Price v. Clark, 2007-CA-01671-SCT.

Citation21 So.3d 509
Decision Date23 July 2009
Docket NumberNo. 2007-CA-01671-SCT.,2007-CA-01671-SCT.
PartiesNina PRICE, Individually and on Behalf of All Wrongful Death Beneficiaries of Albert B. Price, Jr., Deceased v. Steven CLARK, M.D., Samuel Duff Austin, M.D., Bennie Barnette Wright, Jr., M.D., Estate of Barry Stephen Sullivan, M.D., Cleveland Medical Alliance, LLP, Cleveland Medical Clinic, PLLC, Cleveland Medical Clinic, LTD and Cleveland Clinic, P.A.
CourtUnited States State Supreme Court of Mississippi

Christopher Morgan Posey, Edward A. Williamson, Philadelphia, Johnnie E. Walls, Jr., Greenville, attorneys for appellant.

James Lawrence Wilson, IV, Tommie G. Williams, Greenwood, attorneys for appellees.


CARLSON, Presiding Justice, for the Court.

¶ 1. This appeal involves various issues arising from medical-negligence/wrongful-death litigation against various medical providers under both the Mississippi Tort Claims Act and the medical-malpractice statute. We affirm in part and reverse in part the final judgment of dismissal entered by the Circuit Court for the Second Judicial District of Bolivar County, Judge Charles E. Webster presiding.


¶ 2. Albert Price, Jr., Nina Price's ("Price") husband, was diagnosed with a pituitary tumor on April 9, 2004, just four months prior to his death on August 14, 2004. Upon the death of her husband, Nina Price commenced this litigation via a duly-filed complaint alleging that her husband's primary-care physician, Dr. Steven Clark, had proximately caused her husband's injuries and wrongful death due to his negligent failure to timely diagnose the pituitary tumor. Pursuant to a theory of respondeat superior, Price also named as defendants in her original complaint Dr. Clark's employers: Cleveland Medical Clinic, PLLC; Cleveland Medical Alliance LLP ("Alliance"); and Providence Healthcare d/b/a Bolivar Medical Center ("Bolivar Medical Center").1 Price further alleged that her husband's neurologist, Dr. Ravi Pande, of Greenwood Neurology Clinic, was negligent in failing to diagnose the tumor, which proximately caused injuries to Mr. and Mrs. Price and the wrongful death of Mr. Price.

¶ 3. Mr. Price had various health problems, receiving primary care from 1980 until the time of his death in 2004 at what he believed to be the same medical clinic. However, this clinic actually was a series of successive partnerships housed in the same facility. Alliance was a limited-liability partnership formed on May 30, 1997, by the Board of Trustees for Greenwood Leflore Hospital and physicians Charles F. Brock, M.D.; Benny B. Wright, Jr., M.D.; Samuel D. Austin, M.D.; and Barry S. Sullivan, M.D. Dr. Clark was an employee of Alliance from December 20, 1999, through September 30, 2003. However, Price maintains that at the time she filed the suit, she was unaware of any affiliation between Alliance and Greenwood Leflore Hospital. Cleveland Medical Clinic, PLLC, was the successor clinic organized and operated between October 1, 2003, and January 31, 2004, by physicians Charles F. Brock, Jr., M.D.; James E. Warrington, Jr., M.D.; Benny B. Wright, Jr., M.D.; and Steven Clark, M.D. After February 1, 2004, Cleveland Medical Clinic became an affiliated entity of Delta Regional Medical Center. Bolivar Medical Center, formerly known as Bolivar County Hospital, was the local hospital where Mr. Price received medical care.

¶ 4. The following is a procedural timeline of this case:

August 30, 2004 Price mailed notice-of-claim letters, as required by Mississippi Code Section 15-1-36(15), to the following defendants: Dr. Steven Clark, individually; Dr. Clark on behalf of Alliance; National Registered Agents on behalf of Bolivar Medical; Gerald Jacks, a registered agent of Cleveland Medical Clinic.

August 31, 2004 Price filed a complaint2 against Dr. Steven Clark, Alliance, Bolivar Medical, Cleveland Medical Clinic, Dr. Ravi Pande, and John Does 1-5. The basis of the complaint was negligence and gross negligence in failing to treat and diagnose the pituitary tumor. That same day, Price mailed Dr. Pande a notice-of-claim letter.

December 7, 2004 The defendants were personally served with process. Dr. Clark was served individually and on behalf of Alliance, because Price mistakenly believed him to be a former partner of the now-dissolved limited-liability partnership.

January 4, 2005 Dr. Pande filed a Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted based on Dr. Pande's alleged protected status under the MTCA as a employee of Greenwood Neurology Clinic, which was owned and operated by a public hospital, Greenwood Leflore Hospital. Dr. Pande later was dismissed from the suit by Agreed Order of Dismissal Without Prejudice filed on February 2, 2006.

February 3, 2005 Price sent notice-of-claim letters to additional defendants pursuant to the MTCA. Price sent these letters to Delta Regional Medical Center (L. Ray Humphreys, CEO) due to its affiliation with Cleveland Medical Clinic and to Greenwood Leflore Hospital (Jerry Adams, Executive Director) due to its affiliation with Alliance and Greenwood Neurology Clinic.

