Kelby O. Bush, By and Through His Guardian and Next Friend, Cynthia Laruth Williams, Individually and On Behalf of The Wrongful Death Beneficiaries of Johnessia Adams Lewis v. Marion General Hospital, Peter J. Jensen, M.D., Matthew Verucchi, M.D., and Cindy Armstead, D.O.

Opinion

IN THE SUPREME COURT OF MISSISSIPPI NO. 2025-CA-00246-SCT

KELBY O. BUSH, BY AND THROUGH HIS GUARDIAN AND NEXT FRIEND, CYNTHIA LARUTH WILLIAMS, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF JOHNESSIA ADAMS LEWIS

v.

MARION GENERAL HOSPITAL, PETER J. JENSEN, M.D., MATTHEW VERUCCHI, M.D., AND CINDY ARMSTEAD, D.O.

DATE OF JUDGMENT: 02/04/2025 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL TRIAL COURT ATTORNEYS: EDWARD BLACKMON BRADFORD JEROME BLACKMON

MATTHEW D. MILLER

NICHOLAS KANE THOMPSON

ANDREA BOYLES PACIFIC

WHITMAN B. JOHNSON, III

SHANETRIC TOWNSEND

R. MARK HODGES

KIMBERLY NELSON HOWLAND

COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: EDWARD BLACKMON BRADFORD JEROME BLACKMON

ATTORNEYS FOR APPELLEES: MATTHEW D. MILLER WHITMAN B. JOHNSON, III

R. MARK HODGES

KIMBERLY NELSON HOWLAND

RACHEL E. GHOLSON

SHANETRIC TOWNSEND

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH DISPOSITION: REVERSED AND REMANDED - 08/27/2026 MOTION FOR REHEARING FILED:

EN BANC.

GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Kelby O. Bush, by and through his guardian and next friend, Cynthia Laruth Williams, individually and on behalf of the wrongful-death beneficiaries of Johnessia Adams Lewis (collectively, “Plaintiffs”) appeal the trial court’s entry of summary judgment in favor of Marion General Hospital, Peter J. Jensen, M.D., Matthew Verucchi, M.D., and Cindy Armstead, M.D. (collectively, “Defendants”). Because Plaintiffs’ alleged medical- negligence claims are not attributable to the COVID-19 state of emergency, Mississippi Code Section 11-71-7 (Supp. 2025) is inapplicable, and Defendants are not legally immune from suit under Section 11-71-7. Consequently, the trial court’s final judgment is reversed, and the case is remanded to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2. Lewis, a thirty-seven-year-old woman, presented to the emergency department at Marion General Hospital (MGH) on February 7, 2022, at 2:19 p.m. with chief complaints of abdominal cramping and constipation. Lewis was initially seen by emergency-department physician Dr. Armstead, who ordered multiple blood and urine laboratory studies and an abdominal X-ray. The X-ray showed “[p]rominent fecal retention throughout the colon.” A digital-rectal exam was negative for impaction.

¶3. Dr. Armstead diagnosed Lewis with sepsis, provided IV antibiotics, and ordered a CT scan of Lewis’s pelvis and abdomen. After Dr. Armstead’s shift ended, Lewis’s care was

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transferred to emergency-department physician Dr. Verucchi.

¶4. The CT scan showed “[d]iffuse colonic distention with stool” and noted concern “for constipation or a colonic ileus.”1 Dr. Verucchi documented his diagnosis as sepsis without acute organ dysfunction, generalized abdominal pain, and constipation. Dr. Verucchi discussed Lewis’s case with Dr. Jensen, a family-medicine physician who serves as a hospitalist at MGH. Dr. Jensen agreed to admit Lewis to the intensive care unit (ICU) for continued IV antibiotics, monitoring, and bowel clearance.

¶5. Lewis was admitted to the ICU at 9:19 p.m. under the care of Dr. Jensen. Based on his examination, Dr. Jensen diagnosed Lewis with severe sepsis without septic shock. His list of Lewis’s “active problems” included constipation and paralytic ileus of the large intestine.

¶6. Shortly after midnight on February 8, 2022, Dr. Jensen noted that Lewis’s blood pressure had dropped, that she was “still having severe abdominal pain,” and that her stools were black and “heme positive.” Dr. Jensen further noted that Lewis’s “overall picture [wa]s appearing to be overwhelming sepsis and there [wa]s definitely a concern for a possible surgical abdomen.” Dr. Jensen contacted the transfer center to request a “transfer to ICU at a facility with surgery and gastroenterology services.”

1 “Ileus occurs when there is a problem with motility in the stomach and small or large intestine (bowel). Motility is the movement of food and waste through the digestive tract.” https://www.ummhealth.org/health-library/ileus (last visited Aug. 17, 2026).

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¶7. The transfer-center timeline shows multiple phone calls between Dr. Jensen and the transfer center regarding Lewis’s transfer to a facility with a higher level of care. Dr. Jensen’s transfer request was ultimately accepted around noon on February 8. Medical records reflect that at 12:42 p.m., Lewis’s pain was ten out of ten and she had “coffee ground emesis.”2

¶8. Lewis was transferred to Highland Community Hospital, where, upon admission, she was diagnosed with abdominal compartment syndrome (ACS). ACS

is a medical emergency that . . . happens when swelling and pressure in your belly (abdomen) reach dangerous levels.

