IN THE SUPREME COURT OF MISSISSIPPI

NO. 93-IA-00639-SCT

FORREST COUNTY GENERAL HOSPITAL, DR.

CHARMAINE McCLEAVE, SOUTH MISSISSIPPI

EMERGENCY PHYSICIANS, P.A., DARRELL

ELLZEY, DOROTHY DENHAM AND MIRIAM

JARRELL

v.

RONNIE CONWAY AND CHRISTY CONWAY,

INDIVIDUALLY, AND ON BEHALF OF THEIR

MINOR DAUGHTER, MEGAN CONWAY

DATE OF JUDGMENT: 5/24/93

TRIAL JUDGE: HON. ROBERT GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: J. ROBERT RAMSAY

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: SHANE F. LANGSTON

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED AND REMANDED - 10/2/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/23/97

EN BANC.

MILLS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. Ronnie Conway and Christy Conway, individually and on behalf of their minor daughter, Megan

Conway (hereinafter "Appellees"), filed a complaint in the Circuit Court of the First Judicial District

of Hinds County, Mississippi on February 22, 1993. The complaint alleged medical malpractice

against Charmaine McCleave, M.D., and Forrest County General Hospital.

¶2. Forrest County General Hospital and Charmaine McCleave, M.D., (hereinafter "Appellants")

answered the complaint and objected to the improper venue of Hinds County. The Appellants moved

the court to transfer venue to Forrest County, Mississippi, the domicile of Forrest County General
Hospital ("Forrest General"), or Lamar County, the domicile of Charmaine McCleave, M.D.

¶3. By order dated May 24, 1993, the Circuit Court of Hinds County denied Appellants' motion for

change of venue finding that although the cause of action first accrued in Forrest County, the

Appellees' damages continued to occur in Hinds County making venue proper in Hinds County

pursuant to Miss. Code Ann. § 11-11-3.

¶4. South Mississippi Emergency Physicians (hereinafter "SMEP"), along with Darrell Ellzey,

Dorothy Denham and Miriam Jarrell, all nurses at Forrest General (hereinafter collectively referred to

as "Appellants"), were named in Appellees' amended complaint filed on November 23, 1993. The

three employees filed a separate answer, which incorporated a motion to dismiss for lack of venue, or

alternatively, to transfer the cause to Forrest County. On December 23, 1993, SMEP moved

separately to transfer venue, and on February 3, 1994, the Hinds County Circuit Court denied this

motion. Aggrieved by the lower court's ruling, Appellants filed a petition for interlocutory appeal on

June 7, 1993. This Court granted the petition on March 14, 1994.

¶5. The Appellants raise four issues on appeal. However, we find the following issue to be dispositive

of this appeal and will not address the remaining issues:

WHETHER PLAINTIFFS, ALL OF WHOM ARE RESIDENTS OF FORREST

COUNTY, CAN MAINTAIN AN ACTION PURSUANT TO MISS. CODE ANN. § 11-

11-3 (SUPP. 1993) IN HINDS COUNTY, MISSISSIPPI, FOR ALLEGED MEDICAL

NEGLIGENCE THAT IS SAID TO HAVE OCCURRED IN FULL IN FORREST

COUNTY, MISSISSIPPI, AGAINST SIX DEFENDANTS, NONE OF WHOM RESIDE

IN HINDS COUNTY, BASED SOLELY UPON PLAINTIFFS' ALLEGATIONS THAT

THE MINOR CHILD'S "INJURIES AND RESULTING DAMAGES SUFFERED BY

HER AND HER PARENTS OCCURRED FOR THE MOST PART IN . . . HINDS

COUNTY."

STATEMENT OF THE FACTS

¶6. On February 20, 1992, at approximately 2:50 a.m., Ronnie Conway and Christy Conway brought

their seven-month-old infant daughter, Megan Conway, into the emergency room at Forrest County

General Hospital. She was seen by various nursing personnel. According to the complaint, Megan

had a temperature in excess of 104 degrees and "blue spots." The charge nurse had refused to call a

pediatrician and sent Megan to the general emergency room physician, Dr. McCleave who diagnosed

Megan with a virus and prescribed an antibiotic. Megan was discharged at approximately 4:30 a.m.

with a 102 degree temperature.

