                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2002-CA-00140-SCT

NANCY NECAISE, INDIVIDUALLY AND ON BEHALF
OF THE WRONGFUL DEATH BENEFICIARIES OF
CHARLES FREEMAN, DECEASED
v.
MATTHEW SACKS, M.D. AND THE MEDICAL
ONCOLOGY GROUP, P.A.

DATE OF JUDGMENT:                                    01/02/2002
TRIAL JUDGE:                                         HON. ROBERT H. WALKER
COURT FROM WHICH APPEALED:                           HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                              ROBERT W. SMITH
ATTORNEYS FOR APPELLEES:                             JOE R. COLINGO
                                                     KEVIN C. BRADLEY
                                                     JOE SAM OWEN
NATURE OF THE CASE:                                  CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                         REVERSED AND REMANDED - 03/27/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        BEFORE PITTMAN, C.J., WALLER AND CARLSON, JJ.

        CARLSON, JUSTICE, FOR THE COURT:

¶1.     Aggrieved by the Hancock County Circuit Court’s dismissal of her medical malpractice suit against

Matthew Sacks, M.D. (Dr. Sacks), and the Medical Oncology Group, P.A., (MOG), Nancy Necaise

(Necaise) appeals to this Court. Finding reversible error, we reverse and remand this case to the trial court.




                    FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2.        Nancy Necaise’s father, Charles Freeman (Freeman), was diagnosed with cancer in early 1998,

and soon thereafter, he started chemotherapy treatment at MOG.               For Freeman’s intravenous

chemotherapy treatment, the medical personnel used Taxol, a highly toxic drug used in battling systemic

cancer. While Freeman’s first treatment on January 22, 1998, was relatively uneventful, during his second

treatment on February 12, 1998, Freeman began to experience pain, swelling, and discoloration in the arm

into which the chemical was being infused. Over the next several days, the skin on Freeman’s arm began

to peel off and his arm became swollen to two or three times its normal size. As a result of what was

characterized as a third degree chemical burn, Freeman had to undergo extensive treatment causing him

to incur medical bills in excess of $170,000. Freeman was of the opinion that his injuries were a result of

negligent chemotherapy treatment resulting in a chemical infiltration into the tissue of his arm, while Dr.

Sacks and MOG opined that Freeman’s injuries most likely resulted from an adverse drug reaction.

¶3.        On August 19, 1998, Freeman commenced his medical malpractice suit against Dr. Sacks and an

unidentified nurse, Jane Doe I, in the Circuit Court of Hancock County. Over the next few months,

responsive pleadings were filed, discovery was commenced, and Freeman’s attorney requested a trial

setting.

¶4.        Regrettably, Charles Freeman died from his cancer on January 9, 1999; however, as will be more

fully hereinafter discussed, there was evidently no causal connection between any alleged medical

negligence and Freeman’s death. On February 22, 1999, Necaise, through the same attorney who had

commenced the lawsuit for Freeman, filed in the same action a Motion to Substitute Party Plaintiff, alleging

that Freeman had initially filed the lawsuit; that Freeman died of cancer on January 9, 1999; that Miss. R.

Civ. P. 25 allowed for a party to be substituted for a party who died subsequent to commencement of a

civil action; and, that Necaise was the natural daughter of Freeman and “a representative and wrongful


                                                     2
death beneficiary of [Freeman].” Judge John Whitfield by an agreed order signed on March 3, 1999, and

duly entered on March 8, 1999, authorized Necaise to be substituted as a party pursuant to Miss. R. Civ.

P. 25, and this order further provided, inter alia, that Necaise, “individually and on behalf of the wrongful

death beneficiaries of [Freeman] is hereby substituted as the party plaintiff in this [action].” On June 16,

1999, a notice of trial setting was administratively entered by the court administrator; this notice set a trial

date of November 1, 1999, before Judge Robert H. Walker. On July 20, 1999, Judge Walker entered

a scheduling order which set out various deadlines and confirmed the November 1st trial date.

