Gorton v. Rance

• Decision Date: 27 January 2011
• Docket Number: No. 2009-IA-01111-SCT.,2009-IA-01111-SCT.
• Citation: 52 So.3d 351
• Parties: Sidney Carlton GORTON, M.D. v. Shumaera RANCE, Individually, and on behalf of Dexter Jordan, Jr., Deceased.
• Court: Mississippi Supreme Court

52 So.3d 351

Sidney Carlton GORTON, M.D.

v.Shumaera RANCE, Individually, and on behalf of Dexter Jordan, Jr., Deceased.

No. 2009-IA-01111-SCT.

Supreme Court of Mississippi.

Jan. 27, 2011.

Gaye Nell Lott Currie, Jackson, attorney for appellant.

Precious Tyrone Martin, Gerald A. Mumford, Jackson, attorneys for appellee.

EN BANC.

CHANDLER, Justice, for the Court:

¶ 1. Shumaera Rance filed a complaint in the Circuit Court of Humphreys County against Dr. Sidney Carlton Gorton, Dr. Daisy Thomas, Humphreys County Memorial Hospital (HCMH), and John Does 1-5 for the wrongful death of her ten-month-old son, Dexter Jordan, Jr. Dr. Gorton filed a motion for summary judgment that alleged he was employed by Greenwood Leflore Hospital, an entity covered by the Mississippi Tort Claims Act (MTCA). See Miss.Code Ann. §§ 11-46-1 to 11-46-23 (Rev.2002). Dr. Gorton argued that Rance had failed to provide a timely notice of claim under the MTCA and that the MTCA's one-year statute of limitations had expired, barring Rance's claims. See Miss.Code Ann. § 11-46-11(3) (Rev.2002). The trial court denied the motion for summary judgment.

¶ 2. This Court granted Dr. Gorton's petition for an interlocutory appeal. We find no genuine issue of material fact in Dr. Gorton's assertions that Greenwood Leflore Hospital employed him at the time of the allegedly tortious conduct, and that the MTCA applied to Rance's claims against Dr. Gorton. Because Rance failed to provide timely notice of claim to Greenwood Leflore Hospital, and her complaintwas filed outside the MTCA's one-year statute of limitations, we reverse the denial of summary judgment and render a judgment in favor of Dr. Gorton.

FACTS

¶ 3. Rance's complaint alleged that Jordan had received treatment and tragically died at HCMH. On August 7, 2007, Jordan was admitted to HCMH with vomiting and signs of pneumonia. Shortly thereafter, Jordan experienced difficulty breathing. Jordan's treating physician was Dr. Thomas, but the medical records reflect that Jordan was admitted to Dr. Gorton's service and the case was discussed with him. Early the following morning, Dr. Thomas determined that Jordan needed additional medical assistance and requested air transportation to the University of Mississippi Medical Center. Jordan died before leaving HCMH's grounds. His autopsy report stated that his cause of death was pneumonia.

¶ 4. On July 1, 2008, Rance served a notice of claim on the chief executive officer of HCMH as required by the MTCA. Miss.Code Ann. § 11-46-11(3) (Rev.2002). She filed suit on November 5, 2008. Rance claimed that, due to a lack of adequate and immediate medical care, Jordan had experienced unnecessary pain, suffering, and death. Rance contended that the defendants' conduct constituted negligence, gross negligence, and reckless disregard for Jordan's rights, justifying punitive damages. Dr. Gorton filed a separate answer and affirmative defenses, including statute of limitations, jurisdiction, and venue under the MTCA. Later, Dr. Gorton filed a motion to dismiss or, in the alternative, a motion for summary judgment with attached contracts showing his status as an employee of Greenwood Leflore Hospital, a government-owned hospital subject to the MTCA.

¶ 5. Rance filed a response to the motion. She asserted that, despite having conducted a thorough investigation prior to filing suit, she had failed to discover Dr. Gorton's employment with Greenwood Leflore Hospital until the motion for summary judgment had been filed. Rance admitted that Dr. Gorton had entered into a contract with Greenwood Leflore Hospital, but argued that it provided for only a courtesy membership on Greenwood Leflore Hospital's staff and privileges on the active medical staff of HCMH. In a supplemental response filed on June 3, 2009, Rance asserted that discovery was necessary to determine the dates of Dr. Gorton's employment by Greenwood Leflore Hospital. Dr. Gorton filed supplemental materials in reply to the response to the motion for summary judgment. After a hearing, the trial court entered an order that stated the motion was denied because a genuine issue of material fact was in dispute; the order did not provide further explanation.

