source: Caselaw Access Project

author: WALLER, Presiding Justice,

license: Public Domain

text:
    SINGING RIVER HOSPITAL SYSTEM d/b/a Ocean Springs Hospital and Mississippi State Department of Health v. BILOXI REGIONAL MEDICAL CENTER, Garden Park Medical Center and Gulf Coast Medical Center.
    No. 2004-SA-02468-SCT.
    Supreme Court of Mississippi.
    March 30, 2006.
    Rehearing Denied May 25, 2006.

      Barry K. Cockrell, Jackson, Sarah E. Berry, Flowood, Jennifer C. Evans, attorneys for appellants.
    Andy Lowry, Thomas L. Kirkland, Jr., Ridgeland, Julie A. Bowman, Betty Toon Collins, Douglas E. Levanway, Jackson, attorneys for appellees.
   WALLER, Presiding Justice,

for the Court.

¶ 1. The Singing River Hospital System filed an application for a certificate of need to (1) relocate sixty beds from the Singing River Hospital in Pascagoula to the Ocean Springs Hospital in Ocean Springs; (2) renovate and expand the first floor of the Ocean Springs Hospital; and (3) construct a new three-floor tower on the Ocean Springs Hospital campus to house the sixty relocated beds. After Singing River’s CON application was filed, other area hospitals filed formal protests with the Health Department. After a hearing, the CON was issued. The protesting hospitals filed a petition for judicial review. The Chancery Court of Hinds County, Mississippi, revoked the issuance of the CON, and from this decision, Singing River appeals.

¶ 2. Both the Singing River and the Ocean Springs Hospitals are under the purview of the Singing River Hospital System and. are located in Jackson County, Mississippi. And, even though the State Department of Health has issued one license to operate both hospitals to the Singing River Hospital System, each of the hospitals has a “separate physical license,” allowing the Singing River Hospital to have 404 licensed beds and the Ocean Springs Hospital to have 136 licensed beds.

¶ 3. The Mississippi State Department of Health has the authority to grant permission to all hospitals in the state for, inter alia, building a new facility, expanding an existing facility, or relocating services to another facility. See Miss.Code Ann. §§ 41-7-171-41-7-209 (Rev.2005). The Health Department’s formal grant of permission is termed the issuance of a certificate of need (“CON”). The beds which Singing River proposes to relocate are already-licensed but unused beds.

DISCUSSION

¶ 4. The standard of review for a final order of the State Health Department is controlled by Miss.Code Ann. 41-7-201(2)(f) (Rev.2001), which provides in part that a reviewing court may vacate the final order if it finds that the final order “is not supported by substantial evidence, [or] is contrary to the manifest weight of the evidence.” St. Dominic-Jackson Memorial Hospital v. Miss. State Dep’t of Health, 728 So.2d 81, 83 (Miss.1998).

¶ 5. The State Health Plan’s need criteria for existing hospitals desiring to expand, renovate or build is entitled “Certificate of Need Criteria and Standards for Construction, Renovation, Expansion, Capital Improvements, Replacement of Health Care Facilities, and Addition of Hospital Beds” (“Hospital Construction”). Other need criteria exist for the establishment of a new hospital or for the purchase of a new “health service” such as MRI imaging equipment. Each of the different need criteria require different standards of proof. The need criteria for Hospital Construction has two subparts: one for projects which do not involve additional beds (Criterion la) and one for projects which do involve additional beds (Criterion lb). Neither of the two criteria use the term “relocate.” The main dispute between the parties on appeal is whether “relocated” beds are “additional” beds as contemplated under the Need Criteria for Hospital Construction.

¶ 6. The distinction between the application of Criterion la or Criterion lb is crucial because Criterion lb requires a more stringent standard of proof than Criterion la. If a proposal involves additional beds, the petitioning hospital must show that it has “maintained an occupancy rate of at least 70 percent for the most recent two (2) years.” There is no such requirement under Criterion la. In this case, the Health Department applied Criterion la, finding that Singing River’s application did not involve additional beds. The chancellor reversed the issuance of the CON, finding that the application did indeed involve additional beds and that the Health Department should have applied Criterion lb.

¶ 7. Therefore, the issue before the Court is whether the Singing River beds proposed to be relocated to Ocean Springs are “additional” beds. Singing River and Ocean Springs argue that relocated beds cannot be called additional beds. This argument is based on their (and the Health Department’s) interpretation of “relocated beds” as previously-licensed beds and of “additional” beds as newly-licensed beds.

¶ 8. However, we must consider the substance of the proposal rather than its label. St. Dominic-Jackson Memorial Hospital v. Miss. State Dep’t of Health, 728 So.2d 81, 89 (Miss.1998). To make this determination, we look at the following factors:

1. The “relocation” of unused, licensed beds from Singing River to Ocean Springs will result in the addition of sixty beds to Ocean Springs. Ocean Springs’ bed complement will increase from 136 beds to 196 beds. There will be an additional sixty beds at Ocean Springs, whether those beds are “relocated” beds or newly-licensed beds.

2. Need Criteria la and lb do not contain the words “relocate,” “relocated,” or “relocation.” The criteria merely speak to whether a bed is “additional.”

3. Section 41-7-191 of the Miss.Code Ann. (Rev.2005) delineates the “activities” for which a CON is needed. When speaking of a “relocation,” 41-7-191 refers to the relocation “of a health care facility or portion thereof,” or of the “relocation of one or more health services from one physical facility or site to another physical facility or site.” Miss.Code Ann. § 41-7-191(l)(b) & (e). Singing River’s CON application does not propose the relocation of a health care facility or of one or more health services. These two subparts are the only provisions which speak of a relocation.

4. Arguably, the relocation of some of a health care facility’s beds could be considered to be the relocation of a “portion” of that health care facility. But 41-7-191(l)(e) specifically speaks to changes in a health care facility’s number or type of beds. A CON must be issued for “any change in the existing bed complement of any health care facility through the addition or conversion of any beds or the alteration, modernizing or refurbishing of any unit or department in which the beds may be located....” Miss.Code Ann. § 41-7-191(l)(c). Under the statute, a “relocation” of a bed is not contemplated to be “[a]ny change in the existing bed complement.” Instead, changes in the existing bed complement are made either by adding new beds or by the “conversion” of beds.

5. The State Health Plan does not define “conversion” but the American Heritage Dictionary of the English Language (1981 ed.) defines “convert” as “to change into another form, substance, state or product; transform; transmute.” A reasonable interpretation of subsection (c)’s use of the word “conversion” would therefore be the change of an existing bed into another kind of bed, e.g., the conversion of a bed designated for pediatric care to a bed designated for cardiac care.

6. Subsection (c) does not use the words “relocate,” “relocated” or “relocation.” Yet other subsections of 41-7-191 do. We can only conclude that, if the Legislature intended subsection (c) to cover “relocated” beds, it would have stated so in the statute.

7. The Certificate of Need Review Manual, which is published by the Department of Health, uses the word “relocation” only when referring to “the relocation of a facility or service.” See Certificate of Need Review Manual, Chapter 8 — Criteria Used by State Department of Health for Evaluation of Projects, ¶ 5, “Need for the Project,” p. 51. A proposal for the relocation of beds is not discussed under “Need for the Project.”

¶ 9. Therefore, we find that the designation or label of a bed as “relocated” or as “newly-licensed” is irrelevant when determining, under the Need Criteria for Hospital Construction, whether a bed is additional or not. The relocation of unused but already-licensed beds from one health care facility to another is not contemplated under the relevant statute. The statute only uses the word “relocation” when speaking of the relocation of an entire or a portion of a health care facility, or of health services, not of beds. The Need Criteria for Hospital Construction do not contain the words “relocate, relocated or relocation.” The Certificate of Need Review Manual does not use the words “relocate, relocated or relocation” when speaking of beds. Finally, and most importantly, the proposal, in actuality, is for Ocean Springs to add sixty beds.

¶ 10. We find that the State Health Department’s issuance of a Certificate of Need to Singing River Hospital System is not supported by substantial evidence because the proposal in Singing River’s CON application results in the addition of sixty beds to Ocean Springs Hospital. Because sixty beds would be added, the State Health Department should have used Criterion lb (pertaining to proposals for the addition of beds) under the Need Criteria for Hospital Construction instead of Criterion la (pertaining to proposals which do not include the addition of beds). The Singing River Hospital System has confessed it cannot meet the standard included in Criterion lb; therefore, the chancellor was correct in revoking the CON issued to them.

CONCLUSION

¶ 11. We affirm the chancellor’s decision to revoke the Health Department’s issuance of a certificate of need to the Singing River Hospital System for the relocation of beds from the Singing River Hospital to the Ocean Springs Hospital.

¶ 12. AFFIRMED.

SMITH, C.J., COBB, P.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Appellees Biloxi Regional Medical Center, Garden Park Medical Center and Gulf Coast Medical Center.

      . "Health service,” as defined in the Certificate of Need Review Manual, is a diagnostic, treatment or rehabilitative service.