¶5.     On September 7, 1999, in cause number 99-0689 on the docket of the Chancery Court of

Hancock County, the chancellor entered a Judgment Granting Probate of Will and Letters Testamentary.

This chancery court judgment found as a fact that Freeman had died with a will; that Freeman’s estate

consisted only of a cause of action for “personal injuries and/or wrongful death;” that Freeman was survived

only by Necaise; and, that prior to his death Freeman had entered into an employment contract with a law

firmconcerning his personal injury claim. This chancery court judgment likewise adjudicated, inter alia, that

Freeman’s will be admitted to probate; that Necaise be appointed as executrix of Freeman’s estate; that

the employment contract with the law firm be approved; and, that the law firm take all necessary action to

preserve Freeman’s claim in behalf of the executrix and the estate, including the initiation of legal

proceedings “against all necessary parties for the preservation of [the claim].”

¶6.     Subsequent to the circuit court order substituting Necaise as a party, and the chancery court

judgment appointing Necaise as the executrix of Freeman’s estate, and upon entry of a circuit court order

authorizing the filing of an amended complaint, Necaise filed her First Amended Complaint on September

30, 1999. Notwithstanding Freeman’s intervening death since the commencement of the lawsuit, the

amended complaint did not contain a wrongful death claim and in fact was remarkably similar to the original


                                                       3
complaint. A paragraph-by-paragraph comparison of the original complaint and the first amended

complaint reveals the following information: The introductory paragraph in both complaints states,

“COMES NOW THE PLAINTIFF, Charles Freeman, and files his complaint.....”, again, notwithstanding

the fact that Freeman had died by the time of the filing of the first amended complaint; paragraph number

one (1) of both complaints states, “Plaintiff is an adult resident citizen of Harrison County, First Judicial

District.;”1 paragraph number two-A (2A) pertaining to Dr. Sacks is the same in both complaints;

paragraph number two-B (2B) of the original complaint named Jane Doe as a defendant while paragraph

number two-B (2B) of the amended complaint named MOG as a defendant; paragraph number three (3),

setting out the alleged negligent actions of the defendants, is the same in both complaints; paragraph number

four (4), setting out the causal connection between the alleged negligence and the damages, is the same in

both complaints; paragraph number five-A (5A) of the original complaint set outs the alleged negligent acts

of Nurse Doe, while paragraph number five-A (5A) of the amended complaint specifically names the nurse

and alleges that she is an employee of MOG, but the alleged acts of negligence are the same in both

complaints; paragraph number five-B (5B) of the original complaint sets out the alleged negligent acts of

Dr. Sacks, while paragraph number five-B (5B) of the amended complaint charges both Dr. Sacks and

MOG with negligence, but the alleged acts of negligence are the same in both complaints; paragraph

number six (6) in both complaints allege that the nurse was acting under the direction and control of Dr.

Sacks, and that Dr. Sacks was responsible for his nurse’s actions under the respondeat superior doctrine,

with the only difference in the two paragraphs being that in the amended complaint, the nurse is specifically

named and is specifically alleged to be Dr. Sacks’s employee; paragraph number seven (7), setting out

        1
          The chancery court judgment entered earlier that same month found as a fact that Necaise was
residing in Kiln, Mississippi, which is in Hancock County. Again, Freeman was the named plaintiff in the
original complaint, while Necaise was the plaintiff in the first amended complaint.

                                                     4
Freeman’s injuries, is the same in both complaints; and, the ad damnum clauses in both complaints

specifically request the same amount of damages. However, of particular note is one major difference

between the two complaints. The original complaint was styled “Charles Freeman v. Matthews Sacks,

M.D. and Jane Doe, I.” On the other hand, the first amended complaint was styled “Nancy Necaise,

Individually and on Behalf of the Wrongful Death Beneficiaries of Charles Freeman, Deceased v. Matthew

Sacks, M.D. and Medical Oncology Group, P.A.” On motion of the defendants, this case was continued

from its scheduled trial date of November 1, 1999, and the trial was rescheduled for August 7, 2000.

