Tallahatchie Gen. Hosp. v. Howe

• Decision Date: 09 December 2010
• Docket Number: No. 2009-IA-00495-SCT.,2009-IA-00495-SCT.
• Citation: 49 So.3d 86
• Parties: TALLAHATCHIE GENERAL HOSPITAL, Tallahatchie General Hospital Extended Care Facility and Barbara Criswell v. Susan Edwards HOWE and Wayne Edwards, Wrongful Death Beneficiaries of Myrtice Edwards, Deceased.
• Court: Mississippi Supreme Court

49 So.3d 86

TALLAHATCHIE GENERAL HOSPITAL, Tallahatchie General Hospital Extended Care Facility and Barbara Criswell

v.Susan Edwards HOWE and Wayne Edwards, Wrongful Death Beneficiaries of Myrtice Edwards, Deceased.

No. 2009-IA-00495-SCT.

Supreme Court of Mississippi.

Dec. 9, 2010.

Gaye Nell Lott Currie, Jackson, attorney for appellants.

William Liston, Winona, Alan D. Lancaster, Grenada, attorneys for appellees.

Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.

RANDOLPH, Justice, for the Court:

¶ 1. On June 9, 2007, eighty-seven-year-old Myrtice Edwards died at Tallahatchie General Hospital and Extended Care Facility ("TGH"), a community hospital. In October 2007, Edwards's daughter and son, Susan Edwards Howe and Wayne Edwards ("Edwards"), sent a notice of claim and letter to the Tallahatchie County chancery clerk and the attorney for the Tallahatchie County Board of Supervisors, asserting a wrongful-death claim against Tallahatchie County. The notice of claim was not directed to TGH and was not filed with Bobby Joe Brunson, Jr., the Administrator and Chief Executive Officer ("CEO") of TGH, as required by Mississippi Code Section 11-46-11(1). See Miss.Code Ann. § 11-46-11(1) (Rev.2002). In late November 2007, Tallahatchie County's insurance representative faxed a copy of the notice and letter to Brunson. No notice of claim to TGH was ever filed as statutorily required. See id.

¶ 2. On June 2, 2008, Edwards filed a complaint against TGH and Barbara Criswell, among others, for the alleged wrongful death of Myrtice Edwards. TGH responded with a "Motion to Dismiss" asserting that Edwards had failed to comply with Mississippi Code Section 11-46-11(1), which provides the claimant "shall file a notice of claim" with TGH's CEO, Brunson, at least ninety days prior to filing the complaint. Id. The motion added that "[b]ecause the statute of limitations period has now passed, [the] claims should be dismissed with prejudice."

¶ 3. Following hearing, the Circuit Court of Tallahatchie County entered an "Order Denying Motion for Summary Judgment." While noting that "proper service of notice to TGH would be on the [CEO] of TGH not Tallahatchie County[,]" the circuit court found that the strict-compliance standard applied to Section 11-46-11(1) was limited to the ninety-day-notice requirement, and concluded "because TGH timely received a copy of the notice that was sent to the County and that they have presented no evidence that they will be in any manner prejudiced, that this constitutes substantial compliance under the statute...." (Emphasis added.) Following that ruling, this Court granted TGH's "Petition for Interlocutory Appeal."

FACTS

¶ 4. On May 16, 2007, Myrtice Edwards was admitted to TGH. On June 6, 2007, she was transferred to the emergency room of TGH, where she died on June 9, 2007.

¶ 5. On October 17, 2007, former counsel for Edwards, sent the following:

ATTENTION: THIS CORRESPONDENCE IS A NOTICE OF CLAIM SENT

PURSUANT TO M.C.A. § 11-46-11(2)

Sent Certified Mail, Return Receipt Requested

Honorable Anita Mullen Fountain

Tallahatchie County Chancery Clerk

P.O. Box 350

Charleston, Mississippi 38921

Mr. Thomas Reynolds, Esq.

Tallahatchie County Attorney[ ¹]

P.O. Box 220

Charleston, Mississippi 38921

Claimant: Wrongful death beneficiaries of [Edwards]

Date of claim: June 9, 2007

Place of loss: Tallahatchie General Hospital

Mechanism of injury: Wrongful death

Extent of injury: Wrongful death

Witnesses/Tortfeasors: Dr. Barbara Criswell, Dr. Theodore T. Lewis, Kim Upton, Tara Hervey, Angie Burnett, Karol Knowles, J. Parks, Rall Bethel, Lisa Smiley, A. Lamar, L. Garth, L. Suggs, P. Trontt, Amy Sykes, Ella, C. Kimble, L. Hankins, Jayson Smith, Angela Lana, Dr. McCune, Dr. C.M. Jordan, Dr. Mark Gunn, Valerie McCord, B. Cresswell

Residence of Claimant: Tallahatchie County, MS

Money Damages Sought: $500,000.00

Attached to the notice was a letter which provided, in pertinent part, that:

Dear Ms. Fountain:

Please be advised that I represent the wrongful death beneficiaries of [Edwards] in their cause of action against Tallahatchie County regarding the above referenced claim. I am sending you this notice of claim in your capacity as Chancery Clerk for Tallahatchie County.

...

