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Young v. Sherrod5/31/2005
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 05/31/2005
BEFORE BRIDGES, P.J., CHANDLER AND ISHEE, JJ.
. On January 31, 2003, Larry Young filed a complaint in the Leake County Circuit Court. Within his complaint, Young alleged that Dr. Clide Sherrod committed medical malpractice. On June 25, 2003, Dr. Sherrod filed a motion to dismiss. Dr. Sherrod argued dismissal based on Young's failure to complete service of process. The circuit court found that Young failed to serve Dr. Sherrod with process pursuant to the provisions of the Mississippi Rules of Civil Procedure. Accordingly, the circuit court granted Dr. Sherrod's motion to dismiss. Aggrieved, Young appeals and advances the following issue, listed verbatim:
I. WAS THE DEFENDANT CLIDE SHERROD, M.D. EFFECTIVELY SERVED WITH PROCESS IN THIS CAUSE PURSUANT TO THE PROVISIONS OF RULE 4(c)(3)(A) IF THE DEFENDANT IN FACT RECEIVED A COPY OF THE SUMMONS AND COMPLAINT IN THE MAIL WITHIN THE 120 DAY PERIOD EVEN THOUGH HE DID NOT RETURN THE ACKNOWLEDGMENT WITHIN 20 DAYS BUT THEREAFTER BY MOTION AND AFFIDAVIT ACKNOWLEDGED THAT HE RECEIVED THE SUMMONS AND COMPLAINT.
Finding no error, we affirm.
FACTS
. On February 10, 2001, Larry Young visited Leake Memorial Hospital in Carthage, Mississippi. Young sought emergency room treatment due to pain and urinary difficulty. Dr. Clide Sherrod examined Young. Dr. Sherrod attempted to schedule a urology exam for Young, but Young refused. Dr. Sherrod gave Young a prescription and discharged him with orders to return the following day for a follow-up examination. Young did not return.
. Two days later, Young visited the emergency room at the University Medical Center in Jackson, Mississippi. Resident physician David Claypool, M.D. examined Young. During Dr. Claypool's examination, Dr. Claypool noticed that Young had a rubber band around his penis. Dr. Claypool removed the rubber band.
. On January 31, 2003, Young filed a complaint and alleged that Dr. Sherrod committed medical malpractice because Dr. Sherrod failed to discover and remove the rubber band around Young's penis. On February 10, 2003, the Leake County Circuit Clerk issued a summons that directed Dr. Sherrod to respond to the summons and complaint within thirty days of delivery. On April 1, 2003, Young filed a document titled "notice." That notice document stated that Dr. Sherrod had been served with service of process pursuant to Rule 4(c)(3) of the Mississippi Rules of Civil Procedure. Further, that Dr. Sherrod "must sign and date the acknowledgement at the bottom of the page." The notice warned Dr. Sherrod that if he failed to complete and return the notice within twenty days of April 1, 2003, Dr. Sherrod could be required to pay "expenses incurred in serving a summons and complaint." The acknowledgement accompanying the notice is not signed by Dr. Sherrod.
. On June 25, 2003, Dr. Sherrod filed a motion to dismiss Young's complaint. Within his motion, Dr. Sherrod argued that he never received service of process. Dr. Sherrod acknowledged that around May 8, 2003, he received a summons and complaint via U.S. mail. Dr. Sherrod went on to say that he never received personal service of process.
. On March 8, 2004, the Leake County Circuit Court entered an order granting Dr. Sherrod's motion to dismiss. The circuit court found that Young filed his complaint twelve days before the statute of limitations ran on Young's cause of action. Further, Dr. Sherrod had never been served with personal service of process. The circuit court concluded that Dr. Sherrod was not within the circuit court's jurisdiction.
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