¶7.     Evidently, by May 24, 2000, after additional discovery and motion hearings, the defendants had

become admittedly confused as to the nature of the litigation they were being called upon to defend. Was

it a personal injury suit revived in Freeman’s behalf or was it a personal injury and wrongful death suit, and

who were the parties? On that date, the defendants filed their Motion to Strike Wrongful Death Claim or

in the Alternative, Motion to Continue.2 In this motion, the defendants referred to a pre-trial hearing before

Judge Walker on August 20, 1999. The defendants set out in their motion a portion of the transcript from

this hearing, and a review of not only the motion, but also the record before this Court, reveals that the

following colloquy occurred between Judge Walker and counsel (actually we quote from the transcript a

little more than what the defendants quote in their motion):

        [DEFENSE COUNSEL]: He’s [Freeman’s] dead now. He was being treated for non-
        small cell lung cancer. He had cancer of the lungs in the past. Actually he had a portion
        of a lung removed. He developed cancer in his other lung, and was receiving treatment –

        2
         In his motion to continue this case from the November 1, 1999, trial date, Dr. Sacks, through
counsel, alleged as one of the grounds the fact that Necaise’s deposition testimony revealed that Necaise
was attempting to link her father’s death to the injuries allegedly received during the chemotherapy
treatment. More specifically, the August 2, 1999, motion for continuance alleged that “the deposition of
[Necaise] revealed that [she] intends to link the death of [Freeman] to the injury he allegedly suffered during
the treatment in question. Inasmuch as this case has become, at least in [Necaise’s] mind, a death case,
the Defendant will be in need of a trial date beyond November 1, 1999, to adequately prepare.”

                                                      5
        THE COURT: Is the plaintiff alleging any causation of the death in this case to this incident,
        Mr. Smith?

        [PLAINTIFF’S COUNSEL]: No, Your Honor.

        THE COURT: Okay.

        [DEFENSE COUNSEL]: There was some testimony to that by the substituted plaintiff,
        the daughter of Mr. Freeman. Apparently that is not going to be asserted now, and that
        was one of the grounds for the motion for continuance.
        THE COURT: [Plaintiff’s counsel] says that’s not part of the damages requested.

We should remember here that this pre-trial hearing occurred on August 20, 1999, more than one month

prior to Necaise’s filing of her first amended complaint on September 30,1999. Additionally, on May 18,

2000, just a few days before the defendants’ filing of their motion to strike wrongful death claim, Necaise

submitted her answers to the defendants’ third set of interrogatories, which answers included the following:

        INTERROGATORY NO. 5: Please state whether the injuries set forth in your Complaint
        caused or contributed to the death of Charles Freeman. If your answer is yes, please
        identify what medical or other proof you have that the injuries complained of caused or
        contributed to Charles Freeman's death.

        ANSWER: My father's death was caused by cancer. The IV extravasation injuries
        contributed to his death in that he was despondent, lost his fighting spirit and was unable
        to care for himself as well, as is documented in Garden Park and Memorial Hospital at
        Gulfport records.

Six days after the defendants had filed their motion to strike wrongful death claim or alternatively, to

continue the trial of the case, Necaise, on May 30, 2000, filed her response to the defendants’ motion and

stated the following:

        1. There is not and never has been a wrongful death claim asserted herein. Defendant’s
        motion to strike is moot.




                                                      6
        2. Defendant’s motion for continuance is their third motion for continuance and will no
        doubt be followed by more. The motion is likewise moot as there is no wrongful death
        claim on which to practice discovery.3

The record is silent as to any trial court ruling on the defendants’ motion to strike the wrongful death claim,

but the record does reveal that for various reasons, the case did not go to trial on August 7, 2000, as

scheduled, but instead, the trial date was later reset for June 11, 2001, and then ultimately for August 27,

2001.

