Hans v. Memorial Hospital at Gulfport, No. 2008-CA-01617-COA (Miss. App. 3/16/2010), 2008-CA-01617-COA.
| Decision Date | 16 March 2010 |
| Docket Number | No. 2008-CA-01617-COA.,2008-CA-01617-COA. |
| Parties | DIANN HANS AND DAVID HANS APPELLANTS v. MEMORIAL HOSPITAL AT GULFPORT, DR. JAMES LOVETTE, AND DR. ARTHUR SPROLES APPELLEES |
| Court | Court of Appeals of Mississippi |
ATTORNEYS FOR APPELLEES: PATRICIA K. SIMPSON, FREDRICK B. FEENEY II, GEORGE F. BLOSS III, MARY MARGARET KUHLMANN, WILLIAM E. WHITFIELD III, KAREN KORFF SAWYER.
BEFORE KING, C.J., BARNES AND ROBERTS, JJ.
BARNES, J., FOR THE COURT:
¶ 1. In this medical malpractice action, Diann and David Hans ("the Hanses") appeal the Harrison County Circuit Court's dismissal in favor of Dr. Arthur Sproles and Dr. James Lovette and the grant of summary judgment in favor of Memorial Hospital at Gulfport (Memorial). We find that the Hanses' re-joinder of Drs. Sproles and Lovette as defendants via an amended complaint after statutory notice was provided cured their initial failure to give notice. Accordingly, we reverse and remand, finding that their motions to dismiss were improvidently granted. We, however, find no error in the circuit court's grant of summary judgment in favor of Memorial.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 2. According to Diann's answers to her interrogatories and her hospital records, on April 6, 2006, Diann, suffering from abdominal pain, went to see Dr. Jim Gaddy in Gulfport, Mississippi. Dr. Gaddy determined that Diann had appendicitis and immediately referred her to Memorial's emergency room (ER). He also called to alert the hospital of Diann's condition. Subsequent to a CT scan which was performed later that afternoon, Diann was again informed that the medical problem was with her appendix. Following a number of unsuccessful attempts to contact Dr. Lovette, the on-call internal medicine specialist, Memorial was finally contacted by Dr. Sproles, who advised the hospital to admit Diann to him, administer antibiotics and pain medication, and to schedule surgery for the following morning. Diann was admitted to Memorial as an inpatient in accordance with Dr. Sproles's instructions. Diann claims that she was told that she would be the first patient to be operated on in the morning. Dr. Sproles arrived at 8:30 a.m., and Diann was prepped for surgery approximately two hours later. Following the procedure, Dr. Sproles informed Diann's husband, David, that Diann was fine.
¶ 3. In the days following Diann's surgery, a number of discrepancies arose concerning the nature and extent of Diann's condition. Diann was told by an attending nurse that Diann's appendix had ruptured; yet, Dr. Sproles reported that Diann's appendix had not ruptured. However, when Diann questioned him further the next day, Dr. Sproles admitted that Diann's appendix did, in fact, rupture. Diann was discharged from Memorial on April 14, 2006.
¶ 4. Immediately after Diann left the hospital, her surgical incision began discharging fluid, and when the discharge did not subside, Diann returned to Memorial that same evening. She was told she would require more surgery. However, on the morning of April 15, 2006, Dr. Sproles informed Diann that surgery would not be necessary, and that she could return home. However, Diann continued to experience pain and complications from the surgery.
¶ 5. On March 29, 2007, the Hanses filed a complaint, alleging that the care and treatment provided by Memorial, Dr. Sproles, and Dr. Lovette (referred to collectively as "the Appellees") were both untimely and substandard. The complaint further alleged that the Appellees treated Diann in a negligent manner and failed to exercise the requisite degree of care and diligence adhered to by similarly-situated physicians and accredited hospitals. With respect to Drs. Sproles and Lovette, the circuit court granted judgments of dismissal without prejudice on May 30, 2007, based upon the Hanses' failure to provide pre-suit notice as required under Mississippi Code Annotated section 15-1-36(15) (Rev. 2003). The Hanses maintained no objection to the dismissal of the two doctors from the original complaint as they admittedly failed to give the pre-suit notice as required by the statute. However, subsequent to Drs. Sproles's and Lovette's respective motions to dismiss, but prior to the circuit court's judgment of dismissal, the Hanses sent the required pre-suit notice to both doctors on May 2, 2007. Thereafter, on March 26, 2008, the Hanses filed an amended complaint joining the two doctors back into the suit. In response to the Hanses' amended complaint, Drs. Lovette and Sproles again filed motions to dismiss, claiming that giving the required notice and filing the amended complaint did not cure the original lack of notice. Out of an abundance of caution, and before the circuit court ruled on the doctors' motions to dismiss, the Hanses filed a second cause of action on May 19, 2008, alleging the same allegation of medical negligence and asserting the same injuries and damages as the amended complaint.1 The propriety and status of the second suit are not currently before us. On August 27, 2008, the circuit court once again dismissed Drs. Lovette and Sproles from the original suit. It is from this second dismissal that the Hanses now appeal.