¶7. Later that day at 1:30 p.m., Megan's condition worsened. Her parents took her to the office of

Dr. Frank Dement, a pediatrician. Megan was then taken back to Forrest General, where she was

diagnosed with meningitis at approximately 2:00 p.m. After the staff determined that the infant's

condition had substantially worsened and had reached the critical stage, a decision was made to

transport her to the University Medical Center Hospital (hereinafter "UMC") in Jackson, Mississippi.

¶8. After arriving in Jackson, Megan remained in the intensive care unit for several weeks and was

hospitalized for a total of sixty-nine days at UMC. During the course of the infant's treatment and
care at UMC, and in order to save her life, Megan's arms and legs were amputated.

¶9. The facts relevant to the issues concerning venue are largely taken from the pleadings and are

summarized herein.

1. The Appellees, at the time of the operative events and the filing of the complaint, were and

continue to be residents of Forrest County, Mississippi.

2. Forrest County General Hospital is a community hospital organized under and operating

pursuant to Title 41, Chapter 13 of Mississippi Code Annotated. The Hospital is owned by and

is a political subdivision of Forrest County.

3. Charmaine McCleave, M.D., was a resident of Lamar County, Mississippi, at the time the

complaint was filed.

4. South Mississippi Emergency Physicians, P.A. is a professional association domiciled in

Forrest County, Mississippi.

5. Darrell Ellzey, Dorothy Denham and Miriam Jarrell are residents of Covington, Jones and

Pearl River counties, respectively; thus, none are residents of Hinds County.

DISCUSSION OF THE LAW

¶10. This interlocutory appeal concerns our venue scheme in Mississippi as set forth in § 11-11-3 of

the Mississippi Code of 1972 Annotated. We may properly consider issues pertaining to venue via an

interlocutory appeal. See Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454 (Miss. 1983) (ruling

on venue issue proper as it avoids unnecessary expense and delay).

¶11. Appellants assert the following arguments for reversing the lower court's denial of their venue

motion. First, they point to the fact that not one of the named Appellees is a resident of Hinds

County. Second, they assert that the Appellants are residents of Forrest County. Third, they contend

that all acts of alleged negligence "occurred " or "accrued" in Forrest County.

¶12. Appellees contend that the lower court, in interpreting § 11-11-3, correctly determined that

venue was proper in Hinds County. They further state that the damages first occurred and the cause

of action first accrued in Hinds County. Venue is a valuable right possessed by both plaintiff and

defendant. See Jefferson v. Magee, 205 So.2d 281, 283 (Miss. 1967); Great S. Box Co. v. Barrett,

231 Miss. 101, 94 So.2d 912, 915 (1957). "Of right, the plaintiff selects among the permissible

venues, and his choice must be sustained [footnote omitted] unless in the end there is no factual basis

for the claim of venue." Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss. 1992).

¶13. Section 11-11-3 of the Mississippi Code of 1972 Annotated provides in part: "Civil actions of

which the circuit court has original jurisdiction shall be commenced in the county in which the

defendant or any of them may be found or in the county where the cause of action may occur or

accrue." Miss. Code Ann. § 11-11-3 (1972) (emphasis added). The Appellants contend that Hinds

County lacks venue because Forrest General is domiciled in Forrest County, and Dr. McCleave is a

resident of Lamar County. SMEP also points out that none of its physicians are residents of Hinds

County. Likewise, the Conways are residents of Forrest County. The Conways agree that none of the
defendants are residents of Hinds County. Instead, they base their claim of venue on the "occur or

accrue" language of the statute.

