Tallahatchie Gen. Hosp. v. Howe
| Docket Number: | 2009-IA-00495-SCT Linked Case(s): 2009-M-00495-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-09-2010 Opinion Author: Randolph, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Wrongful death - Statutory notice - Section 11-46-11(1) - Service on proper entity Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Lamar, Chandler and Pierce, JJ. Dissenting Author : Kitchens, J., Dissents With Separate Written Opinion Dissent Joined By : Graves, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 03-05-2009 Appealed from: TALLAHATCHIE COUNTY CIRCUIT COURT Judge: ROBERT P. CHAMBERLIN Disposition: On June 9, 2007, eighty-seven-year-old Myrtice Edwards died at Tallahatchie General Hospital and Extended Care Facility (“TGH”), a community hospital. In October 2007, Edwards’s daughter and son, Susan Edwards Howe and Wayne Edwards (“Edwards”), sent a notice of claim and letter to the Tallahatchie County chancery clerk and the attorney for the Tallahatchie County Board of Supervisors, asserting a wrongful-death claim against Tallahatchie County. The notice of claim was not directed to TGH and was not filed with Bobby Joe Brunson, Jr., the Administrator and Chief Executive Officer (“CEO”) of TGH, as required by Mississippi Code Section 11-46-11(1). See Miss. Code Ann. § 11-46-11(1) (Rev. 2002). In late November 2007, Tallahatchie County’s insurance representative faxed a copy of the notice and letter to Brunson. No notice of claim to TGH was ever filed as statutorily required. Following hearing, the Circuit Court of Tallahatchie County entered an “Order Denying Motion for Summary Judgment.” While noting that “proper service of notice to TGH would be on the [CEO] of TGH not Tallahatchie County[,]” the circuit court found that the strict-compliance standard applied to Section 11-46-11(1) was limited to the ninety-daynotice requirement, and concluded “because TGH timely received a copy of the notice that was sent to the County and that they have presented no evidence that they will be in any manner prejudiced, that this constitutes substantial compliance under the statute . . . .” (Emphasis added.) Case Number: 2008-51-BT1 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Tallahatchie General Hospital, Tallahatchie General Hospital Extended Care Facility and Barbara Criswell |
GAYE NELL LOTT CURRIE |
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| Appellee: | Susan Edwards Howe and Wayne Edwards, Wrongful Death Beneficiaries of Myrtice Edwards, Deceased | WILLIAM LISTON, ALAN D. LANCASTER | ||
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: | Wrongful death - Statutory notice - Section 11-46-11(1) - Service on proper entity |
| Summary of the Facts: | After Myrtice Edwards died at Tallahatchie General Hospital and Extended Care Facility, a community hospital, Edwards’s daughter and son, Susan Edwards Howe and Wayne Edwards, sent a notice of claim and letter to the Tallahatchie County chancery clerk and the attorney for the Tallahatchie County Board of Supervisors, asserting a wrongful-death claim against Tallahatchie County. The notice of claim was not directed to TGH and was not filed with Bobby Joe Brunson, Jr., the Administrator and Chief Executive Officer of TGH, as required by section 11-46-11(1). Tallahatchie County’s insurance representative faxed a copy of the notice and letter to Brunson a month later. Edwards filed a complaint against TGH and Barbara Criswell, among others, for the alleged wrongful death of Myrtice Edwards. TGH filed a motion to dismiss for failure to comply with section 11-46-11(1). The court denied the motion, and the Supreme Court granted an interlocutory appeal. |
| Summary of Opinion Analysis: | As a community hospital located in Tallahatchie County, TGH is a “political subdivision” of the State. Accordingly, Edwards is subject to the notice requirements and statutes of limitations provided in section 11-46-11. Based upon subsection (1) of the statute, the circuit court correctly found that proper service of notice to TGH would be on the CEO of TGH, not Tallahatchie County. However, the circuit court’s conclusion that substantial compliance is the standard in regard to whom the notice is sent is erroneous. Section 11-46-11(1) expressly provides that the notice of claim shall be filed with the chief executive officer of the governmental entity. The Legislature’s statutory use of the term “shall” connotes a mandatory requirement. To the extent that the case of Powell v. City of Pascagoula, 752 So. 2d 999 (Miss. 1999) holds otherwise, it is overruled. Edwards failed to comply with the mandatory requirements of section 11-46-11(1) by failing to file a notice of claim with TGH’s CEO, Brunson. If notice is not given to the proper entity, the entire purpose of the ninety-day period is thwarted. Under the circuit court’s ruling, a public hospital could be deemed to be on notice of a claim regardless of the form or source of its information. As Edwards was and remains noncompliant with the mandatory provisions of section 11-46-11(1), the lawsuit should be dismissed. The parties also seek an advisory opinion on the statute of limitations in the event that Edwards refiles suit. However, the Court does not issue advisory opinions. |
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