Forest Hill Nursing Center, Inc. v. Frederica Brister

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2006-IA-00364-SCT
CONSOLIDATED WITH
NO. 2006-IA-00420-SCT
FOREST HILL NURSING CENTER AND LONG
TERM CARE MANAGEMENT, LLC
v.
FREDERICA BRISTER, CONSERVATOR OF
WILLIE McKEE, AS PERSONAL
REPRESENTATIVE OF PEARL HENRY,
DECEASED, AND ON BEHALF OF THE
WRONGFUL DEATH BENEFICIARIES OF PEARL
HENRY, DECEASED
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 02/13/2006
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: MARJORIE SELBY BUSCHING
STEVEN MARK WANN
HEATHER M. ABY
ATTORNEYS FOR APPELLEE: GIGI GIBSON
CHARLES E. GIBSON, III
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND RENDERED - 10/23/2008
MOTION FOR REHEARING FILED: 12/05/2007
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. The motion for rehearing is granted. The previous order dismissing these
interlocutory appeals is vacated and these opinions are substituted therefor.
¶2. In these medical-negligence/wrongful-death cases, the Hinds County Circuit Court
denied Dr. Timothy Estes’s motion to dismiss which asserted that the plaintiff failed to
comply with Mississippi Code Annotated Sections 15-1-36(15) (Rev. 2003) and 11-1-58(1)
(Supp. 2007). Dr. Estes filed with this Court two separate petitions for interlocutory appeal
based on two separate actions pending in the trial court. One of these petitions for
interlocutory appeal was joined by Forest Hill Nursing Center and Long Term Care
Management, LLC. This Court entered an en banc order granting the petitions for
interlocutory appeal and consolidating these two causes for appeal purposes. In due course,
the plaintiff, asserting that the parties to the original interlocutory appeals had been
dismissed, filed a motion to dismiss the interlocutory appeals as to Forest Hill and Long
Term Care. Notwithstanding this Court’s previous en banc order granting the petitions for
interlocutory appeal which had been joined by Forest Hill and Long Term Care, this Court
subsequently entered an en banc order on November 29, 2007, dismissing the interlocutory
appeals as to Forest Hill and Long Term Care on the basis of an alternative argument
concerning an alleged untimely joinder on the part of Forest Hill and Long Term Care. From
this order dismissing their appeals, Forest Hill and Long Term Care filed a motion for
rehearing, which we today grant.
¶3. We now vacate this Court’s en banc order dismissing these consolidated appeals as
to Forest Hill and Long Term Care. Considering the merits of the issues raised on appeal,
we reverse the Hinds County Circuit Court’s orders denying the motion to dismiss the
2
plaintiff’s complaint for failure to comply with Mississippi Code Annotated Sections 15-1-
36(15) and 11-1-58(1), and render judgment here in favor of Forest Hill and Long Term
Care.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶4. The procedural history of today’s case spans the course of several years. While we
will set out only so much of the facts and procedural history of this case as is necessary for
a full understanding of the issues before the Court, admittedly, our recitation here is still
fairly lengthy, based on the procedural posture of this case. Pearl Henry passed away on July
31, 2001. On June 11, 2002, Willie McKee filed a complaint in the Circuit Court for the
First Judicial District of Hinds County, as personal beneficiary of Pearl Henry, deceased, for
her wrongful death. The complaint named as defendants Forest Hill Nursing Center, Inc.,
f/k/a Crawford Nursing Home, Rhonda Bounds, Verna Ball Cook, and John Does 1-10.
¶5. On July 25, 2003, McKee filed another complaint1 against Forest Hill.2 Forest Hill
filed a motion to dismiss on August 22, 2003, asserting that McKee had failed to comply
with Mississippi Code Annotated Section 15-1-36(15) in that no notice was given before
filing suit, and that McKee likewise had failed to comply with Mississippi Code Annotated
Section 11-1-58(1) in that no expert consultation certificate was attached to the complaint
1
The June 11, 2002, complaint and summons were never served.
2
This lawsuit was filed against Forest Hill Nursing Center, Scott Lindsey as
Administrator, and John Does 1-26. For the sake of clarity, we will refer to the defendants
collectively as “Forest Hill.”
