Wright v. Quesnel

• Citation: 876 So.2d 362
• Decision Date: 01 July 2004
• Docket Number: No. 2002-CA-00385-SCT.,2002-CA-00385-SCT.
• Parties: Regina WRIGHT v. George QUESNEL, M.D., and South Panola Community Hospital.
• Court: Mississippi Supreme Court

876 So.2d 362

Regina WRIGHT v. George QUESNEL, M.D., and South Panola Community Hospital.

No. 2002-CA-00385-SCT.

Supreme Court of Mississippi.

July 1, 2004.

William C. Walker, Jr., Jackson, attorney for appellant.

Shelby Kirk Milam, S. Duke Goza, Oxford, attorneys for appellees.

EN BANC.

WALLER, Presiding Justice, for the Court:

¶ 1. Regina Wright filed suit against George Quesnel, M. D., and South Panola Community Hospital for the death of her unborn child, alleging that Dr. Quesnel failed to make proper diagnoses and order proper treatment and that SPCH was also liable due to respondeat superior. The circuit court granted Dr. Quesnel and SPCH's a motion for summary judgment based on immunity under the Mississippi Tort Claims Act (MTCA). Miss.Code Ann. §§ 11-46-1-23 (Rev.2002). We affirm.

FACTS

¶ 2. Dr. Quesnel was the exclusive provider of obstetric and gynecological services at SPCH, a public hospital which is a "governmental entity" under the MTCA. Dr. Quesnel was Wright's obstetrician and treated Wright from her first trimester of pregnancy forward. Eight months into her pregnancy, Wright presented to Dr. Quesnel with high blood pressure and possible pre-eclampsia.¹ Dr. Quesnel did not hospitalize Wright but sent her home for bed rest. Wright saw Dr. Quesnel again three days later, and was again ordered to bed rest. Three days later, Wright again saw Dr. Quesnel, this time with severe pain that began early that morning at home. Dr. Quesnel determined that the fetus had died in her womb.

¶ 3. After motions for summary judgments were filed, the circuit court ruled that, based on the employment contract between Dr. Quesnel and SPCH, and on the fact that Dr. Quesnel received compensation only from SPCH, Dr. Quesnel was a full-time SPCH employee and was shielded from liability under the MTCA.² Wright appeals.

STANDARD OF REVIEW

¶ 4. We review summary judgment rulings de novo. Miller v. Meeks, 762 So.2d 302 (Miss.2000). A summary judgment motion is properly granted when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id. at 304; Miss. R. Civ. P. 56(c). The moving party has the burden of demonstrating that no genuine issues of material fact exist. The trial court must review all evidentiary matters before it in the light most favorable to the non-moving party. Id. Where one party swears to one version of the matter at issue, and the other another version, issues of fact can be present sufficient to bar summary judgment. Id. (citing American Legion Ladnier Post No. 42, Inc. v. City of Ocean Springs, 562 So.2d 103, 106 (Miss.1990)). As we have stated,

An issue of fact may be present where there is more than one reasonable interpretation of undisputed testimony, where materially different but reasonable inferences may be drawn from uncontradicted evidentiary facts, or when the purported establishment of the facts has been sufficiently incomplete or inadequate that the trial judge cannot say with reasonable confidence that the full facts of the matter have been disclosed.

Id. at 305 (citing Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984)). Indeed, where we find triable issues, we must reverse a summary judgment.

DISCUSSION

I. WHETHER DR. QUESNEL WAS AN EMPLOYEE OF SPCH AT ALL TIMES PERTINENT TO THE COMPLAINT, THUS AFFORDING HIM IMMUNITY UNDER THE MTCA.

¶ 5. The circuit court found that at the time of the alleged negligence, Dr. Quesnel was an employee of the state of Mississippi under Miss.Code Ann. § 11-46-5 (Rev.2002). Wright contends that, despite SPCH's employment contract with Dr. Quesnel in which he is defined as an SPCH employee, SPCH held itself out to the public via its "Conditions of Admission Form" as not being Dr. Quesnel's employer. Due to the conflict between the form and the contract, she argues an issue of fact exists as to Dr. Quesnel's employment status.

¶ 6. We find that the circuit court correctly decided that Dr. Quesnel was an employee of SPCH at the time of the alleged negligence. In its answer, SPCH admitted that Dr. Quesnel was its employee during all times pertinent to the allegations of the complaint. A third party such as Wright cannot say that the legal effect of a contract between two other parties (SPCH and Dr. Quesnel) is different from that intended by the two other parties unless the third party can show that the contract was made for his or her benefit. Burns v. Washington Savs., 251 Miss. 789, 171 So.2d 322, 324 (1965). Here, the benefits of the employment contract flow to SPCH and Dr. Quesnel only, not to Wright. No material issue of fact exists.

