Wayne General Hosp. v. Hayes, 2001-IA-00320-SCT.

• Decision Date: 25 March 2004
• Docket Number: No. 2001-IA-00320-SCT.,2001-IA-00320-SCT.
• Citation: 868 So.2d 997
• Parties: WAYNE GENERAL HOSPITAL, Cirila Reyes, M.D., R. Kelvin Sherman, M.D., and William E. Powell, M.D. v. Wanda HAYES, Individually, and as Next Friend and Natural Guardian of Latarius Hayes, A Minor on behalf of All Who are entitled to Recover under the Wrongful Death and Survival Statute for the Death of Wa'Landra Mesha Hayes, Deceased.
• Court: Mississippi Supreme Court

868 So.2d 997

WAYNE GENERAL HOSPITAL, Cirila Reyes, M.D., R. Kelvin Sherman, M.D., and William E. Powell, M.D. v. Wanda HAYES, Individually, and as Next Friend and Natural Guardian of Latarius Hayes, A Minor on behalf of All Who are entitled to Recover under the Wrongful Death and Survival Statute for the Death of Wa'Landra Mesha Hayes, Deceased.

No. 2001-IA-00320-SCT.

Supreme Court of Mississippi.

March 25, 2004.

Matthew D. Miller, Robert D. Gholson, Laurel, J. Robert Ramsay, Hattiesburg, attorneys for appellants.

Gerald Patrick Collier, attorney for appellees.

EN BANC.

ON MOTION FOR REHEARING

SMITH, Presiding Justice, for the Court.

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 The previous opinions of this Court are withdrawn, and this opinion is substituted therefor.

¶ 2. This interlocutory appeal arises from the Circuit Court of Hinds County, where the trial judge refused to grant the defendants' motion for transfer of venue. We reverse and remand this action for proceedings consistent with this opinion, finding that: (1) the plaintiffs were not reasonably diligent in investigating the cause of their decedent's injuries; considering the facts and circumstances present at the time of death, the plaintiffs knew or reasonably should have known enough to recognize that some negligent conduct had occurred; therefore, the plaintiffs do not benefit from the discovery rule; their claims against the University of Mississippi Medical Center, Dr. Mark Dabagia, and Dr. Avinash Gulanikar ("UMMC Defendants") were time barred, and, as a result, the UMMC defendants were not proper parties to this lawsuit; (2) the trial judge abused his discretion in refusing the defendants' motion to transfer venue since there was no reasonable basis for the plaintiffs' claims against the UMMC defendants; (3) Wayne General Hospital ("WGH") is a community hospital for purposes of the MTCA and is therefore entitled to venue in Wayne County as a matter of right; and (4) the issue of whether the plaintiffs' claims against WGH should have been dismissed is not properly before this Court.

FACTS

¶ 3. On September 22, 1997, Wa'Landra Mesha Hayes was admitted by Dr. Kelvin Sherman to Wayne General Hospital ("WGH") for twenty-four hour outpatient observation for pneumonia. While at WGH, Wa'Landra exhibited respiratory distress, facial edema, liver enlargement, and signs of renal failure and was thereafter transferred to the UMMC. There is a gap in the record between September 23, 1997, and September 28, 1997. During this time, it is unknown where Wa'Landra was hospitalized and what procedures and medications were given.

¶ 4. The UMMC doctors determined that Wa'Landra required a peritoneal dialysis catheter. Dr. Mark Dabagia ("Dr.Dabagia") performed the procedure. Wa'Landra's bowels were perforated, and this resulted in peritonitis. A serious infection then developed in Wa'Landra's blood stream. She was later transferred to Arkansas Children's Hospital in Little Rock, Arkansas.

¶ 5. Wa'Landra died on October 13, 1997. Her death certificate lists cardiomyopathy, congestive heart failure, and sepsis as the causes of death. The plaintiffs contend that UMMC and its treating physicians contributed to Wa'Landra's death.

¶ 6. In the fall of 1999, Wanda Ann Hayes met a former employee of WGH, Venus McDougle. Venus was a nurse at WGH during the time that Wa'Landra was treated there. During this chance meeting, Venus alleged that she witnessed negligent care of Wa'Landra at WGH. Thus, the plaintiffs contacted an attorney and proceeded with a claim. On December 21, 1999, some 2 years and 2 months after Wa'Landra's death, plaintiffs submitted Notice of Claim letters, as required by the MTCA. On March 27, 2000, the Plaintiffs filed a complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi. The complaint listed the following as defendants: WGH, the UMMC Defendants, Dr. Kelvin Sherman, Dr. William Powell, Dr. Cirila Reyes, and John Doe Persons and Entities. WHG, Dr. Sherman, Dr. Powell, and Dr. Reyes are all residents of Wayne County. The UMMC Defendants are all residents of Hinds County.