....

[ACS] can prevent your organs and muscles from getting enough blood and oxygen. This can lead to multi-organ failure and death, so it must be recognized and treated quickly.

....

The most effective [ACS] treatment is surgical decompression of your abdomen.

https://my.clevelandclinic.org/health/diseases/23102-abdominal-compartment-syndrome (last visited Aug. 17, 2026). Surgery was performed around 2:33 p.m. to address the ACS diagnosis. According to medical records, “immediately upon entering [Lewis’s] abdomen[,]

2 “Coffee ground emesis (CGE) is vomit that looks like coffee grounds. The appearance of coffee grounds comes from coagulated blood in your vomit. It may appear dark red, brown or black, depending on how old the blood is.” https://my.clevelandclinic.org/health/symptoms/23153-coffee-ground-vomitus (last visited Aug. 17, 2026).

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a large amount of serous fluid was evacuated.” Medical records further show that during surgery, there was “a loss of [Lewis]’s pulses.” After surgery, Lewis was taken to ICU in critical condition. Medical records noted that Lewis had “multisystem organ failure.”

¶9. Lewis was transferred to Forrest General Hospital where she underwent additional surgeries, multiple amputations, and dialysis. Lewis was eventually discharged from Forrest General Hospital. Lewis was later admitted to the University of Mississippi Medical Center, where she died on August 30, 2022.

¶10. Plaintiffs filed a complaint in the trial court alleging medical negligence against Defendants. Plaintiffs’ allegations included failure to diagnose Lewis with ACS, failure to properly treat Lewis’s ACS and sepsis condition, failure to timely transfer Lewis to a facility with a higher level of care, and failure to consult with other healthcare providers. Plaintiffs sought general damages, special damages, funeral and burial expenses, litigation expenses, prejudgment interest, and “such other . . . relief as the [c]ourt may deem just and proper.”

¶11. Dr. Jensen filed a motion for summary judgment and argued he was immune from suit under Section 11-71-7 because “[a]ny alleged delay in transferring . . . Lewis was due to . . . the overwhelming strain of COVID on medical resources and hospitals around the country.” In response, Plaintiffs argued that “Dr. Jensen ignored the fact that the complaint alleged negligence in a variety of ways, not just the failure to transfer . . . Lewis to a hospital with a higher level of care[.]” Relying on an affidavit from their medical expert, Plaintiffs further argued that there were “material facts in dispute as to whether the Defendants exercised

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reasonable care in their treatment of . . . Lewis” and that Dr. Jensen “failed to establish that his failure to diagnose and transfer . . . Lewis in a timely manner was due to the COVID pandemic.” Plaintiffs moved “to conduct limited discovery on the issue of the call or calls for transfer” and to take various depositions. After a hearing, the trial court denied Dr. Jensen’s motion for summary judgment and granted Plaintiffs’ motion to conduct discovery.

¶12. After limited discovery had been conducted, Dr. Jensen filed a second motion for summary judgment and again argued that he was immune from suit under Section 11-71-7 because “[a]ny alleged delay in transferring . . . Lewis was due to the lack of resources available at surrounding healthcare facilities.” He further stated:

The [P]laintiffs will probably try to claim that Dr. Jensen did not diagnose . .

. Lewis with “abdominal compartment syndrome” as a basis for defeating the Motion for Summary Judgment. It should first be noticed that the [P]laintiffs’

claim in the Complaint did not make such an allegation, but simply alleged that Dr. Jensen had failed to timely transfer . . . Lewis to a facility that could provide a higher level of care. That fact in and of itself establishes the fallacy of the [P]laintiffs’ argument. Further, it is undisputed that Dr. Jensen is not a general surgeon, and that the facilities at Marion General Hospital were such that (a) there was no surgeon available to evaluate the patient and make an actual surgical diagnosis; and (b) even if a specific surgical diagnosis had been made, that the patient needed to be transferred for surgery to be provided. The bottom line is that as reflected in the medical records and Dr. Jensen’s conversations with the Transfer Center . . . , Dr. Jensen recognized that patient had a likely surgical condition and was attempting to have the patient transferred to where such care could be provided.

MGH, Dr. Armstead, and Dr. Verucchi joined Dr. Jensen’s motion for summary judgment.

¶13. In response, Plaintiffs asserted:

Dr. Jensen’s breaches of the standard of care are not limited to delays in transport but encompass a comprehensive failure to meet basic medical

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standards for diagnosing and treating sepsis and ACS. These failures are well-documented in the record and support Plaintiffs’ claims for negligence.

The current motion, like its predecessor fails to address the broader claims and relies on disputed factual assertions regarding transport timing.

