The EState of Eula Mae FEDRICK By v. QUORUM HEALTH Res. INC.

Decision Date15 December 2009
Docket NumberNo. 2007-CA-00465-COA.,2007-CA-00465-COA.
Citation45 So.3d 667
PartiesThe ESTATE OF Eula Mae FEDRICK By and Through Sue SYKES, Administratrix, Appellant, v. QUORUM HEALTH RESOURCES, INC., Neshoba County And Marvin Page, Appellees.
CourtMississippi Court of Appeals

OPINION TEXT STARTS HERE

F.M. Turner, Hattiesburg, attorney for appellant.

William W. Mckinley, Mark P. Caraway, Jackson, Cory Louis Radicionim, attorneys for appellees.

EN BANC.

MODIFIED OPINION ON MOTION FOR REHEARING

ROBERTS, J., for the Court.

¶ 1. The motion for rehearing is granted. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor.

¶ 2. Eula Mae Fedrick was a resident of the Neshoba County Nursing Home (NCNH) until she died. Ms. Fedrick's estate filed a wrongful death action against NCNH and other affiliated entities. Additionally, the estate sued Quorum Health Resources, Inc., a non-governmental entity that entered into a management agreement with NCNH. NCNH and Quorum successfully moved for summary judgment on the basis that the estate failed to raise any allegations of negligence within one year of the Mississippi Tort Claims Act's (MTCA) one-year statute of limitations. The estate appeals and claims that the circuit court erred. On rehearing, we conclude that, based on the Mississippi Supreme Court's decision in Caves v. Yarbrough, 991 So.2d 142, 148-49(¶ 26) (Miss.2008), the claims that Ms. Fedrick may have brought had she not died were filed after the statute of limitations had expired, but the estate's claims for loss of consortium and its claims related to loss of companionship did not arise until Ms. Fedrick's death. We therefore grant the estate's motion for rehearing and withdraw our prior opinion. Accordingly, we affirm the judgment of the Neshoba County Circuit Court in part and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

¶ 3. This appeal stems from the alleged wrongful death of Ms. Fedrick. At the time of her death, Ms. Fedrick was a resident of NCNH. NCNH is a subsidiary of Neshoba County General Hospital (NCGH)-a community hospital owned by Neshoba County. The NCGH Board of Trustees had entered an agreement with Quorum-a for-profit Delaware corporation-regarding the daily management of NCNH.

¶ 4. Ms. Fedrick's estate sued Neshoba County and Quorum, among others, in the Neshoba County Circuit Court. 1 After numerous years of discovery and other procedural matters that are not pertinent to our present purposes, NCNH and Quorum filed motions for summary judgment. NCNH argued that summary judgment was appropriate because the estate did not raise any allegations of negligence within the MTCA's one-year statute of limitations. Quorum reiterated that argument and also claimed that it was entitled to protection under the MTCA because it was an instrumentality of NCGH. Further, Quorum argued that Ms. Fedrick's estate's claims against it were derivative of the claims against NCGH.

¶ 5. Ultimately, the circuit court concluded that the estate did not raise any allegations of misconduct within one year of its notice of claim. The circuit court also concluded that the continuing tort doctrine did not apply to the facts of the case. Consequently, the circuit court granted summary judgment in favor of NCGH and Page.

¶ 6. As for Quorum, the circuit court found that it was an instrumentality of NCGH. The circuit court also concluded that the claims against Quorum were derivative of the claims against NCGH. Consequently, the circuit court granted Quorum's motion for summary judgment. Aggrieved, the estate appeals.

STANDARD OF REVIEW

¶ 7. This Court conducts a de novo review of a circuit court's decision to grant a motion for summary judgment. Mantachie Natural Gas Dist. v. Miss. Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992). According to Rule 56(c) of the Mississippi Rules of Civil Procedure, a circuit court may grant summary judgment “if 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.” A “material” fact is any fact that “tends to resolve any of the issues, properly raised by the parties.” Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991) (quoting Mink v. Andrew Jackson Cas. Ins. Co., 537 So.2d 431, 433 (Miss.1988)). The moving party bears the burden of demonstrating that there is no genuine issue of material fact. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990).

¶ 8. Like the circuit court, we are required to view the evidence in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622(¶ 8) (Miss.1997). Precedent requires that, like the circuit court, we must be skeptical when considering motions for summary judgment, because it is better to err on the side of denying such a motion. Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986). Additionally, the application of a statute of limitations is a question of law, and we conduct a de novo review of such questions. Sarris v. Smith, 782 So.2d 721, 723(¶ 6) (Miss.2001).

