FORREST GENERAL HOSPITAL, J. KEITH THOMPSON, HATTIESBURG CLINIC, GRIF A. LEEK AND SOUTH MISSISSIPPI EMERGENCY PHYSICIANS, P.A.
STEVEN DALE UPTON DR. GRIF A. LEEK, SOUTH MISSISSIPPI EMERGENCY PHYSICIANS, P.A., DR. J. KEITH THOMPSON AND HATTIESBURG CLINIC, P. A.
STEVEN DALE UPTON
OF JUDGMENT: 03/15/2016
COUNTY CIRCUIT COURT HON. WINSTON L. KIDD
ATTORNEYS FOR APPELLANTS: WALTER W. DUKES JAMES K. DUKES
DRURY S. HOLLAND MICHAEL R. MOORE JOHN A. BANAHAN DAVID B.
ATTORNEYS FOR APPELLEE: DREW M. MARTIN CHUCK McRAE
CHRISTOPHER A. BAMBACH
This interlocutory appeal arises from the Hinds County
Circuit Court's denial of a motion to transfer venue.
Under Mississippi law, venue is determined at the time the
lawsuit originally is filed. The resolution of this appeal
hinges on the application of this principle to an issue of
first impression for this Court: does an amended complaint,
which names a new party to the suit, relate back to the time
of filing of the original complaint for the purposes of
determining venue? We find that it does not.
Thus, because the suit here was filed in Hinds County-naming
only Forrest County defendants and the amended complaint does
not relate back to the time of filing for the purposes of
determining venue-the circuit court abused its discretion in
denying the motion to transfer venue. We reverse the judgment
of the circuit court and remand the case to be transferred to
the Circuit Court Forrest County.
AND PROCEDURAL HISTORY
On March 16, 2014, Steven Upton "experienced severe pain
and numbness in his left hand." Due to the pain, Upton
went to the Emergency Department at Forrest General Hospital
("FGH"). FGH-according to Upton-administered a
Doppler Ultrasound that revealed a "total blockage of
blood flow to the tested area." After the test, Dr. Grif
A. Leek, a physician employed by South Mississippi Emergency
Physicians, P.A. ("SMEP"), met with Upton. Almost
seven hours after Upton's original test, Dr. J. Keith
Thompson, a physician employed by the Hattiesburg Clinic,
P.A. ("HC"), operated on Upton's left hand to
"relieve the blockage . . . [and] restore blood
flow." Also, Upton claimed that FGH failed to provide
him with antibiotics or wraps after the surgery.
Upton was discharged from FGH and alleged that he returned on
April 3, 2014, for a post-operative appointment with
Thompson. Upton maintained that he was suffering from
reperfusion syndrome upon his return to FGH. According to
Upton, Thompson did not prescribe any medication and told
Upton to return in one month.
Nine days later, Upton experienced "extreme pain"
in his hand and sought treatment at the University of
Mississippi Medical Center ("UMMC"). Upton stated
that UMMC administered antibiotics and informed him that had
he waited thirty days, as instructed by Thompson, it would
have been necessary to amputate his hand. Upton also claimed
that he suffered from a number of other medical conditions
that were not discovered by FGH including: kidney failure,
heart failure, and a pericardial cyst.
Upton was left-handed and employed previously as an
electrician. He claimed that he was disabled permanently in
his left hand and unable to resume his employment. Upton also
maintained that he was suffering from kidney and liver damage
due to UMMC having to "administer extremely potent
antibiotics to combat the damage already done to his
On June 18, 2015, Upton filed suit in the Hinds County
Circuit Court. The complaint named Forrest County,
Mississippi; FGH, Thompson; Leek; HC; and SMEP (collectively,
"Forrest County defendants") as defendants. The
complaint also named John and Jane Does #1-10. All of the
named defendants were located and had acted in Forrest
County. The complaint claimed that "venue is proper in
Hinds County, Mississippi, pursuant to Miss. Code Ann. §
11-11-3 as the acts or omissions that serve as the basis of
the Plaintiff's claims continued to occur and,
additionally, were discovered in Hinds County,
Mississippi." The complaint alleged five counts:
negligence, gross negligence, respondeat superior, negligent
infliction of emotional distress, and breach of fiduciary
duty. Also, the complaint did not name UMMC as a defendant
but stated that UMMC "promptly and properly treated to
attempt to correct" Upton's kidney failure.
In response to Upton's complaint, Thompson and HC wrote
Upton to explain that, pursuant to Mississippi Code Section
11-11-3(3) venue was proper only in Forrest County. On July
9, 2015, Upton responded: "we have recently discovered
acts of medical malpractice which occurred in Hinds County.
