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Necaise v. Sacks3/27/2003
only by Necaise; and, that prior to his death Freeman had entered into an employment contract with a law firm concerning his personal injury claim. This chancery court judgment likewise adjudicated, inter alia, that Freeman's will be admitted to probate; that Necaise be appointed as executrix of Freeman's estate; that the employment contract with the law firm be approved; and, that the law firm take all necessary action to preserve Freeman's claim in behalf of the executrix and the estate, including the initiation of legal proceedings "against all necessary parties for the preservation of [the claim]."
. Subsequent to the circuit court order substituting Necaise as a party, and the chancery court judgment appointing Necaise as the executrix of Freeman's estate, and upon entry of a circuit court order authorizing the filing of an amended complaint, Necaise filed her First Amended Complaint on September 30, 1999. Notwithstanding Freeman's intervening death since the commencement of the lawsuit, the amended complaint did not contain a wrongful death claim and in fact was remarkably similar to the original complaint. A paragraph-by-paragraph comparison of the original complaint and the first amended complaint reveals the following information: The introductory paragraph in both complaints states, "COMES NOW THE PLAINTIFF, Charles Freeman, and files his complaint.....", again, notwithstanding the fact that Freeman had died by the time of the filing of the first amended complaint; paragraph number one (1) of both complaints states, "Plaintiff is an adult resident citizen of Harrison County, First Judicial District.;" paragraph number two-A (2A) pertaining to Dr. Sacks is the same in both complaints; paragraph number two-B (2B) of the original complaint named Jane Doe as a defendant while paragraph number two-B (2B) of the amended complaint named MOG as a defendant; paragraph number three (3), setting out the alleged negligent actions of the defendants, is the same in both complaints; paragraph number four (4), setting out the causal connection between the alleged negligence and the damages, is the same in both complaints; paragraph number five-A (5A) of the original complaint set outs the alleged negligent acts of Nurse Doe, while paragraph number five-A (5A) of the amended complaint specifically names the nurse and alleges that she is an employee of MOG, but the alleged acts of negligence are the same in both complaints; paragraph number five-B (5B) of the original complaint sets out the alleged negligent acts of Dr. Sacks, while paragraph number five-B (5B) of the amended complaint charges both Dr. Sacks and MOG with negligence, but the alleged acts of negligence are the same in both complaints; paragraph number six (6) in both complaints allege that the nurse was acting under the direction and control of Dr. Sacks, and that Dr. Sacks was responsible for his nurse's actions under the respondeat superior doctrine, with the only difference in the two paragraphs being that in the amended complaint, the nurse is specifically named and is specifically alleged to be Dr. Sacks's employee; paragraph number seven (7), setting out Freeman's injuries, is the same in both complaints; and, the ad damnum clauses in both complaints specifically request the same amount of damages. However, of particular note is one major difference between the two complaints. The original complaint was styled "Charles Freeman v. Matthews Sacks, M.D. and Jane Doe, I." On the other hand, the first amended complaint was styled "Nancy Necaise, Individually and on Behalf of the Wrongful Death Beneficiaries of Charles Freeman, Deceased v. Matthew Sacks, M.D. and Medical Oncology Group, P.A." On motion of the defendants, this case was continued from its sc
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