Womble By and Through Havard v. Singing River Hosp., s. 90-CA-40

• Citation: 618 So.2d 1252
• Decision Date: 25 March 1993
• Docket Number: Nos. 90-CA-40,90-CA-934,s. 90-CA-40
• Parties: Helen WOMBLE, By and Through Her Father, David HAVARD and on Behalf of the Heirs of Helen Womble v. SINGING RIVER HOSPITAL, Dr. Atkinson Winans Longmire, Dr. James Spurgeon Weatherall, Emergency Room Group, Ltd., Singing River Hospital System Board of Trustees and its Members. Helen WOMBLE, By and Through Her Father, David HAVARD and on Behalf of the Heirs of Helen Womble v. Dr. Wallace E. CALHOUN.
• Court: United States State Supreme Court of Mississippi

Page 1252

618 So.2d 1252

Helen WOMBLE, By and Through Her Father, David HAVARD and on Behalf of the Heirs of Helen Womble v. SINGING RIVER HOSPITAL, Dr. Atkinson Winans Longmire, Dr.

James Spurgeon Weatherall, Emergency Room Group,

Ltd., Singing River Hospital System

Board of Trustees and its

Members.

Helen WOMBLE, By and Through Her Father, David HAVARD and on Behalf of the Heirs of Helen Womble v. Dr. Wallace E. CALHOUN.

Nos. 90-CA-40, 90-CA-934.

Supreme Court of Mississippi.

March 25, 1993.

Rehearing Denied June 10, 1993.

Specially Concurring Opinion by Presiding Justice Dan M. Lee

on Denial of Rehearing June 10, 1993.

Margaret P. Ellis, Kitchens & Ellis, Pascagoula, for appellant Womble.

James H. Heidelberg, Colingo Williams Heidelberg Steinberger & McElhaney, James W. Backstrom, John A. Banahan, Bryan Nelson Allen Schroeder & Backstrom, Pascagoula, for appellees Singing River Hosp. et al.

Robert C. Galloway, Galloway & Galloway, Gulfport, for appellee Calhoun.

En Banc.

BANKS, Justice, for the Court:

This is a consolidated appeal from two wrongful death actions arising out of the death of Helen Womble at the Singing River Hospital in Pascagoula on April 11, 1986. A single action was originally brought by the heirs of Helen Womble in the Jackson County Circuit Court. It named as defendants Singing River Hospital, the Singing River Hospital Board of Trustees, Dr. Clyde Gunn, and Singing River Hospital Emergency Room Physicians and Nurses (John Does 1-5). Subsequently, plaintiffs amended their pleadings to join the members of the Board of Trustees in their official capacities. They were also allowed to substitute Dr. Spurgeon Weatherall, Dr. Atkinson Winans Longmire, Emergency Room Group, Ltd., and Dr. Wallace Calhoun in place of the John Doe Defendants. In the interest of fairness, the trial judge believed it was necessary to bifurcate the proceedings and set a second, postponed trial date for the defendant last added to this action--Dr. Wallace Calhoun.

Eventually summary judgments were entered on varying grounds for all of the defendants brought into this matter, except Dr. Clyde Gunn. Singing River Hospital and its collective board of trustees were awarded summary judgments on the Upon review, we affirm the entries of summary judgment in favor of Singing River Hospital, the Singing River Hospital Board of Trustees, the members of the Singing River Hospital Board of Trustees, and Dr. Calhoun. We find that statutory governmental immunity protects Singing River Hospital, its collective board of trustees, and the members of the board of trustees. The claim against Dr. Calhoun is barred by the running of the statutory period of limitations. We therefore need not address the propriety of the Rule 12(b)(6) dismissal entered in his favor. We reverse the summary judgments entered for Dr. Longmire, Dr. Weatherall, and Emergency Room Group, Ltd. and remand the actions against them to the Jackson County Circuit Court for further proceedings consistent with this decision. We do not find them shielded from liability by qualified immunity, and we do not find the actions against them time barred.

ground that they were shielded from suit by governmental immunity. The individual members of the board of trustees were granted summary judgment on the ground of qualified immunity. Dr. Longmire, Dr. Weatherall, and Emergency Room Group, Ltd. were granted summary judgments each on the alternative grounds of time bar and qualified immunity. Dr. Calhoun received a summary judgment based on time bar. He also received a 12(b)(6) dismissal for failure of the plaintiffs to state a claim against him. Ms. Womble's heirs have appealed to this court contesting each entry of summary judgment made by the trial judge and the 12(b)(6) dismissal granted to Dr. Calhoun.