Plaintiffs argued that “Dr. Jensen’s reliance on [Section] 11-71-7 for immunity [wa]s unsubstantiated due to the lack of a causal nexus between the pandemic and the alleged acts of negligence.” Plaintiffs further argued that the “COVID-19 [s]tate of [e]mergency ended in November 2021, months before . . . Lewis’s treatment.” As a result, Plaintiffs asked that Dr. Jensen’s motion for summary judgment be denied.

¶14. After a hearing, the trial court found Section 11-71-7 applied to Plaintiffs’ claims and granted Dr. Jensen’s motion for summary judgment. In its order, under “Position of Parties,” the trial court noted that “[t]he Plaintiffs allege in their complaint the Defendants are liable for the death of . . . Lewis due to Defendants’ failure to transfer her to a higher end care facility in a timely manner.” The trial court did not acknowledge or address any other claims alleged in Plaintiffs’ complaint. Nevertheless, the trial court granted the motion for summary judgment and dismissed Plaintiffs’ complaint and “all causes of action there[in].” Plaintiffs timely appealed.

STANDARD OF REVIEW

¶15. “An appeal from summary judgment is reviewed de novo.” Dailey v. Methodist Med. Ctr., 790 So. 2d 903, 906 (Miss. Ct. App. 2001) (citing Cossitt v. Alfa Ins. Corp., 726 So. 2d 132, 136 (Miss. 1998)).

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The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under [Mississippi] Rule [of Civil Procedure] 56(c). This Court conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. The burden of showing that no genuine issue of material fact exists lies with the moving party, and we give the benefit of every reasonable doubt to the party against whom summary judgment is sought. We do not try issues. Rather, we only determine whether there are issues to be tried. Furthermore, it is well-settled that motions for summary judgment are to be viewed with a skeptical eye, and if a trial court should err, it is better to err on the side of denying the motion.

Id. at 906-07 (citing Evans v. Jackson Coca-Cola Bottling Co., 771 So. 2d 1006, 1008 (Miss. Ct. App. 2000)).

DISCUSSION

¶16. The sole issue before this Court is whether Defendants are immune from suit under Section 11-71-7.3 Section 11-71-7, which provides legal immunity for healthcare professional or facilities, states as follows:

(1) Any health care professional or health care facility shall be immune from suit for any injury or death directly or indirectly sustained because of the health care professional’s or health care facility’s acts or omissions while providing health care services related to a COVID-19 state of emergency. The immunity takes effect when the COVID-19 state of emergency is declared, applies to any health care services performed during the COVID-19 state of

3 Plaintiffs assert that “Lewis was admitted to [MGH] on February 7, 2022, approximately ninety-nine days after the termination of the [COVID-19] State of Emergency.” But while the COVID-19 state of emergency ended effective November 20, 2021, Section 11-71-7 did not expire until “one (1) year after the end of the COVID-19 state of emergency.” Miss. Code Ann. § 11-71-7(1) (Supp. 2025). As a result, Section 11-71-7 was in effect at the time of Lewis’s treatment.

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emergency, including any period of renewal or extension, and terminates one (1) year after the end of the COVID-19 state of emergency. The immunity includes, but is not limited to, injury or death resulting from screening, assessing, diagnosing or treating persons in relation to the COVID-19 state of emergency or the medical conditions causing the COVID-19 state of emergency, or acts or omissions while providing health care services to persons unrelated to the COVID-19 state of emergency when those acts or omissions were intended to support the state’s response to the COVID-19 state of emergency, including, but not limited to, the following:

(a) Delaying or cancelling nonurgent or elective dental, medical or surgical procedures, or altering the diagnosing or treatment of any person in response to an order, directive or guideline issued by the federal, state or a local government;

(b) Diagnosing or treating patients outside the normal scope of the health care professional’s license or practice;

(c) Using equipment or supplies outside of the product’s normal use for medical practice and the provision of health care services, including using or modifying a medical device for an unapproved use or indication;

(d) Prescribing, administering or dispensing a pharmaceutical for off-label use to treat a patient in relation to a COVID-19 state of emergency;

(e) Conducting tests or providing treatment to any person outside of the premises of standard health care facilities; or

(f) Acts or omissions undertaken by a health care professional or health care facility because of a lack of staffing, facilities, equipment, supplies or other resources attributable to the COVID-19 state of emergency that make it impractical for the health care professional or health care facility to provide the level or manner of care to any person that otherwise would have been required in the absence of the COVID-19 state of emergency.

(2) This chapter shall be liberally construed with regard to immunizing

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health care professionals or health care facilities for acts or omissions undertaken while providing health care services related to a COVID-19 state of emergency.

Miss. Code Ann. § 11-71-7 (Supp. 2025).

¶17. Defendants argue that they are entitled to immunity under Section 11-71-7, specifically Section 11-71-7(1)(f), because “[t]he inability to transfer [Lewis] was not related to [their] medical care or decision making, but was the direct result of the ongoing COVID spike [that] had effectively put all of the hospitals on diversion, during which they refused to accept transfers.” They claim that “[a]ny alleged delay was not due to any act or omission on behalf of [Defendants], but was instead due to a lack of resources available at [MGH] and other facilities.” The trial court agreed, stating:

The Plaintiffs allege in their complaint the Defendants are liable for the death of . . . Lewis . . . due to Defendants’ failure to transfer her to a higher end care facility in a timely manner.

