IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-IA-00398-SCT
MISSISSIPPI BAPTIST HEALTH SYSTEMS, INC.,
BAPTIST MEDICAL CENTER - LEAKE, INC.,
DAVID MOODY, M.D. AND MADDEN MEDICAL
CLINIC, PLLC
v.
SYLVIA DIANNE HARKINS AND REGGIE
HARKINS
DATE OF JUDGMENT: 02/26/2016
TRIAL JUDGE: HON. WINSTON L. KIDD
TRIAL COURT ATTORNEYS: MICHAEL T. JAQUES
BOBBY L. DALLAS
C. MAISON HEIDELBERG
GINNY Y. KENNEDY
D. COLLIER GRAHAM, JR.
ALICIA S. HALL
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: D. COLLIER GRAHAM, JR.
CHARLES E. COWAN
GINNY Y. KENNEDY
C. MAISON HEIDELBERG
ATTORNEYS FOR APPELLEES: MICHAEL T. JAQUES
BOBBY L. DALLAS
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED AND REMANDED - 02/15/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2016-IA-00399-SCT
BAPTIST MEDICAL CENTER - LEAKE, INC.,
MISSISSIPPI BAPTIST HEALTH SYSTEMS, INC.,
DAVID MOODY, M.D. AND MADDEN MEDICAL
CLINIC, PLLC
v.
SYLVIA DIANNE HARKINS AND REGGIE
HARKINS
DATE OF JUDGMENT: 02/26/2016
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: D. COLLIER GRAHAM, JR.
CHARLES E. COWAN
GINNY Y. KENNEDY
C. MAISON HEIDELBERG
ATTORNEYS FOR APPELLEES: MICHAEL T. JAQUES
BOBBY L. DALLAS
JENNIFER P. BURKES
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED AND REMANDED - 02/15/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CHAMBERLIN, JUSTICE, FOR THE COURT:
¶1. In August 2014, Dianne and Reggie Harkins filed suit in the Circuit Court of the First
Judicial District of Hinds County, alleging that the direct and proximate negligence of
multiple healthcare providers located in Leake County and Hinds County resulted in, among
other problems, the amputation of Dianne Harkins’s hands and feet. In January 2015,
2
Madden Medical Clinic, PLLC (Madden Medical) and David Moody, M.D. (Dr. Moody)
filed a motion to dismiss or, alternatively, for severance and transfer of venue to the Circuit
Court of Leake County. Shortly thereafter, Baptist Medical Center-Leake, Inc. (BMC-Leake)
and Mississippi Baptist Health Systems, Inc. (Baptist Health) filed a motion also to dismiss
or transfer venue to the Circuit Court of Leake County.1 A hearing was held on April 16,
2016. On February 26, 2016, the Circuit Court of the First Judicial District of Hinds County
entered an order denying the motions of Dr. Moody, Madden Medical, BMC-Leake, and
Baptist Health to dismiss or, in the alternative, to transfer venue. The parties appealed,
collectively filing two interlocutory appeals, and both appeals were granted and consolidated.
¶2. The Court holds Section 11-11-3(3) to be clear and unambiguous. Under the plain
language of Section 11-11-3(3), venue is proper for the properly joined defendants in Hinds
County or Leake County, and the judgment of the trial court is affirmed.
FACTS AND PROCEDURAL HISTORY
¶3. On March 11, 2013, Dianne Harkins arrived at the BMC-Leake emergency room at
approximately 3:50 p.m. and complained of right flank pain. From 3:51 p.m. until 7:00 p.m.,
Harkins’s blood pressure declined and her heart rate increased. That evening, a CT scan
showed moderate to severe hydronephrosis, a dilated ureter, and the probable presence of
calcifications in the right ureter. The emergency-room physician then admitted Harkins to
the hospital to the care and service of Dr. Moody.
1
Baptist Medical Center in Hinds County did not join the motions or file its own
motion; therefore, it is not a party to the instant appeal.