3
at the time of its filing. On September 15, 2003, McKee filed a Response to the Defendants’
Motion to Dismiss, arguing that because Henry died on July 31, 2001, before the enactment
of these statutes, notice was not required. The plaintiff, through counsel, admitted not giving
notice. Additionally, because McKee “obtained counsel shortly before the expiration of the
statute of limitations, counsel for the Plaintiff filed suit in haste . . . before the Plaintiff’s
right to sue expired.” Thus, counsel for McKee admitted that no expert consultation
certificate was attached to the complaint and argued that the plaintiff had sixty days from the
date of filing suit to supplement the certificate of consultation.
¶6. On September 15, 2003, counsel for McKee filed a Certificate of Consultation,
asserting that counsel “was unable to obtain the consultation required . . . because a
limitation of time established by Section 15-1-36 would bar the action and that the
consultation could not reasonably be obtained before such time expired.” Forest Hill filed
a Rebuttal in Support of the Motion to Dismiss on September 23, 2003. Counsel for McKee
thereafter filed another Certificate of Consultation on October 3, 2003, again asserting that
he was unable to obtain the expert consultation before the statute of limitations expired, but
likewise asserting that the plaintiff had been unable to timely obtain expert consultation “due
to the refusal of the Defendant to produce the records as alleged in Plaintiff’s original
complaint.” Additionally, in this Certificate, McKee’s counsel stated that he would file a
certificate of consultation within sixty days of receiving the medical records.
4
¶7. Also on October 3, 2003, McKee filed a Motion to Amend First Complaint, asking
the trial court to allow the amendment because the defense had raised the issue of non-
compliance with the Mississippi Medical Malpractice Tort Claims Act but had refused to
allow the plaintiff access to the medical records. On October 6, 2003, the Hinds County
Circuit Court, Judge Winston L. Kidd presiding, entered an order allowing McKee to file a
First Amended Complaint, and McKee thereafter filed this First Amended Complaint on
October 13, 2003. Attached to the amended complaint was a copy of the original complaint
filed on July 25, 2003, and it is obvious from the pleadings that McKee was asserting that
the original complaint filed on July 25, 2003, satisfied the notice requirements of Mississippi
Code Annotated Section 15-1-36. Interestingly, likewise attached to the July 25, 2003,
complaint was a letter from the plaintiff’s counsel to a different medical provider and naming
different parties, asserting a claim pursuant to the Mississippi Tort Claims Act.
¶8. On November 10, 2003, Forest Hill filed a Motion to Dismiss McKee’s First
Amended Complaint, arguing that counsel for McKee “attempted to cure its failure to file
a Certificate of Consultation by attaching one to its Response to the Defendants’ Motion to
Dismiss, instead of having attached the Certificate to the original Complaint, as required by
statute.” On November 20, 2003, counsel for McKee sent a letter to Forest Hill requesting
Pearl Henry’s medical records. Counsel for Forest Hill sent McKee’s counsel a reply dated
November 25, 2003, stating that the records had been sent to another law firm representing
5
McKee on July 24, 2002, but that another copy would be made available. On December 1,
2003, McKee filed a Response to Forest Hill’s Motion to Dismiss First Amended Complaint.
¶9. On April 5, 2005, Judge Kidd entered an order denying Forest Hill’s Motion to
Dismiss McKee’s First Amended Complaint, stating that the notice requirement of
Mississippi Code Annotated Section 15-1-36(15) and the certificate-of-consultation
requirement of Mississippi Code Annotated Section 11-1-58 did not apply because these
statutes were enacted during the 2002 special legislative sessions, subsequent to Henry’s
death on July 31, 2001.
¶10. From Judge Kidd’s order denying Forest Hill’s Motion to Dismiss McKee’s First
Amended Complaint, Forest Hill, on April 8, 2005, filed a Motion for Interlocutory Appeal
in the Hinds County Circuit Court.3 On April 15, 2005, McKee filed a Response to
Defendants’ Motion for Interlocutory Appeal in the Hinds County Circuit Court. On June
5, 2005, McKee filed a Notice of Substitution for the John Does listed and Amendment to
Complaint and all Pleadings. Judge Kidd, on June 7, 2005, entered an order allowing
McKee to substitute known parties for the named John Does.4 On June 15, 2005, a single-
justice order was entered by this Court denying Forest Hill’s Motion for Interlocutory
3
Obviously, pursuant to Mississippi Rule of Appellate Procedure 5(a), this motion for
interlocutory appeal should have been filed with the Clerk of this Court.
