Torrie Campbell Knight, Administratrix of The Estate of Linda Campbell, On Behalf of All Wrongful Death Beneficiaries of Linda Fay Campbell, Torrie Campbell, Individually, Bridgett Gill Massey and Davie French v. Jeffery Glover, MD.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-CA-01157-COA

TORRIE CAMPBELL KNIGHT, APPELLANTS
ADMINISTRATRIX OF THE ESTATE OF
LINDA CAMPBELL, DECEASED, ON BEHALF
OF ALL WRONGFUL DEATH BENEFICIARIES
OF LINDA FAY CAMPBELL, TORRIE
CAMPBELL, INDIVIDUALLY, BRIDGETT
GILL MASSEY AND DAVIE FRENCH

v.

JEFFERY GLOVER, M.D. APPELLEE

DATE OF JUDGMENT: 07/22/2024
TRIAL JUDGE: HON. DEBRA H. GIBBS
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANTS: JAMES W. NOBLES JR.
ATTORNEYS FOR APPELLEE: CECIL MAISON HEIDELBERG
TRHESA BARKSDALE PATTERSON
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED - 04/07/2026
MOTION FOR REHEARING FILED:

EN BANC.

WILSON, P.J., FOR THE COURT:

¶1. Linda Campbell sued Dr. Jeffery Glover and other medical providers for medical

malpractice. She alleged that Glover negligently left a medical sponge inside her body at the

conclusion of a surgical procedure, causing pain and suffering and medical expenses. There

is no dispute that Campbell’s complaint was timely filed within the applicable two-year

statute of limitations. Campbell died while her medical malpractice suit was pending, and

a suggestion of death was filed. Subsequently, the malpractice suit was dismissed without
prejudice pursuant to Mississippi Rule of Civil Procedure 25 because no motion to substitute

Campbell’s estate was filed within ninety days after the suggestion of death was filed.

¶2. Campbell’s daughter, Torrie Campbell Knight, opened Campbell’s estate and was

appointed administratrix. Knight then filed a new “wrongful death” complaint in circuit

court as the administratrix of Campbell’s estate and on behalf of all wrongful death

beneficiaries of Campbell. Although styled as a “wrongful death” complaint, Knight now

concedes there is no evidence that any act or omission by Glover proximately caused

Campbell’s death. However, Knight argues that she may pursue Campbell’s medical

malpractice claim as a “survival” claim on behalf of Campbell’s estate. The circuit court

ultimately ruled that Knight’s complaint was barred by the statute of limitations and granted

summary judgment in favor of Glover. Campbell appealed.

¶3. We hold that Knight’s complaint adequately pled a survival claim under the

Mississippi Supreme Court’s decision in Methodist Hospital of Hattiesburg Inc. v.

Richardson, 909 So. 2d 1066 (Miss. 2005). In addition, based on the savings statute, Miss.

Code Ann. § 15-1-69 (Rev. 2019), Knight’s complaint is not barred by the statute of

limitations because it was filed within one year of the dismissal of Campbell’s original

medical malpractice suit. Accordingly, we reverse the order granting summary judgment and

remand the case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶4. In July 2014, at St. Dominic-Jackson Memorial Hospital, Dr. Guillermo Tanaka

performed surgery on Campbell to remove a cancerous mass from one of her kidneys. While

2
performing that procedure, Tanaka unknowingly perforated Campbell’s colon. Following

the procedure, Campbell experienced complications and was eventually readmitted to St.

Dominic by Glover. A CT scan revealed the perforation of Campbell’s colon.

¶5. On September 23, 2014, Glover performed surgery on Campbell to treat damage to

her colon resulting from the perforation. During the surgery, Glover removed a portion of

Campbell’s colon and her gall bladder. Campbell was discharged home on October 1, 2014,

but she continued to experience complications, including nausea and vomiting. On October

8, 2014, she was readmitted to St. Dominic, and a CT scan revealed that a surgical sponge

had been left in her abdomen during the September 23 surgery. Glover then performed a

surgery to remove the sponge. During that procedure, Glover had to remove an additional

portion of Campbell’s small bowel as a result of damage caused by the sponge.

Campbell v. Glover et al.

¶6. In November 2016, Campbell filed a medical malpractice lawsuit in the Hinds County

Circuit Court against Glover, St. Dominic, and Tanaka.1 Campbell died in March 2017,

while that suit was pending, and in April 2017, her attorney filed a suggestion of death.2 The

1
Pursuant to the medical malpractice statute of limitations, Campbell was required
to file suit within two years from the date the retained sponge was, “or with reasonable
diligence should have been, first known or discovered to be in [Campbell’s] body.” Miss.
Code Ann. § 15-1-36(2)(a) (Rev. 2019). The statute of limitations was extended sixty days
once Campbell served the defendants with presuit notice of her claim pursuant to section 15-
1-36(15). See Scaggs v. GPCH-GP Inc., 931 So. 2d 1274, 1276-77 (¶¶9-11) (Miss. 2006).
Applying these provisions, there is no dispute that Campbell v. Glover was timely filed
within the two-year statute of limitations.
2
See Keller v. Bennett, 103 So. 3d 747, 752 (¶¶19-20) (Miss. Ct. App. 2012) (holding
that counsel for a deceased party may file a suggestion of death). Because the trial court and
the parties referred to numerous filings in Campbell’s medical malpractice action, we take

3
suggestion of death stated:

Pursuant to Section 15-1-69 of the Mississippi Code . . . , Plaintiff’s attorneys
give Notice of the Death of Linda Fay Campbell. Intention is that within one
year from the date of her Death . . . , an Amended Complaint will be filed by
her Estate and her wrongful death beneficiaries pursuant to the rights and legal
remedies provided by § 11-7-13 of the Mississippi Code . . . .

