make reasonable accommodations in their facilities or in their programs to preclude the wrongful exclusion of persons with disability and are injunctive or forward-looking in nature. The remedies available in a private lawsuit, subject to Eleventh Amendment considerations,5 may be broader and include compensatory *618damages and an award of attorney’s fees against the public entity, but there is no indication that they would include setting aside a judgment in favor of a private party because a disabled person was wrongfully excluded from the courtroom. Indeed, the inappropriateness of such a remedy becomes unmistakably clear when one considers that a violation of the ADA based on wrongful exclusion from a courtroom does not depend on the excluded person’s status as a party in the pending case; a member of the public who is excluded from a public courtroom because of his/her disability has the same complaint under the ADA as a party excluded by reason of disability. Surely, it would be inappropriate, and not within the contemplation of Congress, to vacate judgments entered in cases proceeding in the courthouse because a disabled member of the public was wrongfully excluded from entering or remaining in the courthouse or in particular courtrooms.

For these reasons, whether or not the exclusion of Darwin constituted a violation of the ADA, reversal of the judgments is not an acceptable or available remedy.

Constitutional and Common Law Right

In concert with courts throughout the country, we have made clear that a party to civil litigation has a right to be present for and to participate in the trial of his/her case. Although we have not, in our previous cases, specifically identified the source of that right, it is clear that the right emanates, at least, from the common law of Maryland, from the due process clause of the Fourteenth Amendment to the U.S. Constitution, from the Maryland equivalent of that clause, Article 24 of the Declaration of Rights, and from Article 19 of the Declaration of Rights. We have also made clear, as have most other courts in the nation, that the right is not absolute — that there are circumstances in which a civil *619case may proceed without the attendance of a party and, indeed, with the party excluded. We have not had the occasion, however, to consider whether exclusion is permissible under the circumstances now before us.

In Gorman v. Sabo, 210 Md. 155, 122 A.2d 475 (1956), a nuisance action filed against Mr. and Mrs. Gorman, Mrs. Gorman attended the trial on the morning of the first day but not thereafter. She asked that the case be continued because of her alleged illness, a matter that was in some dispute. The court denied the continuance, and that was one of the issues presented on appeal. Finding no error, we said:

“It is not claimed in the brief, nor was it at the argument, that the appellants were hurt in fact by the failure of the court to allow a continuance of the case. It is not even claimed that Mrs. Gorman had planned to take the stand or that she would have been a helpful or persuasive witness. It is not said that she would testify as to any fact that was not brought out either on direct or cross examination of any witness. No actual prejudice was claimed, much less shown. The right of a party to a cause to be present throughout the trial is not an absolute right in a civil case and in the discretion of the court, with due regard to the circumstances as to prejudice, the case may be tried or finished when a party, including a defendant, is absent.”

Id. at 167, 122 A.2d at 481 (emphasis added). See also Casson v. Horton, 226 Md. 575, 174 A.2d 581 (1961).

The same point was made, although in a different context, in Safeway Stores, Inc. v. Watson, 317 Md. 178, 562 A.2d 1242 (1989), an action by an injured employee for judicial review of an unfavorable ruling by the Worker’s Compensation Commission. The corporate employer, Safeway, was entitled by Maryland Rule 2-513(a) to designate a representative to remain in the courtroom and be free from sequestration, even though that representative may be a witness. The rule was intended to put a corporate party in essentially the same position as a natural person in that regard. Safeway, a self-insurer for worker’s compensation purposes, designated as its representa*620tive an employee of a company retained by Safeway to adjust worker’s compensation claims, who had actually worked on the claim in question and who likely would be a witness. The trial court declared that the designated person was not a proper representative and excluded him from the courtroom prior to his testifying. The issue on appeal was whether the trial court committed prejudicial error in so ruling. We held that there was error — that the rule gave the corporate party broad latitude in designating its representative and that its determination was not subject to judicial discretion. As to prejudice, we effectively equated the exclusion of the designated representative with the exclusion of a party, and we said, in that regard:

‘We conclude that it is appropriate to presume prejudice from the wrongful exclusion of a party, or its representative, from a trial. Experienced trial attorneys and judges understand the importance of ‘humanizing’ a corporate defendant in a jury trial. Moreover, a party is entitled to be present to have a firsthand view of the proceedings for purposes of evaluating the constantly changing prospects or exigencies for settlement, and to participate in tactical decisions that must be made, sometimes quickly, in the course of a trial. Finally, the attorney for Safeway was deprived of the presence at his side of the principal investigator in the case. Whether we consider these facts as mounting up to the necessary proof of prejudice by Safeway, or simply consider them in determining that a presumption of prejudice is appropriate in this case, the result is the same. The claimant has not overcome the proof or presumption, and the result must be a new trial.”

Id. ah 184, 562 A.2d at 1245.

What emanates from these cases is that there is a right of presence, that the right is not absolute, and that a determination of whether exclusion of a party constitutes sufficient prejudice, either presumed or actual, to warrant a new trial depends, to some extent, on the circumstances. It is significant that, in Safeway Stores, we did not reverse summarily simply because of the exclusion but examined, instead, *621why the exclusion was prejudicial. The designated representative was able to comprehend the proceedings and not only assist counsel but help make strategic or tactical decisions regarding the case. This kind of analysis, which also was evident in Gorman, is consistent with the majority view around the country, including decisions directly on point to the matter now before us.

Dickson v. Bober, 269 Minn. 334, 130 N.W.2d 526 (1964) arose from a collision between a motorcycle, driven by the plaintiff, and an automobile. The young plaintiff was severely injured and was characterized by the court as “one unable to express or sustain himself, helpless and entirely dependent on others, and wholly unable to comprehend trial proceedings.” Id. at 529. As is the case here, the action was brought on his behalf by his parents, he was represented by counsel, he was excluded from the trial, the jury returned a defendant’s verdict, and he complained on appeal that he was denied his Constitutional right to be present. Responding to the plaintiffs citation of cases purporting to hold that a person has an absolute Constitutional right to be in court during his trial, the Minnesota Supreme Court declared:

“None is authority for the proposition that the plaintiff in a personal injury action who can neither contribute evidence on the question of fault nor comprehend the proceedings is entitled as a matter of constitutional right to be present in court when the liability issue is litigated even though fully and adequately represented by counsel.”

Id. at 530.

The court went on to note that the plaintiffs rights were protected by his general guardian, who brought the action for him, and by the attorney. It concluded that “the determination of whether a plaintiff unable by reason of his injuries to contribute to or understand the trial proceedings should be permitted, nevertheless, to attend the trial must rest in the sound discretion of the trial court.” Id.

Similar conclusions have been reached in Arizona, California, Connecticut, Indiana, New York, North Dakota, Oregon, *622Tennessee, and the U.S. Courts of Appeals for the First and Sixth Circuits. In Morley v. Superior Court of Arizona, Etc., 131 Ariz. 85, 638 P.2d 1331 (1981), the court sustained the exclusion of a severely injured plaintiff, who, as a result of the accident, was in a coma and required a tracheostomy for him to breathe and a feeding tube inserted in his stomach. Following Dickson, supra, the court concluded that “[a] plaintiff unable to at least communicate with counsel will have no right denied by exclusion from the courtroom during the liability phase of the trial.” Id. at 1334. It noted further:

“If, in addition the plaintiffs physical condition, allegedly caused by the defendant, is so pitiable that the trial court determines the plaintiffs mere presence would prejudice the jury, then failure to exclude the plaintiff during the liability phase would deny the defendant’s right to an unbiased jury when the source of the bias is totally irrelevant to the liability issue.”

Id.

In Helminski v. Ayerst Labs., A Div. of A.H.P.C., 766 F.2d 208 (6th Cir.1985), the plaintiff was a surgical nurse who was routinely exposed to a substance, manufactured by the defendant, that was used in surgical anesthetics and that was potentially harmful to fetuses during the early stage of pregnancy. Ms. Helminski was exposed to the product while pregnant and, allegedly as a result, her child was born autistic and retarded. He could not speak and was not toilet trained. The Helminskis sued on the child’s behalf and, as here, the trial was bifurcated and the child was excluded from the liability portion.

