Methodist Healthcare-Olive Branch Hosp. v. McNutt
| Decision Date | 06 August 2021 |
| Docket Number | NO. 2020-IA-00199-SCT,2020-IA-00199-SCT |
| Citation | 323 So.3d 1051 |
| Parties | METHODIST HEALTHCARE-OLIVE BRANCH HOSPITAL v. Bettye B. MCNUTT, Individually, as Mother and Next Kin of, and on Behalf of All Wrongful Death Beneficiaries of Ronald Brandon McNUtt, Deceased |
| Court | Mississippi Supreme Court |
ATTORNEYS FOR APPELLANT: BRADLEY W. SMITH, Jackson, CRAIG C. CONLEY
ATTORNEYS FOR APPELLEES: CHERYL LONG, THOMAS J. LONG
EN BANC.
¶1. Bettye B. McNutt filed a complaint against Dr. Vivian Sze Ting Lo, Methodist-Olive Branch Hospital (Methodist), and others asserting the wrongful death of her son due to medical malpractice. Because Dr. Lo had not been served with a presuit notice of claim, the Circuit Court of DeSoto County dismissed the claims against Dr. Lo and, because the statute of limitations had expired, the dismissal was with prejudice. After Dr. Lo's dismissal, Methodist filed a motion for partial summary judgment, arguing that McNutt's vicarious liability claims based on Dr. Lo's conduct were extinguished when Dr. Lo was dismissed with prejudice. The circuit court denied the motion for partial summary judgment, and Methodist appeals.
¶2. We hold that the circuit court properly denied partial summary judgment. Although Dr. Lo was dismissed with prejudice, the dismissal was not an adjudication on the merits, and McNutt did not enter into a settlement release and indemnity agreement with Dr. Lo. Methodist asserts that Lowery v. Statewide Healthcare Services, Inc. , 585 So. 2d 778 (Miss. 1991), mandates that it be dismissed because McNutt's lawsuit against Dr. Lo was untimely. We find that Lowery does not mandate Methodist's dismissal in this case because Dr. Lo was not an indispensable party to McNutt's lawsuit against Methodist, and McNutt had attempted to serve Dr. Lo with presuit notice within the applicable limitations period. We affirm and remand for further proceedings.
¶3. According to the complaint, Brandon McNutt visited the emergency room at Methodist on May 12, 2016, complaining of chest pain and bilateral shoulder pain. Dr. Lo examined Brandon McNutt, told him he was having a panic attack, diagnosed him with bilateral arm pain and shoulder pain and swelling, referred him to a psychiatrist, and ordered his discharge the same day. Two days later, on May 14, 2016, Brandon McNutt died of a heart attack
.
¶4. Bettye McNutt, Brandon McNutt's mother, filed the wrongful death action on July 10, 2018. In addition to Dr. Lo and Methodist, McNutt sued UT Methodist Physicians, LLC, and T.M. Carr, M.D., P.C. The complaint averred that McNutt had given the defendants written presuit notice of claim on May 9, 2018, by serving each defendant via certified mail. A stipulation of dismissal of UT Methodist Physicians, LLC, was entered on October 9, 2018. The parties stipulated to the dismissal of T.M. Carr, M.D., P.C., on December 4, 2019.
¶5. On October 1, 2018, Dr. Lo filed a motion to dismiss, arguing that, because McNutt had not served her with presuit notice as required by Mississippi Code Section 15-1-36(15) (Rev. 2019),1 the claims against her must be dismissed. Dr. Lo argued also that, notice having failed, the dismissal should be with prejudice because the two-year limitations period had expired on May 14, 2018, before McNutt had filed the complaint. In response, McNutt averred that on May 9, 2018, she had mailed a notice of claim to Dr. Lo's last known address at Methodist, where Dr. Lo had treated Brandon McNutt. Post office tracking information showed that the notice was received in the mail room of the hospital on May 18, 2018. McNutt argued that, because the service of notice had extended the two-year statute of limitations for sixty days, the complaint was timely. At her deposition, Dr. Lo said that she never received presuit notice and that she had worked only two shifts at Methodist in 2018, none of which had been in May 2018. Dr. Lo's physician's profile with the Mississippi State Board of Medical Licensure showed a different address than Methodist's.
¶6. After a hearing, the circuit court granted Dr. Lo's motion to dismiss, finding that McNutt had not accomplished service of the statutorily required presuit notice of claim on Dr. Lo. The circuit court found that, although McNutt had mailed the notice of claim within the limitations period, Dr. Lo had rebutted the presumption of delivery. Further, the circuit court found that the dismissal should be with prejudice because, without the benefit of the sixty-day extension of time, the statute of limitations had expired before McNutt had filed the complaint. At Dr. Lo's request, the circuit court entered a final judgment pursuant to Mississippi Rule of Civil Procedure 54(b). No appeal was taken from the final judgment dismissing Dr. Lo with prejudice.
¶7. Methodist filed a motion for partial summary judgment on McNutt's claims for vicarious liability based on the negligence of Dr. Lo. Methodist contended that, under J&J Timber Co. v. Broome , 932 So. 2d 1 (Miss. 2006), no claim for vicarious liability against an employer can survive if no action can be brought against the employee. In response, McNutt argued that J&J Timber did not apply because, unlike in J&J Timber , McNutt (the plaintiff) had not entered into a settlement and release agreement with the employee. McNutt relied on Sykes v. Home Health Care Affiliates, Inc. , 125 So. 3d 107 (Miss. Ct. App. 2013), which held that the plaintiff could maintain a vicarious liability action against the employer although the employee had been dismissed and although the statute of limitations had run against the employee. Methodist filed a reply arguing that the dismissal of Dr. Lo with prejudice was a dismissal on the merits and that, because no action could be brought against Dr. Lo, the vicarious liability claim against Methodist was extinguished.
¶8. After a hearing and supplemental briefing, the circuit court denied Methodist's motion for partial summary judgment, reasoning as follows:
¶9. Following the denial of its motion for partial summary judgment, Methodist filed a petition for interlocutory appeal, which this Court granted.
¶10. This Court applies de novo review to the grant or denial of summary judgment. Venture, Inc. v. Harris , 307 So. 3d 427, 431 (Miss. 2020) (quoting Double Quick, Inc. v. Moore , 73 So. 3d 1162, 1165 (Miss. 2011) ). "Summary judgment is appropriate when ‘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 a judgment as a matter of law.’ " Id. (quoting Miss. R. Civ. P. 56(c) ).
"All evidence will be viewed in the light most favorable to the nonmoving party." Miss. Baptist Med. Ctr., Inc. v. Phelps , 254 So. 3d 843, 845 (Miss. 2018) (citing Estate of Northrop v. Hutto , 9 So. 3d 381, 384 (Miss. 2009) ).
¶11. The facts in this case are not in dispute. The circuit court dismissed McNutt's claims against Dr. Lo because she had not succeeded in serving Dr. Lo with the mandatory presuit notice. Methodist argues that, because Dr. Lo's dismissal was with prejudice due to the expiration of the limitations period, McNutt's claims against Methodist based on vicarious liability no longer are viable as a matter of law. McNutt urges this Court to affirm the circuit court's denial of partial summary judgment. The parties agree that this case...
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