4
The following parties were substituted: (1) Robert Crawford, Hugh Franklin, and
A.D. Buffington as owners of Forest Hill Nursing Home; (2) Timothy Estes, M.D., as the
medical director; (3) Judson Williams as the nurse practitioner; (4) Rhonda Bounds and
Verna Cook as the administrators; and (5) Long Term Care Management, LLC, as the
personnel contractor.
6
Appeal on the basis that it was not timely filed pursuant to Mississippi Rule of Appellate
Procedure 5(a).
¶11. On July 6, 2005, Dr. Estes filed a Motion to Dismiss McKee’s complaint on the
grounds that McKee had failed to comply with the notice requirement of Mississippi Code
Annotated Section 15-1-36(15) (Miss. 2003) and had failed to attach the certificate of expert
consultation to the complaint as required by Mississippi Code Annotated Section 11-1-58
(Supp. 2007).
¶12. On July 8, 2005, Forest Hill, Long Term Care, Franklin, and Buffington also filed a
motion to dismiss on the same grounds stated by Dr. Estes. Additionally, these defendants
stated that they had offered Henry’s medical records to McKee, despite the fact that the
records had been given to McKee’s counsel for the 2002 filing of the lawsuit, but that they
had never received an answer from counsel for McKee. Also on July 8, 2005, Rhonda
Bounds filed a motion to dismiss, in which she argued that she was improperly substituted
as a John Doe when counsel for McKee knew of her identity at the time the original lawsuit
was filed in 2002. She also stated the same grounds for dismissal as pleaded by Dr. Estes.
¶13. On July 14, 2005, McKee filed a Response to Dr. Estes’s Motion to Dismiss,
admitting that Dr. Estes was not given notice, but arguing that Mississippi Code Annotated
Section 15-1-36(15) specifically excluded John Does from the notice requirement.
Additionally, McKee argued that Mississippi Code Annotated Section 11-1-58(2) required
only one certificate of consultation, even when other defendants are subsequently named.
7
McKee argued that since he had provided two certificates of consultation before substituting
Dr. Estes, he had met the statutory requirement.
¶14. On July 15, 2005, Judson Williams filed an Answer to McKee’s First Amended
Complaint. On July 18, 2005, McKee filed a Supplemental Response to Dr. Estes’s Motion
to Dismiss and a Response to the Motion to Dismiss of Forest Hill, Franklin, Buffington,
Long Term Care, arguing that because McKee had learned the identities of these parties
“through discovery and other sources,” notice and a certificate of consultation were not
required pursuant to the statutes. On July 20, 2005, McKee filed a Response to Bounds’s
motion to dismiss.
¶15. On July 27, 2005, Robert Crawford filed a Joinder to Dr. Estes’s Motion to Dismiss
and Separate Motion to Dismiss based upon improper substitution of parties and argued that
McKee was not reasonably diligent in ascertaining the identities of the parties when he had
the medical records in 2002. Dr. Estes, on August 4, 2005, filed a Joinder to Crawford’s
Motion to Dismiss. On August 5, 2005, Williams filed a Joinder to Dr. Estes’s Motion to
Dismiss and Crawford’s Separate Motion to Dismiss. On August 10, 2005, McKee filed a
Response to Crawford’s Motion to Dismiss. On August 16, 2005, McKee filed a Response
to Williams’s Joinder, to Dr. Estes’s Motion to Dismiss, and to Crawford’s Separate Motion
to Dismiss.
¶16. On October 12, 2005, McKee filed yet another Certificate of Consultation, this time
stating that counsel had reviewed the facts of the case and had consulted with an expert and
8
concluded that there was a reasonable basis for the commencement of the action. On
November 14, 2005, McKee filed a Motion for an Award of Attorney’s Fees and Expenses
Pursuant to the Litigation Accountability Act of 1988 and Pursuant to Mississippi Rule of
Civil Procedure 11. On December 6, 2005, Judge Kidd entered an Order on Motion for
Attorney’s Fees and Expenses, stating that this motion would be taken under advisement.5
¶17. On January 24, 2006, Dr. Estes filed a Supplement to his Joinder to Crawford’s
Motion to Dismiss, asserting that McKee was not reasonably diligent in ascertaining his
identity, and thus, substitution was improper. On January 31, 2006, Dr. Estes filed a Second
Supplement to his Joinder of Motion to Dismiss, providing exhibits for his argument in his
First Supplemental Motion to Dismiss.
