Helen Grimes v. James Warrington, Jr. ( 2006 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2006-CA-01926-SCT
THE ESTATE OF JOHN GRIMES, BY AND
THROUGH HIS WIFE AND NEXT FRIEND,
HELEN GRIMES, ON BEHALF OF THE
WRONGFUL DEATH BENEFICIARIES
v.
DR. JAMES WARRINGTON, JR.
DATE OF JUDGMENT: 10/09/2006
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: GEORGE F. HOLLOWELL, JR.
ATTORNEYS FOR APPELLEE: LONNIE D. BAILEY
TOMMIE G. WILLIAMS
CHRISTOPHER WAYNE WINTER
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND REMANDED - 02/21/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE SMITH, C.J., CARLSON AND RANDOLPH, JJ.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. This case comes to this Court on appeal from the Circuit Court of Bolivar County by
Plaintiff Helen Grimes. Grimes filed a wrongful-death action against Dr. James Warrington,
Jr., alleging his medical malpractice resulted in the death of her husband, John Grimes. After
more than five years of litigation, the trial court granted Dr. Warrington summary judgment
on the theory that he was entitled to immunity from suit pursuant to the Mississippi Tort
Claims Act (MTCA). From this ruling, Plaintiff appeals. We hold that while the trial judge
was correct that Dr. Warrington is entitled to immunity, summary judgment was improper,
as Dr. Warrington’s unreasonable delay waived this affirmative defense. We therefore
reverse the judgment of the trial court and remand for trial.
FACTS AND PROCEDURAL HISTORY
¶2. John Grimes, accompanied by his wife Helen, sought medical treatment at the
Cleveland Medical Alliance (CMA) clinic on August 7, 2000, complaining of pain in his
right side and abdomen. Dr. James Warrington, Jr. examined Grimes and concluded that the
pain he was experiencing was associated with a fall that occurred on August 4. Dr.
Warrington prescribed medication for inflammation and pain.
¶3. The next day, after Grimes’s condition did not improve, Helen took him to the
emergency room at the Bolivar Medical Center, where Dr. John W. Lewis examined and
admitted him. Grimes underwent surgery on August 10, after being diagnosed with a
perforated gallbladder, cholelithiasis, cholecystitis, and choledocholithiasis. He was then
placed in the intensive care unit. On August 13, Grimes died while still at Bolivar Medical
Center.
¶4. On June 4, 2001, Helen Grimes brought suit against Dr. Warrington in the Circuit
Court of Bolivar County on behalf of the Estate of John Grimes and all wrongful-death
beneficiaries, alleging that Dr. Warrington’s negligent failure to test and properly diagnose
Grimes on August 7 later caused his death. Dr. Warrington answered the Complaint on June
27, 2001, and asserted in his seventh affirmative defense that as an employee of CMA, a
“subsidiary” of Greenwood-Leflore Hospital (GLH), he was entitled to tort immunity
pursuant to the MTCA.
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¶5. For the next five years, the parties propounded and answered discovery, conducted
a number of depositions, designated experts, and Dr. Warrington filed a motion in limine in
preparation for the third and final trial setting of October 16, 2006. On August 3, 2006, Dr.
Warrington moved for summary judgment solely on the ground that he was entitled to
immunity as an employee of an entity covered by the MTCA. Mrs. Grimes responded to the
motion on August 17, 2006, and argued that the MTCA did not cover CMA and its physician
employee Dr. Warrington, and alternatively that this defense was waived by Dr.
Warrington’s failure to pursue it over the past five years.
¶6. The parties conducted a hearing on the motion on August 21, 2006. On October 5,
2006, this Court handed down its opinion in Bolivar Leflore Medical Alliance, LLP v.
Williams, 938 So. 2d 1222 (Miss. 2006). Relying on this opinion, the trial court granted
summary judgment to Dr. Warrington on October 12, 2006. Mrs. Grimes filed a Notice of
Appeal on November 6, 2006.
¶7. The following issues were raised on appeal:
I. Whether CMA is entitled to the protections, limitations and
immunities of the MTCA.
II. Whether Dr. Warrington waived the MTCA affirmative defense
due to unreasonable delay.
