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Powe v. Byrd11/18/2004
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 11/18/2004
CONSOLIDATED WITH NO. 2003-CA-00021-SCT
. This appeal involves the consolidation of two cases. Plaintiff Nancy Powe's ("Powe") original medical malpractice complaint ("Original Complaint") was dismissed on April 1, 2002, by the Circuit Court of Clarke County for failure to timely serve the remaining defendant, The Medical Group Clinic, with a summons and complaint within the applicable 120 day time period under Rule 4(h) of the Mississippi Rules of Civil Procedure. On April 1, 2002, the day the Original Complaint was dismissed, Powe filed a second factually similar complaint ("Second Complaint") in a second lawsuit. The Circuit Court of Clarke County entered an Order of Dismissal on September 27, 2002, dismissing that action as barred by the two-year statute of limitations contained in Miss. Code Ann. § 15-1-36. Powe appeals, and we affirm.
FACTS
. Cecil Powe was treated for gastritis and hemorrhoids by Dr. O.W. Byrd on multiple occasions from January 4, 1996, to January 6, 1998. In March of 1998, when treated at Rush Memorial Hospital, he was diagnosed with metastic adenocarcinoma in his colon and lungs; he died on August 10, 1998.
. On August 3, 2000, Powe filed the Original Complaint alleging medical malpractice. The other defendants were dismissed by agreed order. Service was not made upon the remaining defendant until December 4, 2000, which was 3 days after the 120 day deadline required by Rule 4(h) of the Mississippi Rules of Civil Procedure. Powe's counsel contends that process was not served because of a mistake by either his secretary or the process server. The process server was contacted by the secretary for Powe's counsel on Friday, December 1, 2000, but did not serve process until Monday December 4, 2000. After the running of the 120 day deadline for service on December 1, Powe could have refiled another complaint, but chose not to do this; instead she waited until the Original Complaint was dismissed to file the Second Complaint in April 2002.
. Powe's counsel contends that he directed his secretary to tell the process server to deliver the Original Complaint on December 1, 2000. The process server was located in Hinds County, Mississippi, and the process was to be served in Quitman, Mississippi. The process server contends that he was never told to deliver the complaint on December 1, 2000, and did not deliver the complaint until the next business day, which was December 4, 2000. Powe alleges that she did not contact the process server sooner because she was waiting for an expert opinion from an oncologist regarding the merits of the case. Powe received this opinion on December 1, 2000, at which time the secretary was told to contact the process server and have him deliver the Original Complaint on that day.
. On April 1, 2002, the circuit court dismissed the Original Complaint without prejudice for failure to serve process within the 120 day time limit, finding that Powe did not show good cause for the failure to serve within the 120 days. Powe filed the Second Complaint on April 1, 2002, which was dismissed with prejudice on September 27, 2002, as barred by the two-year statute of limitations set forth in Miss. Code Ann. § 15-1-36. Powe raises the following issues on appeal:
I. The Circuit Court erred by refusing to extend the 120 day period for service of process under Mississippi Rule of Civil Procedure 4(h).
II. Mississippi courts have relaxed the application of Mississippi Rule of Civil Procedure 4(h).
III. The lower court erred when dismissing the April 1,
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