Waiver of Improper Venue in Medical Negligence Action

Ex parte Premier Plastic Surgery, P.C., [Ms. SC-2022-0470, Sep. 2, 2022] __ So. 3d __ (Ala. 2022). The Court unanimously (Shaw, J.; Parker, C.J., and Bolin, Wise, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur) denies Premier Plastic Surgery, P.C.’s (“Premier”) petition for writ of mandamus challenging the Jefferson Circuit Court’s denial of its petition to transfer venue to Shelby County where Premier’s alleged medical negligence occurred. Just “three weeks before the trial was scheduled to begin, Premier moved the trial court to transfer [Deborah D.] Bush’s action to the Shelby Circuit Court pursuant to § 6-5-546, Ala. Code 1975.” Ms. **3-4. The plaintiff argued the challenge to venue was waived “because Premier’s motion was filed almost three years after the litigation began and only three weeks before the scheduled trial….” Ms. *4.

The Court first explains “[b]ecause Premier ‘pleaded improper venue in [its answer] to the complaint, [it] preserved [its] right to file a timely motion for a change of venue under Rule 82, Ala. R. Civ. P.’ Ex parte Lugo de Vega, 65 So. 3d 886, 894 (Ala. 2010).” Ms. *9. A special timing sentence in § 6-5-546, reads “[i]f at any time prior to the commencement of the trial of the action it is shown that the plaintiff’s injuries or plaintiff’s decedent’s death did not result from acts or omissions which took place in more than one county, on motion of any defendant the court shall transfer the action to such county wherein the alleged acts or omissions actually occurred.” The Court concludes this portion of § 6-5-546 does not apply because Bush did not allege that her injuries resulted from acts or omissions in both Jefferson and Shelby County. Therefore, Premier’s venue challenge was subject to the usual Rule 82 timeliness requirement. Ms. **14-15.

The Court holds “[n]either the answer nor the complaint were amended in this case. Bush was deposed in January 2021, and discovery in the case was completed before Premier filed its motion. Premier moved to transfer the action a mere three weeks before trial. Under these circumstances, the trial court did not exceed its discretion in determining that the motion was untimely under Rule 82(d)(1) and that Premier’s challenge to venue had been waived.” Ms. *16.

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