Victor Humphrey v. Ocean Springs Hospital
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-CA-01521-SCT
VICTOR HUMPHREY
v.
OCEAN SPRINGS HOSPITAL d/b/a SINGING RIVER HOSPITAL SYSTEM
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH
APPEALED:
ATTORNEYS FOR
APPELLANT:
08/18/1998
HON. EDWIN C. HARDIN
JACKSON COUNTY CIRCUIT COURT
CAREY R. VARNADO
TIMOTHY P. KOTTEMANN
DONALD E. HINTON, JR.
JAMES H. HEIDELBERG
ATTORNEYS FOR
APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:
BRETT K. WILLIAMS
C. BRICE WIGGINS
CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND
PROPERTY DAMAGE
REVERSED AND REMANDED - 11/18/1999
12/09/99
BEFORE PRATHER, C.J., BANKS AND McRAE, JJ.
PRATHER, CHIEF JUSTICE, FOR THE COURT:
INTRODUCTION
¶1. The present case requires this Court to determine whether a notice of claim delivered to the
administrator of a subsidiary hospital pursuant to Miss. Code Ann. § 11-46-11 (Supp.1999) of the Tort
Claims Act should be held to constitute valid notice upon the subsidiary's parent hospital chain. This Court
concludes that notice upon such an administrator may constitute notice upon the parent hospital, but we
also conclude that the record in the present case is too sparse to make a final determination in this regard.
We accordingly reverse the trial court's ruling dismissing this case, and we remand for additional findings in
this regard.
STATEMENT OF THE FACTS AND CASE
¶2. On February 1, 1997, Victor Humphrey ("Humphrey") received medical treatment at the Ocean
Springs Hospital ("Ocean Springs"), which treatment Humphrey alleges to have been negligent. On January
23, 1998, Humphrey delivered to Dwight Rimes ("Rimes"), Administrator of Ocean Springs, a notice of
claim alleging that he suffered injuries resulting from the negligence of Ocean Springs medical personnel.
¶3. On April 23, 1998, Humphrey filed a medical malpractice action against Singing River Hospital Systems
("Singing River"), of which Ocean Springs is a subsidiary hospital. On May 4, 1998, Singing River filed a
motion to dismiss, and this motion was granted by the trial judge on the basis of Humphrey's alleged noncompliance with the notice provisions of the Tort Claims Act. Feeling aggrieved, Humphrey timely appealed
to this Court.
ISSUE
The plaintiff made a good faith effort to comply with the requirements of § 11-46-1 (Supp. 1998).
LAW
¶4. Pursuant to the requirements of the Mississippi Tort Claims Act, a claimant is required to notify the
"chief executive officer" of any governmental entity of a pending claim against that entity prior to filing suit.
Miss. Code Ann. § 11-46-11 (Supp. 1999) provides in part that:
(1) After all procedures within a governmental entity have been exhausted, any person having a claim
for injury arising under the provisions of this chapter against a governmental entity or its employee
shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days
prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive
officer of the governmental entity. Service of notice of claim may also be had in the following manner:
If the governmental entity is a county, then upon the chancery clerk of the county sued; if the
governmental entity is a municipality, then upon the city clerk. If the governmental entity to be sued is
a state entity as defined in Section 11-46-1(j), service of notice of claim shall be had only upon that
entity's chief executive officer. If the governmental entity is participating in a plan administered by the
board pursuant to Section 11-46-7(3), such chief executive officer shall notify the board of any claims
filed within five (5) days after the receipt thereof.
Humphrey delivered a notice of claim to Dwight Rimes, in his capacity as the administrator of Ocean
Springs hospital, which is a subsidiary of Singing River Hospital Systems.
¶5. In Reaves ex rel. Rouse v. Randall, 729 So.2d 1237, 1240 (Miss. 1998), this Court, in adopting a
"substantial compliance" scheme of interpreting the Tort Claims Act, defined the term "chief executive
officer" as follows:
A letter of notice to the chief executive officer of the governmental entity is the only means the
legislature prescribed through which sovereign immunity may be reached. However, the Act leaves the
term "chief executive officer of the governmental entity" undefined. This language has proved overly
broad and likely has created much hardship. In order to give reasonable meaning to the statute, we
hold today that this term may be read to include any of the following: president of the board, chairman
of the board, any board member, or such other person employed in an executive capacity by a board
or commission who can be reasonably expected to notify the governmental entity of its potential
liability.
Reaves, 729 So.2d at 1240. We followed Reaves with Carr v. Town of Shubuta, 733 So.2d 261
(Miss. 1999), where we overruled the strict compliance doctrine which prevailed prior to Reaves. Further,
on several occasions, we have applied the substantial compliance doctrine to conclude that notice to a
governmental employee or official meeting the Reaves definition constituted substantial compliance with the
notice of claim requirement in section 11-46-11. See McNair v. University of Miss. Med. Ctr., No. 98CA-00506-SCT (Miss. June 3, 1999); Thornburg v. Magnolia Reg'l Health Ctr., No. 1998-CA01287-SCT (Miss. May 13, 1999); Tennessee Valley Reg'l Hous. Auth. v. Bailey, 740 So. 2d 869
(Miss. 1999); Alexander v. Mississippi Gaming Comm'n, 735 So.2d 360 (Miss. 1999).
