United States District Court, S.D. Mississippi, Northern Division
RONALD H. BRITT, on behalf of all wrongful death beneficiaries of OPAL A. BRITT PLAINTIFF
MERIT HEALTH CENTRAL, a/k/a CENTRAL MISSISSIPPI MEDICAL CENTER, AMERICA MEDICAL RESPONSE, UNKNOWN INDEPENDENT PHARMACY CONTRACTOR OF WILLOW CREEK RETIREMENT CENTER, DR. FULCHER OF WILLOW CREEK RETIREMENT CENTER, and JOHN DOES 1-10. DEFENDANTS
T. WINGATE UNITED STATES DISTRICT COURT JUDGE.
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
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. 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.
Fulcher challenges the pre-suit notice required by Miss. Code
§ 15-1-36(15). 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.
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.
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.
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.
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.
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.
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.”)).
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
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) - the rule governing summary judgment. Dr.
Fulcher asked this court to dismiss him from this lawsuit
under either Rule 12 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.
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.
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.
THEREFORE, ORDERED that Dr. Fulcher's Motions to Dismiss
are hereby DENIED WITHOUT PREJUDICE [Docket nos. 5 and 9].
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