Fredericks, et al. v. Malouf


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Docket Number: 2009-IA-01181-SCT
Linked Case(s): 2009-IA-01181-SCT
Supreme Court: Opinion Link
Opinion Date: 01-19-2012
Opinion Author: Lamar, J.
Holding: Affirmed and remanded
Additional Case Information: Topic: Medical malpractice - Transfer of venue - Section 11-11-3 - M.R.C.P. 83 - M.R.C.P. 12(d) - Waiver - Abandonment of motion
Judge(s) Concurring: Carlson and Dickinson, P.JJ., Randolph, Kitchens, Chandler, Pierce and King, JJ.
Non Participating Judge(s): Waller, C.J.
Procedural History: Interlocutory Appeal
Nature of the Case: CIVIL - MEDICAL MALPRACTICE
Trial Court: Date of Trial Judgment: 07-16-2009
Appealed from: Hinds County Circuit Court
Judge: Tomie Green
Disposition: Denied the Defendants' motion to transfer venue.
Case Number: 251-03-77
Note: The motion for rehearing filed by Ruth Fredericks, M.D., is denied. The original opinion is withdrawn and this opinion is substituted therefor.
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Ruth Fredericks, M.D. and J. Martin Tucker, M.D.




 DIANE V. PRADAT L. CARL HAGWOOD WHITMAN B. JOHNSON, III KRISTI D. KENNEDY



  
  • Appellant #1 Brief
    		•
    Appellee: C. Eric Malouf, Kristine K. Malouf individually and on Behalf of Kimberly Malouf, a Minor MICHAEL J. MALOUF, JR. MICHAEL J. MALOUF, SR. WILLIAM WALKER, JR.  
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    Topic: Medical malpractice - Transfer of venue - Section 11-11-3 - M.R.C.P. 83 - M.R.C.P. 12(d) - Waiver - Abandonment of motion
    Summary of the Facts: The motions for rehearing are denied, and this opinion is substituted for the original opinion. Kristine Malouf took the drug Depakote to control her seizures both before and during her pregnancy. While Kristine gave birth to a seemingly healthy child in March 1997, she and her husband eventually discovered the child had brain damage. In 2002, the Maloufs filed a complaint in Hinds County against Dr. Ruth Fredericks, a neurologist; and in 2006, they filed an amended complaint adding Dr. J. Martin Tucker, Jr., an obstetrician-gynecologist. After the Maloufs joined Dr. Tucker, the defendants moved to transfer venue to Rankin County. The trial court denied the motion to change venue, finding the defendants had abandoned it. The Supreme Court granted an interlocutory appeal.
    Summary of Opinion Analysis: The defendants argue that the venue statute in effect when the amended complaint was filed, section 11-11-3, governs this action, and that venue under this statute is nonwaivable. They rely on the statutory language “[A]ny action against a licensed physician . . . for malpractice . . . shall be brought only in the county in which the alleged act or omission occurred.” They argue that, under this statute, venue can be only in Rankin County, contending that all acts of alleged negligence occurred only in that county. However, the venue statute in effect when the Maloufs filed their original complaint did not contain a subsection specific to malpractice actions. Notably, neither defendant argues that venue was improper when the original complaint was filed in Hinds County. The language in effect at the time the Maloufs filed their amended complaint does not support the defendants’ position that venue cannot be waived. In this case, the parties entered into an agreed scheduling order by which a June 28, 2007, deadline governed all pretrial motions. As the proponents of the motion, the defendants had the burden to timely pursue their motion before the June 28, 2007, deadline. However, the defendants argue that the trial court abused its discretion by prohibiting them from obtaining a hearing on their motion to change venue. The defendants point to a local court rule. However, the trial court’s local rules are in derogation of M.R.C.P. 83, because they have never been submitted to the Court for approval. Furthermore, the local rule at issue in this case potentially conflicts with M.R.C.P. 12(d). The trial court cannot enforce any rule to the contrary. In addition, the defendants did not request another hearing date until two years after the initial hearing was canceled. Furthermore, the defendants actively participated in the litigation process for three years without pursuing their motion or seeking a ruling from the trial court. Venue is an affirmative right that generally may be waived or abandoned. Thus, the trial court did not abuse its discretion by finding the defendants had abandoned their motion to contest venue.


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