Forrest Gen. Hosp., J. Keith Thompson, Hattiesburg Clinic, Grif A. Leek & S. Miss. Emergency Physicians, P.A. v. Steven Dale Upton Dr. Grif A. Leek, S. Miss. Emergency Physicians, P.A., NO. 2016–IA–00452–SCT

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: CHAMBERLIN, JUSTICE, FOR THE COURT
• Citation: 240 So.3d 410
• Decision Date: 19 April 2018
• Docket Number: CONSOLIDATED WITH NO. 2016–IA–00455–SCT,NO. 2016–IA–00452–SCT
• Parties: FORREST GENERAL HOSPITAL, J. Keith Thompson, Hattiesburg Clinic, Grif A. Leek and South Mississippi Emergency Physicians, P.A. v. Steven Dale UPTON Dr. Grif A. Leek, South Mississippi Emergency Physicians, P.A., Dr. J. Keith Thompson and Hattiesburg Clinic, P.A. v. Steven Dale Upton

240 So.3d 410

FORREST GENERAL HOSPITAL, J. Keith Thompson, Hattiesburg Clinic, Grif A. Leek and South Mississippi Emergency Physicians, P.A.
v.
Steven Dale UPTON

Dr. Grif A. Leek, South Mississippi Emergency Physicians, P.A., Dr. J. Keith Thompson and Hattiesburg Clinic, P.A.
v.
Steven Dale Upton

NO. 2016–IA–00452–SCT
CONSOLIDATED WITH NO. 2016–IA–00455–SCT

Supreme Court of Mississippi.

April 19, 2018

ATTORNEYS FOR APPELLANTS: WALTER W. DUKES, GULFPORT, JAMES K. DUKES, HATTIESBURG, DRURY S. HOLLAND, MICHAEL R. MOORE, PASCAGOULA, JOHN A. BANAHAN, PASCAGOULA, DAVID B. MILLER

ATTORNEYS FOR APPELLEE: DREW M. MARTIN, CHUCK McRAE, JACKSON, CHRISTOPHER A. BAMBACH

EN BANC.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. This interlocutory appeal arises from the Hinds County Circuit Court's denial of a motion to transfer venue. Under Mississippi law, venue is determined at the time the lawsuit originally is filed. The resolution of this appeal hinges on the application of this principle to an issue of first impression for this Court: does an amended complaint, which names a new party to the suit, relate back to the time of filing of the original complaint for the purposes of determining venue? We find that it does not.

¶ 2. Thus, because the suit here was filed in Hinds County—naming only Forrest County defendants and the amended complaint does not relate back to the time of filing for the purposes of determining venue—the circuit court abused its discretion in denying the motion to transfer venue. We reverse the judgment of the circuit court and remand the case to be transferred to the Circuit Court Forrest County.

FACTS AND PROCEDURAL HISTORY

¶ 3. On March 16, 2014, Steven Upton "experienced severe pain and numbness in

240 So.3d 412

his left hand." Due to the pain, Upton went to the Emergency Department at Forrest General Hospital ("FGH"). FGH—according to Upton—administered a Doppler Ultrasound that revealed a "total blockage of blood flow to the tested area." After the test, Dr. Grif A. Leek, a physician employed by South Mississippi Emergency Physicians, P.A. ("SMEP"), met with Upton. Almost seven hours after Upton's original test, Dr. J. Keith Thompson, a physician employed by the Hattiesburg Clinic, P.A. ("HC"), operated on Upton's left hand to "relieve the blockage ... [and] restore blood flow." Also, Upton claimed that FGH failed to provide him with antibiotics or wraps after the surgery.

¶ 4. Upton was discharged from FGH and alleged that he returned on April 3, 2014, for a post-operative appointment with Thompson. Upton maintained that he was suffering from reperfusion syndrome upon his return to FGH. According to Upton, Thompson did not prescribe any medication and told Upton to return in one month.

¶ 5. Nine days later, Upton experienced "extreme pain" in his hand and sought treatment at the University of Mississippi Medical Center ("UMMC"). Upton stated that UMMC administered antibiotics and informed him that had he waited thirty days, as instructed by Thompson, it would have been necessary to amputate his hand. Upton also claimed that he suffered from a number of other medical conditions that were not discovered by FGH including: kidney failure, heart failure, and a pericardial cyst.

¶ 6. Upton was left-handed and employed previously as an electrician. He claimed that he was disabled permanently in his left hand and unable to resume his employment. Upton also maintained that he was suffering from kidney and liver damage due to UMMC having to "administer[ ] extremely potent antibiotics to combat the damage already done to his hand."

