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Necaise v. Sacks3/27/2003
l death suit that the decedent's wrongful death heirs were not entitled to recover the decedent's life-time damages because they failed to alternatively pursue such a claim under Miss. Code Ann. ยง 91-7-233.
. However, this case turns on a case decided by this Court just last year. In Richardson v. Methodist Hospital of Hattiesburg, Inc., 807 So.2d 1244 (Miss. 2002), this Court was confronted with the propriety of the circuit judge's grant of summary judgment in favor of the defendants as to the plaintiff's suit for personal injury and wrongful death. In Richardson, Vivian Wheeless was admitted to the hospital with a diagnosis of an intestinal hemorrhage, and she suffered a fatal stroke. Thereafter, Wheeless's daughter, Linda Richardson, brought a personal injury and wrongful death action against the hospital. The suit was styled "Linda Richardson, Individually and on Behalf of the Wrongful Death Heirs of Vivian Wheeless, Deceased v. Methodist Hospital of Hattiesburg, Inc., Now Known as Wesley Health Center." In Richardson, we readily acknowledged our holding in Wilks, and in so doing, stated:
Wesley argues that the claim for the pain and suffering as an element of the wrongful death action should likewise be denied pursuant to Wilks v. American Tobacco Co., 680 So.2d 839 (Miss. 1996). In Wilks, the jury found that cigarette smoking did not proximately cause the decedent's death. The heirs contended on appeal they were at least entitled to the decedent's lifetime damages that the heirs believed were overwhelmingly proven to be caused by cigarette smoking. The heirs' cause of action was exclusively under Mississippi's wrongful death statute. We held the personal injury action could not be maintained where it was not alternatively claimed under Mississippi's survival statute. Id. at 843. 807 So.2d at 1247.
We went on to hold in Richardson that the circuit judge appropriately granted summary judgment on Richardson's wrongful death claim because Richardson's designated expert was not qualified to testify as to causation relating to Wheeless's death and any alleged deviations in nursing care; however, we likewise held that the circuit judge inappropriately granted summary judgment on Richardson's personal injury claim relating to Wheeless's pain and suffering prior to her death. Accordingly, we reversed the trial court judgment in favor of the hospital on Richardson's claim for Wheeless's pain and suffering and remanded that claim to the circuit court for a jury trial. 807 So.2d at 1247-48.
. The facts of the case sub judice are similar to the facts in Richardson. In our case today, Freeman, Necaise's father, allegedly suffered chemical burns during chemotherapy treatment while under Dr. Sacks's care at MOG, and commenced, during his lifetime, a personal injury/medical malpractice suit against Dr. Sacks and one of his nurses. While the actions of Necaise, or at least those of her attorneys, were legitimately a cause of some consternation on the part of Dr. Sacks and MOG and their attorneys when amended pleadings started reflecting the phrase "wrongful death beneficiaries," and while Necaise did equivocate somewhat in deposition and interrogatory responses to the extent that she at least opined that there may have been some connection between the defendants' alleged negligent actions and her father's death, for the most part, Necaise, through her attorney, repeatedly informed the trial court and counsel, orally and in writing, basically that "there is not and never has been a wrongful death claim asserted herein." After Freeman had commenced his medical malpractice suit, and subsequent to his death in January, 1999, the circuit court, in the same cause of action, signed an agr
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