14 Aug Virginia: Medical Malpractice – a Lawyer’s Victories
Gibson v. Medical Facilities of America, Inc., 80 Va. Cir. 56 (Norfolk Jan. 22, 2010) is a medical malpractice case. It resolved issues of venue and an arbitration clause in favor of the nursing home resident, a victim of sexual molestation.
First, Gibson held there was permissive venue based on Medical Facilities of America (“MFA”) regularly conducting substantial business in Norfolk. It sufficed that MFA was sole general partner in the limited liability partnership that owned a healthcare facility in Norfolk, despite the alleged medical malpractice being committed at another facility in Chesapeake. Id. at 58.
Second, Gibson held: “The Court has discretion in determining whether the defendant has demonstrated good cause to transfer, and the plaintiff’s forum selection should be given favor.” Id. The requisite “good cause” for transferring the case to Chesapeake (where the medical malpractice occurred) was not shown because there was “no demonstration of substantial inconvenience to the parties or witnesses” by the case being in Norfolk. Id. at 59.
Third, Gibson held another defendant was not entitled to transfer venue of the medical malpractice case, despite not having any personal connection to Norfolk. “Venue is proper to all defendants if it is proper to one defendant.” Id.
Fourth, Gibson denied MFA’s motion to compel arbitration of the medical malpractice claim. “When the plaintiff brings an action in tort rather than contract, asserts no claim under the contract, and does not require the existence of the contract to proceed, the arbitration provision of the contract is not applicable to the controversy.” Id. at 63.