Estate of Jones v. Phillips, No. 2006-CA-01898-SCT.

• Decision Date: 28 August 2008
• Docket Number: No. 2006-CA-01898-SCT.
• Parties: ESTATE OF Venus JONES, M.D., Lance Wright, M.D. and Semmes-Murphy Clinic, Memphis Pathology Labs and Baptist Rapid Access Lab v. Tyson PHILLIPS, a minor, By and Through his Next Friend, Mary Jean PHILLIPS and Mary Jean Phillips, individually and as Conservator for Wilbert Phillips.
• Court: Mississippi Supreme Court

992 So.2d 1131

ESTATE OF Venus JONES, M.D., Lance Wright, M.D. and Semmes-Murphy Clinic, Memphis Pathology Labs and Baptist Rapid Access Lab v. Tyson PHILLIPS, a minor, By and Through his Next Friend, Mary Jean PHILLIPS and Mary Jean Phillips, individually and as Conservator for Wilbert Phillips.

No. 2006-CA-01898-SCT.

Supreme Court of Mississippi.

August 28, 2008.

Rehearing Dismissed November 6, 2008.

Dion J. Shanley, Shelby Duke Goza, Oxford, attorneys for appellants.

W. Eric Stracener, W. Andrew Neely, Thandi Wade, attorneys for appellees.

Before WALLER, P.J., DICKINSON and RANDOLPH, JJ.

WALLER, Presiding Justice, for the Court.

¶ 1. Tyson and Mary Jean Phillips, son and wife of the decedent, filed this survival and wrongful-death action in the Circuit Court of Coahoma County, Mississippi, naming Lance Wright, M.D., and the Semmes-Murphy Clinic, among others, as defendants for the injury to and eventual death of Wilbert Phillips.¹ The circuit court denied the motion to dismiss for lack of jurisdiction filed by Dr. Wright and Semmes-Murphy. The jury unanimously returned a five-million-dollar verdict in favor of the Phillipses, assigning forty percent liability to both Dr. Wright and the Semmes-Murphy Clinic.² After overruling post-trial motions for a new trial, remittitur, or judgment as a matter of law in favor of Dr. Wright and the clinic, the trial court entered a judgment on the jury's verdict. Dr. Wright and Semmes-Murphy now timely appeal. Miss. R.App. P. 4.

FACTS

¶ 2. Wilbert Phillips, ("Mr. Phillips") a forty-one-year-old father of four, began suffering from headaches around Christmas of 1999. On March 17 of the following year, he was taken to the emergency room of the Northwest Regional Medical Center in Clarksdale, Mississippi, after fainting at his workplace at Parchman prison. When admitted to the hospital, he complained of a severe headache, a stomach ache, tingling in his hands, and feeling faint. He had a fever, decreased attentiveness, decreased range of motion in his cervical spine, nystagmus, and an elevated level of sodium. The admitting physician, Dr. P.W. Hill, requested a consultation from neurologist Dr. Venus Jones. Dr. Jones ordered a computer-aided tomography scan (CAT scan) and a magnetic resonance imagery scan (MRI) of Mr. Phillips's head to assist her in her diagnosis of Mr. Phillips's condition. She did not perform a lumbar puncture. According to Dr. Jones, Mr. Phillips's scans showed no sign of a tumor or other growth. Mr. Phillips was discharged from Northwest Regional Hospital two days later with instructions to report any further dizziness or falls. Mary Phillips, Mr. Phillips's wife, testified at trial that they attempted to schedule a followup appointment several times in the days following discharge but were unsuccessful. Mr. Phillips next saw an ophthalmologist, Dr. Scott Cooper, less than one week after discharge from Northwest Regional Medical Center in Clarksdale.

¶ 3. Mr. Phillips presented to Dr. Cooper with fever, nausea, and an excruciating headache. After examining Mr. Phillips, Dr. Cooper diagnosed Mr. Phillips with bilateral papilledema (swelling of the optic nerves in both eyes due to increased spinal fluid pressure). He placed a telephone call to Dr. Lance Wright, a neurologist with the Semmes-Murphy Clinic in Germantown, Tennessee. Dr. Cooper arranged a work-in consultation appointment for Mr. Phillips with Dr. Wright the next day.

¶ 4. Dr. Wright saw Mr. Phillips late in the afternoon of Friday, March 24, 2000. Mr. Phillips complained that day of an unbearable headache, loss of sight in his left eye, and double vision.³ He also indicated he had started having headaches a few months prior to the appointment. Dr. Wright testified Mr. Phillips did not have a fever and was awake and alert when he examined Mr. Phillips. Dr. Wright did not take Mr. Phillips's temperature with a thermometer during his visit; Dr. Wright testified that he used his hand to determine Mr. Phillips's temperature. After taking a patient history and conducting a neurologic examination, Dr. Wright performed a lumbar puncture of Mr. Phillips's spine to relieve the intracranial pressure caused by excessive cerebrospinal fluid. The opening pressure exceeded the maximum reading on the manometer, and cerebrospinal fluid started bubbling over the top of the gauge. Dr. Wright took samples of the fluid and sent them to the Memphis Pathology Lab in Memphis for general testing on the spinal fluid. He also drained the excess fluid, reducing the pressure to within the normal range. Based on the limited history given to him by Mr. Phillips and the results of his own examination, Dr. Wright diagnosed Mr. Phillips with pseudotumor cerebri: a condition that occurs from elevated spinal fluid pressure, causing severe headaches and vision problems. He sent Mr. Phillips home after the office visit with a prescription for Diamox (acetazolamide) to reduce the production of spinal fluid.