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DISCUSSION
¶8. It is well-settled that this Court applies a de novo standard of review to the grant or
denial of summary judgment by a trial court. Jones v. Fluor Daniel Servs. Corp., 959 So.
2d 1044, 1046 (Miss. 2007); Leffler v. Sharp, 891 So. 2d 152, 156 (Miss. 2004). Considered
in the light most favorable to the nonmoving party, if there are no genuine issues of material
fact, and the moving party is entitled to judgment as a matter of law, summary judgment is
appropriate. Miss. R. Civ. P. 56(c); Fluor Daniel, 959 So. 2d at 1046; Russell v. Orr, 700
So. 2d 619, 622 (Miss. 1997).
I. Whether CMA is entitled to the protections, limitations and
immunities of the MTCA.
¶9. The Mississippi Tort Claims Act (MTCA), codified at Mississippi Code Annotated
Section 11-46-1 et seq., provides that “political subdivisions . . .[including any] community
hospital as defined in 41-13-10 . . . or other instrumentality thereof” are covered by the Act.
Furthermore, employees of these political subdivisions are covered by the Act when acting
within the course and scope of their employment.1 See Miss. Code Ann. § 11-46-5 (Rev.
2002).
¶10. The parties do not dispute that GLH is a “community hospital” within the definition
of “political subdivision” pursuant to Section 11-46-1(i). Further, the parties do not dispute
that Dr. Warrington is an “employee” of CMA. The issue before this court is whether CMA
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If, however, an employee’s conduct constituted fraud, malice, libel, slander,
defamation, or any criminal offense other than a traffic violation, such conduct will not be
considered as action in the course and scope of employment. See Miss. Code Ann. § 11-
46-5(2) (Rev. 2002).
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is entitled to the protections, limitations and immunities of the MTCA as an “instrumentality”
of GLH. If CMA is such an instrumentality, then the procedural and substantive provisions
of MTCA would apply, ultimately barring suit against Dr. Warrington in his personal
capacity. To be in compliance with the MTCA, Grimes would have had to sue CMA,
joining Dr. Warrington under Section 11-46-7(2) in his representative capacity only, and to
have provided the requisite ninety-day notice pursuant to Section 11-46-11(1). Because
Grimes did not pursue her claims in this manner, her lawsuit would have to be dismissed,
with any refiling barred by the statute of limitations.
¶11. As previously mentioned, this Court recently decided a case which is nearly identical
to the facts at bar. In Bolivar Leflore Medical Alliance, LLP v. Williams, 938 So. 2d 1222
(Miss. 2006) (hereinafter “BLMA”), this Court examined a partnership agreement between
GLH (the same community hospital at issue here) and the Bolivar Leflore Medical Alliance
(BLMA). This Court reviewed the applicability of the MTCA to BLMA to determine if the
Act’s venue provisions were triggered. Id. at 1224-1225. In BLMA, the plaintiffs sued a
physician-partner for medical malpractice causing the wrongful death of their child. Id. at
1223. In determining BLMA was an instrumentality of GLH entitled to tort immunity, this
Court reviewed the partnership agreement between GLH and the physician-partners of
BLMA. Id. We noted that GLH maintained a ninety-eight percent interest in the
partnership, that the division of net income and losses mirrored the percentage of interest,
and that the business affairs of BLMA were controlled by an executive committee comprised
of two representatives from GLH and one physician-partner. Id. Because GLH maintained
control of BLMA, this Court found that BLMA was “an ‘instrumentality’ of GLH,’ and
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accordingly entitled to the protections, limitations, and immunities of the MTCA.” Id. at
1232.
¶12. Like BLMA, CMA is a partnership comprised of physician-partners and GLH. In
August 2000, when Grimes sought treatment, CMA was comprised of four physician-
partners, each holding a one percent ownership interest and GLH holding the remaining
ninety-six percent. The partnership agreement between GLH and the physician partners of
CMA is nearly identical to the partnership agreement at issue in BLMA. Grimes asserts that
there are differences between the two agreements which represent the CMA physicians’
desire to control their practice more than those in BLMA, and therefore application of the
BLMA analysis is foreclosed.