....

The [c]ourt finds that there is no genuine issue of material fact as to the applicability of [Section 11-71-7] and the fact that . . . Lewis’s cause of death was not attributable to the acts or omissions of . . . Defendants. It was instead the result of circumstances and conditions existing [that] were attributable to the limiting effects of COVID-19 on healthcare resources. The Defendants are therefore immune and entitled to judgment as a matter of law.

¶18. But as Plaintiffs argued in the trial court and now argue on appeal, Defendants’ alleged failure to timely transfer Lewis to a higher-care facility was “just one of the claims in the lawsuit.” In addition to an alleged failure to timely transfer, Plaintiffs also claimed that Defendants failed to diagnose Lewis with ACS, failed to treat Lewis’s medical conditions,

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and failed to consult with other healthcare providers.4 Plaintiffs argue that they “presented triable issues notwithstanding the immunity afforded by [Section] 11-71-7” and that “[t]he trial court’s grant of summary judgment was error.” We agree.

¶19. Despite the trial court’s findings, the record reflects that a genuine issue of material fact exists as to whether Plaintiffs’ claims were “the result of circumstances and conditions existing [that] were attributable to the limiting effects of COVID-19 on healthcare resources.”

Failure to Diagnose Lewis with ACS

¶20. Plaintiffs allege Defendants “missed the diagnosis of [ACS].” According to Plaintiffs’ medical expert, test results available approximately two hours after Lewis presented to MGH were sufficient to indicate ACS. He found that “[a] review of the medical records indicate[d] that . . . Lewis was already in advancing sepsis in the [e]mergency [r]oom at [MGH] with a classical picture of the presentation of [ACS].” Defendants, however, argue that a specific diagnosis was irrelevant because, as Plaintiffs acknowledged in their complaint, ACS “is a surgical emergency that requires surgical intervention.” And it is undisputed that Defendants are not surgeons and that MGH did not have a surgeon to evaluate Lewis.5 Thus, Defendants contend, “[i]t is of no moment that no one a[t] MGH

4 The trial court dismissed all of Plaintiffs’ claims despite only acknowledging and addressing one—failure to timely transfer.

5 MGH did not provide surgical services. When surgical intervention is necessary, the patient must be transferred to a facility with a higher level of care.

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diagnosed Lewis with ACS” because “surgical evaluation was needed that could not be provided by anyone at MGH.” According to Defendants, “even if a true surgical diagnosis had been made by a non-surgeon at MGH, there would have been no change in outcome.”

¶21. But as Plaintiffs’ expert stated,

Without immediate appropriate diagnosis and treatment, [ACS] and sepsis are life threatening medical conditions with a foreseeable and fatal course that results in organ failure and death.

....

In light of the . . . signs and symptoms exhibited by . . . Lewis from her initial presentation to the emergency department at 2:20 pm, through a dangerously delayed transfer to the ICU after 9:00 pm, on February 7, 2022, and multiple failures to monitor changes to her clinical condition by [Defendants] caused . . . Lewis to remain at [MGH] for a total of twenty[-]two hours without the appropriate diagnosis and treatment that would have prevented serious complications, incapacitating injuries and death.

....

Lewis suffered pain and compromise of her bodily organs and undiagnosed and untreated [ACS] while in the care of [Defendants].

The negligence of [Defendants] to accurately diagnose and treat . . . Lewis caused an unnecessary delay in the effort to seek a transfer to a higher level of care where surgical decompression could have occurred as early as twenty[-]

four hours earlier than it was done. Had surgical decompression been performed on February 7, 2022, . . . Lewis’[s] condition would not have progressed to septic shock, multi-organ failure, cardiac arrest, and the need for multiple surgeries including small and large bowel resection, amputations to all four extremities, and eventually her demise.

¶22. Notably, whether Defendants failed to diagnose Lewis with ACS is not the issue before the Court. We need not determine the merits of Plaintiffs’ failure-to-diagnose claim.

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Instead, the issue before the Court is whether Defendants’ alleged failure to diagnose Lewis with ACS was attributable to the COVID-19 state of emergency. And as the record before us reflects, no evidence was adduced that Defendants’ alleged failure to diagnose Lewis with ACS was

because of a lack of staffing, facilities, equipment, supplies or other resources attributable to the COVID-19 state of emergency that ma[de] it impractical for the [Defendants] to provide the level or manner of care to [Lewis] that otherwise would have been required in the absence of the COVID-19 state of emergency.

Miss. Code Ann. § 11-71-7(1)(f) (Supp. 2025). As a result, Section 11-71-7 does not apply to Plaintiffs’ failure-to-diagnose claim, and the trial court erred by dismissing it.