      . The State Health Plan provides as follows:
      1. Need Criterion:
      a. Projects which do not involve the addition of any acute care beds: The applicant shall document the need for the proposed project. Documentation may consist of, but is not limited to, citing of licensure or regulatory code deficiencies, institutional long-term plans (duly adopted by the governing board), recommendations made by consultant firms, and deficiencies cited by accreditation agencies (JCAHO, CAP, etc.). In addition, for projects which involve construction, renovation, or expansion of emergency department facilities, the applicant shall include a statement indicating whether the hospital will participate in the statewide trauma system and describe the level of participation, if any.
      b. Projects which involve the addition of beds: The applicant shall document the need for the proposed project. In addition to the documentation required as stated in Need Criterion (l)(a) the applicant shall document that the facility in question has maintained an occupancy rate of at least 70 percent for the most recent two (2) years.

      . A "health service,” as defined in the Certificate of Need Review Manual, is a diagnostic, treatment or rehabilitative service.

      . Section § 41-7-191 provides in part as follows:
      (1) No person shall engage in any of the following activities without obtaining the required certificate of need:
      * * *
      (b) The relocation of a health care facility or portion thereof, ...

      (e) The relocation of one or more health services from one physical facility or site to another physical facility or site....

      . "Our duty is to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.” Popev. Brock, 912 So.2d 935, 937 (Miss.2005).

      . "The duty of this Court is to interpret the statutes as written. It is not the duty of this Court to add language where we see fit. '[O]ur primary objective when construing statutes is to adopt that interpretation which will meet the true meaning of the Legislature.' ” See Mauldin v. Branch, 866 So.2d 429, 435 (Miss.2003) (quoting Stockstill v. State, 854 So.2d 1017, 1022-23 (Miss.2003)).

      . The Certificate of Need Review Manual provides in part as follows:
      5. Need for the Project: One or more of the following items may be considered in determining whether a need for the project exists:

      b. In the case of the relocation of a facility or service, the need that the population presently served has for the service, the extent to which that need will be met adequately by the proposed relocation or by alternative arrangements, and the effect of the relocation of the service on the ability of low income persons, racial and ethnic minorities, women, handicapped persons and other underserved groups, and the elderly, to obtain needed health care.
      Chapter 8, p. 51 (emphasis added).


author: SMITH, Chief Justice, EASLEY, Justice,

text:
    UNIVERSITY OF MISSISSIPPI MEDICAL CENTER v. Angela EASTERLING as Personal Representative of the Wrongful Death Beneficiary of Wadreanna Quadashsea Magee.
    No. 2004-IA-02360-SCT.
    Supreme Court of Mississippi.
    April 6, 2006.
    Rehearing Denied June 1, 2006.

      Senith C. Tipton, Melanie Morano MeQuillen, Jackson, attorneys for appellant.
    Mary Jeanne Gibson, Edward Gibson, Charles E. Gibson, Jackson, attorneys for appellee.
   SMITH, Chief Justice,

for the Court.

¶ 1. This case is before this Court on appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi, by the defendant University of Mississippi Medical Center (“UMMC”). UMMC seeks a review of the trial court’s order denying its motion for summary judgment. UMMC alleges plaintiff Angela Easterling (“Easterling”), mother and personal representative of Wadreanna Qua-dashsea Magee (“Wadreanna”), failed to comply with Miss.Code Ann. Section 11-46-11(1) (Rev.2002), when Easterling failed to send notice to UMMC ninety days before filing suit. In the alternative, UMMC asserts Easterling failed to provide the appropriate claims within her notice as prescribed under section 11 — 46— 11(2).

¶ 2. We adhere to our controlling cases of Davis v. Hoss, 869 So.2d 397 (Miss.2004), and Wright v. Quesnel, 876 So.2d 362 (Miss.2004), and accordingly find that Easterling failed to follow the ninety-day notice rule which this Court strictly enforces. We reverse the trial court’s decision and render in favor of UMMC.

FACTS

¶ 3. Wadreanna was born twelve weeks premature on June 26, 2002. Wadreanna died twelve days later and just after UMMC performed an exploratory laparot-omy procedure. On July 10, 2002, during an open casket funeral, Easterling saw for the first time what was supposed to be the body of her dead baby. Although the wristband on the infant’s wrist identified the body as that of Wadreanna, Easterling insisted the body in the casket was not her daughter. Nevertheless, after her friends convinced Easterling the body was Wadre-anna’s, Easterling went ahead with the burial.

¶ 4. Approximately two months later on September 7, 2002, UMMC contacted Easterling and informed her that the infant she buried was not her daughter. Further, UMMC revealed that Wadrean-na’s body was still in the hospital morgue. During a meeting between the parties, UMMC presented Easterling with pictures of her daughter’s body and allowed East-erling to visit the morgue to identify the body. Subsequent to the meeting, UMMC tendered Wadreanna’s body to Easterling, who was finally able to bury her daughter.

¶ 5. With no effort to comply with the statutory notice requirements, Easterling filed suit against UMMC on September 19, 2002. Before service on UMMC, Easter-ling recognized her failure to comply with Miss.Code Ann. Section 11-46-11. Rather than seeking a Rule 41(a)(1)® dismissal, and then complying with the statute, East-erling inexplicably filed a Motion for Extension of Time to Complete Service of Process on January 17, 2003, stating, “Plaintiffs’ counsel has not served Defendants because the case is not ripe due to the notice required by § 11-46-11 of the Mississippi Code of 1972, as amended.” Easterling elected to file the notice of claim to UMMC on the same day, January 17, 2003. One month later, Easterling served process on UMMC.

¶ 6. UMMC subsequently filed a Motion for Summary Judgment claiming Easter-ling failed to comply with section 11 — 46— 11(1), which requires a plaintiff to send a state entity notice of a claim ninety days before filing suit. The trial court denied UMMC’s motion and instead, ordered a ninety-day stay in the proceedings to allow UMMC to avail themselves of the opportunity to investigate Easterling’s wrongful death and personal injury claims, as well as to negotiate a possible settlement of the claims.

¶ 7. As a result of the trial court’s order, UMMC filed a Motion Requesting Certification for Interlocutory Appeal. The circuit court denied UMMC’s motion. UMMC now appeals to this Court from the trial court’s order.

STANDARD OF REVIEW

¶ 8. This Court reviews summary judgments de novo. Davis, 869 So.2d at 401. Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “The evidence is viewed in the light most favorable to the party opposing the motion.” Davis, 869 So.2d at 401. “If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor.” Id. The moving party bears the burden of demonstrating there is no genuine issue of material fact. Id.

ISSUES

I. Whether the Plaintiff Failed to Comply with the Ninety-day Notice Requirement When She Filed Her Complaint More than Four Months Before Issuing Notice to the Defendant.

II. Whether the Plaintiff Failed to Substantially Comply with the Notice Provisions When She Failed to Include Her Medical Malpractice and Wrongful Death Claims in Her Written Notice.

DISCUSSION

¶ 9. Issue I controls, therefore we need not discuss issue II.

I. Whether the Plaintiff Failed to Comply with the Ninety-day Notice Requirement When She Filed Her Complaint More than Four Months Before Issuing Notice to the Defendant.

¶ 10. This case deals with a plaintiffs upsetting and alarming ordeal and the harsh results that ensue from the plaintiffs failure to follow proper procedure. UMMC claims that because Easter-ling failed to give UMMC notice ninety days before filing her lawsuit, the trial court erred when it denied UMMC’s motion for summary judgment. On the other hand, Easterling claims she substantially complied with the requirement, or, in the alternative, UMMC waived the ninety-day notice period by not requesting a stay.

¶ 11. The Mississippi Tort Claims Act (“MTCA”) sets forth procedures a claimant must follow in order to assert a claim against a government entity. The relevant rule states:

After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity.

§ 11^46-11(1). Because UMMC is an entity of the state, a claimant is subject to the requirements of the MTCA. See § 11-46-1(3).

¶ 12. In the case at bar, Easterling argues she complied with the notice provisions and cites as authority Jackson v. City of Wiggins, 760 So.2d 694 (Miss.2000), City of Pascagoula v. Tomlinson, 741 So.2d 224 (Miss.1999), and Jackson v. City of Booneville, 738 So.2d 1241 (Miss.1999).

¶ 13. In Tomlinson, the plaintiff did not strictly follow the ninety-day notice requirement when he filed suit two weeks after providing notice of his claim. Id. at 228. Instead of dismissing the lawsuit, we held the proper remedy was to require the governmental entity to request a stay of the. lawsuit. Id. This allowed the governmental entity to benefit from the applicable waiting period. Id. Should the governmental entity not request a stay, the issue would be considered waived. Id. at 229. See also Williams v. Clay County, 861 So.2d 953, 977 (Miss.2003); Leflore County v. Givens, 754 So.2d 1223,1231-32 (Miss.2000); City of Wiggins, 760 So.2d at 696; Jones ex rel. Jones v. Miss. Sch. for Blind, 758 So.2d 428, 429 (Miss.2000); City of Booneville, 738 So.2d at 1246;

¶ 14. In City of Booneville, 738 So.2d at 1245, the plaintiff filed her complaint before giving notice to the defendant. Although the plaintiff gave notice and filed her complaint in reverse chronological order of what is required by the MTCA, this Court reaffirmed Tomlinson and held the proper remedy called for the governmental entity to file a motion to stay the lawsuit in order to benefit from the statutorily-mandated waiting period. Id. at 1246.