¶7. Mississippi Rule of Civil Procedure sets out the procedure for substituting the

representatives of a deceased party:

If a party dies and the claim is not thereby extinguished, the court shall, upon
motion, order substitution of the proper parties. The motion for substitution
may be made by any party or by the successors or representatives of the
deceased party . . . . The action shall be dismissed without prejudice as to the
deceased party if the motion for substitution is not made within ninety days
after the death is suggested upon the record . . . .

M.R.C.P. 25(a)(1) (emphasis added).

¶8. No further action was taken in the case until December 2017, when Campbell’s

daughter, Torrie Campbell Knight, by and through Campbell’s attorney, filed a “Motion to

Revive Action and Substitute Parties Pursuant to Rule 25 of the Mississippi Rules of Civil

Procedures.” Knight filed the motion on behalf of Campbell’s wrongful death beneficiaries.3

The motion stated in part:

Pursuant to Section 15-1-69 of the Mississippi Code . . . , Notice of
[Campbell’s] Death was served on the Defendants on April 28th, 2017.

Pursuant to Section 11-7-13 of the Mississippi Code . . . , the claims for

judicial notice of filings in that prior action that are readily available through the Mississippi
Electronic Courts system and cannot reasonably be disputed. See Jackson v. State, 394 So.
3d 420, 432 (¶43) (Miss. Ct. App. 2024).
3
As far as we know, no estate had been opened at this time. Subsequent filings
indicate that Campbell’s estate was opened on March 6, 2018.

4
damages to . . . Campbell as alleged in the Complaint filed in this cause,
flowed to her wrongful death beneficiaries . . . .

. . . [T]he claims for damages to . . . Campbell should be revived pursuant to
Rule 25 of the Mississippi Rules of Civil Procedure and the Wrongful Death
Beneficiaries be substituted as Parties in the place of . . . Campbell . . . .

Wherefore, [Knight] Moves the Court to enter an Order allowing the revival
of this action, pursuant to Rule 25 of the Mississippi Rules of Civil Procedure
and allow the substitution of [Campbell’s] Wrongful Death Beneficiaries . . .
as the parties plaintiff in this cause, and to allow the cause to proceed.

(Paragraph numbers omitted). By asking the court to “revive” the action, Knight tacitly

acknowledged that she failed to file a motion for substitution within ninety days, as required

by Rule 25. Tanaka and St. Dominic responded to Knight’s motion, arguing that the case

should be dismissed because Knight failed to file a motion to substitute within the time

allowed by Rule 25. They also moved to dismiss the case with prejudice, arguing that the

statute of limitations, Miss. Code Ann. § 15-1-36(2), now barred any claim.

¶9. On March 8, 2018, Campbell’s attorneys filed a “Motion to Dismiss Action Without

Prejudice Pursuant to Rule 41(a)(2) Mississippi Rules of Civil Procedure Due to the Death

of the Plaintiff.” The motion showed that Knight had opened Campbell’s estate, had been

appointed as administratrix, and had been authorized to file a claim “for medical malpractice

and negligence” against Glover, St. Dominic, and Tanaka. The motion acknowledged that

no motion to substitute parties had been filed within ninety days as required by Rule 25 and

that the action should be dismissed without prejudice as a result. The motion further stated:

However, the claim of the party is not extinguished by death . . . . A new
cause of action under the wrongful death statute may be filed within one (1)
year following the death pursuant to the savings statute, § 15-1-69, Mississippi
Code . . . .

5
....

The Defendants will not be prejudiced by the dismissal of this cause without
prejudice since very little, if any, discovery has taken place prior to
[Campbell’s] death . . . . All their defenses will remain intact as to the claim
which may be asserted against them in a new and separate cause of action.
[Mississippi Code Annotated section] 91-7-237 allow the claims which were
present at the time of her death, are allowed to proceed under the Wrongful
Death Statute by the Administrator or her Estate on behalf of the Wrongful
Death beneficiaries. [Campbell’s] claims . . . were not extinguished by her
death. A new and independent cause of action is vested in her Estate for those
claims under the Wrongful Death Statute.

¶10. In July 2018, the court entered an agreed judgment dismissing all claims against

Tanaka with prejudice. The judgment stated that Knight had “made known to the Court that

the plaintiff ha[d] concluded that there was no negligent action on behalf of Dr. Tanaka after

a full and complete review of the [medical] records.”4

¶11. On August 14, 2018, Campbell’s attorneys filed a response to St. Dominic’s motion

to dismiss, arguing that Campbell’s claims were not barred by the statute of limitations

because they were timely filed under section 15-1-36 and could be re-filed as “wrongful

death” claims pursuant to the “savings statute,” section 15-1-69.