¶8.     On the morning of trial, with over one hundred prospective jurors present for voir dire and jury

selection, Sacks and MOG filed a motion to dismiss pursuant to Miss. R. Civ. P. 12(b)(6), 12(b)(7), &

19. In their motion, Sacks and MOG asserted that Necaise lacked standing to bring the suit for Freeman’s

personal injuries because such a suit could only be maintained by Freeman’s estate; and, that even if

Freeman’s estate were allowed to maintain a suit for Freeman’s personal injuries, the suit was barred by

the applicable statutes of limitations. See Miss. Code Ann. § 15-1-36, as to medical negligence, and Miss.

Code Ann. § 15-1-55 (estate savings statute). After hearing arguments in chambers prior to

commencement of voir dire, the trial judge decided to dismiss the jurors, continue the trial, take the motion

under advisement, and set deadlines for the plaintiff’s reply to the defense motion and the defendants’

rebuttal in response to the plaintiff’s reply.

¶9.     On August 31, 2001, Necaise filed her response to the dismissal motion of Dr. Sacks and MOG,

alleging inter alia that the defendants’ motion was untimely; that she had been substituted as a party plaintiff

by court order after Freeman’s death; that the first amended complaint was filed only after she had been

appointed by chancery court order to be the executrix of Freeman’s estate; that the defendants could not



        3
        Necaise repeated this abandonment of any wrongful death claims in trial briefs submitted on
August 23, 2000, and August 20, 2001.

                                                       7
claim surprise by Necaise being involved in the litigation in her capacity as executrix of Freeman’s estate

because such information was revealed to the defendants in interrogatory responses more than a year prior

to the actual trial; that if there were any defect in the pleadings, such was cured by a liberal application of

Miss. R. Civ. P. 15 providing for amendments to pleadings and a copy of such motion for leave to amend

and proposed second amended complaint were attached as exhibits to the response; and, that a review of

the second amended complaint would reveal that it “relates back” to the original pleading pursuant to Miss.

R. Civ. P. 15(c), thus saving the case from being time-barred under the statutes of limitations.4 On

September 7, 2001, Dr. Sacks and MOG responded to Necaise’s motion for leave to amend as well as

to her response to their motion to dismiss.

¶10.    By order dated January 2, 2002, and filed on January 3, 2002, the trial judge denied Necaise’s

motion to file a second amended complaint and granted the dismissal motion of Dr. Sacks and MOG.

Among the reasons for dismissal stated by the trial judge in his order were that (1) Necaise had abandoned

her wrongful death claim, thus leaving only Freeman’s original claim for injuries and damages sustained

during his lifetime, a claim which only Freeman’s estate, and not Necaise, individually, could pursue, and

as such the complaint before the court failed to state a claim upon which relief could be granted [Miss. R.



        4
          We note that the language in Necaise’s proposed second amended complaint, which never was
allowed to be filed by the trial court inasmuch as that court in due course granted the defendants’ motion
to dismiss, was significantly different than the language contained in the first two complaints. Among other
things, the proposed second amended complaint named as plaintiff, “Nancy Necaise, Individually and on
Behalf of the Wrongful Death Beneficiaries of Charles Freeman, Deceased and as Executrix of the Estate
of Charles Freeman.” That language is basically repeated in the introductory paragraph. Paragraph One
states that Necaise is an adult resident citizen of Hancock County, and that she is the daughter and sole heir
of Freeman and the executrix of his estate. The remaining language in the proposed second amended
complaint is identical to the language appearing in the first amended complaint, meaning that there was still
no wrongful death claim, but instead a personal injury claim based on the alleged injuries and damages
received and incurred by Freeman as a result of the alleged negligent administration of the intravenous
chemotherapy treatment.

                                                      8
Civ. P. 12(b)(6)]; (2) although Necaise was the duly appointed executrix of Freeman’s estate, her failure

to maintain the litigation in the name of the estate rendered the proceedings “a nullity”; (3) Necaise’s

“individual pursuit” of Freeman’s personal injury claim would not toll the applicable statutes of limitations

concerning any claim which could only properly be brought by the estate; and (4) any effort to then assert

a personal injury claim on behalf of the estate would be futile due to the running of the applicable statutes

of limitations.