3
¶4. Dr. Moody evaluated Harkins at approximately 7:15 a.m. on March 12, 2013. After
Harkins’s vital signs were taken and noted at 7:48 a.m., Dr. Moody was notified of Harkins’s
declining condition, and he ordered medications to be administered. By 10:30 a.m.,
Harkins’s blood pressure had dropped to 67/31. After being notified of Harkins’s condition,
Dr. Moody saw Harkins at approximately 10:50 a.m. At 11:15 a.m., Dr. Moody ordered
Harkins to be transferred via air ambulance to Mississippi Baptist Medical Center in Jackson.
Harkins was transferred at approximately 12:25 p.m. Dr. Moody’s discharge summary
reflected that Harkins was transferred with hydronephrosis and shock.
¶5. Harkins arrived at Mississippi Baptist Medical Center in Jackson at approximately
1:10 p.m., and she was admitted to the emergency room. Harkins was prescribed antibiotics
at 2:13 p.m. The complaint alleges that Harkins was not given antibiotics until 3:00 and/or
3:45 p.m. Harkins was then admitted to Baptist Medical Center’s critical care unit with acute
respiratory failure, hypotension, sepsis, septic shock, acidemia, pneumonia, renal failure
syndrome, and urethral stone with urosepsis. Harkins developed more complications during
her stay in the critical care unit which culminated in the development of gangrene in
Harkins’s hands and feet. Due to the development of gangrene, both Harkins’s hands and
feet were amputated.
¶6. On August 29, 2014, based on the events described above, Harkins filed a medical-
malpractice suit. Harkins’s husband, Reggie Harkins, also brought a claim for loss of
consortium. In January 2015, Madden Medical and Dr. Moody filed a motion to dismiss or,
alternatively, to sever and transfer venue to Leake County. Thereafter, BMC-Leake and
4
Baptist Health also filed a motion to dismiss or transfer to Leake County. In their respective
motions, each party cited Mississippi Code Section 11-11-3(3), arguing that Leake County
is the only proper venue for each of them based on the facts.
¶7. On February 26, 2016, the Hinds County Circuit Court entered an order denying the
motions of Dr. Moody, Madden Medical, BMC-Leake, and Baptist Health (collectively,
“Leake County Appellants”) to dismiss or, in the alternative, to transfer venue. Aggrieved
by the denied motions to dismiss or transfer, the Leake County Appellants filed interlocutory
appeals.2 This Court granted each appeal and consolidated the appeals.3
STATEMENT OF ISSUES
¶8. The briefs that the parties and friends of the Court have filed each set forth their
rendition of the issue or issues. For clarity and conciseness, the Court has consolidated the
issues into one issue with two subsections. Because the Court holds the single issue and two
subsections to be case-dispositive of all additional issues brought before the Court and aptly
argued during oral argument, the additional issues are not addressed.
2
Madden Medical and Dr. Moody collectively filed one appeal, and BMC-Leake and
Baptist Health collectively filed the other appeal.
3
Mississippi State Medical Association, Mississippi Hospital Association, Mississippi
Dental Association, Mississippi Health Care Association, and Mississippi Nurses Association
collectively filed an amici curiae brief in support of the Leake County Appellants. Further,
The Mississippi Association for Justice filed an amicus curiae brief in support of the
Harkinses.
5
Whether, under Mississippi Code Section 11-11-3(3), the malpractice
allegations against all the medical defendants may be brought in Hinds
County, when the alleged malpractice occurred in Hinds County and in
Leake County.
(a) Whether Mississippi Code Section 11-11-3(3) is plain and
unambiguous.
(b) Whether Mississippi Code Section 11-11-3(3) prevents
joinder.
STANDARD OF REVIEW
¶9. The Court reviews “a trial court’s grant or denial of a motion for change of venue for
an abuse of discretion, but questions of law, such as interpretation of the general venue
statute, are reviewed de novo.” Laurel Ford Lincoln-Mercury, Inc. v. Blakeney, 81 So. 3d
1123, 1125 (Miss. 2012) (emphasis in original) (citing Hedgepeth v. Johnson, 975 So. 2d
235, 237 (Miss. 2008)).