¶12. On August 15, 2018, Glover filed a joinder in St. Dominic’s motion to dismiss.

¶13. On August 16, 2018, the court (Judge Winston Kidd) entered an order dismissing the

case “without prejudice pursuant to Miss. R. Civ. P. 25.” (Emphasis added). The order

stated that the dismissal would “preserv[e] all viable claims of [Campbell’s] wrongful death

beneficiaries . . . and defenses of all Defendants to said claims.”

4
The court referred to Knight as a “proposed substitute plaintiff, heir-at-law, alleged
wrongful death beneficiary . . . , and Administrator of [Campbell’s] Estate.” The court
stated that it was granting Knight’s “motion ore tenus.”

6
Knight v. Glover et al.

¶14. On March 9, 2018, prior to the dismissal of Campbell v. Glover, Knight filed a new

complaint in the Hinds County Circuit Court against Glover, St. Dominic, and Tanaka.5 The

case was initially assigned to Judge Tomie Green and later reassigned to Judge Debra Gibbs.

By the time Knight filed the complaint, she had opened Campbell’s estate and had been

appointed administratrix of the estate. Knight filed the complaint “individually and as the

Administratrix of [Campbell’s] Estate . . . , and on behalf of all wrongful death beneficiaries

of . . . Campbell.” (Emphasis added).

¶15. Relevant to this appeal, Knight’s complaint alleged as follows:

This cause of action is for wrongful death proximately resulting from Medical
Negligence in the Defendants’ care and treatment of [Campbell]. . . .

....

Campbell died on March 14, 2017[,] . . . while this action was pending. This
action is brought . . . for all damages which . . . Campbell and her wrongful
death beneficiaries are entitled to recover pursuant to Section 11-7-13 of the
Mississippi Code . . . . Campbell had previously brought suit against the
Defendants in [Campbell v. Glover] in this Court. Following her death . . . ,
a Suggestion of Death was filed on April 28, 2017, following which the action
became abated, within 90 days following the filing of the suggestion of Death
and was [subsequently] dismissed without prejudice. Plaintiffs here are the
Estate and the wrongful death beneficiaries of . . . Campbell, who, by virtue
of § 11-7-13 of the Mississippi Code . . . , were and are vested with a new
cause of action for her death. This action is timely and is filed within one year
following her death, so that pursuant to the provisions of § 15-1-69 of the
Mississippi Code . . . (savings statute) this action is timely.

The complaint further alleged that Glover and St. Dominic’s nurses breached the standard

5
In July 2018, consistent with the agreed judgment in Campbell v. Glover, the circuit
court entered an agreed judgment in Knight v. Glover dismissing all claims against Tanaka
with prejudice.

7
of care by leaving a surgical sponge inside Campbell’s body during surgery. The complaint

alleged that Campbell “endured many hours of pain, suffering, mental anguish, loss of

enjoyment of life and suffered the permanent loss of 1-2 feet of her small bowel as a direct

and proximate result of [Glover’s] negligence”; that she “incurred medical expenses . . . of

at least $80,000.00”; and “[t]hat all of said damages were proximately caused by [Glover’s]

negligence.” In the next paragraph, the complaint alleged that Glover’s negligence

“proximately caused” the “[p]laintiff’s deceased damages.” Oddly, although the complaint’s

earlier paragraphs vaguely alleged that the action was for “wrongful death proximately

resulting from” the defendants’ negligence and “a new cause of action for [Campbell’s]

death,” the complaint did not include any specific factual allegations that any act or omission

by Glover (or any other specific defendant) proximately caused Campbell’s death.

¶16. Over the next six years, the parties engaged in discovery. In December 2023, Glover

filed a motion for summary judgment, arguing that he was entitled to judgment as a matter

of law because Knight’s only designated medical expert admitted that Glover’s alleged

negligence did not proximately cause Campbell’s death.6 Moreover, Glover noted that

Knight’s complaint did not “contain any allegation that [the] surgery [performed by Glover]

was causally connected to [Campbell’s] death in 2017.” Glover also argued that undisputed

facts showed that he did not breach the standard of care.7

6
Knight’s expert testified in his deposition that Campbell recovered from the initial
complications caused by the retained sponge and “ha[d] done well and had no long-standing
issues from [the] surgical procedure.”
7
Glover argued that he complied with the standard of care and hospital policy by
relying on St. Dominic’s nurses to conduct a sponge count and account for all surgical

8
¶17. In response to Glover’s motion, Knight conceded that no act or omission by Glover

proximately caused Campbell’s death.8 However, citing the wrongful death statute (Miss.

Code Ann. § 11-7-13 (Rev. 2019)),9 the survival statute (Miss. Code Ann. § 91-7-233 (Rev.

2021)),10 the savings statute (Miss. Code Ann. § 15-1-69),11 and Methodist Hospital of

Hattiesburg Inc. v. Richardson, 909 So. 2d 1066 (Miss. 2005), Knight argued that

Campbell’s estate and her “wrongful death beneficiaries” or “survivors” could pursue

“survival claims” for the personal injuries Campbell suffered and medical expenses Campbell

incurred during Campbell’s lifetime. Knight also argued that there were genuine issues of

material fact for trial regarding Glover’s alleged breach of the standard of care.