Failure to Treat Lewis’s Medical Conditions

¶23. Plaintiffs allege Defendants “had a duty to properly diagnose and treat . . . Lewis’s [ACS] and her sepsis condition.” Plaintiffs admit that Defendants are not surgeons, but they argue that nonsurgical efforts could have been made to treat Lewis’s medical conditions and to relieve her abdominal pressure. In support, Plaintiffs rely on their medical expert, who discussed some of those nonsurgical procedures. Specifically, Plaintiffs’ expert found that

Lewis could have been effectively treated by the administration of a soap suds enema to evacuate the colon and decompress the abdomen. As part of an appropriate medical screening, after auscultation and palpation of the abdomen, a digital rectal examination to assess for the presence of stool at the rectal vault may have also assisted in the diagnosis of an impaction and the need for enema administration even before the x-ray results were available.

....

. . . Only after . . . Lewis had been at [MGH] for more than seven hours and

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twenty[-]two minutes and transferred to the intensive care unit after 9:42 pm, did Dr. Jensen order the administration of a soap suds enema that was documented as yielding no results.

....

The emergency room physicians further failed to perform any evaluation to assess for bladder distention in the presence of abdominal distention or for the signs of increasing bladder pressure which is one of the cardinal signs of compression of the organs in the abdominal cavity and compromised tissue perfusion.

All of the physicians involved in the care and treatment of . . . Lewis failed to order that . . . Lewis receive nothing by mouth, the insertion of nasogastric tube to remove any stomach contents to facilitate gastric decompression and prevent aspiration. Nor did either of the physicians at [MGH] ever order a diagnostic fluoroscopic hypaque enema that would have revealed the scope and severity of any gastrointestinal compromise.

As a result of these omissions in the care and treatment of . . . Lewis, she suffered in pain from rising abdominal pressure , along with a decline in renal and cardiovascular function for a total of twenty[-]two hours before she was finally transferred[.]

¶24. In response, Defendants note the nonsurgical efforts they made to treat Lewis, and they explain why the efforts suggested by Plaintiffs’ expert were “factually inaccurate” and would not have made a difference in the outcome.

¶25. But again, the issue is not whether Defendants did in fact fail to treat Lewis, but instead, whether that alleged failure was attributable to the COVID-19 state of emergency. No evidence in the record before us supports the assertion that Defendants’ alleged failure to treat Lewis’s medical conditions including ACS and sepsis was

because of a lack of staffing, facilities, equipment, supplies or other resources attributable to the COVID-19 state of emergency that ma[de] it impractical for

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[Defendants] to provide the level or manner of care to [Lewis] that otherwise would have been required in the absence of the COVID-19 state of emergency.

§ 11-71-7(1)(f). As a result, immunity under Section 11-71-7 does not apply to Plaintiffs’ failure-to-treat claim, and the trial court erred by dismissing it.

Failure to Consult with Other Healthcare Providers

¶26. Plaintiffs allege Defendants failed to consult with a gastroenterologist, an infectious- disease specialist, a nephrologist, and/or a surgeon “to ensure the correct diagnosis, differential diagnosis, and appropriate treatment of . . . Lewis’s condition[.]” Defendants respond that MGH did not have a surgeon or a gastroenterologist at MGH to consult, and it could not “magically make [those] services appear.”

¶27. But there is nothing in the record to suggest that Defendants’ alleged failure or inability to consult with other healthcare providers was attributable to limited resources due to the COVID-19 state of emergency. Again, the merits of Plaintiffs’ failure-to-consult claim is not before us. Instead, the issue is whether that failure was related to the COVID-19 state of emergency. Because no evidence was presented that Defendants’ failure to consult with other healthcare providers was attributable to the COVID-19 state of emergency, immunity under Section 11-71-7 does not apply to Plaintiffs’ failure-to-consult claim, and the trial court erred by dismissing it.

Failure to Timely Transfer Lewis to a Higher-Care Facility

¶28. Plaintiffs allege that Defendants “had a duty to properly diagnose and treat . . . Lewis’s [ACS] and her sepsis condition,” and they argue that that “duty to properly treat . .

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. included transferring [Lewis] in a timely manner to a facility of a higher level of care.” Plaintiffs further allege that “[a]ny and all medical deterioration and/or complications that . . . Lewis experienced, including her pain and suffering, disabilities, and her wrongful death, was a consequence of Defendants’ failure to diagnose . . . Lewis’s medical conditions, and to timely transfer her to a higher level of care.” Notably, Plaintiffs’ expert opined that Defendants’ “failure to correctly diagnose . . . led to their failure to timely arrange for . . . Lewis to be transferred from [MGH] to receive the care that would have prevented clinical decompensation.” Thus, according to Plaintiffs, Defendants’ alleged failure to timely transfer Lewis was not attributable to the COVID-19 state of emergency but was instead related to and stemmed from Defendants’ alleged failure to diagnose and treat Lewis’s medical conditions, including ACS.

¶29. Defendants disagree and argue that “[a]ny alleged delay [in transfer] was . . . due to a lack of resources” because of the COVID-19 state of emergency. In support, they rely on the transfer-request timeline and the call logs with the transfer center. But while the call logs indicate that there were “no beds available in Mississippi” and “[n]o . . . ICU bed[s] [a]ll the way up into Tennessee, Arkansas, Atlanta, Pensacola, Mobile, New Orleans,” the transfer- request timeline reflects that the first call to the transfer center was not until after midnight on February 8, more than ten hours after Lewis had arrived at MGH. Thus, the timeline and call logs do not account for or address Plaintiffs’ claim that Defendants should have started the transfer request approximately two hours after Lewis arrived at MGH when, according

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to Plaintiffs, Defendants had enough information to know or at least suspect that Lewis had ACS and needed surgery.