¶14. Appellants also argue that since no defendant may be found in Hinds County, venue cannot

prevail in Hinds County unless it can be established that the cause of action asserted by the Appellees

occurred or accrued in Hinds County. They argue for a strict construction of the venue statute,

stating that the true sense in which words are used in a statute is to be ascertained, generally, by

taking them in their ordinary and obvious significance in order to effect the plain intent of the

Legislature. Furthermore, they rely on our cases holding that "the right to be sued in the county of

one's residence is a valuable right, not a mere technicality." Bd. of Trustees of State Insts. of Higher

Learning v. Van Slyke, 510 So.2d 490, 492 (Miss. 1987).

¶15. The Appellants urge us to rely upon our holding in Forman v. Mississippi Publishers Corp.,

195 Miss. 90, 14 So.2d 344 (1943), that a cause of action occurred or accrued when "it came into

existence as an enforceable claim, that is, when the right to sue becomes vested." Forman, 195 Miss.

at 105, 14 So.2d at 346. We find that the initial damage in the case sub judice occurred and accrued

in Forrest County when the doctors allegedly failed to properly diagnose the disease. At that point,

the initial damages occurred. The actions at the University Medical Center simply manifested the

injury which had already occurred in Forrest County.

¶16. In 1996, this Court decided the two analogous cases of McMillan v. Puckett, 678 So.2d 652

(Miss. 1996) and Burgess v. Lucky, 674 So.2d 506 (Miss. 1996), where we held that venue is proper

in both the county of the alleged negligence and the county of the decedent's death in wrongful death

actions. Both cases involved alleged medical malpractice claims resulting in death. Wrongful death

actions were filed in the counties of the actual deaths, rather than the counties of the alleged

negligence. We found this to be proper since wrongful death actions create a new cause of action.

McMillan, 678 So.2d at 656; Burgess, 674 So.2d at 512. However, the death required to initiate a

wrongful death action is not analogous to the injury sustained by the Appellees, and therefore,

McMillan and Burgess are readily distinguishable from the case sub judice.

¶17. We have also examined our decision in Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1156

(Miss. 1992). In Flight Line, an airplane was improperly loaded in Vicksburg, Mississippi. The plane

then flew to Chicago, Illinois, where Tanksley was injured while unloading the plane. Tanksley's

injury occurred due to the negligent loading of the plane in Vicksburg. This Court found venue

proper in Warren County since the injury could not have occurred without that negligent action.

Flight Line, 608 So.2d at 1156.

¶18. Flight Line is consistent with the case sub judice. In Flight Line, the original negligence

occurred in Warren County. In the present case, the Appellee's injuries occurred in Forrest County

when the doctors allegedly failed to properly diagnose the Appellee's illness.

¶19. Our present analysis is also consistent with our holding in Blackledge v. Scott, 530 So.2d 1363

(Miss. 1988), since no causative events in this case occurred in Hinds County. The only action

occurring in Hinds County was the treatment of the already injured child.

CONCLUSION
¶20. The Conways brought suit in an improper county for purposes of venue under § 11-11-3. Since

the cause of action accrued and the injury occurred in Forrest County, proper venue lies according to

Rule 82 of the Mississippi Rules of Civil Procedure. Therefore, the ruling of the trial court on the

change of venue motion must be reversed and the case remanded.

¶21. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS

OPINION.

LEE, C.J., PRATHER, P.J., BANKS, ROBERTS AND SMITH, JJ., CONCUR. McRAE, J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J., AND

PITTMAN, J.

McRAE, JUSTICE, DISSENTING:

¶22. I commend the majority for finding that venue may be proper in more than one county. The

defendants resided in Lamar, Covington, Jones and Pearl River Counties, allowing the plaintiffs a

choice of venues pursuant to M.R.C.P. 82. However, in reversing the circuit court's order which

denied the change of venue from Hinds County, the majority fails to have perceived the subtle

nuances between the accrual and occurrence of an act of negligence and the damages stemming

therefrom. Further, it improperly focuses on the point where the "initial damages" occurred or

accrued, neglecting the fact that ongoing damages continued to accrue after the child was moved to

Hinds County for further treatment. To so find misses the point of our holding in Flight Line, Inc. v.

