E-Filed Document Jan 17 2017 11:49:30 2016-IA-00398-SCT Pages: 25

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

NO. 2016-IA-00398-SCT

MISSISSIPPI BAPTIST HEAL TH SYSTEMS, INC., MISSISSIPPI BAPTIST MEDICAL CENTER, INC., BAPTIST MEDICAL CENTER - LEAKE, INC., DAVID L. MOODY, M.D., MADDEN MEDICAL CLINIC, PLLC, AND JOHN DOES 1-V APPELLANTS/DEFENDANTS

VS.

SYLVIA DIANNE HARKINS and REGGIE HARKINS APPELLEES/PLAINTIFFS

APPELLANTS DAVID L. MOODY, M.D. AND MADDEN MEDICAL CLINIC, PLLC'S BRIEF

ORAL ARGUMENT REQUESTED

C. Maison Heidelberg, MB 9559 Ginny Y. Kennedy, MB 102199 WATSON HEIDELBERG JONES PLLC 2829 Lakeland Drive, Suite 1502 Flowood, MS 39232 Post Office Box 23546 Jackson, MS 39225-3546 601-939-8900 (tel) 601-932-4400 (fax)

Attorneys for Appellants, David L. Moody, M.D. and Madden Medical Clinic, PLLC

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

NO. 2016-IA-00398-SCT

MISSISSIPPI BAPTIST HEALTH SYSTEMS, INC., BAPTIST MEDICAL CENTER - LEAKE, INC. , DAVID L. MOODY, M.D., MADDEN MEDICAL CLINIC, PLLC, AND JOHN DOES 1-V APPELLANTS/DEFENDANTS

vs.

SYLVIA DIANNE HARKINS and REGGIE HARKINS APPELLEES/PLAI NTI FFS

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for Appellants/Defendants certifies that the

following listed persons have an interest in the outcome of the case. These

representations are made in order that the judges of this Court may evaluate possible

disqualifications or recusal:

1. Mississippi Baptist Health Systems, Inc., Appellant.

2. Mississippi Baptist Medical Center, Inc., Appellant.

3. Baptist Medical Center- Leake, Inc., Appellant.

4. David L. Moody, M.D., Appellant.

5. Madden Medical Clinic, PLLC, Appellant.

6. Sylvia Dianne Harkins, Appellee.

7. Reggie Harkins, Appellee.

8. Bobby L. Dallas, Attorney of record for Appellees.

9. Michael L. Jaques, Attorney of record for Appellees.

10. Jennifer P. Burkes, Attorney of record for Appellees.

11. C. Maison Heidelberg, Attorney of record for Appellants, David L. Moody, M.D. and Madden Medical Clinic, PLLC.

12. Ginny Y. Kennedy, Attorney of record for Appellants, David L. Moody, M.D. and Madden Medical Clinic, PLLC.

13. D. Collier Graham, Jr., Attorney of record for Appellees, Baptist Entities

14. Charles E. Cowan, Attorney of record for Appellees, Baptist Entities.

15. Honorable Winston Kidd, Circuit Court Judge.

ii

Isl C. Maison Heidelberg C. MAISON HEIDELBERG, MB #9559 Attorney for Appellants, David Moody, M.D. and Madden Medical Clinic, PLLC

TABLE OF CONTENTS

Certificate of Interested Persons ..... ..... .......... .. ... ......... ............... ........... ....... ..... ............... i

Table of Contents ......................... ..... .... ... ............... ..................... .. ..... ... ................... ... .. iii

Table of Authorities ..................... .. ... ...... .... ....... .. ............. .. .......... ... ...... .......................... iv

Statement of The lssue ...................... ... .. .. .... ... .. ... .. ..... ... ..... ........ ......... ....... .... ... .... .... ..... 1

Statement of The Case ............................................................... .... ......... ................ ... ..... 2

A. Course of Proceedings and Disposition of the Court Below ..... .............. .... 2

B. Statement of Relevant Facts ......................... ... ........ .. .. ...... .. ...... .. ... .... ... .... 3

Summary of The Argument. .... ........ .. .. .... .... ...... .. .. .. ... ........................... .. .................. ....... 4

Argument ... ... ....... .... ............. ...... .. .. .. .................. ........ .. ............ .... .... ..... ...... ................. ... 5

A. The trial court erred by denying the Motion to Dismiss, or Alternatively for Severance and Transfer of Venue .................................... 5

1. The plain language of Mississippi's medical malpractice venue statute requires that venue of the claims of medical negligence against Dr. Moody and the Madden Medical Clinic be in Leake County, where the alleged acts of medical negligence occurred . .... 5

2. Other courts interpreting similarly worded statutes have likewise applied the statutes' plain meaning ..... .......... ...... .... .. ........ ...... ..... .. 9

3. Joinder under Rule 20 does not cure improper venue .................. 11

4. Mississippi Code Ann. Section 85-5-7 and the prohibition of claim splitting do not aid the Harkins' position, and any aversion that the Harkins, or any other plaintiffs, have to Section 11-11-3(3) should be directed to the Mississippi Legislature ................................. 13

Conclusion ... ........ . . ··· ··· ········ · ...... ..... ... .. .... .... ... .. ....... .... .. ... ...... ..... .... ....... ........ .. 16

