* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60295

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 thatincluded poor caregiving

United States Court of Appeals

Fifth Circuit

F I L E D

July 30, 2008

Charles R. Fulbruge III

Clerk
No. 07-60295

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

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.2It 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
No. 07-60295

3

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 nonnegligence 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.