           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           July 30, 2008

                                       No. 07-60295                   Charles R. Fulbruge III
                                                                              Clerk

ANN RUTHERFORD, In Her Representative Capacity for John Wayne Dobbs
and On Behalf of All Others Similarly Situated

                                                  Plaintiff - Appellant
v.

BEVERLY ENTERPRISES INC; BEVERLY HEALTH AND
REHABILITATION SERVICES INC; BEVERLY HEALTHCARE INC;
BEVERLY ENTERPRISES MISSISSIPPI INC; WILLIAM FLOYD; DAVID
DEVEREAUX

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                   (05-CV-145)


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Appellant Ann Rutherford—representing her deceased father John Wayne
Dobbs—appeals the district court’s dismissal of her complaint without prejudice.
In that complaint, Rutherford alleged various acts of misconduct by the nursing
homes owned and operated by the defendants, acts that included poor caregiving


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 07-60295

by the nursing home staff that resulted in significant injuries to Dobbs. The
district court understood Rutherford’s complaint to allege professional
negligence claims and dismissed it due to Rutherford’s failure to comply with
Mississippi law related to such claims. We AFFIRM.
       On appeal, Rutherford argues that the district court misunderstood the
complaint in that the complaint actually alleged causes of action sounding in
contract and related legal theories and asked for corresponding relief.1 Our
review of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is
de novo. Sw. Bell Tel. v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008). The
statute at issue, section 15-1-36(15) of the Mississippi Code, requires that any
actions against health care providers “based upon the health care provider’s
professional negligence” be preceded by a 60-day notice of the intention to file
the action.2 It is undisputed that Rutherford did not give this notice, although
the original—but now dismissed—plaintiff, William Glass, did.
       Characterizing a professional negligence or malpractice claim as a contract
claim is a strategy aimed at avoiding the limitations imposed on the former
causes of action by statutes such as the one here. But the Mississippi Supreme
Court has rejected this practice in the medical malpractice context.                       See
McMichael v. Howell, 919 So.2d 18, 23–24 (Miss. 2005). In McMichael, the
plaintiff sought to avoid the requirement that she introduce expert medical
testimony, a medical malpractice requirement, by alleging a contract claim. See
id. The court noted that the plaintiff relied on medical malpractice cases and



       1
         Rutherford also alleged claims related to civil conspiracy, concealment and deceit, and
failure to treat the nursing home residents with dignity and respect, and asked for declaratory
and injunctive relief in addition to actual and punitive damages.
       2
         Federal jurisdiction exists here owing to the parties’ diversity. See 28 U.S.C. § 1332.
And, “[u]nder the Erie doctrine, federal courts sitting in diversity apply state substantive law
and federal procedural law.” Foradori v. Harris, 523 F.3d 477, 486 (5th Cir. 2008). Rutherford
makes no argument that § 15-1-36(15) is procedural; we do not decide that issue here.

                                               2
                                  No. 07-60295

made arguments in her brief that would require medical judgment. Id. at 23.
The court accordingly found that “McMichael’s argument to support her ‘breach
of contract’ claim is nothing more than medical malpractice.” Id.
      We are faced with a similar situation here.         Most importantly, the
complaint gives substantial attention to the specific personal injuries suffered
by Dobbs and Glass, including malnourishment, substantial physical injuries,
and grotesque living conditions, all of which are clearly related to negligence
with respect to the quality of caregiving both men received. The complaint also
makes repeated general references to Beverly providing inadequate care; indeed,
in the complaint section alleging “Concealment and Deceit”—a putatively non-
negligence cause of action—Rutherford refers to Beverly’s failures generally as
“violations in the standard of care.” And finally, as the district court noted,
Glass did provide the notice required by the statute, indicating that Glass, as the
original plaintiff, considered the complaint to state a professional negligence
claim. And Rutherford simply joined Glass’s complaint as a plaintiff not subject
to arbitration; Rutherford’s subsequent characterization of her omission as an
independent litigation strategy is therefore unavailing.
      Of course, we do not hold that purely contractual claims or other clearly
non-negligence claims may not be brought against these defendants. But the
allegations of the complaint before us are much too closely aligned with
professional negligence to be treated as anything else; the judgment of the
district court is accordingly
                                                                     AFFIRMED.




                                        3
