Russell v. Williford
| Docket Number: | 2003-CA-01573-COA Linked Case(s): 2003-CT-01573-SCT ; 2003-CA-01573-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-30-2004 Opinion Author: Myers, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Due diligence - Statute of limitations - Section 15-1-36 - Affidavits - M.R.C.P. 56 Judge(s) Concurring: Bridges and Lee, P.JJ., Griffis, Barnes and Ishee, JJ. Dissenting Author : Irving, J. Dissent Joined By : King, C.J. and Chandler, J. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 06-19-2003 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: DEFENDANTS’ MOTION TO DISMISS GRANTED Case Number: CI02-0141 |
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| Party Name: | Attorney Name: | |||
| Appellant: | RHETT R. RUSSELL |
FRANK A. RUSSELL
GEORGE E. DENT |
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| Appellee: | J. STEWART WILLIFORD, M.D., D. G. KOBS, M.D., AND REIKES HALE KOBS & STRAUSS RADIOLOGISTS, A PARTNERSHIP | DORRANCE AULTMAN J. ROBERT RAMSAY MATTHEW D. MILLER CHADWICK L. SHOOK |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Due diligence - Statute of limitations - Section 15-1-36 - Affidavits - M.R.C.P. 56 |
| Summary of the Facts: | Rhett Russell filed a complaint against J. Stewart Williford, M.D., D.G. Kobs, M.D., and Reikes Hale Kobs & Strauss Radiologists, a Partnership, alleging medical malpractice. The doctors filed motions to dismiss. The motions were converted into Rule 56 motions when the court considered some material outside of the pleadings. The court granted the motions, and Russell appeals. |
| Summary of Opinion Analysis: | Issue 1: Due diligence Russell argues that the court improperly invaded the province of the jury by making a factual determination on the issue of due diligence. If a plaintiff has failed to exercise due diligence, he does not have a claim for fraudulent concealment. Plaintiffs need not have actual knowledge of the facts before the duty of due diligence arises; rather, knowledge of certain facts which are calculated to excite inquiry give rise to the duty to inquire. Here, the record reveals facts that almost certainly should have been calculated to excite inquiry on the part of Russell. In addition, Russell did not state facts that would demonstrate some affirmative act of concealment on the part of the doctors, the first requirement for a claim of fraudulent concealment. Since there are no disputed fact issues on the question of due diligence, the court correctly granted summary judgment. Issue 2: Statute of limitations Russell argues that the correct statute of limitations to be applied to this case is the version of section 15-1-36 in effect in 1976. Russell argues that the 1976 version contained a more liberal discovery rule and standard for determining accrual that would allow his action to proceed, even though it was brought twenty-seven years after the alleged act or omission. The doctors argue that, by Russell’s own assertions, the applicable statute of limitations is the version as amended in 1998, because Russell insists that his action did not accrue until 2000. This action would be barred under either version of the statute. A straightforward application of the due diligence standard clearly supports affirming the lower court’s grant of summary judgment. The language relating to when the statute begins to run in both versions is identical: when the alleged act or omission might have been first known or discovered through reasonable diligence. Russell had an abnormal, post-operative condition of which he was aware immediately after surgery in 1973, and demonstrated his knowledge of this condition in his leg by inquiring with Dr. Williford about the condition. Dr. Williford suggested that the problem was muscular and could be cured with physical therapy. Russell took this advice; however, physical therapy did not fully correct the problem. Russell could have discovered the true problem if he had exercised due diligence after the physical therapy failed to correct the problem; therefore, his action accrued, at the latest, sometime soon after the physical therapy proved ineffective and after he failed to further investigate the condition of his leg. Issue 3: Affidavits Russell argues that the court erred in failing to consider two affidavits filed in opposition to the doctors’ motions to dismiss. The doctors correctly point out that the affidavits in question were filed after the hearing had already been conducted and the judge’s bench ruling declared. If Russell was fully aware that the posture of the motions had changed to that of summary judgment and desired to submit affidavits, he was required to object or move for continuance at the hearing. The record shows that Russell took no such action. Therefore, his objection is waived. |
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