¶18. On February 6, 2006, Rhonda Bounds filed a Supplemental Motion to Dismiss,
followed by Williams’s Supplemental Motion to Dismiss filed February 9, 2006.6 On
February 10, 2006, Frederica Brister (heretofore McKee) filed: (1) a Response to First
Supplement to Dr. Estes’s Joinder to Crawford’s Motion to Dismiss; (2) a Response to
Second Supplement to Dr. Estes’s Joinder to Crawford’s Motion to Dismiss; and (3) a
5
A similar motion is pending with this Court, and this motion is discussed, infra.
6
Rhonda Bounds’s pleading of February 6, 2006, is the last pleading or order in the
record which lists the plaintiff as “Willie McKee, as Personal Representative of Pearl Henry,
Deceased and on Behalf of the Wrongful Death Beneficiaries of Pearl Henry, Deceased.”
Commencing with Williams’s pleading filed on February 9, 2006, all subsequent pleadings
and orders filed list the plaintiff as “Frederica Brister, as Conservator for Willie McKee as
Personal Representative of Pearl Henry, Deceased and on Behalf of the Wrongful Death
Beneficiaries of Pearl Henry, Deceased.” We will thus hereinafter refer to the plaintiff as
“Brister” instead of “McKee.”
9
Response to First Supplement to Bounds’s Motion to Dismiss, arguing that Dr. Estes’s
identity could not be ascertained until discovery.
¶19. On March 6, 2006, Judge Kidd entered: (1) an order denying Rhonda Bounds’s
Motion to Dismiss; (2) an order denying Williams’s Motion to Dismiss; and (3) an order
denying Dr. Estes’s Motion to Dismiss for failure to comply with Mississippi Code
Annotated Section 15-1-36(15). Also on March 6, 2006, Dr. Estes filed his first
interlocutory appeal with this Court concerning alleged improper substitution. On March
8, 2006, Judge Kidd entered another order denying Dr. Estes’s Motion to Dismiss for failure
to substitute as a fictitious party.
¶20. On March 9, 2006, Forest Hill, Buffington, Franklin, Long Term Care and Bounds
attempted to join Dr. Estes’s first interlocutory appeal in the trial court rather than with this
Court. On March 14, 2006, Dr. Estes filed a second interlocutory appeal with this Court, this
time appealing Judge Kidd’s order denying the Motion to Dismiss based on a failure to
comply with Mississippi Code Annotated Section 15-1-36(15). On March 15, 2006, Forest
Hill, Buffington, Franklin, Long Term Care, and Bounds joined Dr. Estes’s second
interlocutory appeal. On March 16, 2006, this Court entered an order granting and
consolidating both of Dr. Estes’s interlocutory appeals, stating that: (1) Dr. Estes’s first
interlocutory appeal was joined by Crawford, Bounds and Williams; (2) Dr. Estes’s second
interlocutory appeal was joined by Williams, Forest Hill, Buffington, Franklin, Long Term
Care and Bounds; and (3) the trial court proceedings were stayed pending resolution of the
10
appeal. On March 20, 2006, Crawford filed a Notice of Withdrawal of All Pending Motions
and Designations of Expert Witnesses because he had settled with Brister.
¶21. On March 23, 2006, Dr. Estes filed a Statement of Issues, asserting:
(1) Whether the Hinds County Circuit Court erred in denying Dr. Estes’s
motion to dismiss, as a matter of law, because the statute of limitations had
expired when Dr. Estes was made a defendant in this lawsuit and the plaintiff
failed to exercise due diligence in determining Dr. Estes’s identity as a
potential defendant in this case.
(2) Whether the Hinds County Circuit Court erred in denying Dr. Estes’s
motion to dismiss, as a matter of law, because the plaintiff failed to provide
sixty (60) days notice of the lawsuit against Dr. Estes as required by
Mississippi Code Annotated Section 15-1-36(15).