¶11.    Necaise states the issues to be as follows: (1) Whether the trial court’s dismissal of this action

without allowance of reasonable time after objection to substitute the real party in interest violates Rules

15, 17 and 19 of the Mississippi Rules of Civil Procedure; and, (2) Whether the defendants’ motion to

dismiss was untimely and waived any real party in interest objection. On the other hand Dr. Sacks and

MOG state the issues to be as follows: (1) Whether the defendants’ motion to dismiss was timely; (2)

Whether Nancy Necaise has standing to pursue an action for Charles Freeman’s personal injuries; (3)

Whether the statute of limitations on any estate claim on behalf of Charles Freeman has expired; and, (4)

Whether substitution of the estate of Charles Freeman is appropriate. In her rebuttal brief, responding to

the brief of Dr. Sacks and MOG, Necaise states the remaining issues to be (3) Whether any statute of

limitations bars a civil action for medical malpractice filed within four months of the date of the malpractice;

and, (4) Whether any statute of limitations bars an action by an individual person who amends the complaint

to plead her representative capacity as executrix.

                                       STANDARD OF REVIEW

¶12.    We apply the de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion.

Arnona v. Smith, 749 So.2d 63, 65-66 (Miss. 1999). As such, we sit in the same position as did the




                                                       9
trial court. Furthermore, statutory interpretation is a question of law, and we also review questions of law

de novo. Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss. 1999).

                                               DISCUSSION

          I.      WHETHER NANCY NECAISE HAS STANDING TO PURSUE AN
                  ACTION FOR CHARLES FREEMAN'S PERSONAL INJURIES.

¶13.      The central issue in this case is whether Necaise may maintain her deceased father’s personal injury

claim, either in her individual capacity, or in her capacity as executrix of her father’s estate. Necaise claims

that she can; Dr. Sacks and MOG claim that she cannot. Necaise chooses to support her position with

claims of the applicability of Miss. R. Civ. P. 17(a) as it relates to joinder and substitution of the real party

in interest; Miss. R. Civ. P. 19 as it relates to joinder of a party needed for just adjudication; and, Miss.

R. Civ. P. 15 as it relates to liberal joinder and the “relation-back” provision, as well as certain case law.

Necaise also attacks the lack of timeliness by the defendants in filing what turned out to be the dispositive

motion to dismiss on the day of trial. On the other hand, Dr. Sacks and MOG cite certain statutes and case

law to support their claims of Necaise’s lack of standing to individually pursue her deceased father’s

personal injury claims; the running of the applicable statute of limitations; and, Necaise’s late efforts to

finally get it right by way of maintaining her deceased father’s personal injury claims in the name of his

estate.

¶14.      Miss. Code Ann. § 91-7-233 (Rev. 1994) states, in pertinent part:

          Executors, administrators, and temporary administrators may commence and prosecute
          any personal action whatever, at law or in equity, which the testator or intestate might have
          commenced and prosecuted.

¶15.      Miss. Code Ann. § 91-7-237 states, in pertinent part:




                                                       10
        When either of the parties to any personal action shall die before final judgment, the
        executor or administrator of such deceased party may prosecute or defend such action,
        and the court shall render judgment for or against the executor or administrator.

Additionally, Miss. Code Ann. § 15-1-36 (Supp. 2002) states that medical malpractice claims must be

brought within two (2) years from the date of the alleged negligent act or omission, while the estate savings

statute, Miss. Code Ann. § 15-1-55 (Rev. 1995), provides that the estate of a person who dies before the

expiration of the applicable statute of limitations may sue or be sued after the running of the applicable

statute and within one (1) year after the death of the person. Stated succinctly, in citing these four statutes

and the cases of Berryhill v. Nichols, 171 Miss. 769, 158 So. 470 (1935), and, Owen v. Abraham,

233 Miss. 558, 102 So.2d 372 (1958), Dr. Sacks and MOG assert that Freeman’s personal injury claims

could be maintained after his death only by Necaise as executrix of Freeman’s estate, and since she never

did so, the claims are now barred under both the general medical malpractice statute of limitations and the

estate savings statute.