¶13. First, Grimes contends that the partnerships (and their agreements) are materially
different because they were formed for different reasons. Grimes points to an argument
made by the BLMA defendants that the BLMA partnership was “created to assist GLH in
performing its legitimate purpose of providing health care services to the public.” Id. at
1231. Grimes then points to the partnership agreement for CMA, which says CMA’s
purpose and scope is “to engage in any type of business in any jurisdiction a general
partnership could engage in.” Notwithstanding this proffered difference, the “purpose and
scope” to which Grimes refers comes from section 1.05 of the CMA agreement regarding the
purpose of the partnership. That section is identical to section 1.05 of the BLMA agreement
stating the same purpose. The logical comparison is between CMA’s purpose section (1.05)
and any purpose section in the BLMA agreement, and not between CMA’s section 1.05 and
a statement made by a party in another action. There is no difference between the stated
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purpose of the of the CMA partnership and the stated purpose of the partnership agreement
at issue in BLMA.
¶14. Grimes next points to a number of differences in the language of the partnership
agreements, the end result of which, she argues, illustrates that the physicians maintained
control of the partnership in a way that forecloses application of BLMA. First, Grimes
argues that CMA’s executive committee, although made up of two GLH representatives and
one physician-partner just like that of BLMA, is different because unanimous consent of the
committee is required for certain transactions of the partnership, whereas in the BLMA
agreement, a two-thirds majority vote was needed. Grimes concludes that GLH could control
certain decisions of BLMA because it had majority membership of the board, while here it
cannot do so without the consent of the physician-partner. While this is indeed a difference,
Grimes does not persuade this Court that GLH has, in reality, any less control over CMA
than it did over BLMA.
¶15. In 2005, the Mississippi Court of Appeals was faced with a similar quandary in
Allstadt v. Baptist Memorial Hospital, 893 So. 2d 1083, when it considered whether or not
a contract (which, on its face, granted control to a third party) divested the hospital of its
status as a “community hospital” and therefore of its MTCA protection. The contract granted
the third party the “authority and responsibility to conduct, supervise, and manage the day-to-
day operations of the hospital . . . .” Id. at 1084. The Court of Appeals stated, “[d]espite the
language in the contract, Tippah County retained ultimate control over the operation of the
hospital and management decisions” and therefore retained its status as a “community
hospital and its MTCA protection.” Id. at 1086 (emphasis added).
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¶16. Just as in BLMA and Allstadt, ultimate control in the present case remained in the
hands of the community hospital. First, GLH maintained majority membership of the
executive committee. CMA could not take any action nor make any decision without the
approval of GLH. Second, GLH maintained the vast majority interest of CMA, ninety-six
percent at the time Grimes sought treatment. “[L]egislative intent and purpose of liberal
construal are best supported by” granting MTCA protection. BLMA, 938 So. 2d at 1232.
¶17. Grimes also argues that BLMA is not controlling because the physicians at CMA were
permitted to engage in other work more than seventy-five miles outside of Cleveland,
Mississippi, while the physicians at BLMA were restricted from such activity. To the
contrary, the physicians at BLMA enjoyed the same freedom, the BLMA physician
employment agreement including virtually the same statement regarding employment outside
a seventy-five mile radius.
¶18. Next, Grimes asserts that BLMA is not controlling because Dr. Warrington testified
that he was not aware that he had any admitting privileges at GLH and that he was not on
staff at GLH. Notwithstanding what Dr. Warrington knew or did not know, the BLMA and
CMA physician employment agreements contained identical “general qualifications”
provisions which stated: “Employee shall maintain privileges and membership on the active
medical staff of Bolivar County Hospital and will make application for privileges and
maintain membership on the courtesy staff of Greenwood-Leflore Hospital. . . .”
¶19. Grimes then suggests that BLMA is not applicable because the CMA physicians
shared ninety percent of the profits of the clinic, and GLH received ten percent, but only after
the physicians collected more than fifty percent of what was collected from the patients.
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While this appears to be an argument stating that the profit-loss arrangements are different
in the two cases, both the CMA and BLMA partnership agreements provided that physicians
would be compensated according to a certain percentage of their collections, and that as
partners, each would share in the profits and losses of the clinic.