Tanksley, 608 So. 2d 1149, 1157 (Miss. 1992). Accordingly, I dissent.

¶23. As we explained in Flight Line, "accrual" connotes that moment when a cause of action "comes

into action as an enforceable claim, that is, when the right to sue becomes vested." Flight Line, 608

So. 2d at 1156. "It may well mean the moment the injury is inflicted, that point in space and time

when the last legally significant fact is found." Id. Occur, we further explained, is a less formalistic

term, "event oriented to its core. It connotes conduct and phenomena and imports no preference

among all of those necessary that a plaintiff may sue." Id. The situation is analogous to a products

liability case where a negligent act happens at the point of manufacture but the injury does not occur

until after the product is in the stream of commerce. Flight Line's analysis of Coca-Cola Bottling

Co. v. Cox, 174 Miss. 790, 165 So. 814 (1936) is instructive.

In Coahoma County, Coca-Cola bottled within its soft drinks decomposed bodies of roaches.

The plaintiff received the Coke and drank it in Tunica County and suffered injury. The court

held venue proper in Tunica County where the injury occurred when the plaintiff drank the

coke. This decision, of course, is entirely proper. The words "occur or accrue" within the

statute are at least broad enough to include the place where the injury is inflicted, but this does

not and cannot exclude the place where substantial parts of the injury-causing conduct

occurred, in that case in Coahoma County.
Flight Line, 608 So. 2d at 1156. Venue, therefore, in Cox was proper both where the injury

occurred and where the conduct causing the injury occurred. See also Smith v. Temco, Inc., 252 So.

2d 212, 216 (Miss. 1971)(personal jurisdiction over non-resident tortfeasor when the tort is

committed, at least in part, in Mississippi). By the same token, in the case sub judice, venue is proper

in Forrest County, where the act of negligence occurred, that is, the doctors' failure properly

diagnose the severity of young Megan's illness, and in Hinds County, where the ultimate injury arising

from that negligence occurred-- the amputation of her arms and legs. The tort was not complete until

that final injury took place. Further, it should not be necessary to reiterate that neither an act of

negligence nor an injury alone constitutes the entire tort. Again, Flight Line is instructive:

In the final analysis, venue is about convenience. The legislative prescription implies a legislative

finding counties meeting certain criteria will generally be more convenient to the parties. The

use of "occur" makes sense because important witnesses will often be accessible where the

action occurs. Yet, there is nothing in the phrase "where the cause of action may occur...." that

limits the judicial search for but a single county. Torts arise from breaches of duties causing

injuries, and it is common experience that breach and causation and impact do not all always

happen at once. At the very least, the word "occur" connotes each county in which a

substantial component of the claim takes place,and this may include, in the present context, the

negligent conduct which substantially undergirds Tanksley's claim.

Flight Line, 608 So. 2d at 1157 (emphasis added). Thus, under Flight Line, as well as pursuant to

Cox, venue is proper either in Forrest County, where doctors failed to diagnose Megan, or in Hinds

County, where she received further treatment and where the ultimate injury, the amputation of her

limbs, occurred.

¶24. By analogy, we must look also to the provisions for venue in wrongful death actions. In those

cases, venue is proper both where the death occurred and where the alleged act(s) of negligence that

led to the death took place. McMillan v. Puckett, 678 So. 2d 652, 655 (Miss. 1996). In that case, we

looked to "'the point in space and time when the last legally significant fact is found.'" McMillan, 678

So. 2d at 655, quoting Flight Line, 608 So. 2d at 1156. In the case sub judice, the last legally

significant fact was the amputation of Megan's arms and legs in Hinds County.

¶25. Because venue in this case is proper in Hinds County as well as in Forrest County, I respectfully

dissent.

SULLIVAN, P.J., AND PITTMAN, J., JOIN THIS OPINION.