¶18. In rebuttal, Glover argued that Knight’s “personal injury” claims were barred because

those claims were dismissed in Campbell v. Glover when Campbell’s estate was not

substituted as the plaintiff within ninety days following the suggestion of death, as required

sponges used during the surgery.
8
The record indicates that Campbell died of wholly unrelated causes three years after
Glover performed surgery on her.
9
The wrongful death statute provides a cause of action to statutory wrongful death
beneficiaries when “the death of any person” is caused by the actionable negligence of the
defendant. Miss. Code Ann. § 11-7-13.
10
“Executors, administrators, and temporary administrators may commence and
prosecute any personal action whatever, at law or in equity, which the testator or intestate
might have commenced and prosecuted.” Miss. Code Ann. § 91-7-233.
11
“If in any action, duly commenced within the time allowed, the writ shall be abated,
or the action otherwise avoided or defeated, by the death of any party thereto, or for any
matter of form, . . . the plaintiff may commence a new action for the same cause, at any time
within one year after the abatement or other determination of the original suit, . . . and his
executor or administrator may, in case of the plaintiff's death, commence such new action,
within the said one year.” Miss. Code Ann. § 15-1-69.

9
by Rule 25. Glover further argued that the present suit filed by Knight was a “wrongful

death suit,” not a suit for Campbell’s “personal injury” claims or “survival” claims.

¶19. The circuit court ruled that Knight’s claims were barred by the statute of limitations.

The court stated although Campbell v. Glover was filed within the two-year statute of

limitations for medical malpractice actions, “that lawsuit was dismissed without prejudice,”

and “any rights for Ms. Campbell to recover for the negligent acts of Dr. Glover expired on

the two-year anniversary of having the sponge removed or on October 8, 2016.” The court

further stated: “The instant lawsuit seeks to reinstate Ms. Campbell’s personal injury lawsuit,

well past the statute of limitations. . . . [T]he wrongful death statute cannot be used to

accomplish[] something that had already expired.” Therefore, the court granted Glover’s

motion for summary judgment, dismissed Knight’s claims against him with prejudice, and

entered a final judgment in favor of Glover pursuant to Mississippi Rule of Civil Procedure

54(b).12 Knight filed a motion to reconsider and alter or amend the judgment pursuant to

Mississippi Rule of Civil Procedure 59, which was denied, and a notice of appeal.

ANALYSIS

¶20. On appeal, Knight again concedes that there is no evidence that any act or omission

by Glover caused Campbell’s death. Knight engages in extended discussions of the history

and meaning of the wrongful death statute, and she argues that, read together, the wrongful

death statute, the survival statute, the savings statute, and other statutes permit her—as the

12
The only other defendant remaining in the case, St. Dominic, had also moved for
summary judgment, but the court had not ruled on St. Dominic’s motion. While this appeal
was pending, the court entered an agreed order dismissing all claims against St. Dominic
with prejudice.

10
administratrix of Campbell’s estate—to bring a “survival” claim for personal injuries that

Campbell sustained during her lifetime. In response, Glover contends that Knight’s

“intentionally convoluted” arguments obscure the simple fact that her complaint asserted only

a wrongful death claim, not a “survival” or “personal injury” claim. Glover also argues that

“even assuming arguendo” that Knight’s complaint included a survival or personal injury

claim, that claim is now barred by the statute of limitations.

¶21. The issue in this appeal is not as complicated as the parties have made it. Knight has

no viable claim against Glover under the wrongful death statute because, as Knight concedes,

there is no evidence that any act or omission by Glover proximately caused Campbell’s

death. Accordingly, this appeal really does not have anything to do with the wrongful death

statute. The dispositive issue in this appeal is simply whether, under our notice pleading

standards, Knight’s complaint adequately pled a survival claim for personal injuries sustained

by Campbell during her lifetime. Under the Supreme Court’s decision in Richardson, we are

bound to conclude that Knight’s complaint adequately pled a survival claim. Richardson,

909 So. 2d at 1072 (¶13). In addition, for the reasons explained below, Knight’s survival

claim is not barred by the statute of limitations.13

I. Knight’s complaint adequately pled a survival claim.

¶22. As this Court has explained, it is “clear” that it is “proper” for an “estate administrator

to assert both a wrongful death action and a survival action” in the same complaint. In re

Est. of England, 846 So. 2d 1060, 1069 (¶29) (Miss. Ct. App. 2003). That is a safe and

13
We review an order granting summary judgment based on the statute of limitations
de novo. McMorris v. Tally, 163 So. 3d 289, 291 (¶9) (Miss. 2015).

11
prudent course of action because such a complaint will permit the deceased’s wrongful death

beneficiaries to recover if the proof shows that a defendant’s tortious conduct caused the

deceased’s death and, in the alternative, will permit the estate to recover if the proof shows

that a defendant’s tortious conduct did not cause the death but did cause personal injuries and

damages during the deceased’s lifetime. Id. Knight filed the instant complaint in her

capacity as the administratrix of Campbell’s estate. The question remains, however, whether

Knight’s complaint pled a survival claim or only a wrongful death claim. On this issue, we

conclude that the Supreme Court’s decision in Richardson is controlling.