Facts

On March 29, 1986, Helen Womble went to the emergency room at Singing River Hospital, complaining of pain in her abdomen. She was examined by a physician in the emergency room, given medication, and discharged. Later discovery would show that the attending physician on that night was Dr. Spurgeon Weatherall. Ms. Womble presented herself again at the Singing River emergency room on the next night, March 30, 1986, with the same basic complaints. She was examined by another physician and was again sent home. Subsequent discovery would show that doctor was Dr. Atkinson Winans Longmire. Ms. Womble returned to Singing River Hospital the following morning, March 31, 1986. This time she was examined at approximately 9:00 a.m. by her personal physician, Dr. Wallace Calhoun, who had been called in. Dr. Calhoun had Ms. Womble admitted into the hospital, prescribed medication for her, and ordered various laboratory tests to be run on her. The tests included an X-ray, which was not read by Dr. Calhoun until much later that evening. Dr. Calhoun ordered a change of pain medication for the patient that afternoon. He examined Ms. Womble again that evening around 8:30 p.m., and he immediately called in Dr. Clyde Gunn, a surgeon, to examine the patient. It was determined that Ms. Womble had gone into shock. She was thereafter immediately rushed into surgery, where Dr. Gunn found her to be suffering from gangrene of the small intestines. Dr. Gunn proceeded to remove approximately six feet of Ms. Womble's small intestine.

Ms. Womble was thereafter placed in the intensive care unit. Her condition showed increasing signs of improvement until April 6, 1986. Her condition deteriorated steadily from that point onward. Ultimately, emergency procedures were necessitated for her on April 11, 1986. They were performed by another physician covering for Dr. Gunn, who was out of town. Ms. Womble died near 10:30 that night.

On March 28, 1988, the plaintiffs/appellants, the heirs of Helen Womble, by and through her father, David Havard, filed a wrongful death action against Singing River Hospital (hereinafter "SRH"), the SRH Board of Trustees, Dr. Clyde Gunn, and SRH Emergency Room Physicians and Nurses (John Does 1-5). Appellants alleged these John Doe Defendants to be unknown at that time. Appellants alleged that all defendants had committed various acts of negligence which had led to Ms. Womble's death. They also alleged that the hospital was liable for breach of a contract for treatment that it had with the On September 2, 1988, the trial judge entered an order staying the proceedings in this action due to other proceedings in the bankruptcy court regarding Dr. Charles Stroble, one of the members of the SRH Board of Trustees. On December 1, 1988, that stay was lifted, after a finding by the bankruptcy court that Dr. Stroble was not a proper party to the instant action. It was found that Dr. Stroble was not a member of the SRH Board of Trustees at the time of Helen Womble's alleged injuries.

decedent and for breach of warranty. On August 1, 1988, the plaintiffs filed a motion to amend their complaint to add as defendants certain Emergency Room Physicians that the plaintiffs had become aware of by name and the individual members of the SRH board of trustees in their official capacities.

On December 3, 1988, plaintiffs filed an amended complaint bringing in Dr. Atkinson Winans Longmire, Dr. Spurgeon Weatherall, Emergency Room Group, Ltd. and the members of the board of trustees in their official capacities. Emergency Room Group, Ltd. is a corporation comprised of all the emergency room physicians at SRH, including Doctors Longmire and Weatherall. Emergency Room Group, Ltd. had been contracted with by SRH to provide emergency room physician care at the hospital. In September 1989 plaintiffs moved to amend their complaint to join Dr. Wallace Calhoun into this suit. They were aware that Dr. Calhoun had seen Helen Womble on March 31, 1986, but they claimed that they had had no reason to suspect any negligence on Doctor Calhoun's part until Dr. Gunn indicated in his deposition in June 1986 that Ms. Womble may have stood a higher chance of survival had some method been used to diagnose her illness and bring in a surgeon earlier. Appellants were allowed to add Dr. Calhoun on November 7, 1989, as one of the John Doe Defendants.

Ultimately, the Jackson County Circuit Court granted summary judgment to SRH and its collective board of trustees on the ground of governmental immunity. The members of the SRH Board, who were sued in their official capacities, were each granted summary judgment based on qualified immunity. Dr. Longmire, Dr. Weatherall, and Emergency Room Group, Ltd. were each granted summary judgment based on the alternative grounds that they had qualified immunity and that the applicable two-year statute of limitations had run before they were joined into this suit. Dr. Calhoun was granted summary judgment based on the statute of limitations. In the alternative, he was granted a 12(b)(6) motion for the plaintiffs' failure to state a claim against him. It is from the entry of those summary judgments and the 12(b)(6) dismissal in favor of Dr. Calhoun that Ms. Womble's heirs now appeal to this court.

I. Governmental Immunity

Appellants, the heirs of Helen Womble, first contend that the trial court erred in granting summary judgment to the hospital and board of trustees on the basis of governmental immunity. More precisely, the appellants submit that genuine issues of material fact exist regarding whether the hospital and its board of trustees had waived their immunity under Mississippi Code Ann. Sec. 41-13-11 (1972), and that consequently summary judgment was inappropriately entered by the circuit court in favor of these defendants. Singing River Hospital and its board of trustees counter that no factual circumstances exist that could reasonably be determined to constitute a waiver. For this reason, they contend that the circuit court properly entered a summary judgment in their favor on the ground of governmental immunity.

It is a well-established principle under Mississippi law...