Kelly on Malpractice

Some lawyers have argued that venue is a choice in medical malpractice actions involving multiple doctors or hospitals who reside in different counties. This argument was tested on appeal in Pack v. Ross, 2008 WL 1072188 (Tenn.Ct.App.). The plaintiffs in Pack filed their medical malpractice complaint in Davidson County Circuit Court against Dr. Ross, DMA and Vanderbilt. The plaintiffs and DMA resided in Dickson County. No objections to venue were raised initially. After discovery, Dr. Ross and DMA moved to dismiss the case for lack of subject matter jurisdiction based on TENN.CODE ANN. § 20-4-101(b). They argued the statute limited or “localized” venue of case against DMA to Dickson County. The trial court agreed with Dr. Ross and DMA. However, the trial court found that the case should not be dismissed. Instead, the trial court transferred the case to Dickson County. On interlocutory appeal, Vanderbilt argued: (1) TENN.CODE ANN. § 20-4-101(b) was not jurisdictional and could be waived; and (2) even if the statute was jurisdictional as to DMA, it did not require that the action against the other defendants be transferred to Dickson County.

The case turned on the meaning of TENN.CODE ANN. § 20-4-101(b). This statute is sometimes referred to as the “common county rule.” The general rule for transitory (“tort”) actions is found in TENN.CODE ANN. § 20-4-101 which states in pertinent part:

(a) In all civil actions of a transitory nature, unless venue is otherwise expressly provided for, the action may be brought in the county where the cause of action arose or in the county where the defendant resides or is found.

(b) If, however, the plaintiff and defendant both reside in the same county in this state, then such action shall be brought either in the county where the cause of action arose or in the county of their residence.

This statute localizes venue for an otherwise transitory action. Localization of venue creates subject matter jurisdiction. Tennessee courts have no jurisdiction of local actions brought in the wrong county. The significance is that consent cannot confer jurisdiction; it cannot be waived. The legislative design was to prevent a case where a plaintiff would be permitted to catch his neighbor away from home, and the home of his witnesses, and surprise him with a suit, which, however able he may be to resist at home, he is wholly unable to do so among strangers. The cause of action arose in Dickson County. Therefore, the Court of Appeals rejected Vanderbilt’s arguments and held that the common county rule localized venue in Dickson County.

The second issue involved the propriety of the trial court’s transfer of venue pursuant to TENN.CODE ANN. § 16-1-116. The Court of Appeals held that the transfer was proper because the entire lawsuit could have been brought in Dickson County originally. A transfer of venue under this statute is discretionary. The effect of the transfer was to place Vanderbilt in the same situation that DMA found itself before the transfer.

The lesson in Pack v. Ross is simple but important. If your client and one of the multiple defendants reside in the same county, then that county is your one and only venue.