Davis v. South Sunflower Co. Hosp.
| Docket Number: | 2006-CA-00049-COA | |
| Oral Argument: | 03-22-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-22-2007 Opinion Author: CARLTON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Timeliness of service of process - M.R.C.P. 4(h) - Good cause Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 12-19-2005 Appealed from: SUNFLOWER COUNTY CIRCUIT COURT Judge: W. Ashley Hines Disposition: COMPLAINT DISMISSED FOR FAILURE TO TIMELY SERVE PROCESS Case Number: 2005-0105CI |
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| Party Name: | Attorney Name: | |||
| Appellant: | CHARLOTTE DAVIS |
BRANDON ISAAC DORSEY
JOHNNIE E. WALLS |
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| Appellee: | SOUTH SUNFLOWER COUNTY HOSPITAL | JASON EDWARD DARE L. CARL HAGWOOD |
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| Topic: | Medical malpractice - Timeliness of service of process - M.R.C.P. 4(h) - Good cause |
| Summary of the Facts: | Charlotte Davis filed a complaint alleging medical malpractice against the South Sunflower County Hospital, her physician, and other unknown parties. The Hospital filed a motion to dismiss the complaint, arguing in part that Davis had failed to serve the Hospital within 120 days from the date the complaint was filed. The court entered an order granting the Hospital’s motion to dismiss and also dismissed the action against the physician. Davis appeals. |
| Summary of Opinion Analysis: | While Davis concedes that she failed to serve the Hospital with process within the prescribed 120 day period, she argues that this was solely because of the negligence of the process server. Good cause under M.R.C.P. 4(h) is established when a plaintiff demonstrates as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance or the rules usually does not suffice. The trial court stated that Davis could have reasonably foreseen that the sheriff’s department would need more than two days to properly serve the Hospital, and that it was unreasonable for Davis to wait until the last minute to attempt service of process. The record does not demonstrate, nor has Davis argued, that the process server was expressly informed that process would need to be served within two days in order to be timely served. Leaving a process server a two day window to accomplish service of process without receiving some express assurance that process would in fact be served within two days leaves a plaintiff vulnerable to having the complaint dismissed if process is not timely served. Thus, the trial court did not commit an abuse of discretion in dismissing the complaint. |
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