¶30. Plaintiffs assert that a genuine issue of material fact exists regarding Section 11-71-7’s applicability since had the Defendants “timely diagnosed . . . Lewis and communicated the gravity of her condition [to the transfer center], it may well be that she would have been transferred [sooner].” The transfer-request timeline shows that it took approximately twelve hours to locate a facility with available bed space. In other words, it took approximately twelve hours for the transfer request to be accepted.6 That request was accepted without the benefit of an ACS diagnosis. Had Lewis been diagnosed with ACS around 4:00 p.m. on February 7, 2022,7 the transfer request would have started at that time—eight hours earlier.8 Even if it still took twelve hours to locate a facility, the transfer process itself would have started sooner, which could have led to an earlier transfer and an earlier surgical intervention.9

6 The transfer request was initiated at 12:40 a.m. on February 8, 2022, and was accepted at 12:33 p.m. on February 8, 2022.

7 Plaintiffs’ expert opined that Defendants had enough information to diagnose Lewis with ACS approximately two hours after she arrived at MGH.

8 Defendants admit that ACS requires surgery and that when a MGH patient requires surgery, the patient must be transferred.

9 Plaintiffs argue that Defendants failed to accurately communicate Lewis’s condition to the transfer center and that had they done so, it may have resulted in an earlier transfer. In support, Plaintiffs rely on their medical expert who noted that the acuity or condition of the patient as well as an accurate report of the acuity and condition of the patient are factors that affect availability at transfer facilities.

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¶31. While limited resources due to the COVID-19 state of emergency might explain the twelve-hour delay in transfer acceptance from the time the transfer request was initiated,10 it does not explain the preceding eight to ten hours. In other words, no evidence appears in the record before us that Defendants’ failure to initiate the transfer before midnight on February 8, 2022, was “because of a lack of staffing, facilities, equipment, supplies or other resources attributable to the COVID-19 state of emergency[.]” § 11-71-7(1)(f). Instead, as Plaintiffs argue, Defendants’ failure to diagnose and treat Lewis led to her untimely transfer.

¶32. The dissent asserts that the alleged act or omission giving rise to Plaintiffs’ wrongful- death claim was Defendants’ failure to timely transfer Lewis to a higher-care facility and that this “negligent omission, i.e., the failure to transfer, . . . was ‘attributable to the COVID-19 state of emergency.’” Diss. Op. ¶ 46. But as discussed, Plaintiffs’ failure-to-timely-transfer claim relates to their failure-to-diagnose claim. Again, Plaintiffs argue that it was Defendants’ failure to diagnose Lewis with ACS that led to her untimely transfer. As the dissent recognizes:

Any and all medical deterioration and/or complications that Mrs. Lewis experienced, including her pain and suffering, disabilities, and her wrongful death, was a consequence of Defendants’ failure to diagnosis Mrs. Lewis’[s] medical conditions, and to timely transfer her to a higher level of care.

....

10 A chart produced by Defendants reflects a spike in COVID-19 cases around the time that Lewis was admitted to MGH.

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. . . “Moreover, had they accurately diagnosed Mrs. Lewis when laboratory and diagnostic test results became available within two hours of Mrs. Lewis’[s] presentation to Marion General Hospital, a timely transfer to another facility to receive the care and treatment that would have prevented her injuries and death could have occurred.” . . .

The negligence of Dr. Armstead, Dr. Verucchi, and Dr. Jensen to accurately diagnose and treat Mrs. Lewis caused an unnecessary delay in the effort to seek a transfer to a higher level of care where surgical decompression could have occurred as early as twenty four hours earlier than it was done. Had surgical decompression been performed on February 7, 2022, Mrs. Lewis’[s] condition would not have progressed to septic shock, multi-organ failure, cardiac arrest, and the need formultiple surgeries including small and large bowel resection, amputations to all four extremities, and eventually her demise.

Diss. Op. ¶¶ 41, 43 (alteration in original) (emphasis added). No evidence was produced that Defendants’ alleged failure to diagnose Lewis with ACS was attributable to the COVID-19 state of emergency. And a genuine issue of material fact exists regarding the applicability of Section 11-71-7 to Plaintiffs’ failure-to-transfer claim.

¶33. Again, whether Defendants failed to timely transfer Lewis to a facility with a higher level of care is not before us. Instead, the issue is whether that failure to timely transfer was attributable to the COVID-19 state of emergency. The record reflects that a genuine issue of material fact exists as to whether Section 11-71-7 applies to Plaintiffs’ failure-to-timely- transfer claim. As a result, the trial court’s dismissal of this claim was improper.

CONCLUSION

¶34. The trial court erred by granting Dr. Jensen’s motion for summary judgment. The trial court’s opinion and final judgment are reversed, and this case is remanded to the trial court

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for further proceedings.