Also on March 23, 2006, Dr. Estes designated the record for appeal. Four days later, Forest
Hill and Long Term Care joined Dr. Estes’s first interlocutory appeal in this Court in an
effort to cure their error in first filing their joinder in the trial court.
¶22. On March 29, 2006, Williams joined Dr. Estes’s designation of the record and filed
a separate designation of the record. Also on March 29, 2006, Williams filed a Joinder to
Dr. Estes’s Statement of the Issues and Separate Statement of Issues, which included a
footnote stating that “[t]he trial court also heard oral argument of Defendants’ claims of
Plaintiff’s non-compliance with Miss. Code Ann. § 11-1-58(1) as pled in the same Motion
to Dismiss and Joinder before this Court, and to date, no Order has been entered by the trial
court concerning said statute, that Appellant/Defendant is aware of.” On March 31, 2006,
Forest Hill and Long Term Care joined and supplemented Dr. Estes’s designation of the
record in the Hinds County Circuit Court.
11
¶23. On November 29, 2007, this Court entered an en banc order granting Brister’s
Supplemental Motion to Dismiss the interlocutory appeal of Forest Hill and Long Term Care
for failure to timely join,7 stating:
This matter came on before this Court sitting en banc on the Appellee’s
Supplemental Motion to Dismiss the Appeal of [Forest] Hill Nursing Center
and Long Term Care Management, LLC. The Appellee argues that the appeal
of Forest Hill and Long Term Care must be dismissed because the parties who
filed the original interlocutory appeal have been dismissed, there is no longer
any appeal for [] Forest Hill and Long Term Care to join. In the alternative,
the Appellee argues that dismissal is required by virtue of the fact that Forest
Hill and Long Term Care failed to timely join the interlocutory appeal filed by
the other defendants in the case. Forest Hill and Long Term Care do not
attempt to rebut these arguments; instead, they simply assert that the appeal
includes “issues of general importance.”
The Hinds County Circuit Court denied the Defendants’ Motion to Dismiss on
February 13, 2006. On March 6, 2006, Dr. Timothy Estes filed two separate
petitions for permission to appeal the circuit court’s interlocutory order. The
other individual defendants filed motions for joinder in Estes’s petition with
this Court on March 8 and 9. Forest Hill filed a motion for joinder on March
9 with the Hinds County Circuit Court rather than this Court. It filed a motion
for joinder with this Court on March 27, 2006.
This Court granted the interlocutory appeal on March 16, consolidated Estes’s
two separate petitions and implicitly acknowledged Forest Hill and Long Term
Care’s joinder in the appeal. After the consolidation, all of the defendants
besides Forest Hill and Long Term Care voluntarily dismissed their appeals.
Mississippi Rule of Appellate Procedure 5 governs interlocutory appeals.
M.R.A.P. 5. A party must file an interlocutory appeal within twenty-one days
of a trial court’s interlocutory order: “Appeal from such an order may be
sought by filing a petition for permission to appeal with the clerk of the
7
Appellants Dr. Timothy Estes, Judson Williams, Hugh Franklin, A.D. Buffington,
and Rhonda Bounds were dismissed as parties to this appeal pursuant to separate joint
motions to dismiss and stipulations of dismissal filed on March 5, 2007, March 7, 2007, and
March 14, 2007, respectively.
12
Supreme Court within 21 days after the entry of such order in the trial court[.]”
M.R.A.P. 5(a). Rule 5 does not specify a time by which parties must join an
interlocutory appeal filed by another party. However, this Court has
previously dismissed the appeals of defendants on the ground that their motion
for joinder in a petition for interlocutory appeal was not filed within twenty-
one days of the entry of the interlocutory order at issue. See Century 21
Maselle and Assocs., Inc. v. Smith, 2007 Miss. LEXIS 448 **6-7, fn. 5.[8 ]
Forest Hill and Long Term Care filed their motion for joinder with this Court
more than forty days after the circuit court denied the Defendants’ Motion to
Dismiss. Because Forest Hill and Long Term Care’s motion was not timely
filed, this Court must dismiss their appeals.
