                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2007-CT-00465-SCT


THE ESTATE OF EULA MAE FEDRICK BY AND
THROUGH SUE SYKES, ADMINISTRATRIX

v.

QUORUM HEALTH RESOURCES, INC.,
NESHOBA COUNTY AND MARVIN PAGE

                           ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                       02/06/2007
TRIAL JUDGE:                            HON. VERNON R. COTTEN
COURT FROM WHICH APPEALED:              NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                 F. M. TURNER, III
ATTORNEYS FOR APPELLEES:                WILLIAM W. McKINLEY, JR.
                                        MARK P. CARAWAY
                                        CORY LOUIS RADICIONI
NATURE OF THE CASE:                     CIVIL - WRONGFUL DEATH
DISPOSITION:                            REVERSED AND REMANDED - 07/22/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      KITCHENS, JUSTICE, FOR THE COURT:

¶1.   Eula Mae Fedrick died while she was a resident of the Neshoba County Nursing

Home. Ms. Fedrick’s estate filed a wrongful-death action under Mississippi Code Section

11-7-13 (Rev. 2004) against Neshoba County and Quorum Health Resources, Inc., and

others. The County and Quorum successfully moved for summary judgment, arguing that
the Mississippi Tort Claims Act’s (MTCA’s) one-year statute of limitations had run.1 The

Court of Appeals affirmed the grant of summary judgment as to the estate’s “survival”

claims, but reversed the trial court’s grant of summary judgment as to the estate’s “wrongful

death” claims in accordance with this Court’s decision in Caves v. Yarbrough, 991 So. 2d

142 (Miss. 2008). Estate of Fedrick v. Quorum Health Res., Inc., 2009 WL 4807310 (Miss.

Ct. App. Dec. 15, 2009). Finding that the trial court erred in not applying the continuing-tort

doctrine to the estate’s claims that the defendants did not provide Ms. Fedrick proper

nutrition, we reverse the judgment of the Court of Appeals, reverse the grant of summary

judgment, and remand the case to the Neshoba County Circuit Court for further proceedings.

                                   I. The Issue on Review

¶2.    As a preliminary matter, pursuant to Mississippi Rule of Appellate Procedure 17(h),

we limit our review of this case to the narrow issue of whether the defendants’ alleged failure

to ensure that Ms. Fedrick received proper nutrition constituted a continuing tort sufficient

to toll the statute of limitations as to the “survival” claims. We do not address whether the

trial court erred in finding that Quorum was entitled to MTCA immunity.

¶3.    We also note that, in its supplemental brief following our grant of the estate’s petition

for writ of certiorari, the estate alleged that Quorum had waived any right to assert MTCA

immunity by failing to plead this affirmative defense in its answer. Quorum responded with



       1
       The complaint also named Marvin Page, the nursing home licensee, various John
Does, and other unnamed entities. On appeal, the estate did not contest the dismissal of
Page.

                                               2
a motion to strike this portion of the estate’s supplemental brief, arguing that the estate was

raising this issue for the first time. In a single-justice order, this issue was passed for

consideration with the merits of the appeal. Because we are limiting our review to the issue

stated above, Quorum’s motion to strike certain pages of the estate’s supplemental brief is

dismissed as moot.

                                II. Continuing Tort Doctrine

¶4.    Ms. Fedrick was a resident of the Neshoba County Nursing Home until her death on

October 4, 1999. Her estate provided Neshoba County a notice-of-claim letter on August 17,

2000, roughly ten months after the date of her death. Neshoba County and Quorum filed a

motion for summary judgment arguing that, because the estate failed to allege any acts of

negligence which had occurred within one year of August 17, 2000, the statute of limitations

found in Mississippi Code Section 11-46-11(3) (Rev. 2002) had run, barring the estate’s

claims.