¶35. REVERSED AND REMANDED.

KING, P.J., ISHEE AND SULLIVAN, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. COLEMAN, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRANNING, J. RANDOLPH, C.J., NOT PARTICIPATING.

COLEMAN, PRESIDING JUSTICE, DISSENTING:

I. Because Plaintiffs’ claims sound in wrongful death, the Court should be focusing on the allegedly negligent act that caused the decedent’s death when determining the question of statutory immunity.

¶36. Civil actions sounding in wrongful death did not exist at common law and exist and can be brought only as creatures of statute. Pannell v. Guess, 671 So. 2d 1310, 1313 (Miss. 1996). Under the common law, any claim for personal injury resulting from the tortious conduct of another person died with the injured person. Gentry v. Wallace, 606 So. 2d 1117, 1120 (Miss. 1992) (“[A] personal action dies with the person.”), overruled on other grounds by Jenkins v. Pensacola Health Tr., Inc., 933 So. 2d 923 (Miss. 2006). When addressing it, we strictly construe Mississippi’s wrongful death statute, Mississippi Code Section 11-7- 13. Pannell, 671 So. 2d at 1310.

¶37. A viable wrongful death claim is triggered “[w]henever the death of any person . . . shall be caused by any real, wrongful or negligent act or omission . . . .” Miss. Code Ann. § 11-7-13 (Rev. 2019). We have recognized that, pursuant to the quoted language, a wrongful death action can only succeed if the negligent act of a tortfeasor caused the death

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of the decedent. Wilks v. Am. Tobacco, Inc., 680 So. 2d 839, 843 (Miss. 1996) (citing Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 471 (1935)). If the negligence of the defendant did not cause the death, then there can be no viable claim for wrongful death. Berryhill, 158 So. at 471.

¶38. Our treatment of statute-of-limitations issues in the wrongful death area is instructive. In McMillan v. Puckett, 678 So. 2d 652, 654 (Miss. 1996) (emphasis added), we wrote as follows:

A tort is not complete until an injury occurs. Smith v. Temco, Inc., 252 So.

2d 212, 216 (Miss. 1971). In this, as in any other wrongful death action brought pursuant to Miss. Code Ann. § 11-7-13 (1972), there is no injury, and hence, no cause of action until a death occurs. Sweeney v. Preston, 642 So.

2d 332, 336 (Miss. 1994); Gentry v. Wallace, 606 So. 2d 1117, 1123 (Miss.

1992). Thus, for statute of limitations purposes, we have found that a wrongful death action cannot accrue prior to the death of the decedent.

Gentry, 606 So. 2d at 1123. No distinction can be made between when an action accrues and where it accrues. Accordingly, while the Pucketts might have been able to bring a negligence or a malpractice action for the injuries caused to Mrs. Puckett and their daughter prior to the infant’s death, a wrongful death cause of action did not accrue until December 31, 1991 in Leake County. Only then and there did they have an actionable claim for Sandra's death against Dr. McMillan and the Medical Center.

In Jenkins, the Court held the negligent act causing the death of the decedent determines the statute of limitations applicable to a wrongful death claim. Jenkins, 933 So. 2d at 926 (¶ 12). Inextricably tied to the Jenkins Court’s reasoning was the maxim that the tortfeasor’s negligence must cause the death. Id. at 925-26 (¶¶ 5-7).

¶39. In the instant case, the majority loses sight of the above-described, distinctive feature of wrongful death claims, i.e., that the very viability of the claim is wholly dependent on

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whether the negligence of the tortfeasor caused the death at issue. As a result, the very act or omission alleged to have caused the death becomes central to issues of the viability of wrongful death claims.

II. Because the alleged act or omission that gives rise to Plaintiffs’

wrongful death claim results from a lack of facilities related to the COVID-19 state of emergency, Defendants are immune.

¶40. The trial judge, after a hearing, granted summary judgment as to all Defendants. In doing so, the judge, citing Mississippi Code Section 11-71-7(1)(f), found that Defendants enjoyed immunity from Plaintiffs’ wrongful death action. That section and subsection provide, in pertinent part, as follows:

(1) Any health care professional or health care facility shall be immune from suit for any injury or death directly or indirectly sustained because of the health care professional’s or health care facility’s acts or omissions while providing health care services related to a COVID-19 state of emergency. . . . The immunity includes, but is not limited to, injury or death resulting from screening, assessing, diagnosing or treating persons in relation to the COVID-19 state of emergency or the medical conditions causing the COVID-19 state of emergency, or acts or omissions while providing health care services to persons unrelated to the COVID-19 state of emergency when those acts or omissions were intended to support the state’s response to the COVID-19 state of emergency, including, but not limited to, the following:

...

(f) Acts or omissions undertaken by a health care professional or health care facility because of a lack of staffing, facilities, equipment, supplies or other resources attributable to the COVID-19 state of emergency that make it impractical for the health care professional or health care facility to provide the level or manner of care to any person that otherwise would have been required in the absence of the COVID-19 state of emergency.