¶24. The entry of this en banc order of November 29, 2007, was in response to Brister’s
filing of her Appellee’s Supplemental Motion to Dismiss the Appeal of Forest Hill Nursing
Center and Long Term Care Management, LLC, on September 25, 2007. However, nowhere
in this supplemental motion does Brister ask this Court to dismiss this appeal based on the
failure of Forest Hill and Long Term Care to timely join Dr. Estes’s petitions for
interlocutory appeal. The gist of Brister’s supplemental motion to dismiss is that since all
other parties to the appeal, with the exception of Forest Hill and Long Term Care, had been
dismissed via joint motions to dismiss and stipulations of dismissal,9 there “are no longer
viable pending appeals” for Forest Hill and Long Term Care to “join” since all issues raised
by the original parties to this appeal were now moot. In her initial motion to dismiss Forest
Hill and Long Term Care, filed with this Court on March 13, 2007, in addition to the
8
The Southern Reporter citation is Century 21 Maselle and Assocs. v. Smith, 965 So.
2d 1031, 1034-35 n.5 (Miss. 2007).
9
Appellant Robert Crawford withdrew his appeal by way of a notice of withdrawal
filed with this Court.
13
allegations that there were no remaining viable appeals due to the dismissal of all other
parties, Brister also asserted that “[t]imely notice of appeal has been held to be
jurisdictional,” citing Michael v. Michael, 650 So. 2d 469 (Miss. 1995); however, Brister
does not assert that the appeals as to Forest Hill and Long Term Care should be dismissed
due to untimeliness.
¶25. Additionally, even in addressing the issue of the timeliness of the joinder in the
petitions for interlocutory appeal by Forest Hill and Long Term Care, their joinder was
timely filed when calculating the time pursuant to Mississippi Rule of Appellate Procedure
5 from the date of entry of the trial court orders denying the motions to dismiss, as opposed
to using the earlier date of the trial court hearing on the motions to dismiss.
¶26. When this Court entered its en banc order on March 16, 2006, granting the petitions
for interlocutory appeal as to the petitioners and all individuals and entities who had joined
the petitions for interlocutory appeal, these consolidated appeals were viable as to all parties,
including Forest Hill and Long Term Care. We therefore proceed to consider the merits of
the issues presented on appeal.10
10
After this Court’s entry of the aforementioned November 29, 2007, en banc order
granting Brister’s Supplemental Motion to Dismiss the interlocutory appeal of Forest Hill
and Long Term Care for failure to timely join, Brister filed her Appellee’s Rule 38 Motion
for Damages for Frivolous Appeal and Response to Forest Hill Nursing Center and Long
Term Care Management, LLC’s Motion for Rehearing. Based on today’s disposition of this
case, this motion is dismissed as moot.
14
DISCUSSION
¶27. "This Court reviews de novo a trial court's grant or denial of a motion to dismiss."
Cmty. Hosp. v. Goodlett, 968 So. 2d 391, 396 (Miss. 2007) (quoting Penn. Nat'l Gaming,
Inc. v. Ratliff, 954 So. 2d 427, 430 (Miss. 2007) (overruled on other grounds)). See also
Harris v. Miss. Valley State Univ., 873 So. 2d 970, 988 (Miss. 2004).
¶28. Two issues are before the Court: (1) whether dismissal is warranted for failure to
comply with the notice requirement of Mississippi Code Annotated Section 15-1-36(15)
(Rev. 2003); and (2) whether dismissal is warranted for failure to accompany the complaint
with a certificate of expert consultation pursuant to Mississippi Code Annotated Section 11-
1-58 (Supp. 2007).11 We restate the issues for the sake of discussion.
I. WHETHER DISMISSAL IS WARRANTED FOR FAILURE TO
COMPLY WITH THE STATUTORY NOTICE
REQUIREMENT.
¶29. Forest Hill and Long Term Care argue that no notice was given to any defendant
before filing suit and that Brister admitted this to the trial court. Mississippi Code Annotated
Section 15-1-36(15) (Rev. 2003) states:
No action based upon the health care provider's professional negligence may
be begun unless the defendant has been given at least sixty (60) days' prior
written notice of the intention to begin the action. No particular form of notice
is required, but it shall notify the defendant of the legal basis of the claim and
the type of loss sustained, including with specificity the nature of the injuries
suffered. If the notice is served within sixty (60) days prior to the expiration
11
A third issue was presented (whether Rhonda Bounds was improperly substituted
as a defendant); however, Bounds’s post-appeal settlement with the plaintiff now renders this
issue moot.