¶ 7. Also, in determining whether a physician is a state employee, we have looked past form (titles, Conley v. Warren, 797 So.2d 881 (Miss.2001), malpractice insurance, Knight v. McKee, 781 So.2d 121, 123 (Miss.2001), practice plans, Mozingo v. Scharf, 828 So.2d 1246 (Miss.2002), etc.), to the substance of the physician's relationship with the state hospital. The factors we consider are the physician's acts, the state hospital's interest in the physician's acts, the state hospital's control over the physician's acts, whether the physician's acts involved judgment and discretion, and whether the physician received compensation from the patient. See Miller v. Meeks, 762 So.2d 302, 310 (Miss.2000). The Miller factors are more than sufficient to determine the status of physicians working for state hospitals, and that SPCH's disclaimer of liability for Dr. Quesnel's acts does not change the legal status of Dr. Quesnel, especially when SPCH has admitted that Dr. Quesnel was its employee.

II. WHETHER WRIGHT COMPLIED WITH THE NOTICE PROVISIONS OF THE MTCA.

¶ 8. Under the MTCA,

After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity.

Miss.Code Ann. § 11-46-11(1) (Rev.2002). Plaintiffs must substantially comply with the notice provisions. See Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999); Reaves ex rel. Rouse v. Randall, 729 So.2d 1237 (Miss.1998). While a plaintiff need only substantially comply with the MTCA notice statute, "we can hardly afford relief under the [MTCA] when there is no effort to comply with the procedural mandates." Little v. Miss. Dep't of Human Servs., 835 So.2d 9, 12-13 (Miss.2002) (emphasis added). That is, "[t]hough substantial compliance with the notice provisions is sufficient, `substantial compliance is not the same as, nor a substitute for, non-compliance.'" Gale v. Thomas, 759 So.2d 1150, 1158 (Miss.1999) (quoting Carr v. Town of Shubuta, 733 So.2d 261, 265 (Miss.1999)).

¶ 9. Wright's child died on August 26, 1999. She filed her notice of claim with SPCH on May 24, 2001. She filed her complaint against SPCH on June 4, 2001, eleven days after filing her notice of claim. SCPH argued in its motion for summary judgment that Wright failed to comply with the MTCA notice provisions. The circuit court determined that Wright had failed to comply with those provisions. It is clear that, although strict compliance with the MTCA notice provisions is no longer required, a complete failure to comply is not the same as substantial compliance. Wright filed a notice of claim but did not wait the statutorily-prescribed ninety day period before filing suit. Allowing a plaintiff to file suit before ninety days have passed since noticing the claim is tantamount to reading out the notice provisions of the MTCA. Gross disregard for the notice provisions is not considered substantial compliance.

¶ 10. The MTCA provides for a one-year statute of limitations. Miss.Code Ann. § 11-46-11 (Rev.2002). That statute of limitations is, however, subject to a discovery rule. Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1000 (Miss.2004). The discovery rule tolls 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. at 1000-01 (quoting Moore ex rel. Moore v. Mem'l Hosp. of Gulfport, 825 So.2d 658, 667 (Miss.2002)). But to benefit from the discovery rule, a plaintiff must be reasonably diligent in investigating her injuries. Wayne Gen. Hosp., 868 So.2d at 1001. We have recognized that "[t]he 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." Id. (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986)).

¶ 11. In Wayne General, Wa'Landra Hayes was admitted for observation at Wayne General Hospital, a community hospital for purposes of the MTCA. 868 So.2d at 999, 1003-04. Wa'Landra was subsequently transferred to the University of Mississippi Medical Center for treatment. Id. at 999. The UMMC doctors determined that Wa'Landra needed a peritoneal dialysis catheter and performed the procedure. Id. Her bowels were perforated, which resulted in peritonitis, and a serious infection developed in Wa'Landra's bloodstream. Id. Wa'Landra's death certificate listed sepsis as a cause of death. Id. Wanda Hayes subsequently met a former employee of Wayne General Hospital who allegedly witnessed negligent treatment of Wa'Landra while at the hospital. Id. As a result of this "chance meeting," Wanda filed suit. Id.

¶ 12. We concluded that the plaintiffs in Wayne General, at the 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." Id. at 1001. Because the death...