Nelson v. Baptist Mem'l Hosp. - N. Miss., Inc.


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Docket Number: 2005-CA-02058-COA
Linked Case(s): 2005-CA-02058-COA2005-CT-02058-SCT
Oral Argument: 01-30-2007
 

 

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Court of Appeals: Opinion Link
Opinion Date: 05-08-2007
Opinion Author: ISHEE, J.
Holding: Affirmed
Additional Case Information: Topic: Medical malpractice - Extension of time for service - M.R.C.P. 6(b) - M.R.C.P. 4(h) - Successor judge - Notice - Section 15-1-36(15) - Certificate - Section 11-1-58(1) - Dismissal without prejudice
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ROBERTS AND CARLTON, JJ.
Non Participating Judge(s): BARNES, J.
Procedural History: Dismissal
Nature of the Case: CIVIL - WRONGFUL DEATH
Trial Court: Date of Trial Judgment: 06-23-2004
Appealed from: Lafayette County Circuit Court
Judge: Henry L. Lackey
Disposition: DISMISSED WITH PREJUDICE PLAINTIFFS’ CAUSE OF ACTION
Case Number: L03-265
  Party Name: Attorney Name:  
Appellant: BILLY NELSON AND GAYNELLE NELSON, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF JUSTIN NELSON, A MINOR, AND AS REPRESENTATIVES OF ALL WRONGFUL DEATH BENEFICIARIES OF BOBBY NELSON, DECEASED




 JAMES W. KITCHENS MARGARET P. ELLIS RODERICK D. WARD



 
Appellee: BAPTIST MEMORIAL HOSPITAL - NORTH MISSISSIPPI, INC.; WILLIAM E. HENDERSON, JR., M.D., GENERAL PARTNER; OXFORD CLINIC FOR WOMEN, A PARTNERSHIP; IRA LAMAR COUEY, M.D., GENERAL PARTNER; AND R. BLAKE SMITH, M.D., GENERAL PARTNER CLINTON M. GUENTHER ROBERT S. MINK  
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Topic: Medical malpractice - Extension of time for service - M.R.C.P. 6(b) - M.R.C.P. 4(h) - Successor judge - Notice - Section 15-1-36(15) - Certificate - Section 11-1-58(1) - Dismissal without prejudice
Summary of the Facts: Billy and Gaynelle Nelson filed suit against Baptist Memorial Hospital for the wrongful death of their son. After granting an extension of time for service, the judge recused himself. The new judge vacated the extension for lack of good cause, ruled that the Nelsons had not complied with the statutory requirements for filing a medical malpractice action, and dismissed the claim with prejudice. The Nelsons appeal.
Summary of Opinion Analysis: Issue 1: Extension of time for service Under M.R.C.P. 6(b), a court may extend the time a party has to act for cause shown, if within the initial time period, or upon a finding of excusable neglect after the expiration of the time period. Accordingly, a judge may grant an extension of time to serve process under M.R.C.P. 4(h) prior to the expiration of the original 120 days for service without a showing of good cause. Assuming proper service of process, filing a complaint tolls the statute of limitations until a suit’s dismissal. As a general rule, a successor judge is precluded from correcting errors of law made by his predecessor or changing the latter’s judgment or order on the merits, but this rule does not apply where the order or judgment is not of a final character. In the present case, prior to the expiration of the 120 days to serve process, the Nelsons made a motion for an extension of time. They did not wait until the 120 days had lapsed to request an extension; therefore, they were not required to meet the heightened good cause requirement. There was nothing to suggest the Nelsons acted in bad faith in making the motion, and no party was prejudiced by the ninety-day extension. It was in error for the successor judge to later vacate the order based on the good cause standard. Furthermore, the Nelsons justifiably relied on the judicial order and served process after the initial 120 days. Issue 2: Notice Pursuant to section 15-1-36(15), a plaintiff may not begin an action against a healthcare provider based on professional negligence until the plaintiff gives the provider sixty days written notice of his intent to bring suit. This serves to toll the statute of limitations for sixty days, essentially allowing for a statute of limitations of two years and sixty days. The Nelsons made no effort to serve notice prior to filing the original complaint. It was not until after the judge granted an extension of time to serve process that the Nelsons attempted to give the required notice. Failing to send the notice was an inexcusable deviation from the requirements of section 15-1-36(15), and it warrants dismissal. Issue 3: Certificate Under section 11-1-58(1), a complaint in a medical malpractice suit must be accompanied by a certificate stating that the plaintiff’s attorney has consulted a qualified expert concerning the claim and, based upon such consultation, the attorney reasonably believes there is a basis for the action. The Nelsons did not file the required certificate with their original complaint; therefore, the claim was properly dismissed. Issue 4: Dismissal without prejudice Dismissal without prejudice prevents the plaintiff from being barred from filing a new suit on the same cause of action. On the other hand, dismissal with prejudice, which prevents the plaintiff from bringing a new suit based on the same cause of action, is extreme and harsh, and only the most egregious cases warrant such dismissals. The statute at issue in this case had only been in effect a few months when this case was filed, and the Nelsons tried to remedy their failure to comply with those statutes. Their failure to attach the attorney certificate and to file sixty days notice do not rise to the level of egregiousness sufficient to warrant dismissal with prejudice. This is so especially in light of the fact that they attempted to correct those errors before they ever served process. Therefore, the original complaint filed by the Nelsons should be dismissed without prejudice.


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