Analyzing a party’s right of presence under the due process clause of the Fifth Amendment (this being a Federal case), the court held that a civil litigant’s right of presence was not absolute. It considered three types of cases — those involving a presumably healthy person, those involving the exclusion of a party due to physical injuries, and those in which the excluded party is unable to comprehend the proceedings or aid counsel. As to the first group, although the rule is usually *623articulated as a right to be present either in person or through counsel, the court made clear that representation by counsel does not justify the arbitrary exclusion of a litigant “who wishes to be personally present in the courtroom.” Id. at 214. Essentially the same Anew was taken Avith respect to the second group of cases. Relying on Carlisle v. County of Nassau, 64 A.D.2d 15, 408 N.Y.S.2d 114 (1978), Purvis v. Inter-County Telephone & Telegraph Co., 203 So.2d 508 (Fla. App.1967), cert. denied, 210 So.2d 223 (Fla.1968), and Florida Greyhound Lines, Inc. v. Jones, 60 So.2d 396 (Fla.1952), the Helminski court held that “a plaintiffs physical condition alone does not warrant his exclusion from the courtroom during any portion of the proceedings.” Id. at 215.

The third group, exemplified by Dickson and Morley, the court found persuasive, Avithin some limits. The court first set the general rule that, consistent Avith due process, “a plaintiff who can comprehend the proceedings and aid counsel may not be excluded from any portion of the proceedings absent disruptive behavior or a knoAving and voluntary waiver,” and that includes a plaintiff Avith a “solely physical abnormality ... even when the abnormality is due allegedly to the defendant’s Avrongful conduct.” Id. at 217. Turning then to the issue of prejudice, the court observed that “[t]he benchmark of our judiciary rests on the ability of the courts to provide all parties Avith a fair trial,” and that the court must safeguard the jury’s ability to decide the case based on the evidence presented rather than on emotional factors.” Id. In that regard, the court noted that, although the mere sight of a severely injured plaintiff may evoke jury sympathy, “juror sympathy alone is insufficient to establish juror prejudice” for, generally, a jury Avill follow the court’s instructions and decide the case solely on the facts. It added, however:

“On the other hand, there may be occasions when the mere presence of a party would render the jury unable to arrive at an unbiased judgment concerning liability. Should such a case arise and the presence of the party would not aid the fair administration of justice, the trial court can exclude the plaintiff or limit his presence. A party’s involuntary exclu*624sion under these circumstances would not constitute a denial of due process.”

Id.

In the particular case, the trial judge excluded the plaintiff solely on the basis of his described condition, without ever observing the child to determine whether his presence would result in prejudice. Even defense counsel acknowledged that the child’s appearance was normal. Exclusion under that circumstance, the appellate court held, was wrong. It was not, however, reversible error. The court explained:

“If there is any indication that the plaintiffs presence could have assisted in the presentation of his case, we believe that his exclusion would require reversal. Under the facts of this case, however, where the Helminskis acted as Hugh’s next friends and legal representatives, where' all parties agree that Hugh was completely unable to comprehend the proceedings, and where Hugh because of his extremely low IQ could not aid his attorney in any meaningful way, we conclude that Hugh’s exclusion does not constitute reversible error.”

Id. at 218. See also In Re Richardson-Merrell, Inc., 624 F.Supp. 1212 (S.D.Ohio 1985) in which the court explained, as the basis for excluding severely injured plaintiff-children from the liability phase of a product liability case, that the children could neither testify nor meaningfully consult with counsel and that:

“A fair trial contemplates fairness to both sides. In accordance with [Federal Rule of Evidence] 403 a trial judge must always balance probative value against prejudicial effect, confusion of the issue or misleading the jury. The probative value of a deformed child or children in the courtroom on an issue of liability alone is nonexistent. The unfair prejudicial effect of the presence of that child is beyond calculation.”

Id. at 1224.