¶ 15. In City of Wiggins, 760 So.2d at 695, the plaintiff filed notice approximately sixty-seven days before he filed suit. Again, we cited Tomlinson and held “the City’s sole remedy for Jackson’s failure to comply with the ninety-day waiting period was to file a motion to stay the lawsuit, and the City’s failure to file such a motion constitute^] a waiver of its right to object to Jackson’s non-compliance with the waiting period.” Id. at 696.

¶ 16. However, in 2004, this Court announced in Davis, 869 So.2d at 402, it was no longer the defendant’s duty to request a stay or face a waiver of the ninety days when the plaintiff failed to comply with the statutory notice period, finding that a failure to wait ninety days after giving notice to file a claim was grounds for summary judgment. There, the plaintiff gave notice of his lawsuit on the same day he filed his suit. Id. Although this Court held the plaintiff failed to file suit before the MTCA one-year statute of limitations ran, this Court also held the plaintiff failed to comply with the ninety-day notice provision and affirmed the trial court’s grant of summary judgment. Id.

¶ 17. Similarly, in Wright, 876 So.2d at 367, this Court held the plaintiffs suit was barred when the plaintiff filed suit after the one-year statute of limitations ran. Id. In addition, this court held the plaintiff failed to comply with the statute’s notice provisions when the plaintiff gave notice only eleven days before filing her complaint. Id. at 366. We stated “[allowing a plaintiff to file suit before ninety days have passed since noticing the claim is tantamount to reading out the notice provisions of the MTCA.” Id. Again, for both the plaintiffs failure to file suit within the statute of limitations, as well as failing to abide by the ninety-day notice requirement, this Court held the plaintiff did not comply with section 11-46-11, and thus affirmed the trial court’s entry of summary judgment. Id. at 367.

¶ 18. In the case at bar, UMMC contends both Davis and Wright are controlling and therefore the trial court erred when it refused to dismiss Easterling’s suit for failure to adhere to the interpretation of the ninety-day notice rule as set forth in those cases. There is no doubt the language of Davis and Wright is in conflict with our prior rulings in which we have called for the defendant to request a stay of the proceedings. Today, this Court is provided an opportunity to clarify the ninety-day notice requirement under the post-1999 section 11-46-11(1).

¶ 19. Although not explicitly stated in Davis and Wright, our ruling served to shift the responsibility to correct the plaintiffs failure to follow the ninety-day notice requirement from the defendant to the plaintiff. Because this Court handed down those cases while litigation was ongoing between the parties in the case at bar, we find UMMC is correct in their argument that Davis and Wright are controlling. See Thompson v. City of Vicksburg, 813 So.2d 717, 721 (Miss.2002) (retroactive application of judicially articulated rulings applies to cases awaiting trial); see also Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997) (change in the law applied retroactively to the case pending review on appeal).

¶ 20. Since its creation in 1993, the MTCA has undergone numerous amendments requiring evolving interpretation by the Mississippi Supreme Court. When the MTCA was enacted, this Court interpreted the notice of claim requirement under a strict compliance standard; however in early 1999, we began applying a substantial compliance standard to notice of claim. The language of the statute at that time required a plaintiff to file notice of claim before the expiration of the one year statute of limitations, the filing of which tolled the statute of limitations for ninety-five days. Miss.Co.de Ann. § 11-46-11 (Supp. 1998). The first ninety days of this ninety-five days was designated for the benefit of the defendant to investigate and attempt settlement of the claim prior to facing a lawsuit. Tomlinson, 741 So.2d at 228. However, the old statute created a limited time frame in which a plaintiff could file a suit and was very difficult to comply with, causing the Court to retreat to the substantial compliance standard. However, in April of 1999, the Legislature amended Miss.Code Ann. Section 11-46-11 to remedy this concern. Tomlinson is distinguished from this case because its holding was based on the pre-1999 legislative amendment to Section 11^6-11, and East-erling’s claim is not.

¶ 21. This Court finds Easterling failed to comply with the ninety-day notice requirement when she filed suit on September 19, 2002, almost four months before giving notice. Easterling had the option of dismissing her prematurely filed action, properly serving notice of her claim, and then waiting the ninety-day time period, and if Easterling’s claims against UMMC were still unresolved, Easterling could properly have filed her action.

¶ 22. In order to make it perfectly clear to all that strict compliance is required, as stated in Davis and Wright, we hereby overrule Tomlinson and its progeny, including Booneville, Givens, City of Wiggins, Mississippi School for Blind, and Clay County, but only as to those cases’ analysis of the ninety-day notice requirement. In other words, the rule set forth in Tomlinson, that the responsibility falls on the defendant to request a stay of the lawsuit when a plaintiff is not in compliance with the ninety-day notice requirement, is abrogated.

¶23. We do so today because of our constitutional mandate to faithfully apply the provisions of constitutionally enacted legislation. We also note that our decision today provides consistency. E.g., Newell v. Jones County, 731 So.2d 580, 582 (Miss.1999) (ten day time limit to file notice of appeal under Miss.Code Ann. section 11-51-75 is both mandatory and jurisdictional); Ivy v. GMAC, 612 So.2d 1108, 1116 (Miss.1992) (citing Tandy Electronics, Inc. v. Fletcher, 554 So.2d 308, 309-312 (Miss.1989) (thirty-day limit to file notice of appeal to Mississippi’s appellate courts is a “ ‘hard-edged, mandatory’ rule which this court ‘strictly enforces.’ ”)). Since the MTCA’s passage in 1993, a considerable amount of time has passed for the legal profession to become aware of the ninety-day notice requirement in section 11-46-11(1). See 1993 Miss. Laws 476. The result here, as in Ivy, is that the ninety-day notice requirement under section 11-46-11(1) is a “hard-edged, mandatory rule which the Court strictly enforces.” Ivy, 612 So.2d at 1116. Accordingly, we find the trial court erred in its ruling regarding this issue.

CONCLUSION

¶ 24. We hold the responsibility to comply with the ninety-day notice requirement under Section 11-46-11(1) lies with the plaintiff. After the plaintiff gives notice, he must wait the requisite ninety days before filing suit. Because Easterling failed to comply with the ninety-day waiting period, her case must be dismissed.

¶ 25. REVERSED AND RENDERED.

WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY GRAVES, J. DIAZ, J., NOT PARTICIPATING.

EASLEY, Justice,

dissenting.

¶26. I must respectfully dissent with the majority’s imposition of a strict compliance standard against Easterling. I would affirm the trial court’s denial of UMMC’s motion for summary judgment and affirm the ninety day stay in the proceedings. This case is unique because UMMC notified Easterling of its egregious mistake. Therefore, I must disagree with the majority’s imposition of a strict compliance standard for the ninety day waiting period for the reasons stated below.

¶ 27. Without dispute, this is a horrible and tragic case. Easterling had to endure the loss of her child; bury a child that was not her own; receive confirmation that UMMC had mistakenly given her the wrong child; . and finally have a second burial of her own child. A pivotal distinction in this case is that UMMC notified Easterling that it had mistakenly given her the wrong dead child. By informing Easterling of a mistake of this magnitude, there is no question that UMMC would have and should have been bracing itself for a lawsuit.

¶ 28. Easterling argues that she substantially complied with the notice requirements of the MTCA and relies upon City of Booneville and City of Wiggins. In City of Booneville and City of Wiggins, this Court held that the claimants substantially complied with the requirements of MTCA § 11-46-11. In City of Booneville, the claimant filed the lawsuit prior to giving notice. City of Booneville, 738 So.2d at 1241. Whereas, in City of Wiggins, the claimant filed suit sixty-seven days after giving notice. City of Wiggins, 760 So.2d at 695.

¶29. The majority, however, relies upon Davis and Wright to hold that substantial compliance no longer applies to the ninety day notice requirement of the MTCA. However, the facts of this case are clearly distinguishable from Davis and Wright.

¶ 30. The key fact in this case is that UMMC notified Easterling of its mistake. Therefore, it should have been no surprise to UMMC that Easterling would file suit considering that this mistake concerned the mix-up of the bodies of her dead child and another child. By simply notifying Easterling of the mistake, UMMC must have known that the nature of the mistake would bring litigation. UMMC was in essence placing itself on notice and should have been preparing for a lawsuit.

¶ 31. In Wright, this Court affirmed the grant of summary judgment in favor of a doctor and hospital. Wright, 876 So.2d at 364. That case concerned a negligence claim for the failure of proper diagnosis and treatment in the death of an eight month unborn child. Id. at 364. Wright filed her complaint eleven days after filing her notice of the claim. Id. at 366. In Davis, the defendants received notice of the claim on the same day that the lawsuit was filed. Davis, 869 So.2d at 402.