ANALYSIS
Whether, under Mississippi Code Section 11-11-3(3), the malpractice
allegations against all the medical defendants may be brought in Hinds
County, when the alleged malpractice occurred in Hinds County and in
Leake County.
¶10. The Harkinses do not dispute that all the alleged malpractice on the part of the Leake
County Appellants occurred in Leake County, not in Hinds County. The issue of venue,
however, arises under Section 11-11-3(3) because additional alleged malpractice occurred
in Hinds County by Mississippi Baptist Medical Center. The Harkinses argue that the
malpractice in both counties created one injury that prevents the separate alleged acts of
malpractice from being severable. The Leake County Appellants argue the alleged medical
6
negligence in Hinds County should be severed, and venue as to them is appropriate in Leake
County alone. Our analysis rests on Section 11-11-3(3), and for the below-detailed reasons,
we affirm the trial court judgment.
(a) Whether Mississippi Code Section 11-11-3(3) is plain and
unambiguous.
¶11. The Leake County Appellants argue that the language of the statute is plain and
unambiguous, providing that the only proper venue for a suit against a medical provider is
the county in which the alleged act or omission occurred. Without stating whether the statue
is clear or ambiguous, the Harkinses argue that Section 11-11-3(3) limits the plaintiffs’ venue
choices to a county in which the alleged acts or omissions of medical malpractice occurred.
¶12. The Court’s role “is not to decide what a statute should provide, but to determine what
it does provide.” Lawson v. Honeywell Int’l, Inc., 75 So. 3d 1024, 1027 (Miss. 2011). The
Court examines the statute and linguistic choices as a whole, not looking to the words in
isolation. Miller v. French, 530 U.S. 327, 340, 120 S. Ct. 2246, 2255, 147 L. Ed. 2d 326
(2000); In re Settoon Towing, L.L.C., 859 F.3d 340, 345 (5th Cir. 2017). “If the words of
a statute are clear and unambiguous, the Court applies the plain meaning of the statute and
refrains from using principles of statutory construction.” Lawson, 75 So. 3d at 1027. On the
other hand, if a statute is “ambiguous or silent,” statutory interpretation is warranted. Miss.
Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So. 3d 600, 607 (Miss.
2009).
¶13. Mississippi Code Section 11-11-3, in pertinent part, provides:
7
(1)(a)(i) Civil actions of which the circuit court has original jurisdiction shall
be commenced in the county where the defendant resides, or, if a corporation,
in the county of its principal place of business, or in the county where a
substantial alleged act or omission occurred or where a substantial event that
caused the injury occurred.
(ii) Civil actions alleging a defective product may also be
commenced in the county where the plaintiff obtained the
product.
(b) If venue in a civil action against a nonresident defendant cannot be
asserted under paragraph (a) of this subsection (1), a civil action against
a nonresident may be commenced in the county where the plaintiff
resides or is domiciled.
...
(3) Notwithstanding subsection (1) of this section, any action against a
licensed physician, osteopath, dentist, nurse, nurse-practitioner, physician
assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor,
institution for the aged or infirm, hospital or licensed pharmacy, including any
legal entity which may be liable for their acts or omissions, for malpractice,
negligence, error, omission, mistake, breach of standard of care or the
unauthorized rendering of professional services shall be brought only in the
county in which the alleged act or omission occurred.
Miss. Code Ann. § 11-11-3 (Rev. 2004) (emphasis added). The instant version of Section
11-11-3 is a product of the 2004 amendment. Prior to 2004, no special venue distinction
existed for medical-malpractice suits. H.B. 13, 2004 Leg., 1st Exec. Sess. (Miss. 2004).
¶14. The dispute here revolves around the understanding of the word “only” in subsection
three. “All words and phrases contained in the statutes are used according to their common
and ordinary acceptation and meaning; but technical words and phrases according to their
technical meaning.” Miss. Code Ann. § 1-3-65 (Rev. 2014); see also Lawson, 75 So. 3d at
1028. To determine whether the meaning of “only” is plain and unambiguous, the Court
8
evaluates the statute and linguistic choices as a whole, beginning our analysis with subsection
one. Miller, 530 U.S. at 340; In re Settoon Towing, L.L.C., 859 F.3d at 345.