15
of the applicable statute of limitations, the time for the commencement of the
action shall be extended sixty (60) days from the service of the notice for said
health care providers and others. This subsection shall not be applicable with
respect to any defendant whose name is unknown to the plaintiff at the time
of filing the complaint and who is identified therein by a fictitious name.
This amendment was passed by a special session of the Legislature in 2002, and was
effective from and after January 1, 2003. Brister argues that she was not required to give
sixty days notice because Henry passed away on July 31, 2001, and her cause of action thus
accrued before January 1, 2003. However, we have clearly held that the statutory notice is
required for claims filed on or after January 1, 2003, regardless of when the claim accrued.
Arceo v. Tolliver, 949 So. 2d 691, 694-95 (Miss. 2007) (citing Pitalo v. GPCHP-GP, Inc.,
933 So. 2d 927, 928-29 (Miss. 2006)).
¶30. Brister admits that she did not give the statutory notice to any party. Previously, this
Court was “squarely confronted with a situation where the plaintiff, in filing an original
complaint, a first amended complaint, and a second amended complaint, wholly failed to
submit any notice required by the statute.” Arceo, 949 So. 2d at 697 n.5 (emphasis in
original). We further stated in Arceo:
On June 4, 2004, Myrtis Tolliver filed a complaint for medical malpractice
and negligence against Dr. Arceo and John and Jane Doe defendants. On June
25, 2004, the plaintiff filed a first amended complaint; and, on July 23, 2004,
the plaintiff filed a second amended complaint. Prior to the filing of these
complaints, the plaintiff failed to submit the notice required by Miss. Code
Ann. § 15-1-36(15) (Rev. 2003).
Id. at 692-93 (footnotes omitted). We held in Arceo that the trial court erred in denying the
defendants’ Motion to Dismiss, or in the Alternative, for Summary Judgment, because
16
Mississippi Code Annotated Section 15-1-36(15) clearly states that no action may be begun
without prior notice. Id. at 694-95 (citing Pitalo, 933 So. 2d at 928-29). Here, as in Arceo,
“the plaintiff wholly failed to provide any written notice to any medical provider concerning
her intention to commence suit.” Id. at 694. Thus, clearly, as a named party, Forest Hill
was entitled to sixty days notice before the filing of the suit, failing which, Forest Hill was
entitled to dismissal.
¶31. As to Long Term Care, Brister also argues that she was not required to give notice to
the defendants, specifically Long Term Care, who were substituted as John Does, because
Section 15-1-36(15) specifically provides that “[t]his subsection shall not be applicable with
respect to any defendant whose name is unknown to the plaintiff at the time of filing the
complaint and who is identified therein by a fictitious name.” We agree with this assertion
as to Long Term Care concerning this first issue and find that; therefore, we proceed to Issue
II.
II. WHETHER DISMISSAL IS PROPER FOR FAILURE TO
ATTACH A CERTIFICATE OF EXPERT CONSULTATION.
¶32. Forest Hill and Long Term Care also assign as error the failure of the plaintiff to
accompany the complaint with a certificate of expert consultation at the time suit was
commenced as required by Mississippi Code Annotated Section 11-1-58 (Supp. 2007). In
his Motion to Dismiss, Dr. Estes also assigned this failure as error. Section 11-1-58 became
effective from and after January 1, 2003. In Walker v. Whitfield Nursing Center, Inc., 931
So. 2d 583 (Miss. 2006), this Court for the first time addressed Section 11-1-58. Walker
17
involved a negligence/wrongful-death suit commenced on April 7, 2004, for injuries and
resultant death occurring on April 8, 2002, and July 17, 2002, respectively. The Section 11-
1-58(1) expert consultation certificate did not accompany the complaint commencing the
lawsuit. Id. at 586. In the end, we stated that because the “clear and unambiguous”
mandatory language of the statute required that “the complaint shall be accompanied by” an
expert consultation certificate, Walker’s complaint had to be dismissed. Id at 591.
¶33. However, subsequent to Walker, we revisited this issue in Wimley v. Reid, 2008 Miss.