¶ 32. Both Wright and Davis concerned allegations of a failure to diagnose the patient. The doctors and hospitals did not notify the claimants of any wrongdoing. Unlike the facts of this case, the medical staff and hospitals did not admit any mistake in Wright and Davis. Both Wright and Davis also had underlying one-year statute of limitations problems. Here, Easterling filed her lawsuit less than one year after her daughter’s death. These are key distinctions in these cases. Furthermore, Easterling provided UMMC more notice than the claimants in Wright and Davis, albeit not ninety days.

¶ 33. The majority cites that Easterling filed her action in September 2002, prior to giving 90 days notice. This is true; however, Easterling never served the complaint prior to giving UMMC notice of her action. In January 2003, Easterling gave notice to UMMC. Thereafter, Easterling served UMMC with the complaint a month later. As stated before, because of UMMC’s disclosure of its mistake and the nature of this case, there should have been no question that Easterling would seek to bring an action against UMMC.

¶ 34. I believe that the notice provision is to provide medical personnel and facilities time to prepare for litigation. Here, UMMC notified Easterling of its own wrongdoing which was of such a sensitive nature that there would be no question of impending litigation. Surely, the hospital must have considered litigation and liability issues before informing Easterling of the nature of its mistake. Therefore under the facts of this case, I would affirm the trial court’s denial of the motion for summary judgment and affirm the ninety day stay.

GRAVES, J., JOINS THIS OPINION IN PART.

      . In Page v. Univ. of S. Miss., 878 So.2d 1003 (Miss.2004), we overruled Clay County as to its application of the one-year statute of limitations in conjunction with the ninety-day notice requirement under section 11-46-11. Thus, Page is still good law.


author: EASLEY, Justice, GRAVES, Justice,

text:
    ST. DOMINIC-MADISON COUNTY MEDICAL CENTER, St. Dominic-Jackson Memorial Hospital and Mississippi State Department of Health v. MADISON COUNTY MEDICAL CENTER.
    No. 2004-SA-01240-SCT.
    Supreme Court of Mississippi.
    May 4, 2006.
    Kathryn Russell Gilchrist, Edmund L. Brunini, Jackson, Sarah E. Berry, Flo-wood, attorneys for appellants.
    Thomas L. Kirkland, Jr., Andy Lowry, Ridgeland, Julie Ann Bowman, attorneys for appellee.
   ON MOTION FOR REHEARING

EASLEY, Justice,

for the Court.

¶ 1. The motion for rehearing is granted. The prior opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. This case concerns whether the Hinds County Chancery Court erred by reversing the approval by the Mississippi State Department of Health (Department) of an amended application for a certificate of need (CON) to St. Dominic-Jackson Memorial Hospital (St. Dominic) for a facility to be located in Madison County, Mississippi. The main argument centers on whether St. Dominic sought a “relocation” of licensed bed capacity from its Jackson location to a Madison County location or sought a “new” hospital.

¶ 3. St. Dominic is a general acute care facility. The hospital had a licensed capacity of 571 beds which consisted of 453 medical/surgical beds, 35 chemical dependency beds and 83 psychiatric beds. In June 2002, St. Dominic filed a CON application with the Department requesting approval for a new 100 bed hospital in Madison County. In September 2002, St. Dominic submitted an amended application to the Department. The amended application replaced the original application submitted in June 2002. This amended application sought to relocate 100 existing beds from its 571 licensed beds in Jackson to Madison County.

¶4. Madison County Medical Center (MCMC) opposed St. Dominic’s amended CON application and requested a public hearing on the matter. The Department granted St. Dominic’s amended CON application. However, the Department only permitted 50 beds at the Madison facility instead of the 100 beds requested in St. Dominic’s amended application. Following this ruling, MCMC appealed the Department’s decision to the Chancery Court of Hinds County. In his opinion, dated May 27, 2004, Chancellor William Singletary, reversed the Department’s grant of the 50 bed facility. Thereafter, the Honorable Stuart Robinson, Chancellor, executed the final judgment reversing the Department’s final order. Following this ruling, St. Dominic and the Department appealed to this Court.

FACTS

¶ 5. In June 2002, St. Dominic filed a CON application with the Department, seeking to establish 100 new acute care beds in Madison County, which is part of the General Hospital Service Area 3 (GHSA-3) which includes Hinds, Madison and Rankin Counties. During this time, MCMC had filed an application with the Department seeking to move all 67 of its beds from Madison County to Hinds County. MCMC is the only hospital in Madison County and is located in Canton.

¶ 6. The Department informed St. Dominic that until the application from MCMC was decided, St. Dominic’s application would not be processed and would be held in abeyance. Thereafter, on August 1, 2002, St. Dominic asked that the original application be deferred. On September 3, 2002, St. Dominic submitted an amended application to the Department as a replacement for its original application. The amended application sought to relocate 100 licensed beds from the Jackson location to Madison County. Sometime during this process, the Department denied MCMC’s request to move all of its beds from Madison County to Hinds County.

¶ 7. MCMC challenged St. Dominic’s amended application and requested a hearing before the Department. MCMC argued that there was no need to relocate beds because Madison County was over-bedded; the Canton hospital met the needs of the county; St. Dominic’s amended application sought to establish a new hospital; and the Department’s denial of MCMC’s request to move its beds from Madison County to Hinds County prohibited St. Dominic’s amended application to relocate beds. According to MCMC, the only material difference in the original application and the amended application was that the amended application sought a relocation instead of a new hospital. MCMC also relied on testimony given by Harold Armstrong, the head of the Department’s CON division, who testified that the only difference between the two applications was that one said “new hospital” and the other said “relocation.” A portion of Armstrong’s testimony follows:

Q. With regard to everything else [other than the change from building a new hospital to an application for relocation], in terms of operating costs and the cost of the facility and the personnel and personnel costs, the original application [for new hospital] and the amendment [for a “relocation”] is identical basically, isn’t it?
A. Yes. Same size facility.
Q. Would you agree with me, Mr. Armstrong, that there really is no difference in these two applications for the cost of construction, the operation, there’s no cost in this, the only difference being one application says a new hospital, and the other says relocation?
A. That is the basic difference.
Q. All right, sir. And, Mr. Armstrong, would you also agree with me in summary that there’s no apparent reduction of any of the services currently being provided at the Hinds County or Jackson St. Dominic’s facility after they move beds to Madison County?
A. It wasn’t stated in the application.
Q. And in fact the application brings you to the conclusion that there doesn’t appear that there is going to be any decrease in cost at the Hinds or Jackson facility, does it?
A. That’s correct.

Further, the Department considered St. Dominic’s changes as an amended application with a $500.00 fee instead of a new application with a $25,000.00 filing fee.

¶ 8. Following the hearing, the hearing officer recommended that St. Dominic’s amended application be granted, allowing 50 rather than a 100 beds to be relocated to Madison County. The State Health Officer then accepted the hearing officer’s recommendation and approved the amended application and granted the CON for 50 beds.

¶ 9. MCMC appealed the Department’s approval of the CON to the Chancery Court of the First Judicial District of Hinds County. On May 27, 2004, Chancellor Singletary reversed the Department’s grant of the CON. The chancellor found that the Department’s findings were arbitrary and capricious and not supported by substantial evidence. From this ruling, St. Dominic and the Department filed an appeal to this Court raising the following issues:

I. Whether the Mississippi Department of Health’s determination that St. Dominic’s Amended Application is for a relocation and not for a new hospital is supported by substantial evidence.
II. Whether the Department’s finding that there is a need for additional acute care beds in Madison County, and that, as a result, St. Dominic’s CON application satisfied the need requirement is supported by substantial evidence.
III. Whether the Department’s finding that St. Dominic amended application substantially complied with the general goals of the State Health Plan is supported by substantial evidence.
IV. Whether the Department’s finding that St. Dominic’s amended application substantially complied with the General Review Criteria set forth in the CON Review Manual is supported by substantial evidence.

DISCUSSION

¶ 10. This Court concludes that the chancellor correctly found that St. Dominic-Jackson Mem’l Hosp. v. Mississippi State Dep’t of Health, 728 So.2d 81, 83 (Miss.1998), is applicable and controlling in this case. In keeping with the holding of the St. Dominic case, we find that the chancellor correctly ruled that the amended CON application sought a new hospital and not a relocation. The chancellor stated:

MSDH and St. Dominic readily admit that if the “Criteria and Standards for the Establishment of a General Acute Care Hospital” were used, the Application would fail. Therefore, it would be futile for this Court to remand for further consideration of whether St. Dominic can show the appropriate standard of need for what the project actually is.

Since St. Dominic indicated that it could not meet the need requirement for a new hospital, the chancellor correctly ruled that remand of the case would be futile in light of St. Dominic’s inability to meet the proper standard of need. Therefore, we find that the chancellor did not err in that finding, and this Court need only address Issue I, whether the amended application is a new hospital or a relocation.

