Andrews v. Arceo


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Docket Number: 2007-CA-01390-COA
Linked Case(s): 2007-CA-01390-SCT

Court of Appeals: Opinion Link
Opinion Date: 07-22-2008
Opinion Author: IRVING, J.
Holding: Affirmed

Additional Case Information: Topic: Medical malpractice - Notice - Section 15-1-36(15)
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 04-23-2007
Appealed from: RANKIN COUNTY CIRCUIT COURT
Judge: William E. Chapman, III
Disposition: SUMMARY JUDGMENT GRANTED ON BEHALF OF DEFENDANT SALVADOR ARCEO, M.D.
Case Number: 2006-184-C

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: CHARLES STEPHEN ANDREWS II




M. JUDITH BARNETT



 

Appellee: SALVADOR ARCEO, M.D. AND KAREN B. SHACKLEFORD, M.D. JAMES A. BECKER, ANASTASIA G. JONES  

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Topic: Medical malpractice - Notice - Section 15-1-36(15)

Summary of the Facts: Charles Andrews II filed a medical malpractice suit against Drs. Salvador Arceo and Karen B. Shackleford. The court granted summary judgment on behalf of Dr. Arceo. Andrews appeals.

Summary of Opinion Analysis: Andrews argues that the court erred in granting summary judgment on behalf of Dr. Arceo due to Andrews’s failure to give the notice required by section 15-1-36(15). Andrews argues that the section does not apply to Dr. Arceo; even if the section does apply to Dr. Arceo, notice was given through Dr. Arceo’s attorney; and Dr. Arceo waived the issue of notice when he made a general appearance before the court and filed various documents. Although Dr. Arceo was not listed as the treating physician on Andrews’s intake form, his name was listed in Andrews’s medical records as an examining physician. It is clear that a careful reading of Andrews’s medical records would have revealed Dr. Arceo as a potential treating physician. Therefore, Dr. Arceo’s name should have been known to Andrews prior to the filing of his suit and he was entitled to notice under section 15-1-36(15). There is no indication that any form of written notice was ever given to Dr. Arceo. Therefore, the requirements of section 15-1-36(15) were not met. Dr. Arceo’s initial answer to Andrews’s complaint specifically pointed out that the requirements of section 15-1-36(15) had not been satisfied. Thus, Andrews’s failure to provide notice to Dr. Arceo was properly fatal to the continuation of his lawsuit. Andrews also argues that his lawsuit should not have been dismissed with prejudice. However, Andrews has failed to prove a fraud that would have delayed the commencement of the running of the statute of limitations.


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