After the County has had a chance to review this matter, please advise me of its response in writing. If I do not receive any correspondence from the County within ninety days of your receipt of this letter, I will proceed forward with litigating this claim against Tallahatchie County.

(Emphasis added.)

¶ 6. In a subsequent deposition, Edwards's former counsel testified that the notice of claim was intended to "put [Tallahatchie] County on notice" as it was "the potential defendant...." (Emphasis added.) He acknowledged that he did not send a notice of claim to TGH's CEO, Brunson.

¶ 7. On October 22, 2007, Fountain and Reynolds received the notice to Tallahatchie County. That same day, Reynolds forwarded the notice to the Tackett Insurance Agency. Reynolds instructed Tackett to "notify all necessary parties to assure representation of Tallahatchie County ... on this matter." (Emphasis added.) Neither Fountain nor Reynolds informed TGH of her or his receipt of the notice. On October 23, 2007, a letter from Tallahatchie County's insurer, Zurich North America ("Zurich"),² to the Tallahatchie County Board of Supervisors, Reynolds, and Tackett concluded that coverage for Edwards's claim was excluded under the county's commercial general liability policy.

¶ 8. On or about November 27, 2007, Brunson received a copy of the notice and letter sent to Tallahatchie County, "via facsimile from the offices of ... Tackett Insurance Agency...." Brunson forwarded the fax to his attorney, but did not provide it to TGH's insurer. The record includes multiple e-mails between March and May 2008 from counsel for TGH toBrunson and Reynolds, among others, noting that no suit had yet been filed in this matter.

¶ 9. On June 2, 2008, Edwards filed a complaint against "[TGH]; Barbara Criswell, FNP; and Doe Defendants 1-15, for the real, wrongful death of [Edwards]...." ³ The complaint alleged that from May 18, 2007, through June 4, 2007, Myrtice Edwards was negligently medicated with "improper drugs" at TGH, which "caused or contributed to her death." The complaint further alleged that proper notice of claim had been served more than ninety days earlier upon Fountain and Reynolds, but failed to allege that notice of claim had been provided to TGH and Brunson.

¶ 10. On June 30, 2008, TGH filed a "Motion to Dismiss," asserting that Mississippi Code Section 11-46-11(1) required that the notice of claim be filed with TGH's CEO, Brunson, and "[b]ecause [Edwards] failed to give notification of their claim prior to filing suit, their claim must be dismissed. Because the statute of limitations period has now passed, [Edwards's] claims should be dismissed with prejudice." Subsequently, the parties agreed to conduct limited discovery for purposes of responding to the "Motion to Dismiss."

¶ 11. Following a January 30, 2009, hearing, the circuit court entered an "Order Denying Motion for Summary Judgment." ⁴ According to the order, "[t]he issue ... is [1] whether the notice of claim sent to Tallahatchie County is sufficient under the statute, and [2] if not, was the receipt of the notice of claim by the CEO of TGH sufficient notice under the statute." As to (1), the circuit court concluded that Edwards "sued TGH and proper service of notice to TGH would be on the [CEO] of TGH not Tallahatchie County." Regarding (2), the circuit court stated that:

every post-[ University of Mississippi Medical Center v. Easterling, 928 So.2d 815 (Miss.2006) ] case found by this [c]ourt on the issue of [Section] 11-46-11(1) specifically notes the requirement of strict compliance with the 90 day notice. Those cases deal with situations where no notice was given or suit was filed within the ninety days. The post- Easterling cases were decided on issues other than who received the notice. This [c]ourt assumes that if the Supreme Court in Easterling had meant to overrule Powell [v. City of Pascagoula, 752 So.2d 999 (Miss.1999) ] as to the requirement of substantial compliance in regard to whom notice is sent, that the Supreme Court would have specifically overruled Powell or, alternatively, noted in ... Easterling ... that strict compliance was the law as to [Section] 11-46-11(1) rather than specifically noting it applied to the 90 day requirement contained in [Section] 11-46-11(1).

Based thereon, the circuit court concluded that:

because TGH timely received a copy of the notice that was sent to [Tallahatchie County] and ... they have presented no evidence that they will be in any manner prejudiced, ... this constitutes substantial compliance under the statute and is the appropriate standard under Powell as relates to the person receiving theactual notice.... [T]here has been no argument presented that the 90 day notice requirement under [Section] 11-46-11(1) was not otherwise strictly complied with. Therefore, ... based on the case law and this [c]ourt's interpretation of the statute, ... notice was properly given.

¶ 12. Thereafter, this Court granted TGH's "Petition for Interlocutory Appeal."

ISSUES

¶ 13. On appeal, TGH presents the following issues:

(1) Whether the sovereign immunity of a political subdivision is waived where a party fails to give notice under Mississippi Code Section 11-46-11(1) of an intent to sue that particular entity.

(2) Whether substantial compliance is the standard with regard to the notice provision of Mississippi Code Section 11-46-11(1), particularly that notice must be served upon the proper entity, and if so, if the fact that the chief executive officer of a public hospital by happenstance receives a copy of a notice of an intent to sue another party constitutes substantial compliance with the pre-suit notice provisions of Mississippi Code Section 11-46-11(1).

(3) When sovereign immunity has not been waived, whether

...