Certificate of Service .... .. .... .. .... ... .... .... ............ ....... . _ ............................ ............... ........ ... .. 18

iii

TABLE OF AUTHORITIES

CASES

Adams v. Baptist Mem'I Hosp.- Desoto, Inc. 965 So. 2d 652 (Miss. 2007) .................. ... ..... ...... ..... .... ... .. .. ... ............ .. 6, 7, 11 , 15, 16

Arceo v. Tolliver 949 So. 2d 691 (Miss. 2006) ...... .... .. ... .... .......... .. ... .. .... ... ..... ...... ..... ...... ....... ..... .......... 8

Blailock ex. rel. Blailock v. Hubbs 919 So. 2d 126 (Miss. 2005) .......... .... ...................... .... ......... .... .. .......... .. ... ... .. .. .. 13, 14

Carpenter v. Kenneth Thompson Builder, Inc. 2014 WL 4100003 at *2 (Miss. 2014) ... .... .. .. ... ........ .......... ... ... .. ... ..... .... ............ . 13, 14

Clark v. Johnson Reg'/ Med. Ctr. 362 S.W. 3d 311 (Ark. 2010) .... .. ........ .. .. .... ...... ..... .. ......... ..... ..... .............. .. .... .... .. .. .. .. 9

Claypool v. Mladineo 724 So. 2d 373 (Miss. 1998) ... ......... .... ...... .. .............. ... ... ... .. .... .......... .. .... .. .. .. ... .. .. ..... 6

Copass v. Monroe County Med. Found., Inc. 900 S.W. 2d 617 (Ky. Ct. App. 1995) .... .. ... ................... ..... ...... ..... ....... ....... ...... ...... .. 14

Crenshaw v. Roman 942 So. 2d 806 (Miss. 2006) .. .. ..... .. .. .... .... ....... .. ... .. ...... ... .. .. .............. ... .... ..... .. ...... ... 12

Entergy Mississippi, Inc. v. Hayes 842 So. 2d 953 (Miss. 2004) .. .. ...... ... ...... ... .............. ..... ........... ............ .. .... .... .............. .. 14

Estate of Hunter v. Gen. Motors Corp. 729 So. 2d 1264 (Miss. 1999) ........ _ ..... .......... ......... .... .. ........ .. ... .. ...... ......... .... ..... ..... 13

Ex parte Kennedy 656 So. 2d 365 (Ala. 1995) ..... .. ....... .... .... ....... .. .. ......................... .. ..... ... ............. 10, 13

Flight Line, Inc. v. Tanksley 608 So. 2d 1149 (Miss. 1992) ... .. .......... .... .. ........... .. .. ... .. ..... .... .. .... .. .. ......... ... ............. 5

Forrest County General Hospital v. Conway 700 So. 2d 324 (Miss. 1997) ...... ................ .... .. ....... .. .............. ........... ..................... 5, 7

Harrington v. Office of Mississippi Sec'y of State 129 So. 3d 153 (Miss. 2013) ...... .................... ........... .. ....... .. ....... ........ ; ............ ........... 9

iv

Hedgepeth v. Johnson 975 So. 2d 235 (Miss. 2008) ..... ...... .. ............ .... ..... ...... ........ ..... ............ .. .... ..... ..... .. 5, 6

Holmes v. McMillan 21 So. 3d 614 (Miss. 2009) .......... .. ......... .... .... ... ... ....... ... ..... ...... ........... ... .... .... .. .. ....... 5

Mallett vs. Dye No. 2013-IA-02068-SCT (May 20, 2015) .. .... .......... ..... ............ ........... .... .............. ... 15

Mills v. Wong 39 S.W. 3d 188 (Tenn. Ct. App. 2000) .. .... .... .... .............. ............ ............ .. ... ... ... 10, 12

Mississippi Crime Laboratory v. Douglas 70 So. 3d 196 (Miss. 2011) ............. .. ........... .. ... .. ... ... ........... ...... ... ...... ......... ....... ... . 5, 6

O'Bannon v. Allen 337 S.W. 3d 662 (Ky. Ct. App. 2011 ) ....... .. ........................... .................................... 15

Pringle v. Kramer 40 So. 3d 516 (Miss. 2010) ... ..... .. .............. .... ... .... .. .. .. ..... .. ... ........ ... ... ........ .. .. ..... .4, 6

Rose v. Bologna 942 So. 2d 1287 (Miss. 2006) ....... .... .............. ....... .... ... ............. ..... .... .............. ...... 7, 8

Smith v. Payne 839 So. 2d 482 (Miss. 2002) .... ... ........ .... .... .... .... ..... ... ....... ... .. .................. .. ... ...... ..... 13

OTHER AUTHORITIES

Ala. Code Ann . § 6-5-546 ............... ...... ......... .. ....... ... .......... .... .... ........ ... .............. ..... .... 1 O

Ark. Code Ann.§ 16-55-213(e) ....... .. .... .................. ....... ... ............... .. .. ........... .. .. ..... .. .... .. 9

Ark. Code Ann.§ 16-60-105 ........... ... ...... .... .. ......... .. .... ... .. ..... ... .. ............... ........... .. ..... ... 9

