Austin v. Wells, No. 2004-IA-01251-SCT.

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Carlson, Justice
• Citation: 919 So.2d 961
• Docket Number: No. 2004-IA-01251-SCT.
• Decision Date: 19 January 2006
• Parties: Joseph AUSTIN, M.D. and Vicksburg Healthcare, LLC v. Kathy WELLS and Curtis Wells, Sr.

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919 So.2d 961 Joseph AUSTIN, M.D. and Vicksburg Healthcare, LLC
v.
Kathy WELLS and Curtis Wells, Sr. No. 2004-IA-01251-SCT. Supreme Court of Mississippi. January 19, 2006.

Lee Davis Thames, Jr., Jackson, R.E. Parker, Jr., Robert L. Gibbs, Teselyn Afrique Funches, Jackson, attorneys for appellants.

Carroll Rhodes, Hazlehurst, E. Vincent, Natchez, Davis, attorneys for appellees.

Before SMITH, C.J., CARLSON and RANDOLPH, JJ.

CARLSON, Justice, for the Court.

¶ 1. This case comes to us via an interlocutory appeal after the Jefferson County Circuit Court entered an order denying the defendants' motion to transfer venue to Warren County. Finding reversible error in the refusal to transfer venue, we reverse the circuit court's judgment to that effect and remand this case to the circuit court for prompt entry of an order transferring this case to the Circuit Court of Warren County.

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FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. This medical malpractice suit stems from the performance of an operative procedure known as a total vaginal hysterectomy/bilateral salpingo-oophorectomy. Specifically, Kathy Wells, and her husband, Curtis Wells, both adult resident citizens of Jefferson County, claim that Mrs. Wells's doctor, Joseph Austin, M.D., a resident of Warren County, Mississippi, was negligent in treating Mrs. Wells to the extent that Dr. Austin not only failed to provide her with information about the risks and alternatives associated with her condition so as to facilitate her informed consent, but he also failed to properly treat the complications that arose in the months following surgery.

¶ 3. Mrs. Wells's hysterectomy, which required the removal of her reproductive organs including her uterus and ovaries, was performed on November 19, 2001, at Parkview Regional Medical Center in Warren County, Mississippi. In the months following the hysterectomy, Mrs. Wells visited Dr. Austin on several occasions complaining of persistent right pelvic and groin pain. The initial follow-up visits led Dr. Austin to prescribe several rounds of antibiotic medication in order to fight off possible infection. After a couple of months and persistent problems, Dr. Austin ultimately referred Mrs. Wells to a specialist and ordered a pelvic CT scan. The referred radiologist, Dr. John C. Stepan of the River Region Medical Center, reviewed Mrs. Wells' case and reported that her CT scan was normal.¹

¶ 4. On February 11, 2002, some twelve weeks after her surgery, Mrs. Wells experienced problems with breathing which necessitated her treatment in the emergency room at the Jefferson County Hospital (JCH) in Fayette, Mississippi. The record reveals that during her visit to JCH, Mrs. Wells's primary complaint was documented as "can't breathe" and she was noted to have a respiratory rate of 26 breaths per minute and a pulse oximetry reading of normal. Other symptoms recorded by the hospital staff included nasal congestion, runny nose and a history of sinusitis. Ultimately, the staff at JCH treated Mrs. Wells for sinusitis and released her.

¶ 5. Three days after her visit to JCH, Mrs. Wells, who was still suffering from pain in her right lower quadrant, was taken to St. Dominic Hospital in Jackson, Hinds County, Mississippi. Upon admission to St. Dominic, Mrs. Wells met with Dr. John Mladineo and presented a history of persistent right lower quadrant pain, low-grade fever and a general malaise which had been ongoing since her hysterectomy. After a pelvic examination, the doctors at St. Dominic determined Mrs. Wells's pain was coming from what was diagnosed as "an ill defined mass effect on the right pelvic side wall which is exquisitely tender." Based on this finding, a staff radiologist at St. Dominic re-examined the pelvic CT scan ordered by Dr. Austin on January 23, 2002, and specifically diagnosed Mrs. Wells as having an infected hematoma and an ovarian thrombosis. Mrs. Wells was subsequently admitted to St. Dominic where she was given a 10 day course of IV antibiotic therapy and anti-coagulates. Ultimately, in April of 2002, Mrs. Wells underwent a laparotomy for resection of the pelvic mass and lysis of extensive adhesions.

