• How Can They Sue Me There?: A Venue Primer for Virginia Physicians
  • December 21, 2009 | Author: Carlyle R. Wimbish
  • Law Firm: Sands Anderson PC - Richmond Office
  • Many physicians who are sued for medical malpractice are surprised to learn that the case has been filed in a city or county that is different than the one in which they treated the patient who filed the suit. This article outlines various factors which go into the plaintiff’s attorney’s decision concerning where to file suit and provides an overview of Virginia law regarding appropriate locations for a suit to be filed. It concludes with some practical considerations designed to limit your exposure to suit in an undesirable location. 

    Venue is the legal term that describes the location in which a suit is filed. In Virginia, unlike most states, cities and counties are separate political entities. With a few exceptions, each city and county maintains a separate court system, even though the county completely surrounds the city and uses the city’s name in most if not all of its mailing addresses. The city of Roanoke and Roanoke County are a classic example of this phenomenon.
    There are several reasons why a plaintiff’s attorney might wish to file suit in a venue other than the one where the doctor treated the patient. Each of these reasons is designed to increase the likelihood and/or amount of a recovery for the plaintiff. First, certain venues have a reputation for being more favorable to plaintiffs than others. Plaintiffs are thought to be more likely to win cases tried in these venues, and when they do, the amounts of the verdicts tend to be higher than average. While there are certainly exceptions, conventional wisdom holds that urban venues are more plaintiff friendly and generous than suburban venues, which in turn are more favorable to the plaintiff than rural venues.
    Second, the plaintiff’s attorney may file suit in a venue other than the one where the treatment was rendered in order to eliminate the physician’s “home field advantage.” This tactic is particularly understandable in less populated areas, where the physician may be not only a beloved caretaker to generations of families, but also a prominent member of the community who is actively involved in various social, religious or charitable organizations. Third, the plaintiff’s attorney may be engaging in “judge shopping,” seeking either to draw or avoid a judge with whom he has a prior relationship or track record, whether it be positive or negative. Finally, suit may be filed in a distant venue in order to toll the statute of limitations but not alert the defendant to its existence so that the plaintiff may buy additional time to prepare his case.
    In light of these various motivations, what does Virginia law say about the location in which a suit for medial malpractice can be filed? Virginia recognizes two types of venue. Category A, or preferred venue, is found in §8.01-261 of the Code of Virginia. Preferred venue requires that suit be filed in specified venues in certain enumerated types of lawsuits. With the exception of cases arising under the Virginia Tort Claims Act, in which a physician employed by the Commonwealth is alleged to have been negligent, preferred venue does not apply to medical malpractice cases. Venue in almost all malpractice cases is governed by §8.01-262 of the Code of Virginia, which describes category B or permissible venue. Under permissible venue, an individual physician may be sued in any of the following locations:
    (1) Where the physician resides;
    (2) Where the physician has her principal place of employment;
    (3) Where the physician “regularly conducts substantial business activity”; and
    (4) Where the cause of action arose (i.e. where the allegedly negligent treatment took place).
    By far the most controversial of these provisions involves the regular conduct of substantial business activity. Prior to 2004, this part of the statute permitted venue in any city or county where a defendant regularly conducted “affairs or business activity,” with no requirement as to the magnitude thereof. Before the 2004 amendment deleted the term “affairs” and added the modifier “substantial” before “business activity,” plaintiff’s attorneys went to great lengths to come up with creative theories in order to support venue in a desired locality. One of the most creative of these arguments was the claim that paying tolls on the Downtown Expressway in the City of Richmond was sufficient to confer venue. Although this argument was rejected, courts did agree that such relatively innocuous activity as biannual visits to the dentist would be sufficient to confer venue.
    Although the Supreme Court of Virginia has not yet been called upon to rule on the 2004 amendment to the venue statute, various Circuit Court opinions have made it clear that the addition of the word “substantial” did significantly increase the plaintiff’s burden in order for venue to attach based on business activity alone. For example, at least one court has held that the fact that a physician advertised twice a month in a general circulation newspaper which was headquartered in a city but circulated widely throughout the state did not confer venue in that city. Likewise, the same court held that holding surgical privileges at a hospital in the city was insufficient to establish venue when the evidence showed that the surgeon had only performed 48 procedures pursuant to those privileges in the two years prior to service of the lawsuit. Another Circuit Court found that a health care provider did not conduct substantial business activity in a particular venue when only 7% of the provider’s revenue was derived from patients in that locality.  On the other hand, a different court found that a hospital that incurred $783,000 in expenses in its venue could be sued there, even though those expenditures represented only 7% of the hospital’s total expenses. The court also relied on the fact that the hospital had prosecuted 225 collection actions in the venue.
    Even when venue is not permissible as to an individual physician, he can still be required to defend himself in the location chosen by the plaintiff. Section 8.01-263 of the Code of Virginia provides that in cases involving multiple parties, if venue is proper as to any party, venue is proper as to all parties. Thus, a physician can be required to defend a case in a venue with which he has no personal connection so long as venue is proper as to any co-defendant who may be involved in the case.
    The most likely co-defendant to confer venue upon a physician is her professional corporation, which is frequently sued along with the individual physician because it is vicariously liable for any negligence of the physician committed within the scope of her employment. Venue against a corporation is permissible wherever the corporation’s president or other chief officer resides, wherever the corporation has its registered agent and/or registered office, and wherever the corporation regularly conducts substantial business activity.
    It is important to note that the burden is on the defendant physician to object to venue if he believes it to be improperly laid, and to convince the court that the statute requires venue to be transferred to another locality. Any doubts about the proper venue will be resolved in favor of the plaintiff’s initial choice. Meeting the burden of proof may require the physician to give a deposition or appear in court to testify to the facts that support the motion to transfer venue. The objection to venue must be filed within 21 days of service of the Complaint or else it will be waived. Thus, any concerns about venue should be raised in the initial meeting with defense counsel.
    In short, Virginia physicians have the potential to be sued in many different locations. While no one expects to get sued, the choice of venue can have a significant impact on the outcome of a lawsuit. Under the circumstances, Virginia physicians should give serious consideration to the implications on venue when selecting a registered agent, when choosing an office location, and even when buying a home. Consultation with an experienced defense attorney in your area can provide valuable insights into this frequently overlooked issue.