STANDARD OF REVIEW

¶ 6. The standard of review for the grant or denial of a motion for summary judgment is de novo. Stringer v. Trapp, 30 So.3d 339, 341 (Miss.2010). Summary judgment properly may be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." M.R.C.P. 56(c). "If no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law, summary judgment should be entered in that party's favor." Trapp, 30 So.3d at 341. The burden rests on the moving party. Id. The trial court views all evidence before it in the light most favorableto the nonmoving party. Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 649-50 (Miss.2009).

¶ 7. "Once the absence of genuine material issues has been shown, the burden of rebuttal falls upon the non-moving party. To survive summary judgment, the non-moving party must produce specific facts showing that there is a genuine material issue for trial." Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1213-14 (Miss.1996); see also M.R.C.P. 56(e). Therefore, "[t]o avoid summary judgment, the non-movant must set forth specific facts that demonstrate a genuine issue of a material fact that merits trial instead of mere unsubstantiated allegations." Green v. Allendale Planting Co., 954 So.2d 1032, 1038 (Miss.2007) (citing Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997)). "The party opposing the motion must be diligent." Richmond, 692 So.2d at 61-62 (citing Grisham v. John Q. Long V.F.W. Post, 519 So.2d 413, 415 (Miss.1988)). However, "[s]ummary judgment is mandated where the respondent has failed 'to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.' " Dearman v. Christian, 967 So.2d 636, 639 (Miss.2007) (citations omitted).

¶ 8. The nonmoving party "remains silent at her peril." Fruchter v. Lynch Oil Co., 522 So.2d 195, 198-99 (Miss.1988). "[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." M.R.C.P. 56(e); see also Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1984).

LAW AND ANALYSIS

I. The applicable provisions of the MTCA.

¶ 9. The MTCA provides immunity to government entities, such as public hospitals, and to government employees under specified circumstances. See Miss.Code Ann. §§ 11-46-1 to 11-46-23 (Rev.2002). The MTCA provides the exclusive remedy for money damages against a governmental entity or its employee. Miss.Code Ann. § 11-46-7(1) (Rev.2002). However, a party may join an employee, in his or her representative capacity, in an action against a governmental entity "if the act or omission complained of is one for which the governmental entity may be liable." Miss.Code Ann. § 11-46-7(2) (Rev.2002). But an employee cannot be personally liable for any acts or omission that occurred within the course and scope of his or her duties. Miss.Code Ann. § 11-46-7(2).

¶ 10. Public hospitals are covered by the MTCA. Miss.Code Ann. § 11-46-1(j) (Rev.2002). A party claiming injury under the MTCA against a governmental entity, such as a public hospital, must file a notice of claim with the chief executive officer of the governmental entity ninety days prior to maintaining an action. Miss.Code Ann. § 11-46-11(1) (Rev.2002). The MTCA also provides a one-year statute of limitations on all actions brought under its provisions which is tolled by a timely-filed notice of claim. Miss.Code Ann. § 11-46-11(3) (Rev.2002).

II. Whether there was a genuine issue of material fact that Dr. Gorton was an employee of a public hospital entitled to the protections of the MTCA.

¶ 11. It is undisputed that Greenwood Leflore Hospital is a public hospitalentitled to the protections of the MTCA. Therefore, its employees also have the explicit extension of the MTCA's protection. Miss.Code Ann. § 11-46-7 (Rev.2002). Dr. Gorton argues that the documentation before the trial court established his status as an employee of Greenwood Leflore Hospital and it was not a genuine issue of material fact.

¶ 12. We agree that there was no genuine issue of material fact that Dr. Gorton was an employee of Greenwood Leflore Hospital on August 7-8, 2007, the dates relevant to this appeal.¹ To support Dr. Gorton's assertion that he was employed by Greenwood Leflore Hospital at all relevant times, he provided: (1) an affidavit from Margaret Buchanan, the Director of Human Resources at Greenwood Leflore Hospital; (2) his own affidavit stating that his dates of employment were September 29, 1999, through October 31, 2007; (3) a copy of his original employment contract, effective September 29, 1999; (4) a copy of an amendment to the employment contract that extended his employment contract from September 1, 2004, through August 31, 2009; (5) a copy of a mutual termination of the employment agreement providing that Dr. Gorton's employment would terminate August 1, 2007; (6) a copy of an amendment to the mutual termination-of-employment agreement, providing that Dr. Gorton's employment would terminate on November 1, 2007; and (7) a copy of a report of termination providing that Dr. Gorton's last day of employment was October 31, 2007.

¶ 13. In her affidavit, Buchanan stated that Greenwood Leflore Hospital is a community hospital owned by the...