Holmes v. Nelson
| Docket Number: | 2005-CA-01159-COA Linked Case(s): 2005-CA-01159-COA2005-CT-01159-SCT |
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| Oral Argument: | 07-19-2006 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-03-2006 Opinion Author: MYERS, P.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Medical malpractice - Statute of limitations Judge(s) Concurring: KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, BARNES AND ISHEE, JJ. Non Participating Judge(s): GRIFFIS AND ROBERTS, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 05-10-2005 Appealed from: Lauderdale County Circuit Court Judge: Robert Bailey Disposition: DISMISSED WITHOUT PREJUDICE Case Number: 04-CV-211® |
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| Party Name: | Attorney Name: | |||
| Appellant: | GLORIA HOLMES |
ROBERT E. HAYES |
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| Appellee: | DR. VIRGINIA CARNEY NELSON | COREY DONALD HINSHAW, CLIFFORD B. AMMONS, ANASTASIA G. JONES |
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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: | Medical malpractice - Statute of limitations |
| Summary of the Facts: | Gloria Holmes filed suit against Dr. Virginia Nelson. The court dismissed the complaint without prejudice for failure to serve process within 120 days. However, Holmes filed a second complaint against Dr. Nelson in anticipation of the dismissal, and timely served Dr. Nelson. Dr. Nelson filed a motion for summary judgment, contending Holmes’ complaint was barred by the two-year statute of limitations. The court granted the motion for summary judgment, and Holmes appeals. |
| Summary of Opinion Analysis: | Holmes argues that she was not aware of the perforation of her colon until May 17, 2002. Dr. Nelson argues that Holmes became aware of this condition between her initial surgery on February 11, 2002, and the exploratory surgery performed on February 19, 2002. The earliest date on which Holmes could be aware of the injury was February 19, 2002, when the exploratory surgery was performed. The record shows that Holmes remained on a ventilator and was unconscious following the February 19, 2002 surgery and remained in the ICU until she was moved March 27, 2002 to another hospital. However, the record is unclear as to the date Holmes was removed from the ventilator or when Holmes regained consciousness. Before a determination can be made about the date on which Holmes was made aware of her injury, a determination must be made concerning her soundness of mind. The case is therefore remanded to the circuit court for a hearing to determine when Holmes regained consciousness following the February 19, 2002 surgery and when her soundness of mind was reinstated so that she could adequately understand the injury she had suffered and the consequences of that injury. |
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