¶ 6. In the meantime, Memorial filed a motion for summary judgment on March 10, 2008, claiming that the Hanses failed to identify any expert witness in discovery who would support their claims of medical negligence. The Hanses filed a response to Memorial's motion and included a letter by Dr. William Hale, whose medical opinion was that both Memorial and Dr. Sproles acted negligently. Memorial subsequently filed an amended motion for summary judgment alleging that the medical-expert letter was insufficient and that Dr. Hale's curriculum vitae failed to display familiarity with the standards of ER medicine. One day before the hearing on Memorial's motion for summary judgment, the Hanses filed an affidavit by Dr. Hale, which incorporated by reference two opinion letters: one dated March 24, 2008, and a second letter dated May 22, 2008. After the hearing, the circuit court granted Memorial's motion for summary judgment, finding that the Hanses' expert testimony failed to establish a prima facie case of medical malpractice. The Hanses filed a timely notice of appeal.
ANALYSIS
¶ 7. The first issue raised on appeal concerns Mississippi Code Annotated section 15-1-36(15), which states:
No action based upon the health care provider's professional negligence may be begun unless the defendant has been given at least sixty (60) days' prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.
(Emphasis added). Both the Mississippi Supreme Court and this Court have affirmed the dismissal of medical malpractice claims when a plaintiff fails to serve this statutorily required notice. See, e.g., Arceo v. Tolliver, 949 So. 2d 691 (Miss. 2006) (Arceo I); Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006); Nelson v. Baptist Mem'l Hosp.-N. Miss., Inc., 972 So. 2d 667 (Miss. Ct. App. 2007). A plaintiff's "failure to send to defendants notice of intent to sue is an inexcusable deviation from the Legislature's requirements for process and notice under Miss[issippi] Code Ann[otated] [section] 15-1-36(15)." Pitalo, 933 So. 2d at 929 ( 7). In Arceo I, the Mississippi Supreme Court held that, while plaintiffs have the constitutional right to seek redress in our state courts, they further have the responsibility to comply with the applicable rules and statutory mandates, including section 15-1-36(15). The court concluded that a different approach would render a statute setting time limitations "meaningless." Arceo I, 949 So. 2d at 697 ( 13).
¶ 8. In the instant case, the Hanses failed to provide Drs. Sproles and Lovette with the necessary pre-suit notice before filing their March 2007 complaint. Then, on May 2, 2007, shortly before Drs. Sproles and Lovette were dismissed from the original action, the Hanses provided the requisite notice.2 The Hanses subsequently filed a motion to amend their complaint, which was granted by the circuit court on March 26, 2008. The Hanses' amended complaint was filed a little less than one year after the May 2007 notice. As of the filing of the amended complaint, the Hanses were still within the applicable statute of limitations for medical malpractice claims.
¶ 9. On appeal, the Hanses argue that Drs. Sproles and Lovette were properly dismissed from the original action but were provided with the necessary notices prior to the filing of the first amended complaint, thus remedying any error. Although the Hanses concede their initial error, they contend that nothing in section 15-1-36(15) precludes them from curing this failure by joining the same defendants by an amended complaint following timely compliance with 15-1-36(15). The issue before this Court is whether the Hanses' attempt to cure this failure by the amended complaint offends the plain meaning of 15-1-36(15).3
¶ 10. Drs. Sproles and Lovette contend that it does. Citing Arceo I, Pitalo, and Nelson, they argue that the Hanses are prohibited from dismissing the doctors from the original action and joining them back into the original action through an amended complaint, and any attempt to cure the original complaint would render the statute a nullity. The instant case, however, is clearly distinguishable from these cases as both Pitalo and Arceo I concern plaintiffs who failed to provide the health-care defendants with...
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