¶ 11. Certificates of need are required in certain circumstances pursuant to Miss. Code Ann. § 41-7-191(1) (Rev.2005).

This statute states, in part:

(1) No person shall engage in any of the following activities without obtaining the required certificate of need:
(a) The construction, development or other establishment of a new health care facility;
(e) The relocation of one or more health services from one physical facility or site to another physical facility or site....

Miss.Code Ann. § 41-7-191(1).

¶ 12. The standard of review for a final order of the State Health Department is controlled by Miss.Code Ann. § 41-7-201(2)(f) (Rev.2001) which provides in pertinent part:

The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal.

See also St. Dominic, 728 So.2d at 83. “The decision of the hearing officer and State Health Officer is afforded great deference upon judicial review by this Court, even though we review the decision of the chancellor.” Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 976 (Miss.1999); St. Dominic, 728 So.2d at 83. The party challenging the agency action has the burden of proof. Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (Miss.2000); His Way Homes, Inc. v. Miss. Gaming Comm’n, 733 So.2d 764, 767 (Miss.1999).

A. The Chancery Court ruling.

¶ 13. The chancery court found the St. Dominic case to be controlling law in this CON application. It found that the Department acted arbitrarily and capriciously pursuant to the standards set forth in St. Dominic. Further, it found that the Department refused to use the State Health Plan’s projection of need for what the project “actually is”, in accordance with the St. Dominic case. The chancery court held in part:

This Court has thoughtfully considered the St. Dominic case and finds it to be controlling law as to the matter at hand. The facts of these two cases are quite similar. As in St. Dominic, a completely new building is proposed for construction in Madison County, in fact, the project contemplated in this case is contemplated to cost nine million dollars more that the project at issue in St. Dominic. Further, this new building will be staffed with new medical workers and new equipment, rather than transferred employees and equipment from the Jackson facility. Also, there will be no corresponding decrease in services at the Jackson hospital. Therefore, this Court can only find that the proposed St. Dominic hospital in Madison is, for all practical purposes, a new hospital. St. Dominic has argued that there need be no factual distinction between the two cases, as . MSDH is invested with the authority to apply the “relocation standard.” However, our Supreme Court has previously addressed this argument in its determination that “the showing of need must be commensurate to what the project actually is and the impact which it actually has on the Jackson health care market. St. Dominic, 728 So.2d at 89.
Appellees [St. Dominic and MSDH] make continual reference to the great deference due the Department and the presumption in favor of the Department’s decision. This Court is well aware of these standards and does not deviate from them without much consideration. However, our Supreme Court has also held that an agency’s decision is arbitrary when it “is not done according to reason and judgment, but depending on the will alone,” and capricious if “done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.” Ricks v. Mississippi State Dep’t of Health, 719 So.2d 173, 177 (Miss.1998). Taking into consideration the recent St. Dominic case, it is clear to this Court that the decision of MSDH in this case is arbitrary and capricious under these standards. The facts in this case are almost identical and yet MSDH refuses to consider the current Application under the same criteria espoused by the Supreme Court in St. Dominic. Pursuant to statute, the controlling question in every CON review is whether the project substantially complies with the Plan’s projection of need, not any other lesser standard of need. If MSDH strays from applying the Plan’s projection of need, it commits legal error, and acts arbitrarily and capriciously. In the matter at hand, MSDH has refused to use the Plan’s projection of need for what the project actually is.... Therefore, the Hearing Officer reaffirms the definition of “relocation” found “highly suspect” in the prior case and applies a standard that he terms “relocation criteria.” However, there is no specific “relocation criteria” located in any part of the Plan or applicable statutes.

(Emphasis added). The chancery court did not give any detailed analysis for the need criteria in its findings. It stated:

MSDH and St. Dominic readily admit that if the “Criteria and Standards for the Establishment of a General Acute Care Hospital” were used, the Application would fail. Therefore, it would be futile for this Court to remand for further consideration of whether St. Dominic can show the appropriate standard of need for what the project actually is.

B. St. Dominic-Jackson Mem’l Hosp. v. Mississippi State Dep’t of Health

¶ 14. In St Dominic, Methodist Medical Center (MMC) filed a CON application for a primary care center known as the “North Campus.” St. Dominic, 728 So.2d at 82. At the time of the CON application, MMC had 474 licensed beds and operated 280 of those beds. Id. at 84. MMC wanted to utilize 64 of the remaining 196 unused licensed beds for the North Campus location. Id. The State Health Officer granted the CON and determined that the application was a “relocation” which was defined as “the moving of authority to provide a service from one location to another.” Id. The CON was granted under this definition even though there was no reduction in services at MMC’s main campus. Id.

¶ 15. This Court refrained from reversing the case on whether the definition of a ‘relocation’ was arbitrary or capricious. St. Dominic, 728 So.2d at 85. Instead, this Court found that the MSDH was within its authority to interpret the meaning of the word “relocation.” Id. at 84. However, this Court found that the real error that required reversal was that the MSDH applied a much reduced standard of need, the “any specific advantage” test. Id. at 85. This Court found that the need criteria “must be commensurate to what the project actually is and the impact which it actually has on the Jackson health care market.” Id. at 89. Further, the Court held that “[n]o lesser showing of need will be required by this Court based on the notion that a “relocation” has taken place.” Id. (emphasis added). Ultimately, this Court denied the CON application. Id. at 92.

C. Arguments.

¶ 16. St. Dominic argues that its amended application was a plan to relocate 100 licensed acute care beds from Hinds County to Madison County. The Department also viewed the application as a relocation and applied the criteria from the 2003 State Health Plan which concern the replacement/relocation of a health care facility or portion thereof. The State Health Officer then agreed with staff recommendations and permitted 50 acute care beds to be relocated to Madison County.

¶ 17. St. Dominie contends that this Court never held in the St. Dominic case that the term “relocation” was incorrectly defined. Rather, the case found that the State Health Officer used a lower standard of need for the relocation of the beds, and Methodist Medical Center never demonstrated any need to move beds from .one part of Hinds County to another. However, St. Dominic argues that the definition of “relocation” was not altered by the St. Dominic opinion.

¶ 18. This Court refused to find that the term “relocation” was arbitrary or capricious, holding:

The term “relocation” is not defined in the Health Plan nor in statute, and the Health Officer was within his authority in making his own interpretation of this term. This Court should not disturb this interpretation of the term absent a finding that this interpretation is arbitrary and capricious. This Court has held that the Department has the authority to define terms in a manner inconsistent with their generally accepted definition. Mississippi State Dep’t of Health v. Golden Tñangle Reg’l Med. Ctr., 603 So.2d 854, 857 (Miss.1992).
While this Court finds the Health Officer’s definition of “relocation” to be suspect, we consider it unnecessary to determine whether this definition is arbitrary and capricious.

St. Dominic, 728 So.2d at 84-85.

¶ 19. In addition, St. Dominic contends that the appropriate need analysis in this instance is for a relocation and not an analysis based upon a new hospital. Therefore, St. Dominic contends that it neither ignored the need analysis nor applied a reduced standard of need for a relocation than is provided by the State Health Plan.

¶ 20. St. Dominic also contends that the chancellor misapplied the St. Dominic holding to this case because he substituted his judgment for that of the Department. St. Dominic argues that the Department is the appropriate entity to define the terms, and that the definition was supported by more than a scintilla of evidence. St. Dominic argues that the Department’s definition of relocation does not require the physical relocation of workers, equipment or- services. St. Dominic also contends that the Department applied the same standard set forth in the 1998 St. Dominic case. St. Dominic contends that the two cases can be distinguished because Methodist made no showing of an actual need for relocation arguing that a lesser standard of review applied and no show of need was required. This Court held in the St. Dominic case that need was required and Methodist failed to show any need, which was fatal to the application.. St. Dominic claims that here it demonstrated need.

¶ 21. MCMC argues that St. Dominic’s amended application is not a relocation application but a new hospital application. Therefore, MCMC maintains that the Department should have reviewed the application pursuant to the criteria and standards for new hospitals in counties with an existing hospital rather than as a relocation.

¶ 22. MCMC argues that St. Dominic is in effect trying to evade the need criteria by labeling the proposed hospital as a relocation instead of a new hospital and applying a lower criterion of need from that which a new hospital must prove. Further, MCMC argues that this Court held in the St. Dominic case that need is determined on the basis of what the project “actually is” and not on its label.

¶ 23. This Court finds that the St. Dominic case, is applicable. St. Dominic claims that its case is distinguishable from that of MMC in the St. Dominic case. We disagree. The facts in both the cases concern an existing hospital’s “relocation” of licensed but currently unused beds from one physical location to another. MMC had a licensed capacity of 474 beds and operated 280 beds. St. Dominic, 728 So.2d at 84. Of the 196 unused beds or non-operational beds, MMC wanted to “relocate” 64 beds to a proposed North Campus. Id. Likewise here, St. Dominic has a licensed capacity of 571 beds and wanted to relocate 100 beds from Hinds County to Madison County. The chancery court also correctly found that the facts in this case are similar to MMC’s and that the St. Dominic case is controlling in this case.