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Miss. Code Ann. § 11-71-7(1)(f) (Supp. 2025).

A. Plaintiffs allege and produce evidence to the effect that a delay in transferring their decedent caused her death.

¶41. Plaintiffs’ complaint frames their claims against the defendants as follows:

Any and all medical deterioration and/or complications that Mrs. Lewis experienced, including her pain and suffering, disabilities, and her wrongful death, was a consequence of Defendants’ failure to diagnosis Mrs. Lewis’[s]

medical conditions, and to timely transfer her to a higher level of care. The failure to do so constitutes negligence and a breach of the standard of care, and was the direct and/or proximate cause of Mrs. Lewis’[s] injuries and death.

Accordingly, the allegation that the failure to more quickly transfer Plaintiffs’ decedent has been central to Plaintiffs’ claims from the beginning.

¶42. Dr. Peter Jensen was the first Defendant to file a motion for summary judgment, which was later joined by Defendant Marion General Hospital. In response to Plaintiffs’ allegations that he failed to effect a timely transfer of the decedent, Dr. Jensen produced several items of evidence. Included in the evidence was an affidavit from Dr. Jerry M. Shepherd, in which Dr. Shepherd noted that “Dr. Jensen made attempts to obtain a transfer, but none was available.” Dr. Jensen provided medical records, logs, and transcripts of phone calls that showed that no ICU beds were available in “[a]ll of Mississippi” or, for that matter, “[a]ll the way up into Tennessee, Arkansas, Atlanta, Pensacola, Mobile, [or] New Orleans.”

¶43. In response to Dr. Jensen’s motion, Plaintiffs continued to point to the alleged failure to find a quicker transfer option for the decedent as a cause of death. In her response, she wrote, “Moreover, had they accurately diagnosed Mrs. Lewis when laboratory and diagnostic

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test results became available within two hours of Mrs. Lewis’[s] presentation to Marion General Hospital, a timely transfer to another facility to receive the care and treatment that would have prevented her injuries and death could have occurred.” (Emphasis added.) Plaintiffs submitted the affidavit of Dr. William Truly in response to Dr. Jensen’s motion for summary judgment. Dr. Truly opined, inter alia, as follows:

On February 7, 2022[,] time was of the essence and the failure of Dr. Cindy Armstead, Dr. Matthew Verucchi and Dr. Peter Jensen, under the auspices of Marion General Hospital and its governing body, to accurately examine, diagnose, treat, and transfer Mrs. Lewis caused unnecessary delays in lifesaving treatment that ultimately proved fatal to her.

(Emphasis added.) Dr. Truly later opined:

The negligence of Dr. Armstead, Dr. Verucchi, and Dr. Jensen to accurately diagnose and treat Mrs. Lewis caused an unnecessary delay in the effort to seek a transfer to a higher level of care where surgical decompression could have occurred as early as twenty four hours earlier than it was done. Had surgical decompression been performed on February 7, 2022, Mrs. Lewis’[s]

condition would not have progressed to septic shock, multi-organ failure, cardiac arrest, and the need for multiple surgeries including small and large bowel resection, amputations to all four extremities, and eventually her demise.

(Emphasis added.) In his conclusion, he again pointed to the failure to transfer the decedent as a significant factor in her death.

B. Defendants submitted uncontradicted evidence that the decedent could not be transferred due to a spike in COVID-19 patients that resulted in a lack of suitable facilities.

¶44. At the hearing on the summary judgment motion, Plaintiffs pointed out that Dr. Jensen, in his deposition, testified that he could only speculate that the lack of available

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transfer options for the decedent was due to COVID. On the other hand, Dr. Jensen supplied, pre-hearing, a graph from the Mississippi Department of Health that showed a sharp spike in the number of COVID cases at the time of Defendants’ treatment of the decedent. According to the graph, the number of cases in Mississippi went from one thousand to nine thousand during the pertinent time period.

¶45. Dr. Jensen also attached transcripts of his calls with the transfer center with whom he was working to transfer Plaintiffs’ decedent. The communications with the transfer center make clear that no beds were available during the pertinent time frame. For example, “No one else has an ICU bed. All the way up into Tennessee, Arkansas, Atlanta, Pensacola, Mobile, New Orleans, so there is probably nowhere we are going to be able to get this lady moved to tonight.”

¶46. According to the transcript, Dr. Jensen resubmitted the call transcripts and graph at the summary judgment hearing without objection from Plaintiffs. The evidence Defendants submitted established two things: (1) the futility of Dr. Jensen’s attempts to transfer his patient and (2) a correlated and markedly sharp increase in COVID cases statewide. The trial judge found, “I agree this specific problem was not COVID related, but COVID caused the condition of staffing needed or bed availability.” The trial judge got it right. The uncontradicted evidence submitted by Dr. Jensen establishes that the negligent omission, i.e., the failure to transfer, that the plaintiffs claim caused the death of the decedent, was “attributable to the COVID-19 state of emergency.” § 11-71-7(1)(f).

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¶47. I would affirm the judgment of the trial court.

BRANNING, J., JOINS THIS OPINION.