¶23. In Richardson, the decedent’s daughter filed a wrongful death complaint against the

defendant-hospital. Richardson, 909 So. 2d at 1067 (¶2). She filed suit “individually and

on behalf of [her mother’s] wrongful death heirs.” Id. “There was no separate claim asserted

by [her mother’s estate], and it [was] without dispute that no estate had been opened at the

time the suit was commenced.” Id. The complaint alleged that the hospital’s negligence

proximately caused the decedent’s death and sought damages for her pain and suffering,

medical and hospital expenses, and wrongful death damages. Id. at 1068 (¶2). The circuit

court granted summary judgment in favor of the hospital because there was no competent

evidence that its alleged negligence proximately caused the decedent’s death, and the

Mississippi Supreme Court affirmed on that issue. Id. “[H]owever, [the Supreme Court

also] determined that although the survival statute was not specifically pleaded in the

complaint, the pleadings did set out two separate causes of actions.” Id. The Court held that

there was “a genuine issue of material fact requiring a trial on [the plaintiff’s] separate cause

12
of action for [her mother’s] pain and suffering”; therefore, the Court reversed in part and

remanded the case to the circuit court for a jury trial on that “remaining claim.” Id.

¶24. On remand, the hospital filed a motion to dismiss or for summary judgment, arguing

that the wrongful death beneficiaries were not proper plaintiffs in a survival action, and the

circuit court granted that motion. Id. at (¶3). The daughter then opened her mother’s estate

and filed an amended complaint on behalf of her mother’s wrongful death heirs and her

mother’s estate. Id. at 1068-69 (¶4). The amended complaint expressly alleged a “survival

claim.” Id. The circuit court allowed the plaintiff to proceed on her amended complaint and

survival claim, and the Supreme Court affirmed on interlocutory appeal. Id. at 1069-70 (¶¶5-

7). The Supreme Court held that “though the survival statute was not specifically cited in the

[original] complaint,” the original complaint sufficiently pled a survival claim “under our

system of notice pleadings.” Id. at 1070 (¶9) (footnote and other brackets omitted). The

Court stated that its “decision simply allow[ed] the pain and suffering element, which was

specifically pleaded in the original complaint in the case . . . , to remain viable.” Id. at 1072

(¶13) (emphasis added). The Court held that the original complaint sufficiently pled a

survival claim even though the only proper party to bring such a claim—the decedent’s

estate—did not even exist at that time. See id. at 1067, 1070 (¶¶2, 7). In addition, the Court

found that the original complaint sufficiently pled a survival claim even though that claim

apparently was not pled with any degree of clarity. As the circuit court in Richardson put it,

“the Mississippi Supreme Court divined a survival claim in the pleadings” that “managed to

lay hidden even to the drafter of those pleadings.” Id. at 1069 (¶5).

13
¶25. Applying Richardson’s holding and reasoning, we conclude that we are likewise

bound to “allow[] the pain and suffering element, which was specifically pleaded in the

original complaint in the case . . . , to remain viable.” Id. at 1072 (¶13).14 Here, Knight filed

the instant complaint “individually and as the Administratrix of [Campbell’s] Estate . . . , and

on behalf of all [of Campbell’s] wrongful death beneficiaries.” (Emphasis added). In this

respect, Knight’s complaint is superior to the original complaint in Richardson. Unlike

Richardson, Knight’s complaint was filed by the proper plaintiff for a survival claim—the

decedent’s estate. In addition, Knight’s complaint alleges that Campbell “endured many

hours of pain, suffering, mental anguish, loss of enjoyment of life and suffered the permanent

loss of 1-2 feet of her small bowel as a direct and proximate result of [Glover’s] negligence”;

that Campbell “incurred medical expenses . . . of at least $80,000.00”; and “[t]hat all of said

damages were proximately caused by [Glover’s] negligence.” These are exactly the kinds

of damages for pain, suffering, and medical expenses that the decedent’s estate may pursue

in a survival action. Under Richardson, we are required to “allow[] the pain and suffering

element, which was specifically pleaded in the original complaint in the case . . . , to remain

viable” despite the complaint’s failure to cite the survival statutes or more clearly or

distinctly set out a separate survival claim. Richardson, 909 So. 2d at 1072 (¶13).

II. The survival claim is not barred by the statute of limitations.

¶26. We also conclude that Knight’s survival claim is not barred by the statute of

limitations. There is no dispute that the complaint in Campbell v. Glover was timely filed

14
“This Court is, of course, bound to follow Mississippi Supreme Court precedent.”
Murphy v. William Carey Univ., 382 So. 3d 1181, 1185 n.4 (Miss. Ct. App. 2024).

14
within the statute of limitations. See supra note 1. As set out above, following Campbell’s

death, the circuit court “dismissed” that case “without prejudice pursuant to [Mississippi

Rule of Civil Procedure] 25.” Rule 25(a)(1) provides:

If a party dies and the claim is not thereby extinguished, the court shall, upon
motion, order substitution of the proper parties. The motion for substitution
may be made by any party or by the successors or representatives of the
deceased party . . . . The action shall be dismissed without prejudice as to the
deceased party if the motion for substitution is not made within ninety days
after the death is suggested upon the record . . . .