We need not prolong this opinion with like quotations from other cases. See Gage v. Bozarth, 505 N.E.2d 64 (Ind.App. *6251987); Bremner v. Charles, 312 Or. 274, 821 P.2d 1080 (1991); Burks v. Harris, 1992 WL 322375, 1992 Tenn.App. LEXIS 913 (Tenn.Ct.App.1992); Province v. Center for Women’s Health & Family Birth, 20 Cal.App.4th 1673, 25 Cal.Rptr.2d 667 (1993); Caputo v. Joseph J. Sarcona Trucking Co., 204 A.D.2d 507, 611 N.Y.S.2d 655 (1994); Reems v. St. Joseph’s Hosp., 536 N.W.2d 666 (N.D.1995); Wozniak v. New Britain General Hospital, 2001 WL 717497, 2001 Conn.Super. LEXIS 1547 (2001); and cf. Gonzalez-Marin v. Equitable Life Assur. Soc., 845 F.2d 1140 (1st Cir.1988).

There are, indeed, decisions holding that the exclusion of a party from a civil trial was error, but none of them involved the situation of a party who was (1) wholly unable to communicate or assist in the presentation of the case, (2) incapable of comprehending the proceeding, and (3) excluded only from the liability phase of a bifurcated trial, where his/her presence would likely be both prejudicial to the defendant and irrelevant, in an evidentiary sense, to any issue then before the jury.

A typical case in this regard, often cited, is Cary v. Oneok, Inc., 940 P.2d 201 (Okla.1997), where the plaintiff was a young child who was severely burned when a water heater in his parents’ garage exploded. On motion of the defendant, the child, who was six-and-a-half at the time of trial, was excluded from the courtroom during the liability phase of the trial solely on the ground of his physical appearance — that it would prejudice the jury. The Oklahoma Supreme Court reversed, holding that “[a] Party’s physical appearance cannot be the sole basis for exclusion from the courtroom, and does not amount to an ‘extreme circumstance’ permitting exclusion.” Cary, 940 P.2d at 204. Although the court noted that jury sympathy could not always be translated into jury prejudice and that the Americans With Disabilities Act added a new dimension to the issue, it also concluded that the record was not clear that the child “could not meaningfully comprehend what was going on” and that the defendant failed to show that the child “would have been of no assistance to his attorney.” Id. at 205, 206. Despite his tender age, the child had a *626recollection of the event. Id. at 206. The court distinguished the harmless error holding of Helrninski on the ground that, in that case, the child was developmentally retarded from birth, was autistic, could not speak, and required constant care, whereas the plaintiff in Cary was a normal six-year old but for his burns and scars. Id. See also Florida Greyhound, supra, 60 So.2d 396, 397 (no error in allowing injured plaintiff to attend non-bifurcated trial, where it was not clear that plaintiff could not understand the proceeding or assist in some way) and Talcott v. Holl, 224 So.2d 420, 421-22 (Fla.App.1969) (same; plaintiff actually testified), but compare Purvis, supra, 203 So.2d 508, 511 (plaintiff has right to be present “in absence of a showing that he was incompetent or so incapacitated that he could not comprehend the trial proceedings”) and Freeman v. Rubin, 318 So.2d 540, 544 (Fla.App.1975) (same).

We believe that the appropriate analysis in a case such as this is that employed by the Helrninski court. There is a right of presence, and it may not be denied, even in the liability phase of a bifurcated trial, solely because the party’s physical appearance may engender jury sympathy. The right is not absolute, however. It must be balanced against the defendant’s equivalent right to a fair trial. Our holding is a narrow one. In the liability phase of a bifurcated trial, the court has discretion to exclude a plaintiff where, after a hearing and an opportunity to observe the plaintiff, either in person or by other reliable means, the court determines, on the record, that: (1) the plaintiff is severely injured; (2) the plaintiff attributes those injuries to the conduct of the defendant(s); (3) there is a substantial prospect that the plaintiffs presence in the courtroom may cause the jury to side with the plaintiff out of emotional sympathy rather than on the evidence; (4) the plaintiff is unable to communicate or participate in the trial in any meaningful way; and (5) the plaintiff would be unable even to comprehend the proceeding. When all of those circumstances exist, as they did here, the plaintiffs presence is not truly an exercise of his/her right of presence, for the plaintiff is incapable of making a conscious decision in *627that regard. His presence is rather as an exhibit — a piece of evidence — that is both irrelevant and prejudicial, and thus invokes the balancing process enunciated in Maryland Rule 5-408. There was no abuse of discretion here.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.

