Long v. Memorial Hospital at Gulfport, et al.


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Docket Number: 2006-CA-00875-SCT
Linked Case(s): 2006-CA-00875-SCT

Supreme Court: Opinion Link
Opinion Date: 10-11-2007
Opinion Author: WALLER, P.J.
Holding: AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Additional Case Information: Topic: Wrongful death - Service of complaint - M.R.C.P. 4(h) - Good cause - M.R.A.P. 5(f) - Fictitious parties - M.R.C.P. 9(h) - Statute of limitations - M.R.C.P. 15(c) - Savings statute - Section 15-1-57 - Equitable tolling
Judge(s) Concurring: SMITH, C.J., EASLEY, CARLSON, DICKINSON AND LAMAR, JJ.
Non Participating Judge(s): RAVES AND RANDOLPH, JJ.
Concurs in Result Only: DIAZ, P.J.
Procedural History: Dismissal
Nature of the Case: CIVIL - WRONGFUL DEATH

Trial Court: Date of Trial Judgment: 04-28-2006
Appealed from: Harrison County Circuit Court
Judge: Jerry O. Terry, Sr.
Disposition: Granted Appellees' Motions to Dismiss
Case Number: A2401-CI-2002-597

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: DOUGLAS LONG, RICHARD LONG, EARL LONG, AND THE HEIRS AT LAW OF EDWARD LONG, WHO ARE JOYCE LONG, INDIVIDUALLY, CRYSTAL LONG, A MINOR, EDWARD LONG, JR., A MINOR, AND CHRISTOPHER LONG, A MINOR, WHO ARE ALL REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN, JOYCE LONG; THE HEIRS AT LAW OF DAVID LONG, WHO ARE JOHN COLBY LONG, A MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN, TERI LONG SCARBOROUGH, AND COREY LONG




WILLIAM B. WEATHERLY



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief
  • Motion for Rehearing

  • Appellee: MEMORIAL HOSPITAL AT GULFPORT AND THOMAS VAUGHAN, M.D. PATRICIA K. SIMPSON GAYE NELL CURRIE LYNDA C. CARTER NICOLE C. HUFFMAN  
    Appellee #2:  
    Appellee #3:  
  • Appellee #3 Brief

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    Topic: Wrongful death - Service of complaint - M.R.C.P. 4(h) - Good cause - M.R.A.P. 5(f) - Fictitious parties - M.R.C.P. 9(h) - Statute of limitations - M.R.C.P. 15(c) - Savings statute - Section 15-1-57 - Equitable tolling

    Summary of the Facts: Lori McKinney filed a medical malpractice lawsuit against Memorial Hospital at Gulfport on behalf of herself and all the wrongful death beneficiaries of Huey Long. The next day, Douglas Long, Edward Long and Richard Long filed a malpractice lawsuit based on the same event in the same court. This complaint was amended shortly thereafter to add Earl Long as a plaintiff. Upon discovering the McKinney lawsuit, the Longs moved to consolidate the actions. Initially, the court denied consolidation and dismissed the Long action. Upon reconsideration, the court reversed its decision, granting consolidation and allowing the Longs to participate in the McKinney suit. The court, again on reconsideration, ultimately denied the motion to consolidate and dismissed the Long complaint. On interlocutory appeal, the Supreme Court held that subsequent filings in wrongful death actions shall be dismissed, effectively affirming the circuit court’s denial of consolidation and dismissal of the Long lawsuit. The Court’s mandate directed the matter be remanded to the circuit court for further proceedings. Thereafter, a summons for Memorial Hospital issued from the circuit court and was served three days later on Memorial Hospital’s registered agent for process. The Longs filed an amended complaint substituting Thomas Vaughan, M.D., for a John Doe defendant. Summons for Vaughan issued the same day. Memorial Hospital filed a motion to dismiss. The court granted the Longs an extension of time to serve process on Vaughan. The court granted Memorial Hospital’s motion to dismiss. Vaughan filed a motion to dismiss which the court granted. The Longs appeal.