(Emphasis added). In addition, Mississippi Code Annotated section 15-1-69 provides:

If in any action, duly commenced within the time allowed, the writ shall be
abated, or the action otherwise avoided or defeated, by the death of any party
thereto, or for any matter of form, . . . the plaintiff may commence a new
action for the same cause, at any time within one year after the abatement or
other determination of the original suit, and his executor or administrator may,
in case of the plaintiff’s death, commence such new action, within the said one
year.

¶27. There is no dispute that Campbell’s original medical malpractice action was “duly

commenced within the time allowed,” i.e., within the two-year statute of limitations. See

supra note 1. Moreover, when that action was dismissed pursuant to Rule 25, the action was

“abated” or “otherwise avoided or defeated” by Campbell’s “death.” Therefore, under

section 15-1-69, Campbell’s estate had one year following the dismissal of Campbell’s

complaint to commence “a new action for the same cause” of action. Knight filed her

complaint in this case within one year of the dismissal of Campbell v. Glover. Accordingly,

Knight’s complaint was timely under section 15-1-69.

¶28. Glover argues that section 15-1-69 does not save Knight’s complaint because Knight

did not open an estate and timely file a motion to substitute pursuant to Rule 25 in Campbell

15
v. Glover. Glover argues that Campbell v. Glover was not “abated” due to Campbell’s

“death.” Rather, Glover argues, Campbell v. Glover was defeated because Knight failed to

comply with Rule 25. We disagree. The original action was abated because Campbell died.

Moreover, pursuant to Rule 25, that action was dismissed without prejudice, which permitted

Knight to commence a new action within one year.15

CONCLUSION

¶29. Knight’s complaint adequately pled a survival claim under the Supreme Court’s

decision in Richardson. In addition, Knight’s complaint was timely filed within one year

pursuant to the savings statute, Miss. Code Ann. § 15-1-69. Therefore, the circuit court erred

by granting Glover’s motion for summary judgment. The order granting summary judgment

is reversed, and the case is remanded for further proceedings consistent with this opinion.

¶30. REVERSED AND REMANDED.

WESTBROOKS, McDONALD, LAWRENCE, WEDDLE AND LASSITTER ST.
PÉ, JJ., CONCUR. EMFINGER, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY BARNES, C.J., CARLTON, P.J., AND McCARTY, J.

EMFINGER, J., DISSENTING:

15
Citing Clark Sand Co. v. Kelly, 60 So. 3d 149, 162 (¶45) (Miss. 2011), and Empire
Abrasive Equipment Corp. v. Morgan, 87 So. 3d 455, 464 (¶30) (Miss. 2012), Glover also
argues that Knight’s complaint cannot benefit from the savings statute because her wrongful
death action was “separate and distinct” from Campbell’s prior personal injury action.
However, in both Clark Sand and Empire Abrasive, the Supreme Court held that the plaintiff
could not assert survival-type personal injury claims “because [the plaintiff] had not yet been
appointed [the decedent’s] executrix when she filed suit.” Clark Sand Co., 60 So. 3d at 162
(¶45) (emphasis added); accord Empire Abrasive Equip. Corp., 87 So. 3d at 464 (¶30). In
contrast, Knight had been appointed as administratrix of Campbell’s estate when she filed
suit and, therefore, had standing to assert survival claims on behalf of the estate.
Accordingly, Clark Sand and Empire Abrasive are distinguishable.

16
¶31. Based upon statements in pleadings in the original medical negligence action, the

language of the complaint and other pleadings here, I cannot find that the drafters of the

instant complaint intended to include a separate survival claim, or that they did so

unintentionally. I would find that the instant complaint expressly claims that Campbell’s

death was caused by medical negligence and that the damages sought were based solely upon

that claim. Just because years after the filing of the complaint the Appellant’s expert

determined that Campbell’s death was not caused by medical negligence, a separate claim

for medical negligence, which had been voluntarily dismissed by the estate, was not

magically resurrected and grafted into the wrongful death complaint.

¶32. The wrongful death complaint filed in this cause on March 9, 2018, states in part:

This cause of action is for wrongful death proximately resulting from
Medical Negligence in the Defendants’ care and treatment of Linda Fay
Campbell, now deceased. . . .This action is brought against the Defendants for
all damages which Linda Fay Campbell and her wrongful death beneficiaries
are entitle[d] to recover pursuant to Section 11-7-13 of the Mississippi
Code of 1972. . . . Plaintiffs here are the Estate and wrongful death
beneficiaries of Linda Fay Campbell, who, by virtue of §11-7-13 of the
Mississippi Code of 1972, were and are vested with a new cause of action
for her death. This action is timely and is filed within one year following her
death, so that pursuant to the provisions of §15-1-69 of the Mississippi Code
of 1972 (savings statute) this action is timely. . . . Wherefore, pursuant to
§11-7-13 of the Mississippi Code of 1972, Plaintiff, individually and on
behalf of all wrongful death beneficiaries of Linda Fay Campbell,
demands judgment against the Defendants in dollar amounts to be fixed
by the Jury.

(Emphasis added).

