Lindsay v. Houseworth
ORDER granting 9 Motion for Partial Dismissal. Signed by Senior Judge Neal B. Biggers on 3/17/2017. (llw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:16CV33-NBB-RP
DR. STEPHEN W. HOUSEWORTH, M.D.
ORDER GRANTING PARTIAL DISMISSAL
This cause comes before the court upon the defendant’s motion for partial dismissal of
the plaintiff’s complaint. Specifically, the defendant seeks to dismiss the plaintiff’s claim for
battery, as it was brought outside the applicable one-year statute of limitations set forth in
Mississippi Code Annotated § 15-1-35, and the plaintiff’s claim for unjust enrichment because it
is subsumed by her medical malpractice claim. The plaintiff filed no response to the defendant’s
motion, and it appears she does not oppose dismissal of these two claims. The court will
nevertheless briefly address the merits.
In addition to a traditional medical malpractice claim, the plaintiff also separately alleges
that the procedure the defendant performed on her should be considered a battery because “had
she received the required disclosures from Defendant, Plaintiff would not have undergone the
March 11, 2014 arthroscopic procedure.” The statute of limitations for this separate battery
claim is one year. Miss. Code Ann. § 15-1-35. The surgery at issue was performed on March
11, 2014. The plaintiff filed this action on February 16, 2016. The defendant is correct that the
claim was filed outside the applicable period and must be dismissed.
As to the plaintiff’s claim for unjust enrichment, Mississippi courts have found that
unjust enrichment is a quasi-contract claim, not a tort. See 1704 21st Avenue, Ltd v. City of
Gulfport, 988 So. 2d 412, 418 (Miss. Ct. App. 2008). When a contractual claim regarding a
procedure performed by a healthcare provider is asserted in the context of a medical malpractice
action, the contractual based claim is found to be subsumed by the medical malpractice action.
See McMichael v. Howell, 919 So. 2d 18, 23 (Miss. 2005) (rejecting a plaintiff’s assertion that
her medical malpractice claim was actually a breach of contract claim). Accordingly, the court
finds that the plaintiff’s claim for unjust enrichment should be dismissed.
It is, therefore, ORDERED AND ADJUDGED that the defendant’s motion for partial
dismissal is well taken, should be, and the same is hereby, GRANTED. The plaintiff’s claims
for battery and unjust enrichment are DISMISSED.
This, the 17th day of March, 2017.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE
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