Kelly on Malpractice

You are prepared to file a medical malpractice case against two defendants. One resides in Davidson County and the other resides in Montgomery County. Your client resides in Montgomery County. You elect to file the case in Davidson County. Neither defendant moves to dismiss for improper venue, and neither defendant alleges improper venue in his answer. On the eve of trial, you settle with the Davidson County defendant. Immediately thereafter, the Montgomery County defendant moves to dismiss the case for improper venue. What is the solution? The answer may surprise you. You should decide first whether the case is “local” or “transitory” within the meaning of the venue statute. The Tennessee Supreme Court has said, “the most apt illustration of a local action is an injury to real estate, and of a transitory action an injury to the person.” Hall v. Southhall Bros. & Carl, 240 S.W. 298, 299 (Tenn. 1922). Actions are local when a statute prescribes a particular county in which they must be brought. For example, actions involving immovable objects like real property are local. Local actions, being founded on causes referring to locality, must be laid in the county of the subject matter. The plaintiff has no choice in venue. He must sue where directed by statute. A transitory action is one that does not involve an immovable location. It can happen anywhere. The characteristic feature of a transitory action is that the right of action follows defendant’s person. Actions sounding in tort and contract are transitory. Medical malpractice actions are transitory. The plaintiff has a choice of venue in transitory actions. He can sue where the cause of action arose, where the defendant resides, or where the defendant may be found. TENN.CODE ANN. §20-4-104(a). Next, you should decide if venue is localized in the case. At first blush, your case appears to be transitory in nature. It is a tort action. It does not involve an immovable object. The injuries could happen anywhere. However, there is also the concept of localization. The localization doctrine is an anachronism. It dates back to English common law. It is a nostalgic reminder of the limitations associated with horse and buggy.

The localization doctrine declares that when a statute eliminates the option of suit wherever the defendant may be found and fixes venue for an otherwise transitory action in a particular county or counties, the legislative intent is to “localize” venue. Thus, the formerly transitory action becomes a local action. It means to protect the defendant from a default judgment in a foreign county. Tennessee has gone much further, however, by evolving a doctrine of localization that extends subject matter jurisdiction treatment to many other venue provisions. Professor Entman recently inveighed against the subject matter jurisdiction treatment affiliated with the localization doctrine:

Once the label “local” is attached, the selection of a forum county becomes jurisdictional, subject to the “no-waiver, no-consent rule” and other consequences of litigation in a court lacking subject matter jurisdiction. Tennessee’s localization doctrine has nothing to do with the nature of the action, or with the policies that prompted the legislature to limit permissible venues. The doctrine merely converts a statutory venue restriction into a rule of subject matter jurisdiction solely because the legislative treatment no longer supports the historical label “transitory.” June Entman, Abolishing Local Action Rules: A First Step Toward Modernizing Jurisdiction and Venue in Tennessee, 34 U. MEM. L. REV. 251, 306 (2004).

Thus, localization of venue is co-extensive with subject matter jurisdiction. The plaintiff must file suit in the local court. No other court has subject matter jurisdiction. Curtis v. Garrison, 364 S.W.2d 933 (Tenn. 1963). The defendant cannot waive an objection to the wrong venue. The parties cannot even consent to the wrong venue. The venue for transitory actions found at TENN.CODE ANN. §20-4-104 contains a localization provision. When the plaintiff and defendant both reside in the same county, such action “shall be brought” either in the county where the cause of action arose or in the county of their residence. TENN.CODE ANN. §20-4-104(b). This provision has been referred to as the “common county rule.” It localizes venue in either the common county or where the cause of action arose. It means that subject matter jurisdiction exists only in the common county or where the cause of action arose.

Returning to the facts of the case, the Plaintiffs and the doctor reside in Montgomery County. The Plaintiffs’ cause of action against the doctor arose in Montgomery County. By statute, venue is localized in Montgomery County. Only the Montgomery County Circuit Court has subject matter jurisdiction. How do you fight off a motion to dismiss? Ask the court to transfer your case against the remaining doctor to the Montgomery County Circuit Court. The next step used to be dismissal of the action. See Mills v. Wong, 39 S.W.3d 188, 190 (Tenn.Ct.App. 2000); Bing v. Baptist Memorial Hospital-Union, 937 S.W.2d 922 (Tenn. App. 1996); Winters v. Healthtrust, Inc., 836 S.W.2d 584 (Tenn. App. 1992), Tims v. Carter, 241 S.W.2d 501 (Tenn. 1951). Fortunately, the General Assembly fashioned an alternative to this harsh consequence. A court that lacks subject matter jurisdiction can simply transfer the case to a court that has subject matter jurisdiction pursuant to TENN.CODE ANN. §16-1-116. Appellate courts clearly prefer a transfer of the action via the statute when venue is localized instead of dismissal. Hawkins v. Tennessee Dept. of Correction, 127 S.W.3d 749 (Tenn. 2002); Humphreys v. Selvey, 154 S.W.3d 544, 556 (Tenn.Ct.App.2004); Wylie v. Farmers Fertilizer & Seed Co., Inc., 2003 WL 21998408, *6 (Tenn.Ct.App.).

Be sure to check residence carefully before you file suit and beware of the common county rule. Otherwise, you may have to start all over again in another county.

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