Ark. Code Ann.§ 16-114-201 ........... .... .. ... .................. ........... .. .. ... .. .... ... .. ........... .... ........ 9

Ark. Code Ann. § 16-114-201(2) .. ... ...... ...................... ...... ..... .... ... .... ..... .. ... ...... ....... ........ 9

Arkansas Laws Act 830 (H.B. 1252) .. .... . _ ..... ....... .... .. ... .... ... .. .... ...... ............ .. ...... .... ..... .. . 9

Miss. Code Ann.§ 11-7-13 .................. .. ... .. ... ..... ........ .. .. .. .... .. ...... ... .......... ... .. .. .. ............ . 8

Miss. Code Ann.§ 11-11-3(3) ............ .. .. .. ............ ............... ........ .. ............ 2-11 , 13, 15, 16

Miss. Code Ann.§ 85-5-7 ................. .. ....... .. .... ................ .... .... ..... ............ ...... .... .. ... ..... . 13

Miss. Code Ann. § 85-5-7 (5) ........... .... ............. .... .... .. .... ....... ................. .. ... .... .. .. .. ..... ... 13

V

Miss. Rules Civ. P. 20 ...................... ........... .. ...... ....... .. ... ... ..... .. .... .... ..... ....... ... ....... 11, 13

Miss. Rules Civ. P. 82(c) ...... ... ... ... ............ .... .... ..... ....... ............ ....... ... ... ...... ... 11, 12, 13

Tenn. Code Ann.§ 20-4-101(b) ...... ............. ...... , .. .. ......... ... ......... .... .... .... ...... .......... 10, 12

Tenn. Rules Civ. P. 20 ..................... ... ........... .. .. ..... ... ............ ....... ... ...... ................ .. .. .... 12

vi

~TATEMENT OF THE ISSUE

Whether the Hinds County Circuit Court erred when it failed to apply the plain

language of Mississippi's medical malpractice venue statute, section 11-11-3(3) of the

Mississippi Code, and, in turn, failed to sever and transfer claims of medical negligence

against the Appellants to Leake County, Mississippi, the only county where the alleged

acts of medical negligence occurred as to David L. Moody, M.D. and Madden Medical

Clinic, PLLC.

1

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition of the Court Below

On or about March 11, 2013, Appellee Sylvia Harkins ("Harkins") presented to

Baptist Medical Center - Leake, Inc. in Carthage, Leake County, Mississippi, with

complaints of kidney stones and nausea. 1 Ms. Harkins was immediately treated in the

Emergency Department and then admitted by Dr. Moody for overnight stay. Dr. Moody

is a Carthage-based physician who practices only in Leake County, and he provided

care to Ms. Harkins only in Leake County.

After staying overnight in Baptist Medical Center-Leake, the next morning, March

12, 2013, Dr. Moody began the process of transferring Ms. Harkins to Baptist Medical

Center in Jackson, Mississippi, via Air Care. After Ms. Harkins departed from Baptist

Medical Center - Leake, Inc., via Air Care, at approximately 12:25 p.m., Dr. Moody (and

his clinic, Madden Medical Clinic) played no role whatsoever in any of Ms. Harkins'

medical care that forms the basis of the Harkins' Amended Complaint.

Nevertheless, on November 7, 2014, the Harkins sued Dr. Moody and Madden

Medical Clinic, PLLC, in Hinds County Circuit Court, First Judicial District. 2 Because

they provided care only in Leake County, Dr. Moody and Madden Medical Clinic filed a

Motion to Dismiss or Alternatively for Severance and Transfer of Venue3 pursuant to

section 11-11-3(3) of the Mississippi Code which provides:

All factual allegations in the section herein are found in the Amended Complaint. R. 27.

2 The Amended Complaint is devoid of any allegation directed specifically toward the Madden Medical Clinic. To the extent that the appellees seek to hold the Clinic vicariously liable for any act or omission of any employee, the Clinic and its employees are located in, and practice in, Carthage, Leake County, Mississippi. See Amended Complaint at ,i 6 (R. 28).

3 Baptist Medical Center - Leake, Inc., filed a similar motion. See R. 90

2

Notwithstanding subsection (1) of this section, any action against a licensed physician, osteopath, dentist, nurse, nurse-practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred.

Miss. Code Ann.§ 11-11-3(3) (emphasis added). Despite this clear statutory mandate,

the Hinds County Circuit Court denied Dr. Moody's and Madden Medical Clinic's motion.

See R. 256.

The Order from which this appeal is sought is the trial court's order denying

Madden Medical Clinic's and David L. Moody, M.D.'s Motion to Dismiss or Alternatively

for Severance and Transfer of Venue. See R. 256. Presently, no trial is scheduled, and

this action remains pending against Dr. Moody and Madden Medical Clinic in the Circuit

Court of Hinds County, First Judicial District.4

B. Statement of Relevant Facts

Appellee Ms. Harkins was treated for kidney pain and nausea by Dr. Moody at

the Baptist Medical Center - Leake, Inc., in Leake County. 5 The Harkins aver, among

other things, that Ms. Harkins should have been administered certain antibiotics in

certain dosages in Carthage but that she was not. Dr. Moody contends that he properly

treated Ms. Harkins in Carthage and appropriately and timely elected to transfer her to

the Mississippi Baptist Medical Center in Hinds County by air ambulance the morning

after she presented to Baptist Medical Center - Leake, Inc. Upon Ms. Harkins's arrival

4

5

The matter is presently stayed pursuant to this Court's order of May 11, 2016.

