Brown v. Southwest Miss. Reg'l Med. Ctr.
| Docket Number: | 2006-CA-01947-COA Linked Case(s): 2006-CA-01947-SCT ; 2006-CA-01947-COA ; 2006-CT-01947-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-29-2008 Opinion Author: ROBERTS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Tort Claims Act - Notice requirement - Section 11-46-11(1) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ. Non Participating Judge(s): BARNES, J. Dissenting Author : IRVING, J., without separate written opinion. Procedural History: Summary Judgment Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 10-20-2006 Appealed from: PIKE COUNTY CIRCUIT COURT Judge: Michael M. Taylor Disposition: GRANTED SOUTHWEST REGIONAL’S MOTION FOR SUMMARY JUDGMENT. Case Number: 02-221-A |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MARVIN BROWN |
SUZANNE GRIGGINS KEYS,
ISAAC K. BYRD |
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| Appellee: | SOUTHWEST MISSISSIPPI REGIONAL MEDICAL CENTER AND JENNIFER BROWN | R. MARK HODGES, JAMES P. STREETMAN, MARK JOHNSON GOLDBERG, WILLIAM ROBERT COLEMAN, MATTHEW ANDERSON TAYLOR |
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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 - Tort Claims Act - Notice requirement - Section 11-46-11(1) |
| Summary of the Facts: | Marvin Brown visited Southwest Mississippi Regional Medical Center complaining of headaches. After receiving medical treatment he began to experience additional problems that he alleged stemmed from the negligent acts of Southwest and its employees. Brown filed his notice of claim with Southwest and filed his medical malpractice case less than a week later. Southwest filed a motion for summary judgment which the court granted. Brown appeals. |
| Summary of Opinion Analysis: | At the time Brown filed his complaint, substantial compliance with section 11-46-11(1) of the Tort Claims Act was the standard to which plaintiffs were held. Under the substantial compliance standard, if a plaintiff filed suit prior to the expiration of the ninety-days notice requirement, the approved procedure was not to dismiss the lawsuit, but to require the defendant to request that the trial court issue an order staying the lawsuit until such time as the defendant has been given the benefit of the applicable waiting period. If the defendant failed to request a stay, the issue of faulty notice and untimely suit would be deemed waived. That standard was abolished by the Supreme Court and strict compliance was required. Under that standard, 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. Court rulings will have retroactive effect on cases awaiting trial. Brown argues that the strict compliance standard only applies in those cases in which there has been no compliance with the ninety-day notice requirement. However, it is apparent that the strict compliance standard is meant to apply equally to cases in which no notice is filed, notice is filed after the complaint, or the complaint is filed sooner than ninety days after filing notice. Brown argues that Southwest waived any defense it had regarding his failure to comply with the notice requirements of section 11-46-11(1) when it failed to file a motion for a stay in the proceedings as a result of Brown’s untimely complaint. The issue of whether Southwest waived the defense and the effect of any such waiver is moot. Because Brown failed to comply with the ninety-day waiting period, his case must be dismissed. |
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