liquidating trust naches regional medical was a community hospital organized under the laws of the state of mississippi it was a political subdivision of that state the medical center filed for relief under chapter nine of the bankruptcy code in march of two thousand and fourteen it was unable to reorganize as a operating entity the hospital was sold of the proceeds were insufficient to a either the secured debt or bo there was never any distribution to adams county nor payment on to cure debt all of the no on physical assets of the hospital were transferred to liquidate trust those included any claims demands a cause are you did you plead our use telling us that they were acting within the scope of their duty within the course and scope of their employment in making these mistakes that is correct they were acting as that doctrine such as certain exemptions and procedures the statute has three core components first it reaffirms that mississippi and its political subdivisions have and will assert the doctrine of so immunity the operative language of course makes no reference to potential claims by the second it contains a limited waiver of that immunity and caps the amount which can be recovered by an injur party and finally it details the numerous statutory conditions that a claimant must satisfy in order to require to recover against a political subdivision according to the district court the plain text of the compensation for injuries a claim is asserted by a defined claimant who is a quote person seeking compensation under the provisions of the act governmental entities are defined by the n t ca to include political governmental entity each of which is specifically defined when you when you say that i don't see where there is any type of caviar carve out that you're making unless you're arguing that it would be absurd if it were not is that is that sections of the n t ca which likewise have no rational application to a political subdivision as a condition to asserting a claim the claimant must deliver to the chief executive officer of the political  subdivision a writing which details his claims the statute specifies what must be there the claim that the flaw in the nature of the injury the circumstances giving rise to the injury all persons involved the amount of damages and the residence of the injured party that notice must be delivered by and or certified mail to the chief executive officer of the political subdivision not less than nine right because i was sat on another case involving yet another of these hospitals a month or two ago and they all had to do you know insurance well one reason is that you want the defense costs covered for your point he's right and the state would want the difference cost of its employees covered that's correct and you also want people to come they were who come willing to work for you say i'm all right i'm going to be exposed to a lot of people out there who could not see me and i want course and scope so the so the state is either going to bear those costs if that the state by a law it doesn't insurance is irrelevant because the state state is bearing the cost and then there's a cap on the damage statute that should not be in a law in a manner which are produces absurd results and we submit the application of the statute to barclays by the sovereign does just that indeed in looking at this very statute claim cannot be sui generous or the first instance of of such a claim for malfeasance by officers or directors of a public corporation therefore when you look into the tort claim statutes of any other state to see whether there is they how they are applied well actually there is a case in mississippi on this very issue a coroner on the form that's correct right but it really find no other cases other statutes against federal employees by the government itself in the legislative history but i can provide you know cases the slaves they faced remakes expressed as tended to protect claims by parties outside the government as opposed to names by the gov and indeed if the question is is there absurd application which has been condemned by miss mississippi supreme court let me provide you with a few illustrations as is the case we should certify i think not because i think it is obvious on its face that the court simply got it wrong this time they got it right in the prior actions regional to comply with the statue would have to give notice to itself informing itself of its claims against itself it would presumably be issued by its chief executive officer to a chief executive officer either by certified mail or by per he we would then be required to wait ninety days while we consider the notice we gave to ourselves prior to filing suit assuming we did file suit we would have to name  notice within one year and you know i mean i'm not quite sure why you would have pled that these employees were in the court course and sco if you were just saying they were breaching their and we will how could you i mean i don't see how chloe's could fail to comply with you know what it's obviously a ministerial piece of certifying the doctors for medicare i'm sorry how could they run the hospital and fail to certify the doctors for medicare if that that's one of the breaches here how did they do so by i don't know why they failed to do so we know they did fail to well that's that's what i mean that seems to me to go beyond just incompetence we know for example that rap audit's were routinely received summer of twenty four me twenty thirteen as a result medicare medicaid stopped making any payments whatsoever to this hospital agree just body blow for a hospital which obtains sixty five percent of its revenues from the federal government we know for example that the accounts payable were grossly overstated because the chief financial officer would routinely cut checks eliminate the vendors from the accounts payable ledger and then never ask you one question you referenced the federal tort claims act in the immunity principles that were seemingly considered are the basis for this state statute but we know as a matter of principle that in terms of  federal immunity that waivers are construed very narrowly and have to be expressed and yet aren't you arguing that we have to extrapolate from this statute a broader provision than what is written if we follow that analogy down or i believe the reality of that just simply looking at the statute on its face it's obvious it simply doesn't upset i hear this isn't what this statute is about this is about a statute that was carefully crafted to replace the judicially abrogated doctrine of sovereign immunity this isn't a case by the of the software and being sued it is a case of the software and suing for what we believe we will demonstrate a fairly employee just breaches of the duties obeidi offices and directors and to apply the procedures here as i said is simply absurd let me give you one final stretch from before i sit down under this  addressing what judge stared addressed initially and that is what does the statute say and there's never been really any contention that judge sterrett was wrong when he said the plain text of the tort claims act under th plain text plaintiff's claims against the officer defendants fall within its scope the statute plainly says that they are i mean that's really not in dispute what the statute says is not in dispute this entire case  about when they can't mean it can we're not arguing about well yes it can't yes i mean i think his a very good argument to that effect because for all the reasons that he stated that are within the statute but what you would be the hans versus louisiana and georgia versus collins versus georgia and the eleventh amendment and so on that is the preexisting the sovereign pan out be sued but at common law the employees of the software could be sued if they were acting outside the scope i believe but in any case my point is that saying the sovereign cannot be sued is an entirely different concept from saying that the sovereign ties its own hands so that  i mean there's even a little we stand ok stance and be mocked supreme