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Hopkins v. CLC of Biloxi, LLC

Court of Appeals of Mississippi

October 31, 2017

SANDERS HOPKINS, SR., DECEASED, BY AND THROUGH SANDERS HOPKINS, JR., AS REPRESENTATIVE OF THE ESTATE OF SANDERS HOPKINS, SR., AND THE WRONGFUL DEATH BENEFICIARIES OF SANDERS HOPKINS, SR. APPELLANT
v.
CLC OF BILOXI, LLC D/B/A BILOXI COMMUNITY LIVING CENTER APPELLEE

          DATE OF JUDGMENT: 07/21/2016

         HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. CHRISTOPHER LOUIS SCHMIDT TRIAL JUDGE

          ATTORNEY FOR APPELLANT: MATTHEW STEPHEN LOTT

          ATTORNEYS FOR APPELLEE: JOHN G. WHEELER MARGARET SAMS GRATZ

         EN BANC.

          IRVING, P.J.

         ¶1. Sanders Hopkins Jr. (Sanders), on behalf of Sanders Hopkins Sr.'s estate and as a wrongful-death beneficiary, appeals the decision of the Harrison County Circuit Court, Second Judicial District, dismissing his case against CLC of Biloxi LLC d/b/a Biloxi Community Living Center (CLC). He argues that the court erred in dismissing his case because CLC was added as a defendant prior to the running of the statute of limitations, and CLC was properly substituted for fictitious defendant John Doe 1.

         ¶2. Finding no error, we affirm.

         FACTS

         ¶3. Sanders Hopkins Sr. (Hopkins), deceased, was a dialysis patient who received dialysis treatments at Fresenius Medical Care's South Mississippi Kidney Center ("Fresenius") in Biloxi, Mississippi. Hopkins was routinely transported to his dialysis treatments by Mobile One Non-Emergency Transport Service LLC (Mobile One) due to his limited mobility caused by being wheelchair-bound. On or about December 10, 2013, while a passenger of Mobile One, Hopkins fell over in his wheelchair and hit his head. Hopkins was a resident of CLC, and CLC, upon information and belief, supplied the wheelchair in question.

         ¶4. Sanders alleged that the wheelchair was not properly pushed down the ramp of the van as Hopkins was being moved into the Fresenius facility. A short time later, on the same day that the transportation-van incident occurred, Hopkins again hit his head and immediately began to have a headache associated with the falls. After his return to CLC, he continued to report a headache and was later taken to Biloxi Regional Hospital, where he was diagnosed with a subdural hematoma. Attempts to save him were unsuccessful, and he died on December 12, 2013.

         ¶5. On March 31, 2015, Sanders filed suit against Mobile One and Fresenius. Prior to filing his suit against Mobile One and Fresenius, Sanders had not asserted or indicated at any point during Hopkins's treatment-or during the subsequent immediate investigation following Hopkins's fall-that CLC had been negligent in its treatment or that CLC's negligence had caused Hopkins, directly or indirectly, to strike his head. However, approximately eleven months after filing the suit against Mobile One and Fresenius, Sanders filed a second amended complaint to add CLC to the lawsuit.

         ¶6. Sanders sent a pre-suit notice to CLC on December 17, 2015-two years and five days after Hopkins's death, and he filed his second amended complaint on February 22, 2016. In the amended complaint, Sanders alleged that CLC placed his father in an incorrectly sized wheelchair, which caused the wheelchair to tip over, resulting in his father's injury and ultimately his death. CLC filed a motion to dismiss, asserting that the pre-suit notice did not toll the statute of ...


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