¶ 24. Here, the chancery court never determined that the MSDH definition of relocation was arbitrary and capricious. Rather, it stated that “St. Dominic and MSDH are correct in their argument that the Supreme Court did not determine this definition of relocation to be arbitrary or capricious.”

¶ 25.' We reject St. Dominic’s argument that the chancery court misapplied the St. Dominic holding because the chancellor allegedly redefined the term “relocation” instead of using the Department’s definition. The chancery court was merely applying the holding in the St Dominie case to the facts and found that the proposed hospital was a new hospital rather than a relocation. In addition, the chancery court found that this Court considered that the showing of need had to be commensurate to what the project actually is. The chancery court found that “MSDH has refused to use the Plan’s projection of need for what the project actually is.”

¶ 26. The chancery court correctly referenced that St. Dominic failed to consider this Court’s holding that “the showing of need must be commensurate to what the project actually is and the impact which it actually has on the Jackson healthcare market.” St. Dominic, 728 So.2d at 89 (emphasis added). Here, the chancery court found that the project actually was a new hospital. The appropriate criteria applicable for a new hospital are the “Criteria and Standards for the Establishment of a General Acute Care Hospital.”

¶ 27. In its ruling, the chancery court noted that St. Dominic admitted that it could not meet the standard for a new hospital, therefore, remand would be “futile.” We agree.

¶ 28. In addition, when reviewing this issue in the context of Miss.Code Ann. § 41-7-191(1), it is clear that St. Dominic’s amended application proposed the construction of a new facility. Considering the plain language of the statute, the most reasonable interpretation of subsection (e) “[t]he relocation of one or more health services from one physical facility or site to another physical facility or site” is as follows: first, a “relocation” means the transfer of a health service. A health service, as defined in the Certificate of Need Review Manual, is a diagnostic, treatment or rehabilitative service. Second, a “relocation” is not the transfer of a part of a health service — it is the transfer of an entire health service. Finally, the Health Department has defined “relocation” as “the moving of authority to provide a service from one location to another.” A reasonable inference from this definition is that, after the authority to provide a service has been relocated, the transferring facility would no longer have the authority to provide the same service.

¶ 29. St. Dominic’s amended application proposes the construction of a completely new building in Madison County, and the new building will be staffed with new medical workers and new equipment, rather than transferred employees and equipment from the Jackson facility. The Madison County facility will offer “surgery in four operating units; high-level imaging services; nursing care 24 hours per day, seven days per week; rehabilitation and physical therapy; pharmacy; clinical laboratories; and Level IV emergency services.” There is nothing in the record that suggests that St. Dominic-Jackson will not continue to provide the same services. It is therefore logical to conclude that St. Dominic’s amended application does not involve “the moving of authority to provide a service from one location to another.”

¶ 30. Clearly, St. Dominic’s amended application should have been considered under the State Health Plan’s “Certificate of Need Criteria and Standards for the Establishment of a General Acute Care Hospital” instead of its “Certificate of Need Criteria and Standards for Construction, Renovation, Expansion, Capital Improvements, Replacement of Health Care Facilities, and Addition of Hospital Beds.” St. Dominic proposed to relocate beds from its Jackson location to a new Madison County location. But none of the Jackson location’s health services would be relocated to the new Madison County location. New health services would be established at the new facility. New staff would be hired and new equipment purchased to implement the provision of the new health services. “In this context, we would question a proposal which sought to build what is, for all practical purposes, a new hospital ... under the guise of a ‘relocation.’ ” St. Dominic, 728 So.2d at 89.

¶ 31. Accordingly, we find that the chancery court did not err by reversing the final order of the MSDH and denying the CON.

CONCLUSION

¶ 32. The St. Dominic case is controlling in this case. There we held that this Court must consider the appropriate standard of need based upon what the project “actually is.” The chancery court correctly applied the St. Dominic case to this case and ruled that the application was for a new hospital, not a relocation. Further, we find that the chancery court correctly found that in light of St. Dominic’s inability to meet the standards of need for a new hospital as opposed to a relocation, there is no need to remand the case for further review. Therefore, the chancery court did not err by denying the CON application and reversing the MSDH grant of the application. For these reasons, we affirm the chancellor’s judgment.

¶ 33. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

GRAVES, Justice,

Dissenting:

¶ 34. The majority bases its opinion on this Court’s prior decision in St. Dominic-Jackson Mem’l Hosp. v. Miss. State Dep’t of Health, 728 So.2d 81 (Miss.1998). Because I believe that case was wrongly decided, I also believe it would be in error for this Court to dispose of the instant case by relying on its prior opinion in St. Dominic-Jackson. Therefore, I respectfully dissent.

¶ 35. The dissents of Justices Roberts and Banks in St. Dominic-Jackson more accurately reflect the deference an administrative body such as the Mississippi State Department of Health (MSDH) should be given regarding its decision to grant or deny a Certificate of Need (CON). Id. at 93-104 (Roberts, J., dissenting), 104 (Banks, J., dissenting to denial of rehearings). Justice Roberts’ admonition that “the MSDH’s definition and application of that respective definition to this case should not be disturbed as it does not appear arbitrary and capricious even though it may not comply with its generally accepted definition” is apropos not only to St. Dominic-Jackson but also the instant case Id. at 98 (Roberts, J., dissenting) (emphasis added). Today the majority, just as in St. Dominic-Jackson, strips the Department of Health of its legislatively granted power to define “relocation.” The majority also inhibits the Department’s ability to evaluate St. Dominic’s application for a certificate of need according to its own criteria, specifically the “Criteria and Standards for Construction, Renovation, Expansion, Capital Improvements, Replacement of Health Care Facilities and Addition of Hospital Beds (relocation),” by mandating that this proposed hospital relocation be evaluated as a “new” hospital. As Justice Roberts stated in St. Dominic-Jackson, “[i]t is not for this Court to substitute its opinion for the opinion of the Board [MSDH] where the Board [MSDH] has reached its decision on conflicting evidence and where its conclusions are supported by substantial evidence.” Id. at 97 (Roberts, J., dissenting) (quoting Ohio Oil Co. v. Porter, 225 Miss. 55, 60, 82 So.2d 636, 638 (1955)). I would defer to the Health Department’s decision to grant St. Dominic’s application for a Certifícate of Need, reverse the chancellor’s judgment and reinstate the Department’s decision.

¶ 36. For these reasons, I respectfully dissent.

      . The Department of Health joined the appellate brief and argument submitted by St. Dominic. It seeks that the decision of the chancellor be reversed and the Department's decision affirmed.

      . This last amendment to this statute was effective from June 30, 2001, well before June 3, 2002, when St. Dominic filed the original CON application.

      . Also, the Hearing Officer noted that St. Dominic acknowledged that it could not meet the criteria of need for a new hospital.


author: EASLEY, Justice,

text:
    Derwin ROGERS v. STATE of Mississippi.
    No. 2004-KA-01512-SCT.
    Supreme Court of Mississippi.
    May 4, 2006.

      Pamela A. Ferrington, Natchez, attorney for appellant.

      Office of Attorney General by Scott Stuart, Jackson, attorney for appellee.
    Before COBB, P.J., EASLEY and DICKINSON, JJ.
   EASLEY, Justice,

for the Court:

PROCEDURAL HISTORY

¶ 1. Derwin Rogers was indicted in 2002 by a Franklin County grand jury on four counts for the rape of A.H. The rape occurred on four separate occasions between December 21, 1989, and January 3, 1990. A.H. was seventeen years old at the time. The indictment charged a violation of Miss.Code Ann. § 97-3-67 (1985). On the day of trial, the State moved to amend the indictment to list Miss.Code Ann. § 97-3-65 (1985), instead of Miss Code Ann. § 97-3-67. Miss.Code Ann. § 97-3-67 had been repealed effective July 1, 1998. The State argued to the trial court that the surplus language requiring the victim to be of previous chaste character should be eliminated. The chaste character language was contained in the repealed statute Miss.Code Ann. § 97-3-67 (1985), and not in Miss.Code Ann. § 97-3-65 (1985). The trial court allowed the amendment.

¶ 2. Rogers was found guilty by a jury on all four counts of rape. The trial court sentenced Rogers to serve a term of thirty years on each count, to run concurrently. The trial court denied Rogers’s motion for a new trial but granted his motion for indigent status and appointed counsel to perfect Rogers’s appeal to this Court.

FACTS

¶ 3. In 1989, A.H. was a seventeen-year-old female placed in the foster care of Reverend David Franklin and his wife, Edna Franklin. A.H. lived in the group home, Project Gain, located in Jackson, Mississippi. During the Christmas holidays, the girls living at Project Gain had to find other accommodations because the Franklins went to Colorado during the Christmas holidays. A.H. was placed with the Franklins’s friends, Reverend Derwin Rogers and his wife, in Meadeville, Mississippi, while the Franklins were away. Rogers lived in a house connected to his church. A.H. was staying at the Rogers’s home between December 21, 1989, and January 3, 1990, when she was raped by Rogers.

