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

Filing 80

ORDER granting 77 Motion to Dismiss; granting 77 Motion for Summary Judgment. The plaintiffs' claims against Biloxi H.M.A. are dismissed without prejudice. The plaintiffs' claims against EmCare, Inc. remain pending. Signed by Chief District Judge Louis Guirola, Jr. on 2/6/14. (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

BILOXI, H.M.A., INC.;
and EMCARE, INC.

DEFENDANTS

ORDER GRANTING SECOND MOTION TO
DISMISS FILED BY BILOXI H.M.A., INC.
BEFORE THE COURT is the Second Motion to Dismiss, or alternatively,
Motion for Summary Judgment [77] filed by Biloxi H.M.A., Inc. Biloxi H.M.A.
argues 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 only oppose the Motion to the extent that Biloxi H.M.A.
may be seeking dismissal with prejudice. After reviewing the submissions of the
parties and the applicable law, the Court finds that Biloxi H.M.A.’s Motion to
Dismiss should be granted, and the Hoopers’ claims against Biloxi H.M.A. should be
dismissed without prejudice.
DISCUSSION
The facts and procedural history of this medical negligence lawsuit are
described in this Court’s prior Orders [28, 76] and are incorporated herein by
reference.
Miss. Code Ann. § 15-1-36(15) provides, “No action based upon the health
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.” Since this notice requirement is jurisdictional, a lawsuit must be dismissed
without prejudice if proper notice is not provided. Fowler v. White, 85 So. 3d 287,
291 (¶13) (Miss. 2012); Arceo v. Tolliver, 949 So. 2d 691, 695 (Miss. 2006).
Based on the information provided by Biloxi H.M.A. demonstrating that it
operates a licensed hospital, the Hoopers now concede that Biloxi H.M.A. was
entitled to notice under the statute. The Hoopers also admit that they did not
provide notice to Biloxi H.M.A. As a result, the Hoopers’ claims against Biloxi
H.M.A. must be dismissed without prejudice.
CONCLUSION
For the foregoing reasons, the Hoopers’ claims against Biloxi H.M.A. must be
dismissed without prejudice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the the Second
Motion to Dismiss, or alternatively, Motion for Summary Judgment [77] filed by
Biloxi H.M.A., Inc. is GRANTED. The plaintiffs’ claims against Biloxi H.M.A. are
hereby DISMISSED WITHOUT PREJUDICE. The plaintiffs’ claims against
EmCare, Inc., remain pending.
SO ORDERED AND ADJUDGED this the 6th day of February, 2014.

s/

Louis Guirola, Jr.

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

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