¶15. Subsection one addresses venue for general civil litigation and states that the action
shall be commenced: (1) “in the county where the defendant resides,” (2) “in the county of
its principal place of business” “if a corporation,” (3) “in the county where a substantial
alleged act or omission occurred,” (4) “where a substantial event that caused the injury
occurred,” (5) “in the county where the plaintiff obtained the product” if alleging a “defective
product.” Miss. Code Ann. § 11-11-3(1)(a)(i)-(ii). Further, for products liability actions,
Section 11-11-3(1)(b) allows the plaintiff to commence an action “in the county where the
plaintiff resides or is domiciled” if the defendant is a nonresident. Miss. Code Ann. § 11-11-
3(1)(b).
¶16. When deciding where to file an action, the plaintiff may have more than one county
from which to pick. Am. Home Prods. Corp. v. Sumlin, 942 So. 2d 766, 769 (Miss. 2006)
(“Of right, the plaintiff selects among the permissible venues, and his choice must be
sustained unless in the end there is no factual basis for the claim of venue.”). However, “in
the county where the defendant resides” could provide the plaintiff two different possible and
proper venues when there is more than one defendant. Thus, because each venue option
listed in the paragraph above may define more than one county, they are best described as
venue categories. Subsection one contains six possible venue categories, and depending on
the facts of each case, even more possible proper venue counties.
9
¶17. Subsection two addresses venue for cases with more than one plaintiff. Miss. Code
Ann. § 11-11-3(2). Subsection four addresses the doctrine of forum non conveniens. Miss.
Code Ann. § 11-11-3(4). For our analysis, subsections two and four are not pertinent.
¶18. Moving to subsection three, first we encounter the following: “Notwithstanding
subsection (1) of this section . . . .” Miss. Code Ann. § 11-11-3(3). The dissent argues that
“notwithstanding” means we should not look to subsection one. In essence, we should
consider subsection three in isolation. We respectfully disagree. “Notwithstanding” ensures
that subsection one does not define or allow additional venues for medical-malpractice cases.
Adams v. Baptist Mem’l Hosp.-DeSoto, Inc., 965 So. 2d 652 (Miss. 2007) (“The presence
of medical providers in [an] action renders subsection (1) inapplicable, as the
‘notwithstanding’ language of subsection (3) negates the language of subsection (1).”).4
However, despite the “notwithstanding” language, Section 11-11-3 was written as one
statute. To read “notwithstanding” to mean we are restrained to look only to subsection three
in isolation prevents us from considering the linguistic choices as whole, which are crucial
to reading the plain language in subsection three. See Miller, 530 U.S. at 340; In re Settoon
Towing, L.L.C., 859 F.3d at 345.
¶19. Subsection three then goes on to list specific types of medical providers and the types
of claims that may be brought. See Miss. Code Ann. § 11-11-3(3). It then states the venue
language at issue. It states that the action “shall be brought only in the county in which the
4
Although the meaning of “notwithstanding” was addressed in Adams, Adams is
distinguishable from the instant case because, unlike here, Adams addressed venue for a
medical and a nonmedical defendant. Adams, 965 So. 2d at 652.
10
alleged act or omission occurred.” Miss. Code Ann. § 11-11-3(3). Unlike subsection one,
subsection three contains one single or sole venue category for medical malpractice—“the
county in which the alleged act or omission occurred.” Id. Thus, “only” defines the sole
category to determine the venue for a medical-malpractice action. The question now
becomes whether the singularity of the category confines the venue choice to one county.
¶20. The Legislature has stated: “Words used in the singular number only, either as
descriptive of persons or things, shall extend to and embrace the plural number; and words
used in the plural number shall extend to and embrace the singular number, except where a
contrary intention is manifest.” Miss. Code Ann. § 1-3-33 (Rev. 2014). Therefore, as long
as there is no manifest contrary intention, the statutory language also can be read as stating
that the action “shall be brought only in the count[ies] in which the alleged act[s] or
omission[s] occurred.” See Miss. Code Ann. § 11-11-3(3).