¶ 4. A.H. testified that Rogers forced her to have sex with him on four occasions during her stay in his home. A.H. testified that on each of the four occasions Rogers came into her bedroom and put a handgun to her head. He made her take off her clothes and have sex with him. Rogers told A.H. he would kill her and bury her in the backyard in the cemetery if she screamed or told anyone. A.H. testified that the sex was not consensual. A.H. testified that Rogers was always at the home and that Rogers controlled her access to avoid her telling anyone about the rape.

¶ 5. Cindy Brasher, AH.’s caseworker at the Mississippi Department of Human Services, testified that A.H. had tried to call her during the Christmas holidays, but she was not at home. When Brasher called A.H. back at Rogers’s home, Rogers answered the phone. Brasher stated that she could tell A.H. was upset. However, A.H. told Brasher she could not talk to her.

¶ 6. Reverend Franklin testified that when he and his wife returned from Colorado they picked A.H. up from Rogers’s home. A.H. told him that Rogers had raped her on more than three occasions. However, Reverend Franklin testified quoting scripture that because Reverend Rogers was an “elder” in the church, he did not believe the allegation because there were no witnesses. He never confronted Rogers with the allegation, but he told A.H. she could report the rape to her caseworker.

¶ 7. Brasher testified that she received a report on January 5, 1990, that A.H. alleged she had been raped. Brasher interviewed A.H. on January 9, 1990. A.H. informed her that Rogers had forced her to have sex with him on four occasions between December 21, 1989, and January 3, 1990, describing the incidents including the threats to her life and the handgun. Brasher interviewed Rogers who initially denied that any sexual relation occurred with A.H. and denied that he possessed a gun. Later in the interview, Rogers showed Brasher the gun and stated that he had shown the gun to A.H.

DISCUSSION

I. Ex Post Facto

¶ 8. Rogers argues that the penalty for his crime was erroneously raised by the state and therefore, the trial court violated the expost facto clause of the Constitution by imposing a thirty year sentence pursuant to Miss.Code Ann. § 97-3-65. First, Rogers waived this issue for consideration on appeal by not raising a constitutional challenge at trial. Rogers is now procedurally barred from raising this issue on appeal. This Court has consistently held that constitutional questions not raised at the lower court will not be reviewed on appeal. Stockstill v. State, 854 So.2d 1017, 1023 (Miss.2003); Ellis v. Ellis, 651 So.2d 1068, 1073 (Miss.1995); Patterson v. State, 594 So.2d 606, 609 (Miss.1992). These constitutional questions are waived or forfeited if not asserted at the trial level. Contreras v. State, 445 So.2d 543, 544 (Miss.1984). As such, attacks on the constitutionality of a statute cannot be considered for the first time on appeal. Colburn v. State, 431 So.2d 1111, 1113 (Miss.1983); Smith v. State, 430 So.2d 406, 407 (Miss.1983).

¶ 9. Second, the record reflects that the defense did not raise any objection to the amendment of the statute contained in the indictment. Rather, the defense sought clarification that because these were charges of forcible rape the defense of consent would be applicable at trial under Miss.Code Ann. § 97-3-65. The trial court determined that because the indictment charged forcible rape and Miss.Code Ann. § 97-3-67 had been “recalled,” the amendment to Miss.Code Ann. § 97-3-65 (1985) was applicable. The trial court clarified that the State would be required to prove forcible rape, and consent would be a defense to the charges. The trial court stated that the allegations were not amended. The original indictment stated that Rogers engaged in sexual penetration with A.H. without her consent and against her will. The defense did not contest the amendment, object or argue that Miss. Code Ann. § 97-3-67 (1985) was applicable.

¶ 10. Without waiving any procedural bar, this assignment of error is also without merit and will be briefly addressed. The facts demonstrate that Miss. Code Ann. § 97-3-65 (1985) was applicable and the sentence was within the limits allowed by that statute. The version of Miss.Code Ann. § 97-3-65 (1985) in effect during 1989 and 1990 made it a crime to forcibly ravish any person over the age of fourteen. The penalty available was life, if the jury so prescribed by its verdict, or a sentence to any term determined by the trial court if the jury did not return a verdict of life. Nothing in that language prohibited the trial court from sentencing Rogers to thirty years.

¶ 11. Specifically, Miss.Code Ann. § 97-3-65(2) (1985) provided:

Every person who shall forcibly ravish any person of the age of fourteen (14) years or upward, or who shall have been convicted of having carnal knowledge of any person above the age of fourteen (14) years without such person’s consent shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.

¶ 12. As a general rule, this Court cannot disturb a sentence on appeal if that sentence is within the boundaries allowed by the statute. Hoops v. State, 681 So.2d 521, 537 (Miss.1996). Here, the sentence imposed by the trial court was acceptable as it did not exceed the statutory limits provided in Miss.Code Ann. § 97-3-65(2). See Wilkerson v. State, 731 So.2d 1173, 1183 (Miss.1999); see also Freshwater v. State, 794 So.2d 274, 277 (Miss.Ct.App.2001); Shabazz v. State, 729 So.2d 813, 822 (Miss.Ct.App.1998). Therefore, Rogers’ argument that he was sentenced to more time than was applicable at the time of his offense is without merit.

II. Age of the Victim

¶ 13. Rogers argues on appeal that the State was required under Miss. Code Ann. § 97-3-65 (1985) to establish that the victim was between the ages of fourteen and sixteen but failed to do so. First, Rogers is incorrect in stating that Miss.Code Ann. § 97-3-65 requires that it be established that the victim was between the ages fourteen and sixteen. The section that Rogers cites applies to statutory rape, not forcible rape. However, this ease involved forcible rape without consent and against the victim’s will as discussed in Issue I.

¶ 14. Second, the record reflects that the State established that at the time of the incident in December 1989, A.H. was at least fourteen years old. A.H. affirmed that she was at least fourteen years old at the time, and she stated that she was seventeen years old when the rape occurred. The defense raised no objection in the record regarding A.H.’s age.

¶ 15. The State further questioned A.H. regarding the incident. The record reflects the following exchange:

Q. And so what happened when you came to stay with Derwin Rogers in December of 1989?
A. He molested me.
Q. Okay. Could you explain to the jury what you mean by that, [A.H.]?
A. On four separate occasions, he forced me to have sex with him. He had a gun. He would come to my bedroom at night, and he would make me have sex with him.
Q. And on those occasions, did he penetrate you?
A. Yes.
Q. Now, you said that he would come to your bedroom. Could you explain to the jury where your bedroom was located in relation to the rest of the house?
A. It was kind of like on the — it was like the back bedroom from the kitchen.
Q. Okay. And let’s talk about the first time that it happened. Do you remember about what day it was the first time that it happened?
A. I don’t remember the date, what it was—
Q. Okay. But you remember that you got there on December the 21st?
A. Right.
Q. And where were you when it happened the first time?
A. In the bedroom.
Q. I want you to tell the jury what happened the first time.
A. The first time he came in there, he had a little gun, a little hand pistol in his hand, and he put it to my head and he told me if I screamed, if I made any kind of noise, that he would kill me and he made me take my clothes off, and he took his clothes off, and he made me have sex with him.
Q. And what happened after that?
A. He would get up and get dressed, and he would leave out, and he’d tell his wife that he was at the church because the church and the house was connected, but he would really be leaving out of my bedroom.
Q. Could you tell us what happened on the second occasion?
A. All of them was just about alike. • He would come in there with a pistol. Each time he had the gun, he would either hold it in his hand and put it to my head, or he would have it laying on the pillow close to my head, and he would always tell me if I made any kind of noise, he would kill me and bury me in the backyard in the cemetery, and I never knew there was a cemetery back there, but he would always tell me he would bury me in the backyard in the cemetery.
Q.. Were you afraid of him?
A. Yes.

¶ 16. Clearly, the State established through A.H.’s testimony that A.H. was age fourteen or upward when the incident occurred and that it was forcible, without her consent, and against her will. See Miss.Code Ann. § 97-3-65(2) (1985). This assignment of error is without merit.

III. Closing Argument

¶ 17. Rogers contends on appeal that the State in its closing remarks improperly commented on his failure to testify at trial. First, examination of the record reveals that the defense never raised any contemporaneous objection to the statements in question. Therefore, this assignment of error is procedurally barred. See Walker v. State, 671 So.2d 581, 597 (Miss.1995) (“If no contemporaneous objection is made, the error, if any, is waived.”).

¶ 18. Second, without waiving the procedural bar, Rogers takes the statements out of context. The record reflects that the State’s remarks concerned the testimony of Reverend David Franklin, A.H.’s former foster parent and Rogers’ friend. Reverend Franklin testified that several years later in 1996 Rogers admitted to him in a telephone conversation that he had sexual relations with A.H. when she was seventeen. Shortly after that telephone conversation, a meeting occurred between Reverend Franklin, Franklin’s wife, Edna, Rogers’ wife, Donna, and Pastor Henry Hankins at Pastor Hankins’s church. The night before the meeting transpired, Pastor Hankins met with Reverend Franklin and his wife, Edna, and told them that Rogers had confessed to his wife, Donna, that he had sex with A.H. Rogers and Rogers’ wife, Donna, were present during this conversation. Rogers never denied the statement. Reverend Franklin testified that Rogers had told him the information so that Reverend Franklin could go and “console” A.H.