See Footnote 1.

3

in Jackson, the Harkins further claim that appropriate antibiotic administration was

delayed, and that Ms. Harkins ultimately suffered septic shock, severe sickness, and the

amputation of both of her hands and feet.6

Instead of filing their action in Leake County, where Ms. Harkins was treated and

where the plaintiffs themselves reside, the Harkins filed in Hinds County where Ms.

Harkins was transferred for hospitalization at Mississippi Baptist Medical Center.

Interestingly, no Mississippi Baptist Medical Center physician has even been named as

a defendant in this lawsuit.7

It is undisputed that Dr. Moody played no role in Ms. Harkins' treatment in Hinds

County and further undisputed that Dr. Moody did not practice medicine in any capacity

at any time in Hinds County. Pursuant to the clear and unambiguous language of

section 11-11-3(3), the claims asserted against Dr. Moody and the Clinic, which are

based on the care and treatment which occurred at Baptist Medical Center - Leake in

Leake County, must be adjudicated in Leake County. Pursuant to section 11-11-3(3),

the only proper venue for a suit against a medical provider is the county in which the

alleged act or omission occurred.

SUMMARY OF THE ARGUMENT

This Court has consistently applied §11-11-3(3) according to its plain language,

transferring cases against physicians and medical care facilities to the county where the

medical care was rendered. See, e.g., Pringle v. Kramer, 40 So. 3d 516 (Miss. 2010)

(transferring the case from Madison to Rankin County because Rankin County was

6 Dr. Moody and Madden Medical Clinic deny the allegations factually and affirmatively defend that Dr. Moody's prompt and attentive care likely saved Ms. Harkin's life.

7 The failure to name a Baptist (Jackson) doctor as a defendant begs the question of who in Jackson even committed alleged malpractice and facially suggests the very forum shopping that section 11-11-3(3) was designed to prevent.

4

where the underlying medical care was rendered); Mississippi Crime Laboratory v.

Douglas, 70 So. 3d 196 (Miss. 2011) ("[The plaintiff] received his medical care from Dr.

Vig and Hoehn at the Sunshine Medical Clinic located in Canton, Mississippi. The

alleged negligence happened at that clinic. Therefore, under Section 11-11-3(3),

venue for the claims against the medical-negligence defendants is proper in Madison

County, Mississippi."). Thus, Mississippi law requires that the claims asserted against

Dr. Moody and the Madden Medical Clinic be dismissed or, alternatively, severed and

transferred to the Circuit Court of Leake County, where the medical care was rendered.

ARGUMENT

A. The trial court erred by denying the Motion to Dismiss, or Alternatively for Severance and Transfer of Venue.

"The standard of review for a change of venue is abuse of discretion."

Hedgepeth v. Johnson, 975 So. 2d 235, 237 (Miss. 2008). "However, the interpretation

of a statute is a question of law requiring this Court to apply a de novo standard of

review." Id. Accordingly, the trial court's ruling is reviewed de novo. Id. See also

Holmes v. McMillan, 21 So. 3d 614, 617 (Miss. 2009) ("[l]f the interpretation of a venue

statute is at issue, this Court will review the trial court's decision de novo.").

1. The plain language of Mississippi 's medical malpractice venue statute requires that venue of the claims of medical negligence against Dr. Moody and the Madden Medical Clinic be in Leake County, where the alleged acts of medical negligence occurred.

Venue is a function of statute. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149,

1155 (Miss. 1992). This Court has held that the right to venue is as valuable to a

defendant as it is to a plaintiff. Forrest County General Hospital v. Conway, 700 So. 2d

324, 326 (Miss. 1997) ("Venue is a valuable right possessed by both plaintiff and

defendant."); Tanksley, 608 So. 2d at 1155 ("[W]e regard venue a right as valuable to

5

the defendant as to the plaintiff."). The applicable venue statute, section 11-11-3(3) of

the Mississippi Code, provides:

Notwithstanding subsection (1) of this section, any action against a licensed physician, osteopath, dentist, nurse, nurse-practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred.

Miss. Code Ann.§ 11-11-3(3) (emphasis added).

"When interpreting a statute that is not ambiguous, this Court will apply the plain

meaning of the statute." Claypool v. Mladineo, 724 So. 2d 373, 382 (Miss. 1998); see

also Hedgepeth, 975 So. 2d at 238 ("When the words of a statute are plain and

unambiguous there is no room for interpretation or construction, and we apply the

statute according to the meaning of those words."). Because the venue statute is not

ambiguous, this Court has consistently applied the plain meaning of section 11-11-3(3)

to mean what it says: "the only proper venue for a suit against medical providers is the

county in which the alleged act or omission occurred." Adams v. Baptist Mem'I Hosp.­

Desoto, Inc., 965 So. 2d 652, 656 (Miss. 2007). See also Pringle v. Kramer, 40 So. 3d

516 (Miss. 2010) (transferring the case from Madison to Rankin County because Rankin

County was where the underlying medical care was rendered); Mississippi Crime

Laboratory v. Douglas, 70 So. 3d 196 (Miss. 2011) ("[The plaintiff] received his medical

care from Dr. Vig and Hoehn at the Sunshine Medical Clinic located in Canton,

Mississippi. The alleged negligence happened at that clinic. Therefore, under Section

6

11-11-3(3), venue for the claims against the medical-negligence defendants is proper

in Madison County, Mississippi.").

