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Necaise v. Sacks3/27/2003
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND REMANDED
. Aggrieved by the Hancock County Circuit Court's dismissal of her medical malpractice suit against Matthew Sacks, M.D. (Dr. Sacks), and the Medical Oncology Group, P.A., (MOG), Nancy Necaise (Necaise) appeals to this Court. Finding reversible error, we reverse and remand this case to the trial court.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
. Nancy Necaise's father, Charles Freeman (Freeman), was diagnosed with cancer in early 1998, and soon thereafter, he started chemotherapy treatment at MOG. For Freeman's intravenous chemotherapy treatment, the medical personnel used Taxol, a highly toxic drug used in battling systemic cancer. While Freeman's first treatment on January 22, 1998, was relatively uneventful, during his second treatment on February 12, 1998, Freeman began to experience pain, swelling, and discoloration in the arm into which the chemical was being infused. Over the next several days, the skin on Freeman's arm began to peel off and his arm became swollen to two or three times its normal size. As a result of what was characterized as a third degree chemical burn, Freeman had to undergo extensive treatment causing him to incur medical bills in excess of $170,000. Freeman was of the opinion that his injuries were a result of negligent chemotherapy treatment resulting in a chemical infiltration into the tissue of his arm, while Dr. Sacks and MOG opined that Freeman's injuries most likely resulted from an adverse drug reaction.
. On August 19, 1998, Freeman commenced his medical malpractice suit against Dr. Sacks and an unidentified nurse, Jane Doe I, in the Circuit Court of Hancock County. Over the next few months, responsive pleadings were filed, discovery was commenced, and Freeman's attorney requested a trial setting.
. Regrettably, Charles Freeman died from his cancer on January 9, 1999; however, as will be more fully hereinafter discussed, there was evidently no causal connection between any alleged medical negligence and Freeman's death. On February 22, 1999, Necaise, through the same attorney who had commenced the lawsuit for Freeman, filed in the same action a Motion to Substitute Party Plaintiff, alleging that Freeman had initially filed the lawsuit; that Freeman died of cancer on January 9, 1999; that Miss. R. Civ. P. 25 allowed for a party to be substituted for a party who died subsequent to commencement of a civil action; and, that Necaise was the natural daughter of Freeman and "a representative and wrongful death beneficiary of [Freeman]." Judge John Whitfield by an agreed order signed on March 3, 1999, and duly entered on March 8, 1999, authorized Necaise to be substituted as a party pursuant to Miss. R. Civ. P. 25, and this order further provided, inter alia, that Necaise, "individually and on behalf of the wrongful death beneficiaries of [Freeman] is hereby substituted as the party plaintiff in this [action]." On June 16, 1999, a notice of trial setting was administratively entered by the court administrator; this notice set a trial date of November 1, 1999, before Judge Robert H. Walker. On July 20, 1999, Judge Walker entered a scheduling order which set out various deadlines and confirmed the November 1st trial date.
. On September 7, 1999, in cause number 99-0689 on the docket of the Chancery Court of Hancock County, the chancellor entered a Judgment Granting Probate of Will and Letters Testamentary. This chancery court judgment found as a fact that Freeman had died with a will; that Freeman's estate consisted only of a cause of action for "personal injuries and/or wrongful death;" that Freeman was survived
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