¶ 7. The UMMC Defendants filed a motion for summary judgment claiming lapse of the applicable statute of limitations under the MTCA, denial of negligence, individual immunity, and improper notice under the MTCA. Both Dr. Dabagia and Dr. Gulanikar submitted affidavits in support of the motion.

¶ 8. In response to the defendants' motion for summary judgment, the plaintiffs asserted that they properly complied with the MTCA. The Plaintiffs submitted an affidavit of Dr. John A. Tilelli. After a review of the medical records, Dr. Tilelli concluded that WGH, Dr. Sherman, Dr. Reyes, and Dr. Powell had been negligent in their care of Wa'Landra. However, Dr. Tilelli made no mention of the UMMC Defendants in his affidavit. The plaintiffs also responded with an affidavit of Netra McElroy, a certified nurse practitioner.

¶ 9. The plaintiffs subsequently agreed to dismiss the UMMC Defendants from this action. As a result, the trial entered an Agreed Order of Dismissal Without Prejudice as to the UMMC Defendants. After the dismissal, WGH, joined by Dr. Sherman and Dr. Powell, moved to transfer venue. The trial court denied the motion.

¶ 10. On February 22, 2001, the defendants, WGH, Dr. Reyes, Dr. Sherman, and Dr. Powell, filed a Petition for Interlocutory Appeal in which we granted. See M.R.A.P. 5

DISCUSSION

I. THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, DR. MARK DABAGIA, AND DR. AVINASH GULANIKAR WERE NEVER PROPER PARTIES TO THIS LAWSUIT SINCE ANY CLAIMS AGAINST THEM WERE BARRED BY THE ONE YEAR STATUTE OF LIMITATIONS PROVIDED BY MISS. CODE ANN. § 11-46-11(3).

¶ 11. This Court applies the de novo standard of review when deciding issues of law. ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999). The "application of a statute of limitations is a question of law." Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001). Therefore, the de novo standard applies to our review of WGH's first assignment of error.

¶ 12. Defendants WGH, Dr. Sherman, Dr. Powell, and Dr. Reyes argue that venue in Hinds County was never proper since all claims against the UMMC Defendants were barred by the one year statute of limitations provided for in the MTCA. Additionally, they assert that the discovery rule is not applicable because there was no latent injury and the Plaintiffs were not reasonably diligent in attempting to investigate the cause of Wa'Landra's death.

¶ 13. Plaintiffs, Wa'Landra's heirs, argue that venue in Hinds County was always proper since the discovery rule was applicable to all claims against the UMMC Defendants, tolling the statute of limitations until the plaintiffs discovered the alleged negligence and omissions in the fall of 1999. Furthermore, they argue that the discovery rule applies in this case since the acts or omissions causing the injuries resulting in Wa'Landra's death were latent and could not have been discovered.

¶ 14. The Mississippi Tort Claims Act ("MTCA") sets out certain requirements that a plaintiff must satisfy in bringing a claim against a government entity or its subdivisions. At least ninety days before filing suit, a plaintiff must file a notice of claim with the chief executive officer of the government entity. Miss.Code Ann. § 11-46-11(1) (Rev.2002). In addition, the MTCA provides a one-year statute of limitations that begins to run from the date of the "tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based." Id. § 11-46-11(3).

¶ 15. The discovery rule applies to the one-year MTCA statute of limitations. Moore ex. rel. Moore v. Mem'l Hosp. of Gulfport, 825 So.2d 658, 667 (Miss.2002) (citing Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 204 (Miss. 1999)). Williams v. Clay County, 861 So.2d 953, 976 (Miss.2003). The discovery rule will toll the statute of limitations "until a plaintiff `should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent.'" Id. (quoting Sarris v. Smith, 782 So.2d at 725).) Stated differently, "`the operative time [for the running of the statute of limitations] is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.'" Id. (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986). Moreover, to claim benefit of the discovery rule, a plaintiff must be reasonably diligent in investigating the circumstances surrounding the injury. "The focus is on the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury." Smith, 485 So.2d at 1052 (emphasis added). See also Punzo v. Jackson County, 861 So.2d 340, 346 (Miss. 2003); Sweeney v. Preston, 642 So.2d 332 (Miss.1994).

¶ 16. Assuming without deciding that the injuries alleged here were latent, we find that the discovery rule did not operate to toll the statute of limitations. First, the plaintiffs were not reasonably diligent in investigating the cause of Wa'Landra's injuries. They filed suit after a chance meeting with Venus McDougle, a former employee of WGH. The record does not reflect any type of investigation into Wa'Landra's treatment prior to this chance meeting, which occurred approximately two years after her death. The intent of the discovery rule is to protect potential plaintiffs who cannot, through reasonable diligence, discover injuries done to them.

¶ 17. Moreover, the plaintiffs, at that time of Wa'Landra's death, had enough information such that they knew or reasonably should have known that some negligent conduct had occurred, even if they did not know with certainty that the conduct was negligent as a matter of law. Since the death certificate...