In Adams v. Baptist Memorial Hospital - Desoto, Inc., a multi-defendant case

including medical malpractice and non-medical malpractice defendants, this Court held

that the trial court properly granted the medical defendants' motion to transfer venue to

the county where the alleged acts of medical negligence occurred, even though it forced

the non-medical malpractice defendant into a county that was not its principal place of

business. Adams v. Baptist Mem'I Hosp.-Desoto, Inc., 965 So. 2d 652, 655 (Miss.

2007). The Court stated that the statute's "notwithstanding" language was "clear:"

"Regardless of the [other defendant's] joinder as a defendant, the only proper venue for

a suit against medical providers is the county in which the alleged act or omission

occurred." Id. at 656 (emphasis added). The Court also noted that any aversion to the

legislative act was "better suited for debate before the Legislature." Id.

The Harkins rely on Rose v. Bologna, 942 So. 2d 1287, 1290 (Miss. 2006), a

wrongful death action case, to argue that a transfer of venue would not be appropriate if

this had been a wrongful death action and not a medical malpractice action.8 The first

and obvious answer to that argument is that this is not a wrongful death action - it is a

medical malpractice action where a plaintiff asserts claims against multiple defendants.

In addition, and importantly, a medical malpractice action and a wrongful death

action are two separate causes of action. "[W]rongful death actions create a new cause

of action." Forrest County General Hospital v. Conway, 700 So. 2d 324, 327 (Miss.

1997). A death required to initiate a wrongful death action is "not analogous" to injuries

8 In Rose, the plaintiff sued three medical providers who had performed medical services in three different counties.

7

sustained from medical malpractice. Id. When the Mississippi Legislature made major

reforms in various statutes that included the passing of section 11-11-3(3), it chose not

to make any changes to the wrongful death statute. Rose, 942 So. 2d at 1290 ("The

Legislature clearly made major reforms in various statutes during recent sessions which

included passing Mississippi Code Ann. Section 11-11-3(3). However, it is equally clear

that the wrongful death statute, Section 11-7-13, was not considered concerning events

and multiple defendant doctors such as what we have before us now, when these

changes in various statutes were made."). As a result in Rose, this Court, noting its

"duty or authority not to legislate," applied the clear and unambiguous language of the

wrongful death statute, which states that "there shall be but one (1) suit for the same

death which shall ensue for the benefit of all parties concerned," to preclude three

separate wrongful death claims. Id. (citing Miss. Code Ann. § 11-7-13). Because the

"shall be but one (1) suit" language of the wrongful death statute is notably absent from

section 11-11-3(3),9 the Rose Court stated: "But for the fact that this is a wrongful death

claim, the trial cowt might very well have been correct in transferring venue." Id.

(emphasis added). The Rose dicta, therefore, does not support the Harkins' position.

Rather, the dicta demands that venue transfer in this case, a situation involving multiple

medical malpractice defendants but no wrongful death claim. For these two

independent reasons - (a) this is not a wrongful death case, and (b) the Rose dicta

supporting venue transfer absent a distinct wrongful death claim being asserted -- the

Harkins' reliance on Miss. Code Ann. § 11-7-13 and Rose is misplaced.

9 Cf. Arceo v. Tolliver, 949 So. 2d 691, 696 (Miss. 2006) ("We conclude that the explanation is that our Legislature omitted the provision because it did not wish it to be part of our law.").

8

2. Other courts interpreting similarly worded statutes have likewise applied the statutes' plain meaning.

Dr. Moody's interpretation of the statute is not only dictated by the plain

language, but it is further bolstered by decisions from other jurisdictions construing

statutes similar to section 11-11-3(3). Harrington v. Office of Mississippi Sec'y of State,

129 So. 3d 153, 159 n.3 (Miss. 2013) ("Where there is a lack of Mississippi caselaw on

an issue, the Court often looks to other jurisdictions for guidance.").

Pursuant to the "Civil Justice Reform Act of 2003," Arkansas passed a medical

malpractice venue statute remarkably similar to Mississippi's: "Any action for medical

injury brought under§ 16-114-201 et seq. against a medical care provider, as defined

in § 16-114-201 (2), shall be filed in the county in which the alleged act or omission

occurred." Clark v. Johnson Reg'/ Med. Ctr., 362 S.W.3d 311, 314-15 (Ark. 2010) (citing

Ark. Code Ann. § 16-55-213(e)). 10 The Arkansas Supreme Court interpreted the

statute pursuant to its plain language in Clark v. Johnson Regional Medical Center,

where the plaintiff, like the Harkins in this case, argued that this venue provision was

intended to fix venue only in those medical malpractice cases brought against a single

medical care provider and involving one county. Id. at 315. The Arkansas Supreme

Court rejected this argument by relying on the "plain language" of section 16-55-213(e),

and holding: "It [the statute] specifically provides that it applies to any action for medical

injury, not some actions for medical injury." Id. (emphasis in original). Moreover, the

Arkansas court noted that there was nothing in the statute's language to indicate that

10 In 2015, Section 16-55-213(e) of the Arkansas Code was repealed in an effort to "clarify and reorganize the general venue statutes for civil actions." See Arkansas Laws Act 830 (H.B. 1252). But the medical malpractice venue statute was not substantively changed: "A civil action for medical injury brought under§ 16-114-201 et seq. against a medical care provider, as defined in§ 16-114-201, shall be filed in the county in which the alleged act or omission occurred." Ark. Code Ann.§ 16-60-105.

