Cowart v. Shelby County Health Care Corp.

• Decision Date: 02 January 1996
• Docket Number: Civ.A. No. 3:95CV717LN.
• Citation: 911 F. Supp. 248
• Court: U.S. District Court — Southern District of Mississippi
• Parties: Debbie Ann COWART, as Administratrix of the Estate of Joseph Merrill Mason, Plaintiff, v. SHELBY COUNTY HEALTH CARE CORPORATION d/b/a The Regional Medical Center at Memphis and Elvis Presley Memorial Trauma Center, Air Ambulance Service, Inc., Memphis Air Ambulance, Hospital Wing, Dr. Gavin, M.D., Kathy Storey, R.N., Charlotte Heidi, R.N., and John Does 1-10, Defendants.

911 F. Supp. 248

Debbie Ann COWART, as Administratrix of the Estate of Joseph Merrill Mason, Plaintiff, v. SHELBY COUNTY HEALTH CARE CORPORATION d/b/a The Regional Medical Center at Memphis and Elvis Presley Memorial Trauma Center, Air Ambulance Service, Inc., Memphis Air Ambulance, Hospital Wing, Dr. Gavin, M.D., Kathy Storey, R.N., Charlotte Heidi, R.N., and John Does 1-10, Defendants.

Civ.A. No. 3:95CV717LN.

United States District Court, S.D. Mississippi, Jackson Division.

January 2, 1996.

D. Elizabeth Featherston, Jackson, MS, for Plaintiff.

Stephen P. Kruger, Stuart B. Harmon, Upshaw, Williams, Biggers, Page & Kruger, Jackson, MS; Heber S. Simmons, III, Armstrong, Allen, Prewitt, Gentry, Johnson & Holmes, Jackson, MS; George Q. Evans, Wise, Carter, Child & Carraway, Jackson, MS, for defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendant Shelby County Health Care Corporation d/b/a The Regional Medical Center at Memphis and Elvis Presley Memorial Trauma Center (the Hospital) to dismiss for lack of personal jurisdiction and insufficiency of service of process. Plaintiff Debbie Ann Cowart Mason, Administrator of the Estate of Joseph Merrill Mason, has responded in opposition to the motion and the court, having considered the parties' memoranda of authorities, together with attachments, concludes that the Hospital's motion should be denied.

Those facts underlying the present lawsuit which are germane to the present motion are not disputed. On September 28, 1994, plaintiff's decedent, Joseph Merrill Mason, was injured in a train/truck collision in Holmes County, Mississippi. While he was taken initially to the emergency room of the Methodist Hospital in Lexington, Mississippi for treatment, the treating physician at Methodist Hospital undertook to transfer him to the Elvis Presley Memorial Trauma Center (Trauma Center), a part of the defendant Hospital. In connection with the effort to transfer plaintiff's decedent, the treating physician at Methodist Hospital spoke with defendant Dr. Gavin, a resident physician with the University of Tennessee Medical School working in the emergency room of the Trauma Center, who agreed to accept the transfer. Arrangements were made to have Mr. Mason transported to the Trauma Center by defendant Air Ambulance Service, accompanied by two registered nurses, Charlotte Heidi and Kathleen Storey. According to plaintiff's allegations, the two nurses, after consulting with Dr. Gavin by phone from Lexington, administered to Mr. Mason an inappropriate drug, Tracrium, which caused him to become hypotensive and bradycardic. They then extubated him but failed to reintubate him, as a result of all of which, plaintiff alleges, he died.

"The reach of federal jurisdiction over nonresident defendants (in a diversity action) is measured by a two-step inquiry. First, the law of the forum state must provide for the assertion of such jurisdiction, and second, the exercise of jurisdiction under state law must comport with the dictates of the fourteenth amendment due process clause." Smith v. DeWalt Products Corp., 743 F.2d 277, 278 (5th Cir.1984). Here, however, the court's inquiry is limited to whether state law, i.e., Mississippi's long-arm statute, provides for the exercise of jurisdiction, for the Hospital has so limited its motion. That is, the Hospital does not contend that it lacks sufficient contacts with this state to warrant an assertion of jurisdiction by the courts of this state consistent with due process if there is a basis under state law for the exercise of jurisdiction; rather, its sole argument is that it is not amenable to jurisdiction in this state since Mississippi law furnishes no basis for the assertion of jurisdiction over it.¹

Mississippi's long-arm statute, which provides the sole potential basis under state law for the assertion of personal jurisdiction over the Hospital, permits the courts of this state to exert jurisdiction over any nonresident defendant "who shall make a contract with a resident of this state to be performed in whole or in part ... in this state, who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state." Miss.Code Ann. § 13-3-57.

Plaintiff submits in the case at bar that the Hospital is potentially subject to jurisdiction in this court under any or all three provisions of the long-arm statute — the tort, contract and doing business prongs — since the facts may ultimately prove that the Hospital, in addition to having committed a tort in this state, has solicited and done business in Mississippi and/or that it has contracted with Mississippi hospitals as a means of securing patient transfers. But even assuming that plaintiff could possibly discover facts to support such speculation and further assuming that such facts would satisfy the requirements of the contract and doing business portions of the long-arm statute, that would avail plaintiff nothing for the law is perfectly clear that only the tort portion of the long-arm statute is available to non-residents such as plaintiff. See Herrley v. Volkswagen of America, Inc., 957 F.2d 216 (5th Cir.1992) (doing business provision of long-arm statute not available to non-resident plaintiffs); Smith v. DeWalt Products Corp., 743 F.2d 277 (5th Cir.1984) (same); Moore Video Distributors, Inc. v. Quest Entertainment, Inc., 823 F.Supp. 1332, 1337 (S.D.Miss.1993) (language of long-arm statute, extending jurisdiction over nonresident which makes a contract with "a resident of Mississippi," precludes assertion of jurisdiction by non-Mississippi plaintiffs). Since plaintiff is a nonresident of Mississippi, it follows that neither the contract nor doing business prong of the long-arm statute is available to her as a means of acquiring jurisdiction over the Hospital, plaintiff's arguments to the contrary notwithstanding. Accordingly, the only issue before the court is whether the Hospital is subject to jurisdiction under the tort portion of the long-arm statute.

The Hospital points out in its motion that the only specific tortious acts or omissions which are alleged to have been committed in Mississippi are attributable not to the Hospital, but to separate defendants, and in particular, Gavin, Storey and Heidi. It claims that consequently, this court must dismiss it for lack of jurisdiction. Indeed, plaintiff has not alleged or presented any evidence that the Hospital itself committed any act, tortious or otherwise, in this state. She nevertheless submits that this court may properly exercise jurisdiction over the Hospital on the basis that it is vicariously liable for various acts of negligence committed by these other individuals — Gavin, and nurses Heidi and Storey — all of whom she contends were acting as the Hospital's agents. Anticipating plaintiff's argument on this point, the Hospital in its motion denied that...