Estate of Grimes v. Warrington
| Docket Number: | 2006-CA-01926-SCT Linked Case(s): 2006-CA-01926-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 02-21-2008 Opinion Author: Smith, C.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Medical malpractice - Tort Claims Act - Instrumentality - Section 11-46-7(2) - Waiver of affirmative defense Judge(s) Concurring: Waller, P.J., Easley, Carlson, Dickinson, Randolph and Lamar, JJ. Concurs in Result Only: Diaz, P.J., and Graves, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 10-09-2006 Appealed from: Bolivar County Circuit Court Judge: Charles E. Webster Disposition: The trial court granted Dr. Warrington summary judgment. Case Number: 2001-0052 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | The Estate of John Grimes, and through his weife and next friend, Helen Grimes, on behalf of the wrongful death beneficiaries |
George F. Hollowell, Jr. |
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| Appellee: | Dr. James Warrington, Jr. | Lonnie D. Bailey; Tommie Williams; CHRISTOPHER WAYNE WINTER | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Medical malpractice - Tort Claims Act - Instrumentality - Section 11-46-7(2) - Waiver of affirmative defense |
| Summary of the Facts: | John Grimes, accompanied by his wife Helen, sought medical treatment at the Cleveland Medical Alliance clinic, 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. Dr. Warrington prescribed medication for inflammation and pain. 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. He was then placed in the intensive care unit. Grimes died while still at Bolivar Medical Center. Helen Grimes filed a wrongful-death action against Dr. James Warrington, Jr., alleging his medical malpractice resulted in the death of her husband, John Grimes. Dr. Warrington answered the complaint and asserted in his seventh affirmative defense that as an employee of CMA, a “subsidiary” of Greenwood-Leflore Hospital, he was entitled to tort immunity pursuant to the Tort Claims Act. The trial court granted Dr. Warrington summary judgment on the theory that he was entitled to immunity from suit pursuant to the Tort Claims Act. Grimes appeals. |
| Summary of Opinion Analysis: | 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 is whether CMA is entitled to the protections, limitations and immunities of the Tort Claims Act as an “instrumentality” of GLH. If CMA is such an instrumentality, 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). CMA is a partnership comprised of physician-partners and GLH. At the time Grimes sought treatment, CMA was comprised of four physicianpartners, each holding a one percent ownership interest and GLH holding the remaining ninety-six percent. Ultimate control remained in the hands of the community hospital. GLH maintained majority membership of the executive committee. CMA could not take any action nor make any decision without the approval of GLH. Also, GLH maintained the vast majority interest of CMA, ninety-six percent at the time Grimes sought treatment. 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, CMA is an “instrumentality” of GLH, and CMA and Dr. Warrington are entitled to the protections, limitations and immunities of the Tort Claims Act. Grimes argues that, regardless of whether CMA is found to be an instrumentality of GLH, Dr. Warrington waived this affirmative defense due to unreasonable delay. Tort Claims Act immunity is an affirmative defense. Dr. Warrington would be required to pursue the defense of tort immunity as he would any other affirmative defense or risk losing it. 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. 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. Dr. Warrington offers no explanation as to why he did not move the lower court for summary judgment until August 2006. He proceeded substantially to engage the litigation process by consenting to a scheduling order, participating in written discovery, and conducting depositions. Dr. Warrington’s failure actively and specifically to pursue his affirmative defense while participating in the litigation served as a waiver of the defense. |
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