9

the Arkansas Legislature had intended to limit its application in the way the plaintiff

argued. Id.

Likewise, in this case, the plain language of§ 11-11-3(3) of the Mississippi Code

applies to "any action" against a physician and includes no language limiting its

application to case involving a single medical malpractice defendant. See Miss. Code

Ann. § 11-11-3(3) (emphasis added). Accordingly, the Arkansas Supreme Court's

interpretation of the virtually identical statute passed at the same time, for the same tort

reform purpose, further enhances Dr. Moody's position on statutory interpretation. See

also Ex parte Kennedy, 656 So. 2d 365, 368 (Ala. 1995) ("The legislative intent behind

the first sentence of § 6-5-546 is clear; 11 any action against a health care provider

based on an alleged breach of the standard of care must be brought in the county

where the act or omission complained of actually occurred." (emphasis in original));

Mills v. Wong, 39 S.W.3d 188, 189-90 (Tenn. Ct. App. 2000) ("In relevant part, Tenn.

Code Ann. § 20-4-101 (b) provides: 'If ... the plaintiff and defendant both reside in the

same county in this state, then such action shall be brought either in the county where

the cause of action arose or in the county of their residence.' Pursuant to this section,

Lauderdale County is the only proper venue for the action against the Appellant. Both

the Appellees and the Appellant reside in Lauderdale County and the cause of action

11 Section 6-5-546 provides: "In any action for injury or damages or wrongful death whether in contract or in tort against a health care provider based on a breach of the standard of care, the action must be brought in the county wherein the act or omission constituting the alleged breach of the standard of care by the defendant actually occurred." Ala. Code § 6-5-546. Notably, the Alabama medical malpractice venue statute includes a separate venue provision for allegations that the medical malpractice occurred in more than one county: "If plaintiff alleges that plaintiff's injuries ... resulted from acts or omissions which took place in more than one county within the State of Alabama, the action must be brought in the county wherein the plaintiff resided at the time of the act or omission . . .. " Id. The fact that the Mississippi medical malpractice venue statute does not include this provision dictates that the Mississippi venue statute applies to all medical malpractice actions regardless of the presence vel non of multiple medical malpractice defendants.

10

against the Appellant arose in Lauderdale County. . . . We find nothing which would

lead us to conclude that the addition of the Shelby County defendants does anything to

change that fact." (internal citations omitted)).

3. Joinder under Rule 20 does not cure improper venue.

Because they cannot overcome the plain language of § 11-11-3(3), the Harkins

have resorted to arguments outside the statutory language; they argue that venue

established against one defendant "generally" is proper against all defendants under

Mississippi case law and Rule 82(c) of the Mississippi Rules of Civil Procedure.

However, this Court has already rejected that argument in the context of§ 11-11-3(3):

There is no conflict in cases involving multiple defendants--venue properly established against one defendant generally is proper against all defendants. In cases involving a medical malpractice defendant and another defendant, 12 however, venue establ ished by Mississippi Code Annotated § 11-11-3 is only appropriate in the county where the alleged malpractice occurred.

Miss. R. Civ. P. 82 cmt. (internal quotation marks and citation omitted; emphasis

added). See also Adams, 965 So. 2d at 656 ("Regardless of the [other defendant's]

joinder as a defendant, the only proper venue for a suit against medical providers is the

county in which the alleged act or omission occurred." (emphasis added)).

Moreover, this argument is dispelled by the statute's own clear and unambiguous

language: "any action ... shall be brought only in the county in which the alleged act or

omission occurred." Miss. Code Ann. § 11-11-3(3) (emphasis added). This mandatory

language controls over the permissive language of Rule 82(c), 13 to the extent that Rule

12 Notably, the comment does not limit the "another defendant" to a non-medical one.

13 Rule 82(c) provides: "Where several claims or parties have been properly joined, the suit may be brought in any county in which any one of the claims could properly have been brought." Miss. R. Civ. P. 82(c) (emphasis added).

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82 even applies.14 Crenshaw v. Roman, 942 So. 2d 806, 810-11 (Miss. 2006) (holding

that the statute's mandatory language "shall" control over permissive language "may").

In a case very similar to this one, the Tennessee Court of Appeals rejected the

argument that joinder under Rule 20 can cure improper venue. In Mills v. Wong, the

court considered "whether, by virtue of the fact there are multiple defendants from

multiple counties, proper joinder of a party under Rule 20 changes the venue analysis."