    Summary of Opinion Analysis: Issue 1: Memorial Hospital The Longs argue that the court erred in granting Memorial Hospital’s motion to dismiss because it applied a strict rule that the complete failure to attempt service before the expiration of 120 days warranted dismissal, the circuit court’s orders forming the basis of the first appeal prohibited the Longs from having the McKinney complaint properly and timely served until after the Supreme Court’s mandate on the first appeal, and the circuit court’s order dismissed the entire action not simply the claims against Memorial Hospital. If a summons and a copy of the complaint are not served on a defendant within 120 days after the filing of the complaint as required by M.R.C.P. 4(h), the party responsible for service must show good cause why service was not made within that period. There is no concrete rule in Mississippi law that good cause automatically will be found lacking when a plaintiff completely fails to cause a summons to issue for a defendant or does not attempt at all to serve a defendant within 120 days of the filing of her lawsuit. The reasons offered to demonstrate diligence in light of the failure to serve will be, and should be, reviewed even where the plaintiff’s attempts at service are negligible or nonexistent. In this case, the circuit court simply asked whether the plaintiff attempted service of process and, finding no evidence of an attempt, found no good cause existed. The court’s order granting dismissal does not reflect due consideration of the reasons offered by the Longs for their failure. The Longs offer this matter’s procedural history and the restrictions to their participation to show good cause why service of process was not completed on Memorial Hospital until almost three years after Huey Long’s death. The Longs’ arguments concerning their inability to act on the McKinney complaint are without merit. They failed to sue Memorial Hospital themselves. Since they chose to seek relief from dismissal under the McKinney complaint, they have bound themselves to the choices and inaction of McKinney. McKinney was free to effect service on Memorial Hospital during the interval between filing her complaint and the interlocutory appeal. No court order encumbered McKinney’s ability to serve process. The Longs claim that good cause exists, because of the strained relationships between McKinney and her counsel and the Longs and their own. Because McKinney acted as a fiduciary during this time, strained relationships between co-plaintiffs and their counsel do not constitute good cause to warrant relief from dismissal. Under M.R.A.P. 5(f), the filing of a petition for interlocutory appeal does not stay the proceedings of the circuit court unless the Supreme Court enters an order to that effect which, in this case, was not entered until well after the time for service elapsed. Thus, the circuit court’s judgment finding that good cause did not exist for McKinney’s failure to serve process is not an abuse of discretion. The Longs also argue that the dismissal of Memorial Hospital did not dismiss the entire action. The circuit court’s order dismissing Memorial Hospital did not properly dismiss the entire action, as two fictitious parties, surgeon John Doe 1 and anesthesiologist John Doe 2, remained as unidentified defendants. One of the benefits of M.R.C.P. 9(h) is to allow a plaintiff, who is aware of his cause of action against a defendant but ignorant of the defendant’s identity, to name a fictitious party as a defendant in order to use the court’s resources to discover her true identity. To dismiss the entire action, when only the identified parties are dismissed and the complaint articulates claims against fictitious parties whose identity can be discovered, is to deprive a plaintiff of this benefit. Issue 2: Vaughan The Longs argue that it was proper for them to substitute Vaughan as a defendant almost three years after McKinney filed her original complaint, because of the language within and the effect of the Supreme Court’s order granting interlocutory appeal and the tolling provided by M.R.C.P. 9(h) and the relation back of the amended complaint to the filing of the original complaint under M.R.C.P. 15(c). The Legislature provided a savings measure in section 15-1-57 which removes the period of time a party is prohibited from prosecuting her claim from computation under the applicable statute of limitations. Thus, the time the Longs were prohibited from prosecuting their claims by the orders of the Supreme Court and the circuit court is not included in the computation of time allowed to file suit under the medical malpractice statute of limitations. On remand after the interlocutory appeal, the Longs were no longer prohibited from prosecuting their claims, and the statute of limitations began to run once again. The record shows that the Longs named Vaughan as a defendant just over three months after remand and served process upon him within ten months after remand. The McKinney complaint was active for eleven months before the interlocutory appeal order was entered. The time allowed by the medical malpractice statute of limitations had not yet expired when Vaughan was served with the amended complaint. Therefore, the circuit court erred in dismissing Vaughan as a defendant. Issue 3: Equitable tolling The Longs argue that the statute of limitations should be equitably tolled from the time their participation in the McKinney lawsuit was restricted by the circuit court until remand of this matter. The circuit court dismissed Memorial Hospital “without prejudice” and without considering whether the statute of limitations now bars McKinney’s claims against Memorial Hospital. This ruling on the issue disposed of the motion and granted the relief requested. With respect to Vaughan, the issue is moot in light of the Supreme Court’s reversal.


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