June 27, 2005 Without leave from the trial court, Price filed an "Amended Complaint" adding defendants Greenwood Leflore Hospital and Delta Regional Medical Center. The amended complaint retained all the previously named defendants, but renamed Cleveland Medical Clinic as "Cleveland Medical Clinic, PLLC." The underlying basis of the complaint remained the same-negligence and gross negligence. Dr. Clark, Alliance, and Cleveland Medical Clinic, PLLC, were not served with a copy of the amended complaint. Greenwood Leflore Hospital eventually was dismissed by Agreed Order of Dismissal Without Prejudice filed on February 2, 2006. Delta Regional was dismissed from the suit by Agreed Order of Dismissal entered on March 13, 2006.

November 2, 2005 Price filed a "Second Amended Complaint" that retained the previously named defendants and underlying basis for the complaint, but added PHC-Cleveland, Inc. d/b/a Bolivar Medical Center. PHC-Cleveland, Inc. d/b/a Bolivar Medical Center was incorrectly identified in the original complaint as "Province Healthcare Company." Also on this day, summonses were issued for service on Delta Regional Medical Center, Greenwood Leflore Hospital, and PHC-Cleveland, Inc., by way of CT Corporation Service in Lakeland, Florida.

December 27, 2005 Defendants, Dr. Steven Clark, Cleveland Medical Clinic, and Alliance filed their Answers, First Defenses, and Motions to Dismiss, raising the defenses of failure to timely file notice of claim pursuant to Mississippi Code Section 15-1-36; the failure of plaintiff to attach to the second amended complaint a certificate executed by the plaintiff's attorney as required by Mississippi Code Section 11-1-58; the failure to provide proper notice of claim under the MTCA; as well as all applicable Rule 12 defenses under the Mississippi Rules of Civil Procedure and other relevant defenses. Following a response from Price, the defendants filed a Rebuttal in Support of Motions to Dismiss and Notice of Conversion to Motion for Summary Judgment.

February 21, 2006 An Agreed Order of Dismissal was entered for PHC-Cleveland, Inc. (incorrectly named in the Complaint as Province Healthcare Company d/b/a Bolivar Medical Center).

April 20, 2006 Price issued new notice-of-claim letters to Drs. Steven Clark, Barry Sullivan, Samuel D. Austin, Bennie B. Wright, Jr., and Charles F. Brock and Cleveland Medical Clinic c/o Drs. Brock, Austin, Wright, and Sullivan.

April 27, 2006 Price filed a Motion for Voluntary Dismissal Without Prejudice as to defendants Dr. Steven Clark, Alliance, and Cleveland Medical Clinic. On May 8, 2006, Price filed a Motion to Substitute Parties by Filing Amended Complaint to enable her to substitute named defendants for John Does 1-5 in the original complaint. By the end of May, a hearing was set for June 23, 2006, before Circuit Judge Charles Webster in Clarksdale, Coahoma County, Mississippi.

July 24, 2006 Price's motion to amend complaint was granted. An Order Granting Partial Summary Judgment was entered by the trial judge and filed on July 24, 2006, dismissing, with prejudice, all defendants subject to the MTCA.

July 26, 2006 Price filed a third amended complaint identifying the following defendants: Steven Clark, M.D.; Samuel Duff Austin, M.D.; Bennie Barnette Wright, Jr., M.D.; the Estate of Barry Stephen Sullivan, M.D. ("Dr. Sullivan"); Cleveland Clinic, PA; Cleveland Medical Clinic, Ltd.; Alliance; and Cleveland Medical Clinic, PLLC. Price substituted the newly named defendants for John Does 1-5 from the original complaint. The complaint alleged negligence and gross negligence in the failure to treat and/or properly diagnose Mr. Price's pituitary tumor. Dr. Sullivan treated Mr. Price from 1994 until 2000. Dr. Austin treated Mr. Price in 1990. Dr. Wright treated Mr. Price from 2000 until 2002. Dr. Clark treated Mr. Price from 2000 until Mr. Price's death in June 2004.

August 28, 2006 Trial court entered an order denying defendants' Motion to Amend Judgment.

September 5, 2006 Defendants filed Answers and First Defenses and Motions to Dismiss.

March 19, 2007 Trial court entered an Amended Order that dismissed the five defendants substituted in the Third Amended Complaint for John Does 1-5: Drs. Samuel Austin, Bennie B. Wright, Jr. and Barry Stephen Sullivan; and Cleveland Clinic, P.A., Cleveland Medical Clinic, Ltd. The trial court clarified that the time period during which Dr. Clark and Cleveland Medical Clinic, PLLC, were not subject to MTCA immunity was from October 1, 2003, to January 31, 2004. Thus, according to the trial court, Price could maintain a claim for conduct that occurred only during this time period.

August 20, 2007 Trial court entered an order granting summary judgment for the remaining defendants, Dr. Clark and Cleveland Medical Center, PLLC, on the basis that Price...

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