¶ 5. At trial, the date when Memphis Pathology Lab returned the results of the tests on Mr. Phillips's cerebrospinal fluid was a contested issue of fact. Evidence was submitted that the Memphis Pathology Lab faxed the test results to Dr. Wright's office at 7:07 p.m. the same day that Dr. Wright requested the results. Dr. Wright testified he did not receive the results of the test until four days later. The results showed a substantially elevated level of white blood cells in Mr. Phillips's cerebrospinal fluid and the presence of cryptoccocal meningitis: a fungal infection that causes increased intracranial pressure and damage to the brain tissue. That Tuesday, the same day Dr. Wright testified he became aware of the infection, Dr. Wright called Mary Phillips and instructed her to take Mr. Phillips to Baptist Hospital-East in Germantown, Tennessee. Dr. Wright also called Dr. Cooper to inform him of the development.

¶ 6. At the hospital, Dr. Wright immediately began a course of antibiotic treatments for the meningitis. This treatment eventually eliminated the infection. However, within a week of admission, Mr. Phillips became lethargic and immobile. He lost the ability to communicate verbally. Mr. Phillips suffered from seizures and fell into a coma. He was transferred to a restorative care unit in a vegetative state. After a month and a half of restorative care, Mr. Phillips was discharged to his family in a persistent vegetative state.

¶ 7. Mary and Tyson Phillips, with the assistance of home-health agencies, provided care and comfort for Mr. Phillips; bathing, exercising, cleaning, feeding, and repositioning him and maintaining his equipment. They sought another opinion concerning Mr. Phillips's prognosis from doctors at the University of Michigan and were told Mr. Phillips could be admitted to a special home where he could receive better health care. The Phillipses decided to continue caring for Mr. Phillips at home. Mr. Phillips died of pneumonia, a complication of the cryptoccocal meningitis infection, almost two years after seeing Dr. Wright.

¶ 8. At the time the suit was first filed, Dr. Wright was a resident of Tennessee. The Semmes-Murphy Clinic was a foreign corporation whose principal place of business was Memphis, Tennessee. Both were engaged in the business of providing medical advice and treatment to patients at various Semmes-Murphy clinics and at hospitals in and surrounding Memphis. Both were served with process via certified mail. Miss. R. Civ. P. 4(c)(5).

ISSUES

I. WHETHER THE TRIAL COURT LACKED PERSONAL JURISDICTION OVER DR. WRIGHT AND SEMMES-MURPHY.

II. WHETHER THE TRIAL COURT ERRED IN OVERRULING DR. WRIGHT'S AND SEMMES-MURPHY'S BATSON CHALLENGES.

III. WHETHER THE TRIAL COURT ERRED IN DENYING DR. WRIGHT'S AND SEMMES-MURPHY'S MOTION FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING DR. WRIGHT'S AND SEMMES-MURPHY'S MOTION FOR A NEW TRIAL.

V. WHETHER THE TRIAL COURT ERRED IN DENYING DR. WRIGHT'S AND SEMMES-MURPHY'S MOTION FOR REMITTITUR.

DISCUSSION

I. WHETHER THE TRIAL COURT LACKED PERSONAL JURISDICTION OVER DR. WRIGHT AND SEMMES-MURPHY.

¶ 9. This Court conducts a de novo review of jurisdictional matters. McDaniel v. Ritter, 556 So.2d 303, 308 (Miss.1989) (citing MISS CAL 204, Ltd. v. Upchurch, 465 So.2d 326, 330 (Miss.1985); S & A Realty Co. v. Hilburn, 249 So.2d 379, 382 (Miss.1971)). Jurisdiction is determined as of the time the suit is filed. Euclid-Mississippi v. Western Cas. & Sur. Co., 249 Miss. 547, 554, 163 So.2d 676, 679 (1964); Compton v. Compton, 188 Miss. 670, 673, 196 So. 635, 637 (1940). The proper order when analyzing personal jurisdiction over nonresident defendants is to first consider whether the long-arm statute subjects a nonresident defendant to personal jurisdiction and then to consider whether the statute's application to that defendant offends the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Sorrells v. R & R Custom Coach Works, Inc., 636 So.2d 668, 671 (Miss.1994). See also Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972, 976 (Miss.2004).

¶ 10. Dr. Wright and Semmes-Murphy filed a motion to dismiss based upon the circuit court's lack of jurisdiction over their person after the Phillipses filed their Third Amended Complaint. They were deposed concerning their jurisdictional contacts. The Phillipses also propounded requests for admission upon the doctor and clinic. After further briefing and a hearing, the circuit court denied the motions to dismiss. Dr. Wright and Semmes-Murphy again raised the matter of jurisdiction in post-trial motions. The circuit court denied those motions as well.

A. Long-arm statute

¶ 11. On appeal, Dr. Wright and the clinic first argue Mississippi's long-arm statute does not reach to subject them to suit in Mississippi courts. The Phillipses respond that either or both of the "tort" or "doing business" components of the long-arm statute enab...