¶20. In sum, the rationale this Court used in finding BLMA to be a political subdivision
of GLH applies to the case at bar. Grimes’s attempts to distinguish the partnership
agreements are unpersuasive. While it is true that some decisions of the CMA partnership
required unanimous consent of the executive committee, this did not strip GLH of its ultimate
control over the instrumentality. Therefore, this Court conclusively finds that CMA is an
“instrumentality” of GLH. As an “instrumentality,” CMA is entitled to the protections,
limitations and immunities of the MTCA. As an employee of CMA, Dr. Warrington is
therefore entitled to the protections of the MTCA.
II. Whether Dr. Warrington waived the MTCA affirmative defense
due to unreasonable delay.
¶21. Grimes argues that, regardless of whether CMA is found to be an instrumentality of
GLH entitling Dr. Warrington to the protections of the MTCA, Dr. Warrington waived this
affirmative defense due to unreasonable delay. Dr. Warrington argues that the delay was not
unreasonable, and, alternatively, that waiver of tort immunity is a function of the Legislature
and cannot be effected by the judiciary.
¶22. In East Mississippi State Hospital v. Adams, 947 So. 2d 887 (Miss. 2007), defendants
sought to dismiss an action for insufficient process and service of process. Defendants raised
the defense properly and timely in their answer, but their failure to pursue the defense,
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together with their active participation in litigation, served as a waiver. Id. “A defendant’s
failure to timely and reasonably raise and pursue the enforcement of any affirmative defense
or other affirmative matter or right which would serve to terminate or stay the litigation,
coupled with active participation in the litigation process, will ordinarily serve as a waiver.”
Id. at 891 (quoting Miss. Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 181 (Miss. 2006)).
¶23. In Horton, we held that the defendants’ unreasonable delay (for eight months) waived
their right to compel arbitration. Id. at 180-181. This Court advised that to pursue an
affirmative defense meant to plead it, bring it to the court’s attention, and request a hearing.
Id. at 181.
¶24. This Court considers MTCA immunity as an affirmative defense. See City of
Ellisville v. Richardson, 913 So. 2d 973, 975 (Miss. 2005); Lumberman’s Underwriting
Alliance v. City of Rosedale, 727 So. 2d 710, 712 (Miss. 1998); Dixon v. Singing River
Hosp. Sys., 632 So. 2d 951, 952 (Miss. 1991). Under this Court’s holding in Adams, Dr.
Warrington would be required to pursue the defense of tort immunity as he would any other
affirmative defense or risk losing it.
¶25. In the case at bar, Grimes filed her Complaint on June 4, 2001. Dr. Warrington filed
a timely Answer and did assert as his seventh affirmative defense that he was entitled to tort
immunity by the MTCA. After answering the complaint, however, Dr. Warrington did
nothing to argue or even assert immunity until August 3, 2006, when he moved for summary
judgment solely on this defense.
¶26. Dr. Warrington offers no explanation as to why he did not move the lower court for
summary judgment until August 2006. He offers no evidence that any information needed
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to assert this affirmative defense was not available to him from the inception of the litigation.
In the period from June 17, 2002, to his summary judgment motion on August 3, 2006, the
case was set and twice reset for trial, experts were designated and deposed on the merits of
the negligence claim, and Dr. Warrington filed a motion in limine to exclude part of Grimes’s
expert’s testimony. All of this was an unnecessary and excessive waste of the time and
resources of the parties and the court if Dr. Warrington had been immune from tort liability
since the moment the Complaint was filed.
¶27. Just as in Adams, Dr. Warrington asserted his affirmative defense in his answer, but
rather than filing a motion to dismiss on this ground, he proceeded substantially to engage
the litigation process by consenting to a scheduling order, participating in written discovery,
and conducting depositions. This Court finds that Dr. Warrington’s failure actively and
specifically to pursue his MTCA affirmative defense while participating in the litigation
served as a waiver of the defense.
CONCLUSION
¶28. This Court’s holdings in BLMA and Adams govern here. Under BLMA, Dr.
Warrington was entitled to the MTCA immunity as an employee of a community hospital’s
instrumentality. However, because he unreasonably delayed more than five years in pursuing
this defense and actively participated in discovery on the merits, he has waived this defense
under Adams. Accordingly, we reverse the trial court’s grant of summary judgment and
remand this case for trial on the merits.
¶29. REVERSED AND REMANDED.
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WALLER, P.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR,
JJ., CONCUR. DIAZ, P.J., AND GRAVES, J., CONCUR IN RESULT ONLY.
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