¶33. The complaint expressly states that it is brought under the authority of the wrongful

death statute. The complaint also clearly alleges that Dr. Glover’s medical negligence caused

17
Campbell’s death. However, several years later in 2023, the plaintiffs conceded that Dr.

Glover’s acts did not cause Campbell’s death. They argue on appeal that the trial court erred

by not allowing them to pursue damages as a separate claim for medical negligence as a part

of the wrongful death action.

¶34. In Clark Sand Co. v. Kelly, 60 So. 3d 149, 161 (¶42) (Miss. 2011), the supreme court

explained:

An action for wrongful death includes the decedent’s “survival-type” claims,
such as claims for his or her personal injury, property damage, and medical and
funeral expenses, and the wrongful-death claimants’ so called
“wrongful-death” claims, such as loss of consortium, society, and
companionship. Caves v. Yarbrough, 991 So. 2d 142, 148-49 (Miss. 2008).

Both the language of section 11-7-13 and caselaw make it clear that such “survival type”

claims can only be included in a wrongful death action if the negligent act caused the death.

In In re Estate of England, 846 So. 2d 1060, 1068 (¶26) (Miss. Ct. App. 2003), cited by the

majority, this Court explained:

When the same wrongful conduct causes both personal injury and death, at the
instant of death, the recovery for the personal injury is embraced by the “one
suit” for wrongful death and is not actionable by the estate under the survival
statute. Id.; Miss. Code Ann. § 11-7-13 (Supp. 2002). Thus, it is definite that,
if Rezulin proximately caused Betty England’s death, any damages for Betty’s
personal injuries from Rezulin must be recovered in an action for wrongful
death, and could not be recovered by the estate under the survival statute.

On the other hand, it is definite that if Rezulin did not proximately cause
Betty’s death, there could be no recovery for the heirs under the wrongful
death statute. Wilks v. American Tobacco Co., 680 So. 2d 839, 843 (Miss.
1996); Berryhill v. Nichols, 171 Miss. 769, 774, 158 So. 470, 471 (1935).

(Emphasis added). See also Crawford ex rel. Hodge v. E. Miss. State Hosp. Inc., 397 So. 3d

871, 880 (¶¶27-29) (Miss. Ct. App. 2024); Miss. Valley Silica Co. v. Barnett, 227 So. 3d

18
1102, 1109-10 (¶12) (Miss. Ct. App. 2016); Empire Abrasive Equip. Corp. v. Morgan, 87

So. 3d 455, 461-62 (¶24) (Miss. 2012); Kinsey v. Pangborn Corp., 78 So. 3d 301, 306 (¶12)

(Miss. 2011); Caves v. Yarbrough, 991 So. 2d 142, 149-50 (¶29) (Miss. 2008). Because the

plaintiffs conceded that any negligence by Dr. Glover did not cause Campbell’s death, there

can be no recovery under the wrongful death statute.

¶35. The Appellants contend here, as they did before the trial court, that they should be

allowed to proceed on a separate medical negligence claim. They argue that this claim was

timely filed and the court erred by finding that it is barred by the statute of limitations. I agree

with the Appellants that Campbell’s claim for medical negligence, filed before her death, did

not die with her and that the instant wrongful death complaint was timely filed.16 However,

the issue becomes whether the instant complaint includes a separate claim for medical

negligence. See Miss. Code Ann. §§ 91-7-233 & 91-7-237 (Rev. 2021).

¶36. To decide this issue, we must look to the substance of the complaint to determine its

nature. In Meadows v. Blake, 36 So. 3d 1225, 1230-31 (¶11) (Miss. 2010), the supreme court

stated:

This Court maintains that “‘[a] court must look to the content of the pleading
to determine the nature of the action. Substance is considered over form. . . .
The label is not controlling.’” Am. Bankers Ins. Co. of Fla. v. Booth, 830 So.
2d 1205, 1214 (Miss. 2002) (quoting Arnona v. Smith, 749 So. 2d 63, 66
(Miss. 1999)).

A review of the complaint, as highlighted above, shows that the claim for relief was solely

16
I also agree with the majority that should we find that the complaint here contains
a valid survival claim for medical negligence, it would not be barred by the statute of
limitations.

19
based upon the wrongful death statute. While the complaint does seek damages related to

medical negligence, the complaint clearly states that the claim is based upon the plaintiff’s

allegation that the medical negligence caused Campbell’s death. Despite the majority’s

contention, I find that there was no effort in the complaint to plead a separate survival claim

for medical negligence, apart from the wrongful death claim. The complaint expressly claims

relief pursuant to the wrongful death statute and does not set out an alternative claim for

relief pursuant to either section 91-7-233 or section 91-7-237. Because of the failure to timely

substitute parties under Rule 25, the prior pleadings in the original cause of action make it

clear that plaintiffs felt that they were barred from pursuing a separate action for medical

negligence and could only make that claim in a wrongful death action. As noted above,

however, that is only possible if any such negligence caused Campbell’s death.

¶37. Finally, pursuant to both Rule 25 and section 91-7-237, the Appellants had the

opportunity and ability to substitute as parties in the original action. Section 91-7-237

provides as follows:

When either of the parties to any personal action shall die before final
judgment, the executor or administrator of such deceased party may prosecute
or defend such action, and the court shall render judgment for or against the
executor or administrator. If such executor or administrator, having been duly
served with a scire facias or summons five days before the meeting of the
court, shall neglect or refuse to prosecute or defend the suit, the court may
render judgment in the same manner as if such executor or administrator had
voluntarily made himself a party to the suit. The executor or administrator who
shall become a party shall be entitled to a continuance of the cause until the
next term of the court.

