Fortenberry v. MEMORIAL HOSP. AT GULFPORT

676 So. 2d 252, 1996 WL 282514
CourtMississippi Supreme Court
DecidedMay 30, 1996
Docket92-CA-00899-SCT
StatusPublished
Cited by22 cases

This text of 676 So. 2d 252 (Fortenberry v. MEMORIAL HOSP. AT GULFPORT) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fortenberry v. MEMORIAL HOSP. AT GULFPORT, 676 So. 2d 252, 1996 WL 282514 (Mich. 1996).

Opinion

676 So.2d 252 (1996)

Willis B. FORTENBERRY
v.
MEMORIAL HOSPITAL AT GULFPORT, INC.; James Mitchell, M.D.; SMB Radiology; and A.K. Martinolich, Jr., M.D.

No. 92-CA-00899-SCT.

Supreme Court of Mississippi.

May 30, 1996.

*253 Michael W. Crosby, Gulfport, MS, for appellant.

William M. Rainey, Franke Rainey & Salloum, Gulfport, MS, Billy W. Hood, Allen Vaughn Cobb & Hood, Gulfport, MS, Rodney D. Robinson, Allen Vaughn Firm, Gulfport, MS, Roger T. Clark, Byrant Clark Dukes Blakeslee Ramsay & Hammond, Gulfport, MS, for appellee.

Before DAN M. LEE, C.J., and McRAE and SMITH, JJ.

SMITH, Justice, for the Court:

Willis Fortenberry filed a complaint in the Circuit Court of Harrison County, First Judicial District against Dr. James Mitchell, SMB Radiology, and Memorial Hospital at Gulfport, alleging medical negligence, the basis of which was the failure to diagnose the presence of a tumor during an emergency room admission on May 23, 1989, and for failure to treat that condition. He did not serve process upon the defendants before the Miss. Code Ann. § 15-1-36 (Rev. 1995) two-year statute of limitations expired.[1] Therefore, the trial judge granted summary judgment in favor of the defendants. Aggrieved, Fortenberry appeals to this Court alleging the following issues:

I. WHETHER OR NOT THE FILING OF A COMPLAINT WITH THE SPECIFIC INSTRUCTION TO THE CLERK TO WITHHOLD ISSUING PROCESS TO ANY DEFENDANT WAS SUFFICIENT TO TOLL THE RUNNING OF MISS. CODE ANN. § 15-1-36 (REV. 1995), THE APPLICABLE STATUTE OF LIMITATION FOR MEDICAL MALPRACTICE ACTIONS.

II. WHETHER OR NOT THE STATUTE OF LIMITATIONS FOR APPELLANT'S CLAIM BEGAN THE DATE FORTENBERRY'S TUMOR WAS DIAGNOSED OR WHETHER IT RAN FROM THE DAY THAT THE TISSUE REPORT WAS RECEIVED?

We find that Erby v. Cox, 654 So.2d 503 (Miss. 1995) is exactly on point. We also find that Fortenberry demonstrated "good cause shown" in his attempts at locating and serving process on Dr. Mitchell. The lower court erred in granting summary judgment. We must reverse and remand for trial.

STATEMENT OF FACTS

Willis Fortenberry visited the emergency room at Memorial Hospital of Gulfport on May 23, 1989 complaining of back pain. Dr. James Mitchell examined him and ordered x-rays which were read by Dr. A.K. Martinolich, Jr., a radiologist with SMB Radiology. Dr. Mitchell's diagnosis was that Fortenberry had a lumbar strain.

On June 4, 1989, Fortenberry went to the Acute Care Clinic at Keesler Air Force Base. At that time he said that he had been picking up cans and noted the sudden onset of lower back pain. A rectal exam revealed a posterior rectal mass. On June 18, 1989, doctors at Keesler conducted further tests which showed a 10 x 15 centimeter calcified, presacral mass, most likely chordoma or chondrosarcoma, compressing the rectum at four centimeters. He was discharged and told to return to Keesler to be taken to Wilford Hall Medical Center at Lackland Air Force Base in Texas on July 22, 1989. Fortenberry had surgery on August 2, 1989 to remove the mass. After discharge on August 10th, a tissue report was completed on August 11th.

Fortenberry filed a complaint against Dr. James Mitchell, Memorial Hospital, and SMB Radiology on May 21, 1991, alleging that the doctors had failed to diagnose the tumor. He gave specific instructions not to serve process at that time. On June 13, *254 1991, Fortenberry filed an amended complaint naming Dr. Martinolich as a defendant in addition to the previously named three defendants, but again did not allow process to be served.

Process was issued on August 7, 1991 as to Dr. Martinolich, SMB Radiology, and Memorial Hospital. Fortenberry could not locate Dr. Mitchell and requested two time extensions, the latter expiring November 25, 1991. Subsequently, in a letter to the court, Fortenberry said that he had not yet found Dr. Mitchell and would be requesting the court's assistance in locating him. After numerous other efforts to locate Dr. Mitchell were unsuccessful, Fortenberry hired an investigator who located Dr. Mitchell in Oxford. Dr. Mitchell was served with process on March 19, 1992.

On November 4, 1991, Dr. Martinolich filed a motion to dismiss or, in the alternative, for summary judgment. On May 4, 1992, Memorial Hospital filed a motion to dismiss or, in the alternative, for summary judgment. Dr. Mitchell filed a motion to dismiss or, in the alternative, motion for summary judgment on May 18, 1992. SMB filed a motion to dismiss or, in the alternative, for summary judgment on June 15, 1992. Hearings were conducted on August 21, 1992 concerning all four defendants' motion. On September 4, 1992, the judge granted Dr. Mitchell's motion to dismiss and Memorial Hospital's motion for summary judgment. The judge granted SMB and Dr. Martinolich summary judgment on October 6, 1992.

DISCUSSION OF LAW

A discussion of these issues necessitates a review of Miss. Code Ann. § 15-1-36 (Rev. 1995) which details the limitations applicable to malpractice action arising from medical, surgical or other profession services. Section 15-1-36 provides in part:

(1) Except as otherwise provided in this section, no claim in tort may be brought against a licensed physician ... [or] hospital ... for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.

Equally applicable and necessary for this discussion is M.R.C.P. 4(h) which gives the time limit for service of the summons:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice such party or upon motion.

I. WHETHER OR NOT THE FILING OF A COMPLAINT WITH THE SPECIFIC INSTRUCTION TO THE CLERK TO WITHHOLD ISSUING PROCESS TO ANY DEFENDANT WAS SUFFICIENT TO TOLL THE RUNNING OF MISS. CODE ANN. § 15-1-36 (REV. 1995)?

We find that the issue addressed in Erby v. Cox, 654 So.2d 503 (Miss. 1995) is exactly on point with one of the issues in the case sub judice. The issue is "[w]hether the filing of a medical malpractice action commences the suit under Miss. Code Ann. § 15-1-36 when service of process was had some months later, but still within the 120-day window under M.R.C.P. 4(h)". Id. at 504. Erby held that the filing of the complaint, even without service of process, tolls the statute of limitations for the 120 day period allowed in M.R.C.P. 4(h). Id. at 505. By holding such, this Court implicitly overruled Erving's Hatcheries, Inc. v. Garrott, 250 Miss. 701, 168 So.2d 52 (1964), which held that an action was commenced by filing the complaint and issuing service of process. Therefore, Fortenberry had 120 days to issue service of process from the day he filed his complaint on May 21, 1991.

II.

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Bluebook (online)
676 So. 2d 252, 1996 WL 282514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortenberry-v-memorial-hosp-at-gulfport-miss-1996.