¶16.    In Berryhill, the next of kin of a man who had been accidentally shot and later died brought a

medical malpractice suit against the attending physician. This Court held that there was insufficient evidence

to show that the death was proximately caused by any negligence on the part of the physician, but this

Court went on to state:

        And as to any pain and suffering of the deceased endured by him between the injury and
        death and which may be shown was probably caused by the asserted negligence, that is
        an item which must be recovered, if at all, under section 1712, Code 1930, at a suit by the
        personal representative, not by the next of kin or heirs at law.5




        5
       § 1712 of the 1930 Code was the predecessor statute to § 609 of the 1942 Code and Miss.
Code Ann. § 91-7-233 (Rev. 1994).

                                                     11
158 So. at 471. In Owen, Mitchell Owen’s wife sued him for divorce. After the hearing, the chancellor

took the case under advisement for entry of a final decree in vacation. By the time the chancellor rendered

his opinion, Owen had died. While the chancellor noted the fact of Owen’s death in his opinion, the

chancellor still awarded alimony to Owen’s wife to be assessed against “the defendant and/or the

defendant’s estate.” Owen’s counsel attempted an appeal to this Court, claiming that at the time of the

chancellor’s entry of the decree against Owen and his estate, there was already a named executor of his

estate as duly appointed by the chancery court, and that Owen’s wife had made no effort to properly revive

the action against the executor. This Court found that it did not have jurisdiction to hear the appeal because

the entry of “the final decree and subsequent proceedings amount[ed] to a nullity.” 233 Miss. at 561, 102

So.2d at 373. In reaching this conclusion, this Court quoted extensively from Griffith’s Mississippi

Chancery Practice and stated:

        Inasmuch as the defendant died before the chancellor reached a decision, the cause should
        have been revived against the duly acting executor.

        Griffith’s Mississippi Chancery Practice, Section 591 says in part: 'In order that there may
        be any decree for the complainant it must be shown in proof that he actually has the interest
        upon which he sues, and the defendant must be shown, at least by the pleadings, to have
        some germane litigious concern therein. It follows from this rule, even if there were no
        other, that litigation is not to be carried on by or against any deceased person. The
        impossibility of such a thing is apparent however upon its mere mention. There must be
        revivors in such suits or else further proceedings therein amount to nothing. Thus, if a
        defendant die during pendency of a suit and there is no revivor or amendment, but only an
        unwarranted effort to carry on the suit by substituting a new party to the suit, – not one
        claiming by or under the former defendant, – the proceeding is entirely erroneous.' Section
        620 of the same text says in part: 'And likewise a decree rendered against a defendant
        after his death is void, if he was the sole defendant or was an indispensable party to the suit
        – although the interlocutory decree were rendered while he was alive.'

233 Miss. at 561, 102 So.2d at 373 (citations omitted).




                                                     12
¶17.    Dr. Sacks and MOG also direct this Court to Wilks v. American Tobacco Co., 680 So.2d

839, 843 (Miss. 1996), wherein this Court held in a wrongful death suit that the decedent’s wrongful death

heirs were not entitled to recover the decedent’s life-time damages because they failed to alternatively

pursue such a claim under Miss. Code Ann. § 91-7-233.

¶18.    However, this case turns on a case decided by this Court just last year. In Richardson v.

Methodist Hospital of Hattiesburg, Inc., 807 So.2d 1244 (Miss. 2002), this Court was confronted

with the propriety of the circuit judge’s grant of summary judgment in favor of the defendants as to the

plaintiff’s suit for personal injury and wrongful death. In Richardson, Vivian Wheeless was admitted to

the hospital with a diagnosis of an intestinal hemorrhage, and she suffered a fatal stroke. Thereafter,

Wheeless’s daughter, Linda Richardson, brought a personal injury and wrongful death action against the

hospital. The suit was styled “Linda Richardson, Individually and on Behalf of the Wrongful Death Heirs

of Vivian Wheeless, Deceased v. Methodist Hospital of Hattiesburg, Inc., Now Known as Wesley Health