¶5.    The estate responded to the motion for summary judgment with a detailed affidavit

from Dr. Michael Baldinger. Dr. Baldinger opined that the defendants failed to provide

sufficient nutrition to Ms. Fedrick, which led to significant weight loss, malnutrition, and,

ultimately, her death. Specifically, Dr. Baldinger opined that the defendants “failed to

provide timely restorative therapy or assistive devices when Ms. Fedrick’s ability to feed

herself became compromised” and “failed to assess the sufficiency of Ms. Fedrick’s dietary

intake and take steps to seek additional nutrition therapy.” Dr. Baldinger gave a detailed




                                              3
analysis of deficiencies found in Ms. Fedrick’s medical records, but noted that these

deficiencies were not “all-inclusive.”

¶6.    Dr. Baldinger’s affidavit stated that Ms. Fedrick was on a “restorative feeding

program” at one time, but was removed from the program some time around June 1999.

Despite indications that Ms. Fedrick was not receiving proper nutrition without the benefit

of that program, the defendants did not place her back on the feeding program until

September 17, 1999. Dr. Baldinger opined that “[h]ad her need for additional assistance been

recognized in a timely manner, months earlier than it was, it is likely that [Ms. Fedrick’s]

weight loss could have been prevented, thus extending her life.”

¶7.    The Court of Appeals focused on the words “months earlier” and determined that any

negligence on behalf of the defendants had occurred before August 17, 1999, one year before

the estate provided its notice of claim. Fedrick, 2009 WL 4807310 at *4. In other words,

the Court of Appeals held that the continuing-tort doctrine did not apply to toll the statute of

limitations, isolating the alleged tortious omissions to the date the nursing home should have

realized that Ms. Fedrick needed assistance feeding herself. Following this Court’s directive

in Caves, the Court of Appeals held that “while the claims Ms. Fedrick could have brought

had she not died are rendered untimely by application of the one-year statute of limitations,

the estate’s claims for loss of society and companionship did not accrue until Ms. Fedrick

died.” Fedrick, 2009 WL 4807310 at *5.

¶8.    This Court recently discussed the continuing-tort doctrine in Pierce v. Cook, 992 So.

2d 612, 619 (Miss. 2008):

                                               4
       [W]here a tort involves a continuing or repeated injury, the cause of action
       accrues at, and limitations begin to run from, the date of the last injury, or
       when the tortious acts cease. Where the tortious act has been completed, or the
       tortious acts have ceased, the period of limitations will not be extended on the
       ground of a continuing wrong.

       A “continuing tort” is one inflicted over a period of time; it involves a
       wrongful conduct that is repeated until desisted, and each day creates a
       separate cause of action. A continuing tort sufficient to toll a statute of
       limitations is occasioned by continual unlawful acts, not by continual ill effects
       from an original violation.

Id. (quoting Stevens v. Lake, 615 So. 2d 1177, 1183 (Miss. 1993)).

¶9.    Taking the facts in the light most favorable to the estate, we find that the continuing-

tort doctrine should be considered in the instant case. According to Dr. Baldinger’s affidavit,

the nursing home was negligent by not placing Ms. Fedrick on the restorative feeding

program before September 17, 1999. Ms. Fedrick needed feeding assistance throughout this

entire period; therefore, a tortious omission may have occurred every day that the defendants

failed to provide her this kind of assistance. These allegations fit within the definition of a

continuing tort, that is, “one inflicted over a period of time . . . wrongful conduct that is

repeated until desisted.” Id. If proven, the alleged failure to provide Ms. Fedrick proper

nutrition was a negligent omission that was repeated until September 17, 1999, the date the

nursing home placed Ms. Fedrick on a feeding-assistance program. Because the estate

provided its notice of claim just ten months later, the one-year statute of limitations may not

have run on the estate’s “survival” claims. Therefore, we find that the Court of Appeals

erred in refusing to apply the continuing-tort doctrine and holding that the estate’s “survival”

claims were barred, as a matter of law, by the MTCA’s one-year statute of limitations. We

                                               5
reverse the grant of summary judgment in favor of Neshoba County and Quorum Health and

remand the case to the Neshoba County Circuit Court for further proceedings.

¶10.   REVERSED AND REMANDED.

    WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
LAMAR, CHANDLER, AND PIERCE JJ., CONCUR.




                                           6