Mills, 39 S.W.3d at 189. In Mills, the plaintiffs filed an action against four health care

defendants in Shelby County, where the defendants resided and where the causes of

action against them arose. Id. However, the plaintiffs also joined Dr. Wong as a

defendant, arguing that his joinder was proper under Rule 20 of the Tennessee Rules of

Civil Procedure. Id. But Dr. Wong was a resident of Lauderdale County, and the claim

against him arose in Lauderdale County, so Dr. Wong filed a motion to dismiss the

action against him arguing that venue in Shelby County was improper as to him. Id.

The trial court denied his motion, and Dr. Wong filed an interlocutory appeal on the

venue issue. Id.

The Tennessee Court of Appeals reversed the trial court, concluding that

Lauderdale County was the only proper venue for the action against Dr. Wong because

he and the plaintiffs resided in Lauderdale County, and the cause of action against him

arose there. Id. at 190 (citing section 20-4-101(b) of the Tennessee Code, which

provided: "If ... the plaintiff and defendant both reside in the same county in this state,

then such action shall be brought either in the county where the cause of action arose

or in the county of their residence."). The court held that the language of the venue

14 Two parties who cannot be sued in the same venue cannot be properly joined. See Miss. R. Civ . P. 82(c)

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statute was mandatory ("shall"), and therefore this statutory venue provision was an

exception to the general rule that if venue proper as to one defendant is proper as to all

properly joined defendants. Id. In so holding, the court stated: "[W]e do not believe

that joinder under Rule 20 can change the fact that the proper venue for the claim

against [Dr. Wong was] Lauderdale County." Id. The court added: "Specifically, we do

not believe that joinder under Rule 20 can cure what would otherwise be an improper

venue." Id. at 190 n.4. Accord Ex parte Kennedy, 656 So. 2d at 367-68 (holding that

mandatory provision of venue statute providing that any action against a health care

provider based on an alleged breach of the standard of care must be brought in the

county where the act or omission complained of occurred superseded Rule 82(c) of the

Alabama Rules of Civil Procedure, which provided that "[w]here several claims or

parties have been joined, the suit may be brought in any county in which any one of the

claims could properly have been brought." (emphasis added)).

4. Mississippi Code Ann. Section 85-5-7 and the prohib ition of cla im splitting do not aid the Harkins' position , and any aversion that the Harkins, or any other plaintiffs. have to section 11-11-3(3) should be directed to the Mississippi Legislature.

Despite the Harkins' arguments otherwise, neither section 85-5-7 15 nor the

prohibition of claim-splitting 16 authorizes a court to force defendants to trial in an

15 Severance of this action would not prevent the jury from apportioning fault, as argued by the Respondents. Section 85-5-7 provides: "In actions involving joint tortfeasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault without regard to whether the joint tortfeasor is immune from damages." Miss. Code. Ann. § 85-5-7(5). The Court has defined the term "party" to mean "any participant to an occurrence which gives rise to a lawsuit, and not merely the parties to a particular lawsuit or trial." Estate of Hunter v. Gen. Motors Corp., 729 So. 2d 1264, 1276 (Miss. 1999). The Legislature obviously intended that fault be allocated to absent tortfeasors because "immune tortfeasors" would be absent from trial, and this Court has recognized numerous times that a jury can allocate to a person or party not present at trial. See, e.g., Blailock ex rel. Blailock v. Hubbs, 919 So. 2d 126 (Miss. 2005) (relying on Smith v. Payne, 839 So. 2d 482 (Miss. 2002)).

16 The prohibition against claim-splitting does not even apply here because the claims are against different defendants. See Carpenter v. Kenneth Thompson Builder, Inc., 2014 WL 4100003, at *2 (Miss.

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improper venue. Any purported difficulty in apportioning fault in separate suits is not a

valid reason to disregard the venue statute. See, e.g., Copass v. Monroe County Med.

Found., Inc., 900 S.W.2d 617, 620 (Ky. Ct. App. 1995) (concluding that venue statutes

did not permit action to be tried against surgeon who resided in one county and follow­

up physician who resided in another county; stating: "The only apparent connection we

can see is that Dr. Crabtree referred [the plaintiff] to Dr. Glassman and that [the plaintiff]

will have difficulty determining which defendant caused what proportion of his injuries.

Merely because a plaintiff will have difficulty sorting out liability is not enough to

disregard our venue statutes."). This Court has repeatedly recognized that

apportionment of fault can and should be adjudicated in the context of absent

tortfeasors, whether such torfeasors be absent because they are immune, settled, or

simply not sued. See, e.g., Blailock ex rel. Blailock v. Hubbs, 919 So. 2d 126, 131

(Miss. 2005) ("[A]bsent tortfeasors who contributed to a plaintiffs injuries must be

considered by the jury when apportioning fault."); Entergy Mississippi, Inc. v. Hayes,

874 So. 2d 952, 958 (Miss. 2004) ("[l]t was proper to allow allocation of fault to ... an

absent tortfeasor.").