¶6. Reaves thus defines the term "chief executive officer" to include "any other person employed in an
executive capacity by a board or commission who can be reasonably expected to notify the governmental
entity of its potential liability." 729 So. 2d at 1240. In the present case, a valid notice of claim was sent to
Rimes in his capacity as administrator of Ocean Springs, but Singing River argues that Humphrey was
required to provide notice to its CEO, David Lingle. The parties agree that Ocean Springs is a part of the
Singing River Hospital System, organized pursuant to Miss. Code Ann. § 41-13-1 (Supp. 1999). See also
Biloxi HMA, Inc. v. Singing River Hosp., No. 1998-SA-00968-SCT (Miss. July 29, 1999)(hospital
licensing dispute noting that Ocean Springs Hospital is part of the Singing River Hospital System).
¶7. The question thus arises as to whether notice provided to an administrator or other executive officer of a
subsidiary governmental entity may constitute notice upon the parent governmental entity. This Court
concludes that the Reaves analysis is equally applicable in the present context and that notice upon the
administrator of a subsidiary entity may constitute notice upon the parent entity, depending upon the facts of
a particular case and depending upon the nature of the relationship between the governmental entities in
question. If, under the facts of a given case, the executive officer of a subsidiary entity could reasonably be
expected to notify the parent entity of its potential liability, then notice provided to such officer should
constitute notice upon the parent entity pursuant to Reaves.
¶8. In the view of this Court, it can be reasonably expected, in the vast majority of cases, that the
administrator of a subsidiary hospital would notify a parent hospital of a pending claim, at least where the
notice made it clear that liability was being asserted against the parent entity. In the present case, the notice
of claim delivered to Rimes clearly asserted claims against Singing River. Humphrey's notice of claim began
with the following paragraph:
Dear Mr. Rimes,
Pursuant to the provisions of § 11-46-11 of the Mississippi Code of 1972 as amended, you are
hereby notified that Victor Humphrey, who resides in Biloxi, Mississippi, has a claim for injury against
the Singing River Hospital System. Said injury occurred on or about February 1, 1997 at the Ocean
Springs Hospital, Ocean Springs, Mississippi. . . .
Given that Humphrey's notice of claim clearly asserted claims against Singing River, it appears very likely
that an administrator in Rimes' position would in fact notify the parent entity of the pending claim.
¶9. This Court concludes, however, that the record in the present case is too sparse to make a ruling in this
regard. The present case was dismissed on a Miss. R. Civ. P. 12(b)(6) motion, and the record is practically
devoid of any affidavits or other competent evidence which would assist this Court in resolving this issue.
There are, for example, no affidavits setting forth the nature of the relationship between Ocean Springs and
Singing River, the scope of Rimes's duties as administrator at Ocean Springs, nor whether Singing River
actually received the notice. The only affidavit in the record is that of Martha Barfield, who worked for
Humphrey's counsel, and her affidavit describes how she telephoned Ocean Springs Hospital and was
informed by an unnamed employee at the hospital that Rimes was the Ocean Springs Hospital
administrator.
¶10. It would be inappropriate for this Court to resolve this issue in the present context based solely upon
the arguments and representations of counsel in their appellate briefs. As such, while it appears likely that
the notice provided to Rimes did substantially comply with section 11-46-11, the record is insufficient for
this Court to make a determination in this regard.(1) The trial judge dismissed the present case prior to this
Court's decision in Reaves, and this Court elects to reverse the dismissal and remand for discovery and
further proceedings so that the trial judge may consider the present issues in light of Reaves and its progeny.
The judgment of the Jackson County Circuit Court is reversed and this case is remanded for further
proceedings consistent with this opinion.
¶11. REVERSED AND REMANDED.
SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, SMITH, MILLS,
WALLER AND COBB, JJ., CONCUR.
1. Humphrey raises an additional argument which need not be addressed if it is determined on remand that
the notice in question substantially complied with § 11-46-11. Specifically, Humphrey argues that Singing
River should be equitably estopped from asserting his lack of compliance with the Tort Claims Act notice
provisions. Given the sparsity of the record on appeal, that issue is best decided by the trial judge on
remand if, but only if, it is determined that Humphrey's notice did not substantially comply with the Tort
Claims Act notice requirements under Reaves and its progeny. If it does reach the estoppel issue, the trial
court should be guided by this Court's decisions in this context, including Smith County Sch. Dist. v.
McNeil, No. 97-IA-00748-SCT (Miss. Aug. 26, 1999); Ferrer v. Jackson County Bd. of
Supervisors, No. 97-CA-01063-SCT (Miss. Apr. 29, 1999); and Carr v. Town of Shubuta, 733
So.2d 261 (Miss. 1999). See also Mississippi Dep't of Public Safety v. Stringer, 97-IA-00187-SCT
(Miss. June 3, 1999)(discussing equitable estoppel in the context of Tort Claims Act's statute of limitations.)
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