¶21. To determine if there is a manifest contrary intention, the Court looks to subsection
one. Subsection one provides in pertinent part:
(1)(a)(i) Civil actions of which the circuit court has original jurisdiction shall
be commenced in the county where the defendant resides, or, if a corporation,
in the county of its principal place of business, or in the county where a
substantial alleged act or omission occurred or where a substantial event that
caused the injury occurred.
(ii) Civil actions alleging a defective product may also be
commenced in the county where the plaintiff obtained the
product.
(b) If venue in a civil action against a nonresident defendant cannot be
asserted under paragraph (a) of this subsection (1), a civil action against
a nonresident may be commenced in the county where the plaintiff
resides or is domiciled.
11
Miss. Code Ann. § 11-11-1 (emphasis added). The language illustrates that subsection one
similarly contains words in the singular form when referring to “the county” in which suit
may be filed and the “act or omission” or “event” that occurred. Id. Further, as stated above,
for each category, plaintiffs falling under subsection one may choose from more than one
county for proper venue. Sumlin, 942 So. 2d 769 (“Of right, the plaintiff selects among the
permissible venues, and his choice must be sustained unless in the end there is no factual
basis for the claim of venue.”). Therefore, the Court holds there is no manifest contrary
intention to keep the language singular in Section 11-11-3(3), and under case-specific facts,
subsection three may take the plural form.
¶22. It is foreseeable that the Court could be faced with a scenario in which the same
doctor committed malpractice on the same defendant in more than one county. Under the
instant reading of the statute, all the counties would satisfy the single category defined in
Section 11-11-3(3). However, if the Court were to adopt the Leake County Appellants’ and
the dissent’s reading of the statute, the plaintiff would have to file a suit against the same
doctor in each and every county where the doctor committed malpractice . This simply does
not comport with any plain or logical reading of the language of Section 11-11-3(3).
¶23. Thus, considering that our role is to determine what a statute does provide, Section
11-11-3(3) plainly and unambiguously provides that where both defendants are private
medical defendants and where an act or omission occurred in both counties forming an
indivisible injury, both counties satisfy the single category defined within Section 11-11-3(3).
12
The issue now becomes whether Section 11-11-3(3) prevents joinder of the two medical
defendants.
(b) Whether Mississippi Code Section 11-11-3(3) prevents joinder.
¶24. The Leake County Appellants argue that joinder under Rule 20 does not cure improper
venue because if joinder was allowed, a Leake County Appellant—who committed all its
alleged acts or omissions in Leake County—would be brought into court in Hinds County.
Dr. Moody and Madden Medical specifically point to Adams, 965 So. 2d 657, to argue that
cases involving “a medical malpractice defendant and another defendant” are “only
appropriate in the county where the alleged malpractice occurred.” Further, they argue that
difficulty in splitting up fault and damages is not a reason to allow joinder and disregard
venue.
¶25. On the other hand, the Harkinses argue that, because both defendants are medical
providers, there is no mandated legislative priority of venue; both defendants fall equally
under Section 11-11-3(3), and the joinder provisions of Rule 20 and Rule 82 should be
similarly read to fix venue in either county that satisfies the priority-venue requirements of
Section 11-11-3(3). Further, the Harkinses state that if the case is severed, complete relief
cannot be accorded.
¶26. Section 11-11-3(1) has not been construed to prevent permissive joinder under Rule
20 of the Mississippi Rules of Civil Procedure or application of Rule 82(c) of the Mississippi
Rules of Civil Procedure. It is an issue of first impression5 for the Court whether Section 11-
5
The Leake County Appellants place great weight on Adams. Adams, 965 So. 2d at
13
11-3(3) allows permissive joinder under Rule 20 of the Mississippi Rules of Civil Procedure
and application of Rule 82(c) of the Mississippi Rules of Civil Procedure where both
defendants are medical providers.
