Compere, et al. v. St. Dominic Jackson Memo'l Hosp., et al.
| Docket Number: | 2010-CA-00490-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 09-29-2011 Opinion Author: Lamar, J. Holding: Reversed and Remanded |
|
| Additional Case Information: |
Topic: Medical malpractice - Dismissal with prejudice - Notice - Section 15-1-36(15) - Doctrine of priority jurisdiction - Sanctions - M.R.C.P. 11 Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Kitchens, Pierce and King, JJ. Non Participating Judge(s): Chandler, J. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
|
| Trial Court: |
Date of Trial Judgment: 03-11-2010 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: Dismissed action. Case Number: 251-09-229CIV |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Richard Compere and James A. Bobo |
JAMES A. BOBO |
|
|
| Appellee: | St. Dominic Jackson Memorial Hospital and Bryan Lantrip, M.D. | LANE W. STAINES SHARON F. BRIDGES JONATHAN R. WERNE J. LERAY MCNAMARA STEPHANIE C. EDGAR | ||
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. |
|
| Topic: | Medical malpractice - Dismissal with prejudice - Notice - Section 15-1-36(15) - Doctrine of priority jurisdiction - Sanctions - M.R.C.P. 11 |
| Summary of the Facts: | Richard Compere underwent a fluoroscopically guided lumber puncture at St. Dominic-Jackson Memorial Hospital to treat his headaches. This procedure was performed by Dr. Bryan Lantrip, who dictated a report concerning the procedure. Compere avers that the report contained an error, and that he underwent additional, unnecessary treatment because of it. Once Compere learned of the error, he mailed notice as required by section 15-1-36(15) to the defendants of his intent to file a malpractice action. This notice was dated January 6, 2009, but was not mailed until January 8, 2009. Compere filed his first complaint on March 4, 2009. It is undisputed that Compere failed to wait the sixty days required by section 15-1-36(15) before he filed the first complaint. Due to that failure, the defendants moved for summary judgment. Compere also filed a motion for partial summary judgment, arguing that he had complied substantially with the sixty-day notice period, and that the notice requirement violated the state and federal constitutions. The trial court took the matter under advisement. Prior to the court rendering a decision, Compere filed a second, almost identical complaint with the same court on July 1, 2009. The second lawsuit was assigned to a different judge. That judge transferred the lawsuit to the first judge who consolidated the two actions. The judge then dismissed the first complaint without prejudice for Compere’s failure to wait sixty days before filing the first complaint. Relying on the doctrine of priority jurisdiction, the judge also dismissed the second action with prejudice, finding it was an “improperly filed action.” The judge assessed monetary sanctions against Compere’s counsel, Jim Bobo, finding the second complaint was “frivolous” and “without substantial justification.” Compere and Bobo appeal. |
| Summary of Opinion Analysis: | Compere admits that he failed to wait sixty days before filing his first complaint on March 4, 2009, and he does not appeal the trial court’s dismissal without prejudice of that complaint. However, Compere argues that the trial court erred in dismissing his second complaint with prejudice and in imposing monetary sanctions. Compere filed the second complaint on July 9, 2009, well after providing sixty days’ notice. Thus, assuming for purposes of this appeal that Compere sent actual notice, he waited the sixty days required by section 15-1-36(15) before filing the second lawsuit. While the trial court relied upon the doctrine of priority jurisdiction to support its ruling, that doctrine is inapplicable. Priority jurisdiction typically applies when the same lawsuit has been filed in two different courts, not in the same court. More importantly, that doctrine presupposes a pending action that the plaintiff can proceed upon and obtain adequate relief. That is not the case with Compere’s first action, since he failed to wait the required sixty days. Because the trial court erred in dismissing the second action, it abused its discretion by awarding sanctions and finding the second complaint frivolous and without substantial justification. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
