Owens v. Thomae

• Decision Date: 02 September 1999
• Docket Number: No. 98-CA-00237-SCT.,98-CA-00237-SCT.
• Citation: 759 So.2d 1117
• Parties: Lucille OWENS v. Dr. Keith R. THOMAE, Dr. William N. Dixon, Dr. Yong W. Kim and John Does 1 Through 20.
• Court: Mississippi Supreme Court

759 So.2d 1117

Lucille OWENS v. Dr. Keith R. THOMAE, Dr. William N. Dixon, Dr. Yong W. Kim and John Does .

No. 98-CA-00237-SCT.

Supreme Court of Mississippi.

September 2, 1999.

George F. Hollowell, Jr., Greenville, Attorney for Appellant.

James A. Becker, Jr., Whitman B. Johnson, III, George Quinn Evans, Jackson, Attorneys for Appellees.

EN BANC.

SMITH, Justice, for the Court:

¶ 1. This case presents a question of the employment status of a surgeon and two resident doctors at the University of Mississippi Medical Center. The trial court held that all three doctors were employees of the University Medical Center and, thus, were entitled to the protections of the Tort Claims Act. Plaintiff Lucille Owens countered by saying that the doctors were being sued independent of their status as employees of the University Medical Center. The trial court granted summary judgment for the doctors finding that jurisdiction was lacking due to Owens's noncompliance with Miss.Code Ann. § 11-46-11 (Supp.1998).

¶ 2. We hold that the trial court was correct in determining that Drs. Kim and Dixon were employees of the hospital and that Owens's failure to comply with the Tort Claims Act should result in their dismissal. However, we find that the trial court's ruling with regard to Dr. Thomae's status was premature. Therefore, we reverse and remand to allow Owens further discovery on the issue of Dr. Thomae's status vis-a-vis the hospital.

STATEMENT OF FACTS

¶ 3. On November 30, 1995, Owens suffered an accidental stab wound to her right groin while she was at work. She was taken to the University Medical Center where she remained until December 13, 1995. Surgery to repair the wound was performed on the day she was admitted. Surgery was required again the next day, and on December 3, 1995 at which time Defendant Thomae amputated Owens's right leg just below the knee.

¶ 4. Owens's complaint, filed in the Hinds County Circuit Court on July 7, 1997, alleged that doctors Thomae, Dixon and Kim were "negligent and deviated from the standard of care in failing to diagnose and properly treat the Plaintiff's large thrombus located in one of her arteries" and that this negligence contributed to the loss of her right leg.

¶ 5. All three doctors filed Motions to Dismiss alleging that Owens failed to comply with the notice and statute of limitations provisions of the Tort Claims Act.

¶ 6. The trial court's opinion and judgment granting summary judgment was filed December 11, 1997. The court specifically found that the doctors were employees of the University of Mississippi Medical Center and, as such, were entitled to the protection of the Tort Claims Act. Furthermore, the court held that Owens failed to comply with both the notice and the statute of limitations provisions of the Act and, thus, that the court lacked jurisdiction to hear her claims.

¶ 7. Owens contends that the doctors are not employees of the University Medical Center but are independent contractors and, thus, her case falls under the independent contractor's exception to the Tort Claims Act, Miss.Code Ann. § 11-46-1(f). On appeal, Owens claims that the trial court improperly granted the doctors' motions for summary judgment without allowing her additional time for further discovery to determine the doctors' employment status at the time of her treatment.

¶ 8. The record reveals that no written request was made for additional time to conduct discovery. However, at the November 24, 1997, hearing on the Motions to Dismiss, Owens explained her need for more time to pursue discovery on the issue of the doctors' status vis-a-vis the hospital:

Judge, the reason there's no affidavits from the defense—I mean, from the plaintiff in defense of their summary judgment, we haven't been able to complete discovery. This is so premature. I have no way of determining what position any of the doctors may be in because I've not been allowed to depose the persons as well as other persons— the defendants as well as other persons, Mr. Seagrove or whatever status he had, because if you'll notice in Mr. Seagrove's affidavit, he makes no reference to the fact of how he is compensated. As the brief says, it's the contract—we feel like it's an independent contractor, not as an employee of the hospital. "Your Honor, at this time we merely ask you to allow us please to complete our discovery so we can make a determination ourselves whether of not this is a governmental issue or falls under the Mississippi Tort Claims Act....."

