Hooper et al v. Biloxi Regional Medical Center, Inc. et al

Filing 76

ORDER denying 46 Motion to Dismiss; granting 48 Motion to Dismiss; granting 60 Motion for Summary Judgment; denying 63 Motion for Summary Judgment. The plaintiffs' claims against Amanda Pacheco, Jennifer L. Henderson, Jennifer L. Jurich, and George Loukatos are dismissed without prejudice. Signed by Chief District Judge Louis Guirola, Jr. on 1/30/14. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CHARLES HOOPER and
LINDA HOOPER, Wrongful
Death Beneficiaries of Ryan Hooper
v.

PLAINTIFFS
CAUSE NO. 1:13CV102-LG-JMR

JENNIFER L. JURICH; GEORGE
LOUKATOS; AMANDA PACHECO;
JENNIFER L. HENDERSON; BILOXI,
H.M.A., INC.; and EMCARE, INC.

DEFENDANTS

ORDER CONCERNING MOTIONS TO DISMISS AND MOTIONS
FOR SUMMARY JUDGMENT FILED BY DEFENDANTS
BEFORE THE COURT are the Motion to Dismiss [46] filed by Biloxi,
H.M.A., Inc.; the Motion to Dismiss [48] filed by Amanda Pacheco; the Motion for
Summary Judgment [60] filed by Jennifer L. Henderson, Jennifer L. Jurich, and
George Loukatos; and the Motion for Summary Judgment [63] filed by EmCare, Inc.
All of the defendants argue that this medical negligence lawsuit filed by Charles
and Linda Hooper should be dismissed, because the Hoopers failed to comply with
Miss. Code Ann. § 15-1-36(15). The Hoopers initially only opposed the Motions to
the extent that the defendants may be seeking dismissal with prejudice. The
Hoopers later filed responses opposing the Motions filed by Biloxi H.M.A., and
EmCare, because they claim that neither of these entities is a “health care provider”
pursuant to Miss. Code Ann. § 15-1-36(15). After reviewing the submissions of the
parties and the applicable law, the Court finds that the Motions filed by Henderson,
Jurich, Loukatos, and Pacheco should be granted. However, the Motions filed by
EmCare and Biloxi H.M.A. are denied.

FACTS
The Hoopers filed this lawsuit, alleging that twenty-four-year-old Ryan
Hooper went to the emergency room at Biloxi Regional Medical Center with a
severe headache. He was diagnosed with an acute headache, given medication, and
discharged. Less than forty-eight hours later, Ryan went into cardiac arrest at the
Hard Rock Hotel in Biloxi, Mississippi, and he was once again taken to Biloxi
Regional Medical Center. He died a short time later, and an autopsy revealed that
Ryan suffered from meningitis at the time of his death.
Charles and Linda Hooper filed this lawsuit, asserting the following claims
against the defendants: medical negligence, respondeat superior, res ipsa loquitur,
negligent retention and supervision, and wrongful death. The defendants argue
that the Hoopers’ lawsuit should be dismissed for failure to comply with the notice
requirements set forth at Miss. Code Ann. § 15-1-36(15).
DISCUSSION
Miss. Code Ann. § 15-1-36 provides:
For any claim accruing on or before June 30, 1998, and except as
otherwise provided in this section, no claim in tort may be brought
against a licensed physician, osteopath, dentist, hospital, institution
for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or
chiropractor 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.
Miss. Code Ann. § 15-1-36(1). The statute also contains the following notice
requirement, which is at issue in this lawsuit: “No action based upon the health

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care provider’s professional negligence may be begun unless the defendant has been
given at least sixty (60) days’ prior written notice of the intention to begin the
action.” Miss. Code Ann. § 15-1-36(15). The Mississippi Supreme Court requires
strict compliance with this notice requirement. Fowler v. White, 85 So. 3d 287, 291
(¶13) (Miss. 2012). Since this requirement is jurisdictional, a lawsuit must be
dismissed without prejudice if proper notice is not provided. Id.; Arceo v. Tolliver,
949 So. 2d 691, 695 (Miss. 2006).
The Mississippi Supreme Court has held that the following entities and
individuals delineated in Section 15-1-36(1) are entitled to notice under Section 151-36(15): licensed physicians, osteopaths, dentists, hospitals, institutions for the
aged or infirm, nurses, pharmacists, podiatrists, optometrists, and chiropractors.
Saul v. Jenkins, 963 So. 2d 552, 554-55 (¶¶ 8,10) (Miss. 2007). In the Saul decision,
the Supreme Court held that a material issue of fact existed that prevented it from
affirming a dismissal pursuant to Section 15-1-36(15), because it was unclear from
the record whether the defendant nursing home was licensed. Id.
The Hoopers concede that they did not give any of the defendants notice of
their intention to file this lawsuit and that the individual defendants are entitled to
dismissal without prejudice. However, the Hoopers claim they were not required to
give notice to Biloxi H.M.A, or EmCare, because they are not “health care
providers” under the statute.
Defendants have not shown evidence in the record regarding tending to
demonstrated that Biloxi H.M.A. and EmCare are licensed hospitals or are
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otherwise described in Section 15-1-36(1). See Saul, 963 So. 2d at 555 (¶10).
Therefore, the Court cannot determine whether these entities were entitled to
notice. As a result, the Motions filed by Biloxi H.M.A. and EmCare must be denied.
CONCLUSION
The Motions seeking dismissal pursuant to § 15-1-36(15) that were filed by
the following defendants are granted: Amanda Pacheco, Jennifer L. Henderson,
Jennifer L. Jurich, and George Loukatos. The Motions filed by EmCare and Biloxi
H.M.A. are denied at this time.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion to
Dismiss [46] filed by Biloxi, H.M.A., Inc., and the Motion for Summary Judgment
[63] filed by EmCare, Inc., are DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Motions [48, 60]
filed by Amanda Pacheco, Jennifer L. Henderson, Jennifer L. Jurich, and George
Loukatos are GRANTED. The plaintiffs’ claims against Amanda Pacheco, Jennifer
L. Henderson, Jennifer L. Jurich, and George Loukatos are hereby DISMISSED
WITHOUT PREJUDICE.
SO ORDERED AND ADJUDGED this the 30th day of January, 2014.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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