¶27. Rule 20(a) of the Mississippi Rules of Civil Procedure allows permissive joinder. It
states in pertinent part:
All persons may be joined in one action as defendants if there is asserted
against them jointly, severally, or in the alternative, any right to relief in
respect of or arising out of the same transaction, occurrence, or series of
transactions or occurrences, and if any question of law or fact common to all
defendants will arise in the action. A plaintiff or defendant need not be
interested in obtaining or defending against all the relief demanded. Judgment
may be given for one or more of the plaintiffs according to their respective
rights to relief, and against one or more defendants according to their
respective liabilities.
Miss. R. Civ. P. 20(a). Rule 82(c) of the Mississippi Rules of Civil Procedure states: “Where
several claims or parties have been properly joined, the suit may be brought in any county
in which any one of the claims could properly have been brought.” Miss. R. Civ. P. 82(c).
¶28. As explained above, the existence of one category for venue is different from the
existence of one county for venue, and two counties may satisfy the only category for
determining venue. Therefore, where two medical defendants fall within the same category,
the Court holds that Section 11-11-3(3) does not contain any language preventing permissive
joinder under Rule 20. Further, the plain language does not prevent the application of Rule
82(c). Turning to the instant case, the Leake County Appellants and Baptist Medical Center
652. However, despite the weight placed on Adams, the issue here still is an issue of first
impression because Adams dealt with a medical and a nonmedical defendant. Id.
14
in Hinds County satisfy the only category for venue, albeit in different counties. Therefore,
they have been joined properly, and due to the proper joinder of the Leake County Appellants
and Baptist Medical Center, the claim can be brought in either of the two counties, under
Rule 82(c).
¶29. It is worth noting that, unlike here, in the Mississippi Tort Claims Act, the Legislature
specifically noted that joinder of nongovernmental entities should not change the venue of
a party falling under the Act. See Miss. Code Ann. § 11-46-13(2) (Rev. 2012). Section 11-
46-13 states in pertinent part, “The venue specified in this subsection shall control in all
actions filed against governmental entities, notwithstanding that other defendants which are
not governmental entities may be joined in the suit, and notwithstanding the provisions of any
other venue statute that otherwise would apply.” Id. (emphasis added). Thus, despite
joinder, if the Legislature wanted to limit the defendants in the instant suit to the county in
which each respective alleged act or omission took place, the Legislature could have done
so as it did in Section 11-46-13.
¶30. In summation, the Court reads Section 11-11-3(3) in harmony with Rules 20 and
82(c)of the Mississippi Rules of Civil Procedure. Due to the permissive joinder of the Leake
County Appellants and Baptist Medical Center, the claim can be brought in either of the two
counties. Further, because the Court holds that the plain language allows permissive joinder,
the Court will not address the additional arguments put forth by the parties regarding
compulsory joinder, including claim and issue preclusion.
15
CONCLUSION
¶31. The Court affirms the judgment of the trial court and holds Section 11-11-3(3) to be
plain and unambiguous. Under the instant facts, the Harkinses are allowed to choose
between the two counties, as both counties satisfy the categorical requirement contained in
Section 11-11-3(3) and both defendants are properly joined.
¶32. AFFIRMED AND REMANDED.
WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, BEAM AND
ISHEE, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY MAXWELL, J.
COLEMAN, JUSTICE, DISSENTING:
¶33. The Legislature sets venue for civil actions in Mississippi. Whether the Supreme
Court sees wisdom or folly in the statute passed by the Legislature, we are constrained by the
Constitution to follow it unless it is unconstitutional beyond a reasonable doubt. In
Mississippi Code Section 11-11-3(3), the law of Mississippi requires venue in medical
malpractice actions against a given caregiver to be set in the county in which the negligence
alleged against the caregiver occurred. Because the majority’s holding today departs from
the law as set by the Legislature, I, with respect, dissent.
