Lead Opinion
[¶ 1.] Denise Estes filed suit against Dr. David Lonbaken, a podiatrist, for medical malpractice. Estes’ complaint alleged that Dr. Lonbaken negligently treated a large nеuroma on her foot.
Analysis
[¶ 2.] Proper venue is established by statute. See SDCL ch. 15-5. Because this case is an action “for the recovery of damages to persons[,]” it “may at the option of the plaintiff be brought and tried in the county where the damages were inflicted or the cause of action arose.” SDCL 15-5-8. Proper venue is reviewed dе novo. See State v. Newell,
[¶ 3.] We reach this conclusion because an artfully drafted complaint could obfuscate where the action arose. To avoid this, a court may consider other pleadings and evidence, such as the parties’ motions, affidavits, and other relevant matters. While there may be cases where proper venue can be determined from the complaint, in this case the complaint alone does not tell the whole story. As a result, additional information is relevant and required because proper venue depends on where the “the damages were inflicted or the cause of action arose.”
[¶ 4.] Estes alleges in her complaint that Dr. Lonbaken’s negligence consisted of substandard surgical procedure and follow-up сare. Dr. Lonbaken treated Estes for a large neuroma on her foot. Estes
[¶ 5.] During Estes’ recovery period, her foot developed an infection. This led to some drainage from the surgical site, redness, pain, and an odor. It was later determined that Estes had developed Methicillin-Resistant Staphyloсoccus Au-reus.
[¶ 6.] For assessing proper venue, we look at the following considerations to determine where a cause of action arosе: (1) the right claimed; (2) the wrong claimed to have been suffered; (3) “[t]he relief sought”; and, (4) “the place where the facts creating the necessity for bringing the action оceur[red].” McDonald v. State,
[¶ 7.] We affirm.
Notes
. The Mayo Clinic’s website describes a neu-roma as "a painful condition that affects the ball of your foot, most cоmmonly the area between your third and fourth toes.” Definition of Neuroma, Mayo Clinic, http://www. mayoclinic.com/health/mortons-neuroma/DS 00468 (last visited June 9, 2011).
. The Mayo Clinic's website describes Methi-cillin-Resistant Staphylococcus Aureus as an “infection ... caused by a strain of staph bacteria that’s become resistant to the antibiotics commonly used tо treat ordinary staph infections. Most MRSA infections occur in people who have been in hospitals or other health care settings, such as nursing homes and diаlysis centers.” Definition of Methicil-lin-Resistant Staphylococcus Aureus, Mayo Clinic, http://www.mayoclinic.com/healtb/ mrsa/DS00735 (last visited June 9, 2011).
. The resolution of this issue is dispositive of the remaining issue of Estes’ appeal.
Concurrence Opinion
(concurring in result).
[¶ 12.] If we are going to overrule our precedent, we ought to say so explicitly. In a case plaintiff relies on, Kreager v. Blomstrom Oil Co., this Court held that “the determination of a venue motion must be made from the allegations of plaintiffs
[¶ 13.] This common sense holding comports with rulings in other jurisdictions. Along with this rule change, though, we should provide restrictions on what will suffice for proper consideration in venue hearings. The Court includes “pleadings and evidence, such as the parties’ motions, affidavits, and othеr relevant matters.” See majority opinion ¶ 3. But concern with artfully drafted complaints might well extend to similarly drafted “motions” and “pleadings,” not to mention “other relevant matters.” For good reason, other states limit ultimate consideration to competent evidence, such as offered in verified pleadings, sworn testimony, and affidаvits. See, e.g., Mosby v. Superior Court,
[¶ 14.] Under SDCL 15-5-10, when a party timely “demands in writing that the trial be had in the proper county,” the court may change the place of trial where the county designated in the complaint is not the proper county. SDCL 15-5-11; Kolb v. Monroe,
[¶ 15.] Here, in support of his demand to change venue, defendant submitted an affidavit with numerous attachments showing the treatment plaintiff received and where it was administered. Venue was changed to Hughes County. In later denying plaintiffs motion for reconsideration, the trial court found that there was no testimony from plaintiffs expert to support that negligence occurred or injury was inflicted at the times plaintiff was treated in Buffalo County. These findings have not been shown to be erroneous. Thus, the change of venue should be affirmed.