¶ 7. On June 18, 2015, Upton filed suit in the Hinds County Circuit Court. The complaint named Forrest County, Mississippi; FGH, Thompson; Leek; HC; and SMEP (collectively, "Forrest County defendants") as defendants. The complaint also named John and Jane Does #1–10. All of the named defendants were located and had acted in Forrest County. The complaint claimed that "venue is proper in Hinds County, Mississippi, pursuant to Miss. Code Ann. § 11–11–3 as the acts or omissions that serve as the basis of the Plaintiff's claims continued to occur and, additionally, were discovered in Hinds County, Mississippi." The complaint alleged five counts: negligence, gross negligence, respondeat superior, negligent infliction of emotional distress, and breach of fiduciary duty. Also, the complaint did not name UMMC as a defendant but stated that UMMC "promptly and properly treated to attempt to correct" Upton's kidney failure.

¶ 8. In response to Upton's complaint, Thompson and HC wrote Upton to explain that, pursuant to Mississippi Code Section 11–11–3(3) venue was proper only in Forrest County. On July 9, 2015, Upton responded: "we have recently discovered acts of medical malpractice which occurred in Hinds County. Therefore ... Hinds County is a proper venue."

¶ 9. On July 13, 2015, Upton filed his "First Amended Complaint." For the first time, Upton named UMMC and Dr. Sumona Smith¹ as defendants. The amended complaint still named the Forrest County defendants and John and Jane Does # 1–10.

240 So.3d 413

¶ 10. In the amended complaint, Upton claimed that "UMMC failed to properly monitor [Upton]." Upton claimed that UMMC performed only one check on his international normalized ratio throughout his ten-day hospitalization. Further, according to the amended complaint, Smith's decision that "there was no need for vascular intervention" resulted in no action being taken by UMMC for the first three days of Upton's hospitalization. Upton maintained that this "required the orthopedic surgeon to remove much more of the muscle and tissue within the hand than would have been necessary if the surgery had been ordered by Dr. Smith three ... days prior." Also, the amended complaint still mentioned UMMC's treatment of Upton's kidney failure but omitted the language that the treatment was done "promptly and properly."

¶ 11. Next, the defendants answered the amended complaint. Leek, SMEP and FGH filed motions to dismiss or, in the alternative, for severance and transfer to Forrest County. Forrest County, Mississippi, and UMMC also requested to be dismissed from the suit.² Next, Thompson, Leek, HC, SMEP and FGH noticed a hearing on the motions to dismiss or transfer.

¶ 12. At the hearing, Thompson, Leek, HC and SMEP argued that all of the original causes of action alleged by Upton occurred in Forrest County. They noted that UMMC originally was not a party and that Upton had claimed that UMMC had "promptly and properly" treated Upton. Also, they argued that venue was improper under Section 11–11–3(3) and that any claims against UMMC were severable. FGH maintained that Mississippi Code Section 11–46–13(2) —the venue statute within the Mississippi Tort Claims Act ("MTCA")—applied to FGH and mandated that Forrest County was the sole venue for the suit.

¶ 13. In response, Upton stated that he originally had filed the claim under the

general venue statute^{[3 ]}... being that a substantial event occurred in Hinds County which is his treatment at UM[M]C, his discovery of what exactly happened to his left-hand and the seven or eight surgeries that had to happen to correct the errors of [FGH] in his treatment.

Concerning the arguments that Forrest County was the only proper venue, Upton noted that the amended complaint named UMMC and stated: "if you find that everybody has been joined correctly and that venue is correct under the venue statutes for one of the defendants, then it applies to all of them." Upton also represented that he had spoken to his experts concerning possible negligence on the part of UMMC before he had received Thompson's and HC's letter which suggested transfer of venue to Forrest County. Upton, though, maintained that he was unable immediately to add UMMC to the suit due to notice requirements under the MTCA. In closing, Upton advised the trial court that if it was to find that venue is not proper in Hinds County, then Upton would argue against severance of any of the defendants.

¶ 14. In rebuttal, Thompson and HC provided the court with their letter to Upton and argued that the suit could not be

240 So.3d 414

brought properly under the general venue statute given the medical defendants. FGH reiterated that the suit against it was subject to Section 11–46–13(2) under the MTCA. At the end of the hearing, UMMC informed the court that it would waive its right to trial in Hinds County due to the number of defendants from Forrest County.

¶ 15. The court entered an order denying the defendants' motion to transfer venue on March 15, 2016. It found that "venue of this action lies appropriately in either Hinds County or Forrest County" and that "the plaintiff's choice of Hinds County is appropriate." Pursuant to this Court's grant of interlocutory appeal, Thompson, Leek, HC, SMEP and FGH now appeal the trial court's denial of the motion to transfer.⁴

STATEMENT OF THE ISSUES

¶ 16. Thompson, Leek, HC and SMEP raise three issues before us: (1) that venue is determined by the filing of the original complaint and not the amended complaint, (2) that Upton fraudulently joined UMMC to establish...