Miss. Code Ann. § 91-7-237. Based upon pleadings filed in the original action discussed

above, it was obviously the intent of Campbell’s attorneys, after her death, to follow the path

20
set out by Rule 25. At some point later, a conscious decision was made to pursue all claims

in a new wrongful death complaint based upon the allegation that the medical negligence

caused Campbell’s death. Plaintiffs’ motion filed on August 14, 2018, in the original action,

five months after the complaint was filed, explains clearly that the present action was brought

solely under the authority of the wrongful death statute.

¶38. The majority finds that the 2005 Richardson case is controlling. I disagree for several

reasons. First, this case has been cited by our appellate courts twenty times, and in none of

those cases was the cite in reference to whether a complaint sufficiently pled a survival

claim. Seventeen times it was cited for the authority that an appellate court can affirm a

decision of a trial court even if the trial court reached the right result for the wrong reason.

In the remaining three cases, the reference was to Rule 17 and real parties in interest. Second,

the 2005 Richardson case was the second time this matter came before our supreme court.

¶39. In Richardson v. Methodist Hospital of Hattiesburg Inc. (Richardson I), 807 So. 2d

1244 (Miss. 2002), the trial court granted summary judgment for the defendants on the

plaintiff’s personal injury and wrongful death claims filed by the decedent’s wrongful death

beneficiaries.17 Id. at 1245 (¶2). On appeal, without citing the language from the complaint,

the court stated:

Though the survival statute is not specifically cited in the complaint, the
pleadings in this case delineate two specific causes of action and are sufficient
under our system of notice pleadings.

17
An estate for the deceased had not been opened, and the estate was not a party to
the action. In fact, the estate was not opened until after the supreme court reversed the grant
of summary judgment as to the personal injury claim.

21
Id. at 1247 (¶13). The court affirmed summary judgment as to the wrongful death claim, but

reversed and remanded the personal injury claim for a jury trial, even though there was no

party plaintiff who was entitled to bring such an action. Id. at 1248 (¶20). In any event, other

than the blanket statement that the complaint set out two specific causes of action, we have

nothing to review to determine the basis of that statement.

¶40. Based upon this finding, the matter went back before the circuit court. The circuit

court granted the defendant’s motion to dismiss due to an improper party. An estate was then

opened for the deceased, and an administratrix was appointed and authorized by the chancery

court to pursue the personal injury claim. The administratrix then filed an amended complaint

in circuit court, which alleged a survival claim. The defendant then filed a motion to strike

the amended complaint and a motion for summary judgment for several reasons. In allowing

the case to proceed, the circuit court ruled:

Though the Mississippi Supreme Court divined a survival claim in the
pleadings, (which managed to lay hidden even to the drafter of those
pleadings), there still did not exist a party plaintiff to collect those damages.
Miss. R. Civ. P. 17(a) and 19(a) do indeed speak of the “real party in interest”
and joinder of a necessary party. However, this Court cannot escape drawing
the necessary inference that “real party in interest” or necessary party must
actually be in existence to be a real or necessary party before any applicable
statute of limitations expires. “Linda Richardson, Individually and on behalf
of the wrongful death heirs of Vivian Wheeless, deceased” is not the same
party as “Linda Richardson, Administratrix of the Estate of Vivian Wheeless,
deceased.” The Estate was simply not in existence until August 7, 2002. This
is not a matter of semantics but of statute. Therefore, the only way the Court
can balance the Mississippi Supreme Court’s February 28, 2002 opinion with
Miss. Code Ann. § 91-7-233 and § 15-1-36 and allow the Estate to proceed,
is to recognize the existence of a new species of plaintiff: “The Notice
Plaintiff.”

Methodist Hosp. of Hattiesburg Inc. v. Richardson (Richardson II), 909 So. 2d 1066, 1069

22
(¶5) (Miss. 2005). The supreme court affirmed the trial court’s denial of the motion for

summary judgment as to the survival claim. In this second opinion, the court referred to its

decision in Richardson I finding that the complaint delineated “two specific causes of

action.” Id. It would seem that this statement was in error because on the second trip to the

supreme court, the amended complaint was before the supreme court, not the same complaint

that was present in Richardson I. Perhaps not, however, because we don’t know if the

language regarding the survival claim was the same in both versions. In any event, we still

have no language from the complaint to review and compare to the complaint here.

¶41. I would find that the instant complaint does not include a separate count or claim for

medical negligence damages under the survivor statutes and that the circuit court did not err

by granting summary judgment in favor of Glover in this matter.18

BARNES, C.J., CARLTON, P.J., AND McCARTY, J., JOIN THIS OPINION.

18
In Dunaway v. State, 111 So. 3d 117, 119 (¶10) (Miss. Ct. App. 2013), this Court
stated that “[i]t is well-settled law that on appeal this Court may affirm a circuit court’s
ruling for different reasons than those offered by the circuit court.” Campbell v. State, 75 So.
3d 1160, 1162 (¶9) (Miss. Ct. App. 2011).

23