LEXIS 456 (Sept. 18, 2008). In Wimley, we overruled Walker and its progeny to the extent
that Walker stood for the proposition that the Legislature had the authority under our state
constitution to promulgate procedural statutes dictating to the judiciary what it shall require
to be attached to pleadings filed in court. Id., **9-10, ¶¶14-16. On the other hand, we
clearly acknowledged in Wimley the Legislature’s constitutional authority to set out pre-suit
requirements, such as expert consultation prior to commencement of a medical-malpractice
suit. Id., **11-12, ¶¶18-20. Because the record in Wimley did not reveal whether the
statutorily mandated pre-suit requirements had been met, we remanded the case to the trial
court, with instructions, for an evidentiary hearing to determine this issue. Id., *12, ¶21.
¶34. Returning to the facts of today’s case, consistent with Wimley, we are required to
reverse the trial court judgment denying the motion to dismiss for failure to comply with the
pre-suit requirements of section 11-1-58(1). However, it is not necessary to remand this case
pursuant to Wimley, because the plaintiff’s attorney in today’s case admits that he did not
18
consult an expert prior to commencing this lawsuit. Thus, in addition to our reasons stated
in discussing Issue I, supra, as to Forest Hill, the plaintiff’s complaint against Forest Hill
must also be dismissed for failure to comply with the pre-suit requirements of Section 11-1-
58(1). Since the plaintiff did not comply with the pre-suit requirements of Section 11-1-
58(1) at the time the suit was commenced against Forest Hill, we find that a subsequent
substitution of Long Term Care as a party to a suit that must be dismissed was meaningless.
We find this issue as to both Forest Hill and Long Term Care to have merit.
CONCLUSION
¶35. For the reasons stated, the Hinds County Circuit Court’s orders denying the motion
to dismiss the plaintiff’s complaint for failure to comply with Mississippi Code Annotated
Sections 15-1-36(15) and 11-1-58(1) are reversed, and judgment is rendered here for Forest
Hill Nursing Center and Long Term Care Management, LLC.
¶36. REVERSED AND RENDERED.
SMITH, C.J., WALLER, P.J., DICKINSON, RANDOLPH AND LAMAR, JJ.,
CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART
BY GRAVES, J.
DIAZ, PRESIDING JUSTICE, DISSENTING:
¶37. The interlocutory appeals of Forest Hill Nursing Center and Long Term Care
Management, LLC, should be dismissed by this Court. Forest Hill is barred from appealing
the trial court’s order denying its motion to dismiss because it appealed that order once
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before, and this Court denied its motion for interlocutory appeal. Long Term Care’s appeal
cannot be heard by this Court because the trial court never ruled on its motion to dismiss.
Moreover, I disagree with the majority that the trial court erred by not dismissing Brister’s
complaint based on her failure to provide pre-suit notice to the defendants and to attach a
certificate of expert consultation to the complaint. For these reasons, I dissent.
¶38. Forest Hill’s interlocutory appeal is clearly barred. As the majority opinion notes,
Forest Hill previously appealed the circuit court’s order denying its motion to dismiss on
April 8, 2005, and this Court entered an order on June 15, 2005, denying Forest Hill’s motion
for interlocutory appeal for not being timely filed. By joining Dr. Estes’s interlocutory
appeal of the circuit court’s order denying his motion to dismiss, Forest Hill was obviously
attempting to appeal the denial of its motion to dismiss a second time. It is axiomatic that
a litigant may not appeal an interlocutory order twice. Accordingly, this Court should
dismiss Forest Hill’s interlocutory appeal.
¶39. As for Long Term Care’s interlocutory appeal, this Court cannot assert jurisdiction
over it. Long Term Care filed its motion to dismiss on July 8, 2005. But the circuit court
never ruled on Long Term Care’s motion to dismiss. (The March 6 and March 8 orders of
the circuit court denied Estes’s motion to dismiss, which was filed separately from Long
Term Care’s.) Long Term Care admitted this in its motion for joinder filed with this Court
on March 27, 2006: “Long Term Care . . . [has] pending before the lower court their Motion
to Dismiss[.]” Because the circuit court never ruled on Long Term Care’s motion, there was
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no “interlocutory order” to appeal. M.R.A.P. 5(a). Therefore, this Court must dismiss Long
Term Care’s interlocutory appeal.
GRAVES, J., JOINS THIS OPINION IN PART.
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