¶34. Statutes establish venue. Salts v. Gulf Nat’l Life Ins. Co., 743 So. 2d 371, 373 (¶ 7)
(Miss. 1999); Bd. of Trustees of State Inst. of Higher Learning v. Van Slyke, 510 So. 2d
490, 492 (Miss. 1987). The statute governing the venue issue in the case sub judice reads as
follows:
Notwithstanding subsection (1) of this section, any action against a licensed
physician, osteopath, dentist, nurse, nurse-practitioner, physician assistant,
16
psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for
the aged or infirm, hospital or licensed pharmacy, including any legal entity
which may be liable for their acts or omissions, for malpractice, negligence,
error, omission, mistake, breach of standard of care or the unauthorized
rendering of professional services shall be brought only in the county in which
the alleged act or omission occurred.
Miss. Code Ann. § 11-11-3(3) (Rev. 2004). “When interpreting a statute that is not
ambiguous, this Court will apply the plain meaning of the statute.” Pitalo v. GPCH-GP,
Inc., 933 So. 2d 927, 929 (¶ 5) (Miss. 2006). To determine the plain meaning, “we must look
at the words of the statute.” Adams v. Baptist Mem’l Hosp.-DeSoto, Inc., 965 So. 2d 652,
656 (¶ 21) (Miss. 2007).
¶35. The effect of the above-quoted statute is straightforward and clear. An action
sounding in medical negligence against a given caregiver may be brought only in the county
in which the alleged negligent act or omission occurred. When the Hinds County Circuit
Court denied the Leake County defendants’ motion to transfer venue of the claims against
them, it allowed the claim for negligent acts alleged to have occurred in Leake County to
proceed in a county other than the one where the alleged acts or omissions took place, i.e.,
Hinds County. The court’s denial of the motion contradicted Section 11-11-3(3)’s clear
directive.
¶36. It is a “fundamental rule of our sovereignty” that “the legislature has the power to
enact any law it sees fit, be it sincere or hypocritical, moral or immoral, wise or foolish,
beneficial or harmful, provided it does not violate the prohibitions of the State or Federal
Constitution.” State v. Wood, 187 So. 2d 820, 827 (Miss. 1966). I share many of the
concerns raised by the plaintiffs that arise from a statute that requires plaintiffs to split their
17
causes of action, which if they sounded in another area of law would be tried together,
between two different venues. However, those policy concerns and the ill effects, if any, of
poor policy decisions that fall within the legislative prerogative cannot be our concern when
the effect of the statute in question is clear and no questions regarding its constitutionality
are raised. In effect, if the Legislature has spoken, the nine lawyers sitting on the Mississippi
Supreme Court, pursuant to our constitutional separation of powers, must listen absent a
concern over the constitutional validity of a statute. “The function of the Court is not to
decide what a statute should provide, but to determine what it does provide.” Lawson v.
Honeywell Int’l, Inc., 75 So. 3d 1024, 1027 (¶ 7) (Miss. 2011). Again, no party to the
instant case has challenged the constitutionality of Section 11-11-3(3).
¶37. The majority reaches its holding, i.e., that the venue statute allows plaintiffs to bring
suit in Hinds County against the defendants whose alleged negligence occurred in Leake
County, in part by interpreting it in light of Section 11-11-3(1). (Maj. Op. at ¶¶ 15-19).
However, the Legislature explicitly included in Subsection 3 that it applies
“[n]otwithstanding” subsection 1. The majority also relies on Mississippi Code Section 1-3-
33 for the proposition that the Legislature itself has authorized courts to construe singular
nouns as plural and plural as singular “as long as there is no contrary intention.” (Maj. Op.
at ¶20). As applied to Section 11-11-3(3), the Legislature made its contrary intent crystal
clear when it added the word “only.” An action against a physician “shall be brought only
in the county in which the alleged act or omission occurred.” Miss. Code Ann. § 11-11-3(3)
18
(Rev. 2004) (emphasis added). In my opinion, the word “only” manifests the intention that
the word “county” hold its singular form.
¶38. For the foregoing reasons, I would reverse and remand with instructions for the trial
court to sever the claims against the Leake County defendants and transfer them to Leake
County.
MAXWELL, J., JOINS THIS OPINION.
19