Owens indicated that if taking Dr. Thomae's deposition, might enable her to determine Thomae's status with the University. ¶ 9. The trial court never explicitly ruled on Owens's oral request for a continuance to conduct further discovery. Instead, the trial court issued an opinion finding that the doctors were employees of the University of Mississippi Medical Center and entitled to the protections of the Tort Claims Act. Because Owens failed to comply with the notice provision of the Tort Claims Act and because she filed her lawsuit outside the one-year statute of limitation contained in the Act,¹ the trial court granted summary judgment for the doctors.

LEGAL ANALYSIS

¶ 10. The decision to grant or deny a continuance is within the sound discretion of the trial court and will be reversed solely where the court abuses that discretion. Prescott v. Leaf River Forest Prods., Inc., 740 So.2d 301, 306 (Miss.1999); Brown v. Brown, 493 So.2d 961, 963-64 (Miss.1986).

¶ 11. A party opposing a motion for summary judgment may request a continuance in order to conduct further discovery pursuant to Miss. R. Civ. Proc. 56(f). Rule 56(f) provides as follows:

When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

When a Rule 56(f) continuance is requested, the trial court, "if it finds the reasons offered to be sufficient", has the discretion to "postpone consideration of the motion for summary judgment and order among other things that discovery be completed." Prescott, supra. This Court has noted on several occasions that "[t]he rule itself contemplates that the completion of discovery is, in some instances, desirable before the court can determine whether there is a genuine issue of material fact." Marx v. Truck Renting & Leasing Ass'n, Inc., 520 So.2d 1333, 1343 (Miss.1987) (citing Smith v. H.C. Bailey Cos., 477 So.2d 224, 232 (Miss.1985)). "Justice is served," the Court stated in Cunningham v. Lanier, 555 So.2d 685, 686 (Miss.1989), "when a fair opportunity to oppose a motion is provided —because consideration of a motion for summary judgment requires a careful review by the trial court of all pertinent evidence in a light most favorable to the nonmovant." (emphasis in original).

¶ 12. An opportunity to flesh out discovery may especially be required where the information necessary to oppose the motion for summary judgment is within the possession of the party seeking summary judgment. Marx, 520 So.2d at 1344; 10B CHARLES ALAN WRIGHT & ARTHUR E. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 2741, at 419 (3d ed. 1998)(Wright & Miller). On the other hand, the "party resisting summary judgment must present specific facts why he cannot oppose the motion and must specifically demonstrate `how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.'" Prescott, 740 So.2d at 307.

This is so because Rule 56(f) is not designed to protect the litigants who are lazy or dilatory and normally the party invoking Rule 56(f) must show what steps have been taken to obtain access to the information allegedly within the possession of the other party. 10A WRIGHT, MILLER & KANE, Federal Practice & Procedure, § 2741 at 549.

Marx, 520 So.2d at 1344.

¶ 13. Several of the cases in which this Court has found that the lower court abused its discretion in denying a Rule 56(f) continuance involve medical malpractice actions. Erby v. North Miss. Med. Ctr., 654 So.2d 495, 503 (Miss.1995), was a medical malpractice case filed in August, 1989. The hospital filed a motion for summary judgment in December, 1990. Some three weeks after the hearing on the motion (but before a ruling had been made), the plaintiff filed a motion requesting leave to take additional depositions because of a newly discovered claim against the hospital. The hospital sought and, almost a month later, was granted a protective order disallowing further discovery.

¶ 14. On appeal, this Court held that the plaintiff should not have been prevented from conducting further discovery with regard to the new claim.

The trial court failed to render its decision on [the hospital's] motion for a protective order until July 16, 1991. More than ample time passed during which Erby could have completed the two additional requested depositions. Under the circumstances, principles of fairness dictate a decision in favor of allowing these additional depositions which would not have unnecessarily prolonged the proceedings.

Erby, 654 So.2d at 503. See also Hudson v. Parvin, 511 So.2d 499, 500 (Miss.1987); Terrell v. Rankin, 511 So.2d 126, 129 (Miss.1987).

¶ 15. In the instant case, the complaint was filed in early July and the hearing took place in late November—some five months apart. In Marx v. Truck Renting & Leasing Ass'n, Inc. 520 So.2d 1333, 1344 (Miss.1987), the Court held that it was not an abuse of discretion to deny a continuance where five months had passed and the plaintiff had failed to conduct any discovery. In this instant case, however, Owens did attempt to obtain information regarding...