Therefore . . . Hinds County is a proper venue."
On July 13, 2015, Upton filed his "First Amended
Complaint." For the first time, Upton named UMMC and Dr.
Sumona Smith as defendants. The amended complaint still
named the Forrest County defendants and John and Jane Does #
In the amended complaint, Upton claimed that "UMMC
failed to properly monitor [Upton]." Upton claimed that
UMMC performed only one check on his international normalized
ratio throughout his ten-day hospitalization. Further,
according to the amended complaint, Smith's decision that
"there was no need for vascular intervention"
resulted in no action being taken by UMMC for the first three
days of Upton's hospitalization. Upton maintained that
this "required the orthopedic surgeon to remove much
more of the muscle and tissue within the hand than would have
been necessary if the surgery had been ordered by Dr. Smith
three . . . days prior." Also, the amended complaint
still mentioned UMMC's treatment of Upton's kidney
failure but omitted the language that the treatment was done
"promptly and properly."
Next, the defendants answered the amended complaint. Leek,
SMEP and FGH filed motions to dismiss or, in the alternative,
for severance and transfer to Forrest County. Forrest County,
Mississippi, and UMMC also requested to be dismissed from the
suit. Next, Thompson, Leek, HC, SMEP and FGH
noticed a hearing on the motions to dismiss or transfer.
At the hearing, Thompson, Leek, HC and SMEP argued that all
of the original causes of action alleged by Upton occurred in
Forrest County. They noted that UMMC originally was not a
party and that Upton had claimed that UMMC had "promptly
and properly" treated Upton. Also, they argued that
venue was improper under Section 11-11-3(3) and that any
claims against UMMC were severable. FGH maintained that
Mississippi Code Section 11-46-13(2)-the venue statute within
the Mississippi Tort Claims Act ("MTCA")-applied to
FGH and mandated that Forrest County was the sole venue for
In response, Upton stated that he originally had filed the
claim under the
general venue statute . . . being that a substantial event
occurred in Hinds County which is his treatment at UM[M]C,
his discovery of what exactly happened to his left-hand and
the seven or eight surgeries that had to happen to correct
the errors of [FGH] in his treatment.
the arguments that Forrest County was the only proper venue,
Upton noted that the amended complaint named UMMC and stated:
"if you find that everybody has been joined correctly
and that venue is correct under the venue statutes for one of
the defendants, then it applies to all of them." Upton
also represented that he had spoken to his experts concerning
possible negligence on the part of UMMC before he had
received Thompson's and HC's letter which suggested
transfer of venue to Forrest County. Upton, though,
maintained that he was unable immediately to add UMMC to the
suit due to notice requirements under the MTCA. In closing,
Upton advised the trial court that if it was to find that
venue is not proper in Hinds County, then Upton would argue
against severance of any of the defendants.
In rebuttal, Thompson and HC provided the court with their
letter to Upton and argued that the suit could not be brought
properly under the general venue statute given the medical
defendants. FGH reiterated that the suit against it was
subject to Section 11-46-13(2) under the MTCA. At the end of
the hearing, UMMC informed the court that it would waive its
right to trial in Hinds County due to the number of
defendants from Forrest County.
The court entered an order denying the defendants' motion
to transfer venue on March 15, 2016. It found that
"venue of this action lies appropriately in either Hinds
County or Forrest County" and that "the
plaintiff's choice of Hinds County is appropriate."
Pursuant to this Court's grant of interlocutory appeal,
Thompson, Leek, HC, SMEP and FGH now appeal the trial
court's denial of the motion to transfer.
OF THE ISSUES
Thompson, Leek, HC and SMEP raise three issues before us: (1)
that venue is determined by the filing of the original
complaint and not the amended complaint, (2) that Upton
fraudulently joined UMMC to establish venue in Hinds County,
and (3) that venue is proper only in Forrest County. FGH
raises two issues: (1) venue is proper only in Forrest County
and (2) the allegations against UMMC are unrelated to the
claims against FGH.
Upon review of the briefs, we entered an order, directing the
parties to provide simultaneous briefing on the following
I. Whether the record before this Court, without the notice
letters sent by Steven Upton to each defendant, is sufficient
in order to determine on what date the statute of limitations
would have tolled as to each defendant;
II. Whether the Appellants or the Appellee bore the burden of
producing the necessary evidence to demonstrate when the
statute of limitations would have tolled;
III. Whether Rule 21 of the Mississippi Rules of Civil
Procedure governs the addition of UMMC to the suit, given the
plain language of Rule 21 and this Court's precedent in
Veal v. J.P. ...