RODOWSKY, J., concurs and dissents, BELL, C.J., dissents.

. The claimant before HCAO and the plaintiff and petitioner in this action is Darwin. Because of his unfortunate condition, however, he has been unable directly to make any claims or assertions. All of the claims and assertions regarding his physical and medical status at the various relevant times and all of the actions taken in this litigation were made or done on his behalf by either his parents or his attorneys. We shall use Darwin’s name when referring specifically to him but otherwise use the term "plaintiff” to refer to Darwin or those acting on his behalf.

. The authority allowing a plaintiff to sue in the county where the cause of action arose is provided in both §§ 6-201(b) and 6-202(8). As noted, the authority contained in § 6-201(b) is limited to the situation in which there is no other single venue applicable to all defendants, which was not the case here. The authority provided by § 6-202(8) is limited to tort actions based on negligence. It provides an additional venue to the plaintiff irrespective of whether venue under § 6-201(b) is available. See Wilde v. Swanson, 314 Md. 80, 548 A.2d 837 (1988).

. In Oxtoby, the plaintiff underwent surgery in 1974 for a complete hysterectomy, due to a concern over the prospect of ovarian cancer. The defendant surgeon allegedly did not remove all of an ovary and fallopian tube, and, in April, 1977, the plaintiff was diagnosed with cancer, which, in 1980, proved to be fatal. Suit against the surgeon was filed in 1980. The Health Claims Malpractice Act, which required all malpractice claims to be submitted to non-binding arbitration prior to any action in court, took effect July 1, 1976, and applied to all medical injuries occurring after that date. The question presented to us was whether Ms. Oxtoby suffered a medical injury prior to July 1, 1976 and therefore was not subject to the procedural requirements of the Act — whether the alleged failure to remove the entire ovary established a complete medical injury at the time of the surgery or not until she actually contracted the cancer. We concluded that it was unnecessary to resolve that issue, as there was evidence in the record that the cancer, though not diagnosed until 1977, was, in fact, contracted prior to July 1, 1976.

. In making that assertion, the plaintiff cites to pp. 105-06 of the record extract, which is part of the transcript of the hearing on the motion in limine. Although counsel did state to the court that Darwin "is not going to be sitting here the entire time for trial,” nowhere did he indicate that Darwin’s presence was to be limited to less than an hour on one day. The assertion now made, so far as we can tell, finds no support in the record. Although this disparity has no ultimate significance, it presents a somewhat different posture of the case to us than may have been presented to the trial court. If, as the colloquy suggests, the intent was to have Darwin in the courtroom for longer than two hours, the court may well have been concerned about the disruptive effect of suctioning his air tube — the noise and the jerking movement that the court observed on the video. If, as we are now told, the intent was to have him brought in on one day for less than an hour, the implication is even stronger that his presence would simply be as an exhibit, not to implement his Constitutional, statutory, or common law right to be present.

. Since the decision of the Supreme Court in Board of Trustees v. Garrett, 531 U.S. 356, 370-72, 121 S.Ct. 955, 966-68, 148 L.Ed.2d 866, 882-84 (2001) (holding invalid the attempted abrogation by Congress of the States’ Eleventh Amendment right with respect to actions for damages under Title I of the ADA), a serious question has been raised of whether an action for damages may lie against a State under Title II of the ADA. See Thompson v. Colorado, 258 F.3d 1241, 1255, 2001 *618U.S.App. LEXIS 21625 at *36-37 (10th Cir.2001) and Jones v. Department of Welfare, Bureau of Blindness and Visual Servs., 164 F.Supp.2d 490, 494, 2001 U.S. Dist. LEXIS 14549 at *10 (E.D.Pa.2001) (holding invalid the attempted abrogation of Eleventh Amendment right with respect to actions under Title II of the ADA).