¶ 19. The State’s closing remarks were made in reference to the facts in evidence, not Rogers’ failure to testify at trial or that he was guilty based on his failure to testify. Here, the State conformed the closing remarks to the facts introduced into evidence. Clearly, the evidence introduced supports the State’s comments in closing argument; therefore, the remarks were proper. Davis v. State, 684 So.2d 643, 656 (Miss.1996) (prosecutor may comment upon any facts introduced into evidence and draw whatever deductions seem proper from those facts). This assignment of error is without merit.

IV. Reverend Franklin’s Testimony

¶ 20. Rogers argues that the trial court erred in allowing Reverend Franklin to testify about a conversation Pastor Han-kins had with him regarding Rogers’s admission that he had sex with A.H.

A. Priest — Penitent Privilege

¶21. Rogers contends on appeal that M.R.E. 505 prevented Reverend Franklin from disclosing the conversation as it was a confidential communication protected by priest-penitent privilege. However, the record does not reflect that Rogers raised any contemporaneous objection at the trial level regarding any alleged priest-penitent privilege or M.R.E. 505. See Walker, 671 So.2d at 597 (contemporaneous objection required or error, if any, is waived). No objection at all was made when Reverend Franklin testified regarding Rogers’s admission to him in a telephone conversation that Rogers had sex with A.H. The only objection made was a hearsay objection regarding the statement by Pastor Han-kins to Reverend Franklin which will be discussed as a separate assignment of error.

¶ 22. Therefore, without waiving any procedural bar stemming from the lack of any contemporaneous objection, examination of the record reveals that the disclosure by Pastor Hankins to Reverend Franklin was not confidential. At the time the disclosure was made, Pastor Hankins, Reverend Franklin, Reverend Franklin’s wife, Edna, Rogers’s wife, Donna, and Rogers were all present. Rogers never took any action to prevent the disclosure or to deny or correct the disclosure. Furthermore, the information regarding the admission by Rogers that he had sex with A.H. had already been disclosed by Rogers to Reverend Franklin in a telephone conversation approximately two weeks before this meeting occurred. Reverend Franklin testified that at the time of the disclosure he did not consider himself to be serving in any capacity as a pastor to Rogers and did not consider Rogers to be his parishioner or penitent at the time. He also stated that he did not consider the conversation to be any type of confession to a preacher.

¶ 23. M.R.E. 505(b) requires that in order for a privilege to exist the communication must have been made to a clergyman in his professional character as spiritual adviser. See Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213, 1246 (Miss.2005). “A person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.” M.R.E. 505(b). Reverend Franklin testified that he did not consider himself to be Rogers’ spiritual adviser nor that the communication was made to him as a confidential confession. Rogers disclosed the same information directly to Reverend Franklin before Reverend Franklin spoke with Pastor Hankins. The disclosure was the same information regarding Rogers’s admission that he had sex with A.H. The evidence does not reflect that a priest — penitent privilege existed between Reverend Franklin and Rogers.

¶ 24. Furthermore, Pastor Hankins’ disclosure to Reverend Franklin was clearly not confidential. M.R.E. 505(a)(2) states that “a communication is ‘confidential’ if made privately and not intended for further disclosure except in furtherance of the purpose of communication.” Disclosure of confidential information or communication in the presence of third parties generally operates to waive any privilege. See Hewes v. Langston, 853 So.2d 1237, 1264 (Miss.2003) (as applied to M.R.E. 502, lawyer-client privilege).

¶25. As previously stated, Reverend Franklin’s wife, Edna, among others, were present when the statement was made. Rogers was also present, and he took no action to prevent the disclosure or make any claim that any priest-penitent privilege existed. Furthermore, according to Reverend Franklin’s testimony, the stated purpose of the disclosure was for Reverend Franklin to “console” his “daughter [A.H.]” for what had occurred. The evidence does not reflect that the communication was intended to be confidential or that it was made in a confidential manner. This assignment of error is without merit.

B. Hearsay

¶ 26. Rogers raises on appeal that his constitutional right of confrontation was violated by the trial court allowing Reverend Franklin to testify as to Pastor Hankins’s disclosure that Rogers admitted he had sex with A.H. However, the record reflects that Rogers did not raise any objection at trial regarding any constitutional claim of a violation arising from the testimony. In fact, the record contains no reference to any alleged violation of any right to confrontation or for the trial court to make a ruling regarding the confrontation clause. Therefore, any argument on appeal as to the confrontation clause is procedurally barred. See Stockstill, 854 So.2d at 1023 (constitutional questions not raised at the trial court are barred from our review on appeal); see also Contreras v. State, 445 So.2d at 544 (constitutional questions are waived or forfeited if not asserted at the trial level).

¶ 27. While not waiving any procedural bar regarding Rogers’s assignment of error on appeal involving the confrontation clause, the trial court’s ruling to allow the hearsay testimony will be briefly examined. Though discussed previously in great detail, the facts from the record relevant to this discussion will be examined. Rogers’s admission to Reverend Franklin and Pastor Hankins that he had sex with A.H. were not admissions that he raped A.H. Also, Rogers made the same admission, as to having had sex with A.H., to Reverend Franklin in a telephone conversation that occurred approximately two weeks prior to the meeting that occurred between Reverend Franklin and Pastor Hankins. Furthermore, Reverend Franklin and Pastor Hankins were not alone at the meeting when the statement was made. As discussed previously, along with Reverend Franklin and Pastor Hankins, Edna Franklin, Donna Rogers, and the defendant, Rogers, were all present.

¶28. Rogers never took any action to prevent the statement from being made public or made any attempt to clarify the statement or to state that it was untrue. Reverend Franklin did not testify that Rogers ever admitted that he raped A.H. The record reflects that the defense’s theory of the case in its opening statement was that no rape occurred and that any admission of sex was regarding consensual sex. In the defense’s opening statement, the defense referenced an admission Rogers made to a reverend and his wife that Rogers had sex with A.H. The defense stressed that it was not an admission of rape.

¶ 29. The trial court required extensive questioning to ensure the record was clear that Rogers was present when the statement was made, and Rogers took no action to deny the statement. The trial court then overruled the hearsay objection as to any statement made by Pastor Hankins to Reverend Franklin, which was limited to statements made while Rogers was present.

¶ 30. In Pickle v. State, 345 So.2d 623, 627 (Miss.1977), a pre-rules case, this Court acknowledged admission by silence stating that where the accused “with full liberty to speak, remains silent ..., his failure to reply or to deny the accusation is relevant as tending to show his guilt.” In Pickle, the accused did not remain silent; he denied the accusation. Id. The Court found that the denial was inadmissible based on the accusation being denied. Id. However, the Court held:

Had appellant remained silent, an exception to the hearsay rule would have arisen, and the statement would have become admissible under the admission by silence doctrine as would the fact that appellant remained silent.

Id. at 627.

¶31. M.R.E. 801(d)(2)(B) states that admission by silence is a hearsay exception where “the statement is offered against a party and is a statement of which he has manifested his adoption or belief in its truth.” The comments to M.R.E. 801(d)(2)(B) provide:

If a party adopts or acquiesces in another person’s statement, it will be deemed that the statement is indeed his admission .... silence may constitute a tacit admission if a person would have, under the circumstances, protested the statement made in his presence if the statement were untrue.

See Howell v. State, 860 So.2d 704, 735 (Miss.2003).

¶ 32. In Howell, the Court held that the trial court did not err in allowing Shaw to testify about Ray’s statement where Howell was present when the statement was made and did not dispute the statement. Howell, 860 So.2d at 735-36. The Court stated that the statement clearly amounted to an “adoptive admission” pursuant to M.R.E. 801(d)(2)(B). Id. at 735. In that case, the Court found that the record demonstrated Howell did not contradict, deny or object to the statement Ray made to Shaw. Id. at 736.

¶ 33. The trial court made clear on the record that the discussion would be allowed only as to what was said while Rogers was present. The record reflects that Rogers was present and took no action to deny or prevent the disclosure. Furthermore, Reverend Franklin had already testified as to a telephone conversation in which Rogers had earlier made the same disclosure to him. Therefore, without waiving any procedural bar as to the confrontation clause, the assignment of error regarding the hearsay testimony is without merit.

CONCLUSION

¶ 34. Therefore, for all the reasons stated above, the conviction and sentence of the Circuit Court of Franklin County, Mississippi, is affirmed.

¶ 35. COUNT I: CONVICTION OF RAPE AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF RAPE AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF RAPE AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF RAPE AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAYMENT OF ALL COSTS, AFFIRMED. SENTENCE IN COUNT I SHALL RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS II, III AND IV.

SMITH, C.J., WALLER, P.J., CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. COBB, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . The victim's name will be substituted for the initials A.H.