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Britt v. Merit Health Central

United States District Court, S.D. Mississippi, Northern Division

September 11, 2019

RONALD H. BRITT, on behalf of all wrongful death beneficiaries of OPAL A. BRITT PLAINTIFF



         BEFORE THIS COURT are the Motions to Dismiss filed by Dr. Todd L. Fulcher. [Docket nos. 5 and 9]. Dr. Fulcher filed both motions alleging the same grounds. Plaintiff opposes both motions. This court finds that Dr. Fulcher's motions should be denied without prejudice for the following reasons.


         According to defendant Dr. Todd L. Fulcher (hereinafter referred to as “Dr. Fulcher”), Plaintiff Ronald Britt (hereinafter referred to as “Britt”), in his complaint, has allegedly asserted a cause of action for a violation of the Emergency Medical Treatment and Active Labor Act (hereinafter referred to as “EMTALA”) found at Title 42 U.S.C. § 1395dd[1]. EMTALA is a federal enactment. This court, therefore, preliminarily finds that it possesses federal question subject matter jurisdiction under Title 28 U.S.C. § 1331[2].


         Dr. Fulcher challenges the pre-suit notice required by Miss. Code § 15-1-36(15)[3]. Accordingly, this court will only recite the alleged facts which bear upon the sufficiency pre-suit notice Britt is required to serve on Dr. Fulcher prior to filing his lawsuit sounding in medical malpractice.

         On December 11, 2016, Opal Britt (hereinafter referred to as “the Decedent”), who had been a resident of Willow Creek Retirement Center (hereinafter referred to as “Willow Creek”), became ill. Decedent had been treated while she was a resident at Willow Creek by a Dr. Fulcher, who is named as a defendant in this lawsuit. As a result of her illness, defendant American Medical Response (hereinafter referred to as “AMR”) transported her to the hospital facility run by defendant Merit Health Central (hereinafter referred to as “CMMC”). CMMC made the decision to transfer the Decedent to River Oaks Hospital after she had been seen by the staff of the Emergency Department at CMMC. Sometime after her transfer to River Oaks Hospital, Decedent died.

         Britt, through his counsel, sent a notice September 11, 2018, to all defendants. The notice Britt sent to Dr. Fulcher was addressed to “Willow Creek Retirement Center - Dr. Fulcher - 49 Willow Creek Lane - Jackson, MS 39276”. Britt has provided this court a return receipt requested form from the United States Postal Service (hereinafter referred to as “U.S.P.S.”) on which a Dana Rollins (hereinafter referred to as “Rollins”) signed for Dr. Fulcher's notice on September 13, 2018.

         According to Dr. Fulcher, he never received the pre-suit notice because allegedly: he is not an employee of Willow Creek; his principle place of business is not at Willow Creek; he does not maintain an office at Willow Creek; and he did not authorize anyone at Willow Creek to receive mail for him.

         Britt filed his complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi on December 10, 2018. Defendants removed the instant lawsuit to this federal forum on February 1, 2019, asserting that because Britt had alleged EMTALA violations, this court possessed federal question jurisdiction.

         III. ANALYSIS

         Mississippi law requires that a prospective plaintiff must provide at least a sixty-day (60) pre-suit notice to defendants where the complaint alleges causes of action sounding in medical malpractice. See Miss. Code § 15-1-36(15). In Pitalo v. GPCH-GP, Inc., 933 So.2d 927 (Miss. 2006), the Mississippi Supreme Court held that the sixty-day (60) pre-suit notice is a mandatory prerequisite to filing a medical malpractice lawsuit.[4]

         Britt says that he provided adequate notice to an appropriate agent and that Dr. Fulcher's affidavit is self-serving and should be disregarded. Britt cites no authority to support his position. Dr. Fulcher correctly cites the United States Fifth Circuit Court of Appeals which said that “[a] party's own testimony is often ‘self-serving,' but we do not exclude it as incompetent for that reason alone.” C.R. Pittman Const. Co. v. Nat'l Fire Ins. Co. of Hartford, 453 Fed.Appx. 439, 443 (5th Cir. 2011) (quoting Rushing v. Kan. City S. Ry., 185 F.3d 496, 513 (5th Cir.1999), superseded by Fed.R.Evid. 103(a) on other grounds as recognized in Mathis v. Exxon Corp., 302 F.3d 448, 459 (5th Cir.2002) (“[M]erely claiming that the evidence is self-serving does not mean we cannot consider it or that it is insufficient. Much evidence is self-serving and, to an extent, conclusional.”)). Instead, “an affidavit based on personal knowledge and containing factual assertions suffices to create a fact issue, even if the affidavit is arguably self-serving.” Id. (citing Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir.2000) (“[A] party's own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment.”)).

         This court will not strike Dr. Fulcher's affidavit. This court, however, will allow Britt a brief discovery period to explore the basis and factual content of Dr. Fulcher's affidavit.

         Further, says Britt, this court should allow discovery to determine whether Dr. Fulcher had been served with the required pre-suit notice. For support, Britt cites F.R.C.P. 56(d)[5] - the rule governing summary judgment. Dr. Fulcher asked this court to dismiss him from this lawsuit under either Rule 12[6] or Rule 56 of the Federal Rules of Civil Procedure. This court finds, based upon the submissions of the parties, that it does not yet possess enough information to grant a Rule 12(b)(6) challenge. Accordingly, this court finds that it must allow Britt's request to conduct discovery related to the pre-suit notice of Dr. Fulcher.

         Finally, Britt says that the return receipt from the U.S.P.S. creates a rebuttable presumption that the letter “reached its destination in usual time and was actually received by the person to whom it was addressed.” Hagner v. United States, 285 U.S. 427, 430, 76 L.Ed. 861, 52 S.Ct. 417 (1932)(citations omitted); see also Threatt v. Threatt, 212 Miss. 555, 559, 54 So.2d 907, 908-09 (1951). Britt is correct, however, Dr. Fulcher has submitted an affidavit that could possibly rebut Britt's assertion. This court questions the relationship between Dr. Fulcher, Willow Creek, and Rollins. This court does not yet possess enough evidence to issue a decision on Dr. Fulcher's motions to dismiss.


         This court does not possess enough information to adequately determine whether Britt had effectively served Dr. Fulcher with the required pre-suit notice. Accordingly, the parties may conduct discovery relevant to the questions of the adequacy of service of the pre-suit notice upon Dr. Fulcher. If after conducting such, Dr. Fulcher still believes that his motion has vitality, he may re-urge the motion.

         IT IS, THEREFORE, ORDERED that Dr. Fulcher's Motions to Dismiss are hereby DENIED WITHOUT PREJUDICE [Docket nos. 5 and 9].

         IT IS FURTHER ORDERED that this case is TEMPORARILY STAYED for sixty (60) days so that the parties may conduct discovery as to the issue of the service of Dr. Fulcher. No. other discovery ...

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