court of california nine hundred seventy six action against director of department of parks and  recreation who expended public funds to promote the passage of a park bond issue and seeking on ground of illegality to require the director to personally repay the funds the supreme court held that al deposit well the bottom line is defendant could be held personally liable to repay be expended funds only if he failed to exercise due care and authorizing the expenditure that seventeen cow third to  tort claims act are not directly applicable to an action by or on behalf of a public entity to recover monies misappropriated or illegally expended officers and directors can be held liable and they're held liable through derivative suits for breaches of fiduciary duty and so on and so forth and it didn't make any sense to me in principle that if the corporation or people on behalf of the officers and directors it also covers the hospital in fact i believe again this is not in the record but i believe the hospital was the actual named insured of the policy so it's not like they're anticipating that these going to have personal liability but if i could just say again the statute says what it says and when you start talking about statutory construction mississippi has said you don't get into the issue of statutory construction unless she first showed the statutes eleven forty six seven is almost entirely dedicated to this is providing munity to employees it provides much broader immunity and to employees than they had before the but what it says is that the state is taking on the liability of the employees because they're acting in the course and scope right if that is one of the things that happens but it says independent of their employees law i understand that but they're immune because the state is assuming no liability so here i mean i suppose your employees could claim that they get allegation had been made by well if we could we can test the allegations but we're not at that stage this is a dismissed stage if a private entity had brought this lawsuit against the county in the employees this statute says that the office he says gross in the complaint i'm looking at the complaint now on the second page in the introductory paragraph he uses the term gross negligence it and he well what it stared also pointed out that it well if you're going to look at statutory construction the plaintiff has come forth with nothing to say well here's here's a legislative history here is any role evidence hears anything to suggest that the legislature intended anything different from e now how much do you know how much you i don't see a clear dividing line between the argument mr meyers presented in and what of whatever else has to be covered we are trying to divide up your argument it well i want to i want to pursue something that i was on with mr miers because section eleven forty six seven subdivision fobbed says that a government basically says was understand that i'm like question to you is how can i can understand negligence or gross negligence being within the course and scope i cannot understand breach of fiduciary duty being within the course and i'm not making any prejudgment about the allegations here i'm just saying qua allegations how can that ever be within the course and scope well everything that they were doing  causes of action in terms of what the statute says about where the where do you employ these immunised where is the state immunized and song and if you don't accept the argument if the court doesn't accept the argument that this is wholly without that this statute just doesn't apply at all it still may be that they have met the can that the allegations are it's sufficient to establish that they should not be in you get the idea that a fiduciary duty breach which is alleged i'm not making any statement about whether it's a good allegation or not how can you show that a breach of fiduciary duty is within the course and scope shadow company run by one of his one of his relatives and they purchase supplies at a totally inflated price conflict of interest kickback would ever it is it's not on the up and up and it's a  saying that such an action would be within the immunity of the regarding community hospitals this is what it says any community hospital owner of board of trustees shall they said be to and shelby governed by the provisions of section eleven forty six law and this is because which is such governmental entity or its employees relating to or in connection with any activity or operation of any community hospital this is not even in the tort claims act but this is this is a legislature and no other section of that to the tort claims act shell so i ask government once again suppose the allegation here was sittin director officer and embezzled two million dollars from the hospital is there no cause of action to recover you now you're saying that that's all that's not accepted because that's an intentional toward her that's a fraud and slander and all that business that illegal acts are al not even the alleged but anyway i just think that judge terry looked at everything that he his decision was correct the final language says there is no personal liability eleven forty six and and in this district court's decision there he was faced with a claim that the mississippi torts claim that provided immunity to the chief financial officer and chief executive officer installed b bramlett came to a different conclusion i simply disagree with him at the end of the day we've heard nothing more than a securitas argument let me ask you did it did you allege that what they did was of course in  plainly were grossly negligent and in the execution of those duties it's i would suggest judge jones's analogy is appropriate let's assume that this is a classic breach of duty of loyalty space where the board of trustees has agreed to acquire property owned by a sibling of one of the trustees without adequate disclosure that within the scope of the duties of the board but is plainly actionable absent a claim of the munity asserted under this statute and i submit there simply nothing in th statute that provides that immunity there is no sound i'm just trying to get what you allege here like what's been alleged here does it come within any expresswa not your argument that's not to argue ok that's an argument but we don't need to thread that needle quite frankly because the application of the statute as a whole would be inappropriate and quite clearly would be absurd let us take as a specific illustration we believe that the evidence will ultimately demonstrate that the there was a pattern of failing to bill for entire departments for years prior to the chapter but if this statute applies i think it's arguable that any default more than a year prior to the filing of the shaft would know and would be barred by this tension that flies directly in the face of the fact that the limitations a fight one other case which is from california more recently the people versus reso to fourteen cow appeals fourth nine twenty one also let me see if i can get a puts i don't have a purpose i don't have a pacific site but it's two thousand and thirteen one fifty four cow reporter third for forty three and that's action against various by the attorney state attorney general against city manager assistant city manager council members and police chief or way a waste of public funds breach of  the leroy white brief the part about the statute of the forty one thirteen eleven subsection five where the mississippi is the miss mississippi hospital code if i'm not using the correct term forgive me but i believe much thank you oh my other question are you gentlemen is how many of these regional hospitals are in dire straits now most how many are there a lot of them the last number i heard with more than thirty less than forty they're all in very difficult shape the principal problem of course being that there they're highly dependent on children for medicare which is  wages and since they're all stand alone they in effect can't compete at the level which regional house ok thank you