¶ 6. On December 31, 2002, Kathy and Curtis Wells, Sr., filed their complaint against Jefferson County Hospital, Vicksburg

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Healthcare, LLC² and Dr. Joseph Austin, wherein they claimed the sum of the defendants' negligent acts caused Mrs. Wells to suffer physical pain, emotional distress, loss of wages, loss of wage earning capacity, loss of enjoyment of life, and permanent disfigurement. After filing their respective answers, Vicksburg Healthcare and Dr. Austin filed a joint motion to transfer venue in which they claimed JCH had been fraudulently included in the suit for purposes of establishing venue in Jefferson County, and that the Wellses had not presented the court with a reasonable claim of liability against JCH. Through their motion, the defendants sought a transfer of venue to Warren County. In support of this motion, the defendants averred that the Wellses' initial pre-suit notice of claim to each of the parties, while alleging a breach of duty for a failure to maintain an appropriate standard of care concerning Mrs. Wells's treatment at JCH, made no mention of how this breach of duty injured Mrs. Wells. Additionally, the defendants' motion noted that JCH settled the Wellses' claim against it, on October 20, 2003, and was thus no longer a party to the suit since it had been dismissed with prejudice.

¶ 7. The Wellses filed their response to the motion to transfer venue on October 23, 2003, and attached supplemental exhibits to their motion on December 8, 2003, which included a supplemental affidavit from Dr. Lisa P. Otey. On December 11, 2003, the Wellses filed a letter brief supplementing their response.³ On January 26, 2004, the circuit court entered its memorandum opinion and order denying the defendants' joint motion to transfer venue. The trial court denied certification for an interlocutory appeal, and this Court subsequently denied the defendants' petition for interlocutory appeal on February 4, 2004.

¶ 8. On May 10, 2004, Dr. Austin renewed his motion to transfer venue, and, after the Wellses filed their response, Vicksburg Healthcare joined Dr. Austin's renewed motion and also filed a motion to strike the supplemental affidavit of Dr. Lisa Otey. The circuit court again denied the defendants' motion to transfer venue and again denied the defendants' joint motion to certify interlocutory appeal. However, this Court granted the defendants' petition for interlocutory appeal. See M.R.A.P. 5. Therefore, we now review the trial court's denial of the defendants' motion to transfer venue from Jefferson County to Warren County.

DISCUSSION

¶ 9. We apply an abuse of discretion standard of review to decisions made by a trial court concerning a motion for a change of venue. Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1002 (Miss.2004); see also Christian v. McDonald, 907 So.2d 286, 287-88 (Miss.2005); Stubbs v. Miss. Farm Bureau Cas. Ins. Co., 825 So.2d 8, 12 (Miss.2002); McCain Bldrs., Inc. v.

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Rescue Rooter, LLC, 797 So.2d 952, 954 (Miss.2001); Donald v. Amoco Prod. Co., 735 So.2d 161, 180 (Miss.1999). We have stated that "[t]he trial judge's ruling will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case." Wayne Gen. Hosp., 868 So.2d at 1002 (citing Stubbs, 825 So.2d at 12; McCain Bldrs., 797 So.2d at 954; Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss.1997)). Additionally, we have held that "proper venue is determined at the time the lawsuit is originally filed, and subsequent dismissal of the defendant upon whom venue is based does not destroy proper venue." Estate of Jones v. Quinn, 716 So.2d 624, 628 (Miss.1998) (citing Blackledge v. Scott, 530 So.2d 1363, 1365 (Miss.1988)).

¶ 10. The procedure for determining venue in Mississippi is well-defined. Moreover, Miss. R. Civ. P. 82(b) provides that "[e]xcept as provided by this rule, venue of all actions shall be as provided by statute." Stated differently, the Mississippi Rules of Civil Procedure generally defer to legislative instruction for the purposes of determining venue. Accordingly, we turn to Miss.Code Ann. Section 11-11-3, which provides that venue will lie in a county where a legitimate defendant resides or where a substantial alleged act or omission occurred.⁴ Pursuant to statute, a plaintiff selects among permissible venues, and we have stated that the plaintiff's choice must be sustained unless, upon judicial scrutiny, it is determined that there is no factual basis for the claim of venue. Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992).⁵ Notably, this Court applies de novo review to matters regarding statutory interpretation. Christian, 907 So.2d at 287 (citing Wallace v. Town of Raleigh, 815 So.2d 1203, 1206 (Miss.2002)).

I. WHETHER THE WELLSES' ACTION AGAINST JEFFERSON COUNTY HOSPITAL WAS PREMISED ON A REASONABLE CLAIM OF LIABILITY THUS MAKING VENUE PROPER IN JEFFERSON COUNTY

¶ 11. Today's interlocutory appeal requires us to determine the viability of the claim asserted against Jefferson County Hospital, the defendant through whom venue has been established. Moreover,

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since the defendants, Dr. Austin and Vicksburg Healthcare, premise their motion for a change of venue on the assertion that JCH was made a party to this suit for the sole purpose of establishing venue in Jefferson County, we must test the factual basis on which the Wellses predicate their suit against JCH. Quite simply, we have to determine whether JCH was fraudulently joined as a nominal party to the suit in order to gain access to the circuit court in Jefferson County.

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