ANALYSIS

I. WHETHER THE CIRCUIT COURT RESOLVED DISPUTED ISSUES OF MATERIAL FACT WHEN IT FOUND THAT NO ALLEGATIONS OF NEGLIGENCE OCCURRED WITHIN ONE YEAR OF THE NOTICE OF CLAIM.

¶ 9. The circuit court granted summary judgment based on its finding that Ms. Fedrick's estate failed to raise any allegations of negligence that occurred within one year of August 17, 2000-the date the estate provided statutory notice of its claim to NCGH and Quorum. Ms. Fedrick's estate claims the circuit court erred. According to Ms. Fedrick's estate, the circuit court resolved disputed issues of fact when it granted NCGH's and Quorum's motions for summary judgment.

¶ 10. “The Mississippi Tort Claims Act ... provides the exclusive remedy against a governmental entity and its employees for acts or omissions which give rise to a suit.” McCoy v. City of Florence, 949 So.2d 69, 77(¶ 30) (Miss.Ct.App.2006) (quoting Estate of Williams v. City of Jackson, 844 So.2d 1161, 1164(¶ 9) (Miss.2003)). The MTCA sets forth in part:

All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after.... The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.

Miss.Code Ann. § 11-46-11(3) (Rev.2002).

¶ 11. The MTCA also requires that a plaintiff provide prospective defendants with notice of a claim ninety days prior to filing suit. Id. Ms. Fedrick died on October 4, 1999. As mentioned, Ms. Fedrick's estate provided notice of its claim on August 17, 2000. Ms. Fedrick's estate argues that the circuit court failed to properly consider the affidavits of its experts. In so doing, Ms. Fedrick's estate focuses on its claim that NCNH and Quorum failed to ensure that Ms. Fedrick received adequate daily nutrition.

¶ 12. Ms. Fedrick's estate retained Dr. Michael Baldinger as one of its expert witnesses. Dr. Baldinger's affidavit stated that according to Ms. Fedrick's medical records and her chart from NCNH, at her heaviest, Ms. Fedrick weighed approximately 134 pounds. Further, Ms. Fedrick weighed approximately 110 pounds on April 14, 1999. Ms. Fedrick had a stroke on April 22, 1999. Dr. Baldinger noted that, on April 23, 1999, Ms. Fedrick was a “total care” resident. Presumably, part of “total care” included assistance in eating. Dr. Baldinger's first specific notation of Ms. Fedrick's treatment was his statement that based on her medical records from April 29, 1999, Ms. Fedrick was unable to feed herself. Dr. Baldinger's affidavit includes no allegation that NCNH failed to assist her during this time.

¶ 13. Next, Dr. Baldinger's affidavit discusses Ms. Fedrick's medical and dietary history during the month of June 1999. Ms. Fedrick's records from June 2, 1999, indicate that she was in the restorative feeding program at that time because she was unable to get her food from her plate to her mouth without assistance. Dr. Baldinger also noted that Ms. Fedrick was not chewing her food or swallowing well. On June 4, 1999, Ms. Fedrick refused breakfast and ate half of her lunch. Notes from Ms. Fedrick's file indicate that she had been eating better in the restorative feeding program. Dr. Baldinger interpreted that statement as an indication that she had been removed from the restorative feeding program. During the month of July, Ms. Fedrick continued to have a poor appetite. Ms. Fedrick was fed lunch in the dining room, and she typically ate 20% of her total daily meals.

¶ 14. The only reference to anything in the month of August 1999 was Dr. Baldinger's note that, on August 9, 1999, “Ms. Fedrick refused breakfast and stated that she would eat well at lunch but usually that was the only meal she would eat. This note confirms the importance of cueing and hands[-]on assistance for Ms. Fedrick's nutrition after her stroke in April of 1999. Nonetheless, that assistance was not given.”

¶ 15. Dr. Baldinger next related that, on September 23, 1999, nurses' notes for that date indicated that Ms. Fedrick was preparing to go to restorative feeding. Dr. Baldinger noted that there was no prior discussion regarding the need for restorative care. Dr. Baldinger's affidavit reflects that Ms. Fedrick was in the “restorative feeding program” for her breakfast and lunch meals from September 17, 1999, through her death on October 4, 1999. Dr. Baldinger went on to state that ...

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