As to the prohibition against claim-splitting, it does not even apply here because

the claims are against different defendants. See Carpenter v. Kenneth Thompson

Builder, Inc., 2014 WL 4100003, at *2 (Miss. 2014) ("Claim-splitting has long been

prohibited under Mississippi law and occurs when a plaintiff attempts to bring a

2014) ("Claim-splitting has long been prohibited under Mississippi law and occurs when a plaintiff attempts to bring a duplicative action involving claims arising from a single body of operative facts against the same defendants. [P]laintiffs have no right to maintain two actions on the same subject in the same court, against the same defendant at the same time." (citations omitted; emphasis added)). This case does not present a claim splitting problem, nor does application of the venue statute according to its plain language implicate the prohibition against claim splitting.

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duplicative action involving claims arising from a single body of operative facts against

the same defendants. [P]laintiffs have no right to maintain two actions on the same

subject in the same court, against the same defendant at the same time." (citations

omitted; emphasis added)). This case does not present a claim splitting problem, nor

does application of the venue statute according to its plain language implicate the

prohibition against claim splitting.

In short, the Harkins' arguments reveal an aversion to section 11-11-3(3).

However, as this Court stated in Adams v. Baptist Mem'I Hosp.-Desoto, Inc., 965 So. 2d

652, 655 (Miss. 2007), any aversion to the legislative act is "better suited for debate

before the Legislature." Id. See also O'Bannon v. Allen, 337 S.W.3d 662, 666 (Ky. Ct.

App. 2011) ("[W]e recognize the difficulties the venue statute sometimes causes

litigants. However, because venue is a creature of statute, relief from those difficulties

lies with the legislature, not the courts.").

As evidenced by the Amici Curiae brief filed by the Mississippi State Medical

Association, Mississippi Hospital Association, Mississippi Nurses Association,

Mississippi Dental Association, and the Mississippi Health Care Association in Mallet v.

Dye, 17 this issue is extremely important to the medical community, and the Mississippi

Legislature had many valid reasons for enacting section 11-11-3(3). "[B]ecause of the

exclusive venue provision of Section 11-11-3(3), the referring healthcare providers no

longer have to worry about being sued in another county simply because they referred a

patient to a provider out of their home counties." Amici Curia brief at pp. 7-8.

"Consequently, the referral can be made to the best location for the patient, not to the

17 Mallet v. Amy Dye and Todd Dye, Case No. 2013-IA-02068 SCT. The venue question in Mallet v. Dye is the same venue question at issue in this appeal.

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county which is viewed as most conservative." Id. at p. 8. "Similarly, referral

physicians, hospitals, and nursing homes can now freely accept seriously ill patients

from historically liberal counties without having to worry about being dragged into that

county simply because the referring doctor, hospital, or nursing home is also a

defendant." Id. "Section 11-11-3(3) prevents both of these scenarios from occurring,

encouraging general practitioners to refer and specialists to accept high-risk patients,

clearly benefiting the citizens of Mississippi who need specialized care not available in

their home county." Id. "If the subject venue statute is not enforced according to its

plain and unambiguous terms, healthcare providers who decide to make Mississippi

their home will avoid the very areas in most need of healthcare." Id. at p. 1. "The

quality, cost, and availability of healthcare currently being afforded to Mississippi

residents - - especially to those in rural areas - - will be severely jeopardized." Id. at p. 2

Conclusion

The pros and cons of section 11-11-3(3)'s directive can be debated endlessly in

this Court, but the Legislature has already had the debate. It determined that it was in

the State's best interest for medical negligence actions to be decided locally.

This Court's duty is to interpret the statute by its clear and unambiguous

language and, in so doing, Dr. Moody and Madden Medical Clinic ask the Court to hold,

as it did in Adams, that "the only proper venue for a suit against medical providers is the

county in which the alleged act or omission occurred." Adams, 965 So. 2d at 656; see

also Rose, 942 So. 2d at 1290 ("This Court is ever mindful of our duty or authority not to

legislate. The Legislature clearly made major reforms in various statutes during recent

sessions which included passing Mississippi Code Ann. Section 11-11-3(3) .... But for

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the fact that this is a wrongful death claim, the trial court might very well have been

correct in transferring venue.").

For the reasons set forth herein, Appellants Dr. David Moody and Madden

Medical Clinic respectfully ask this Court to apply the mandatory language of the venue

statute, which bestows upon the Appellants a valuable venue right which clearly and

unambiguously requires that venue for the Appellants is in Leake County, where the

medical care was rendered.

THIS the 1 ]1h day of January , 2017.

17

Isl C. Maison Heidelberg C. MAISON HEIDELBERG

CERTIFICATE OF SERVICE

I, C. Maison Heidelberg, hereby certify that on this day I electronically filed the

foregoing pleading or other paper with the Clerk of Court using the MEG system which

sent notification of such filing to the following:

Bobby L. Dallas Michael T. Jaques Jennifer P. Burkes Sessums Dallas PLLC 240 Trace Colony Park Drive, Suite 100 Ridgeland, MS 39157 Attorneys for Plaintiffs

D. Collier Graham, Jr. Charles E. Cowan Wise Carter Child & Caraway, P.A Post Office Box 651 Jackson, Mississippi 39205 Attorneys for Baptist Entities

VIA US MAIL Honorable Winston Kidd P.O. Box 327 Jackson, MS 39205

THIS the 1th day of January, 2017.

Isl C. Maison Heidelberg C. MAISON HEIDELBERG

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