Center.” In Richardson, we readily acknowledged our holding in Wilks, and in so doing, stated:

                 Wesley argues that the claim for the pain and suffering as an element of the
        wrongful death action should likewise be denied pursuant to Wilks v. American
        Tobacco Co., 680 So.2d 839 (Miss. 1996). In Wilks, the jury found that cigarette
        smoking did not proximately cause the decedent’s death. The heirs contended on appeal
        they were at least entitled to the decedent’s lifetime damages that the heirs believed were
        overwhelmingly proven to be caused by cigarette smoking. The heirs’ cause of action was
        exclusively under Mississippi’s wrongful death statute. We held the personal injury action
        could not be maintained where it was not alternatively claimed under Mississippi’s survival
        statute. Id. at 843.

807 So.2d at 1247. We went on to hold in Richardson that the circuit judge appropriately granted

summaryjudgment on Richardson’s wrongful death claim because Richardson’s designated expert was not

qualified to testify as to causation relating to Wheeless’s death and any alleged deviations in nursing care;

however, we likewise held that the circuit judge inappropriately granted summary judgment on

                                                     13
Richardson’s personal injury claim relating to Wheeless’s pain and suffering prior to her death.

Accordingly, we reversed the trial court judgment in favor of the hospital on Richardson’s claim for

Wheeless’s pain and suffering and remanded that claim to the circuit court for a jury trial. 807 So.2d at

1247-48.

¶19.    The facts of the case sub judice are similar to the facts in Richardson. In our case today,

Freeman, Necaise’s father, allegedly suffered chemical burns during chemotherapy treatment while under

Dr. Sacks’s care at MOG, and commenced, during his lifetime, a personal injury/medical malpractice suit

against Dr. Sacks and one of his nurses. While the actions of Necaise, or at least those of her attorneys,

were legitimately a cause of some consternation on the part of Dr. Sacks and MOG and their attorneys

when amended pleadings started reflecting the phrase “wrongful death beneficiaries,” and while Necaise

did equivocate somewhat in deposition and interrogatory responses to the extent that she at least opined

that there may have been some connection between the defendants’ alleged negligent actions and her

father’s death, for the most part, Necaise, through her attorney, repeatedly informed the trial court and

counsel, orally and in writing, basically that “there is not and never has been a wrongful death claim asserted

herein.” After Freeman had commenced his medical malpractice suit, and subsequent to his death in

January, 1999, the circuit court, in the same cause of action, signed an agreed order on March 3, 1999,

directing that “Nancy Necaise, individually and on behalf of the wrongful death beneficiaries of Charles

Freeman is hereby substituted as the party plaintiff in this civil action.” In September, 1999, the chancery

court found as a fact that Freeman’s estate consisted solely of his cause of action for “personal injuries

and/or wrongful death,”and that Necaise was Freeman’s sole survivor; therefore, Freeman’s will was

admitted to probate and Necaise was appointed as executrix of her deceased father’s estate. Subsequent




                                                     14
to this chancery court action, in the same month, Necaise then filed her first amended complaint in the same

circuit court action initially commenced by her father during his lifetime.

¶20.    Based on our decision in Richardson, admittedly rendered subsequent to the learned trial judge’s

dismissal of this action, we find that Necaise is able to maintain this suit which was commenced by her

father during his lifetime. Accordingly, we reverse the trial court’s grant of the defendants’ motion to

dismiss pursuant to Miss. R. Civ. P. 12(b)(6).

¶21.    Because our decision as to Issue I is dispositive, we need not discuss the remaining issues.

                                             CONCLUSION

¶22.    For the reasons herein stated, we find that the learned trial judge erred in granting the defendants’

motion to dismiss. Accordingly, we reverse the trial court’s judgment of dismissal and remand this case

to the Circuit Court of Hancock County for proceedings consistent with this opinion.

¶23.    REVERSED AND REMANDED.

     PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND GRAVES, JJ.,
CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. McRAE, P.J., NOT
PARTICIPATING.




                                                     15
