Ellis v. Miss. Baptist Med. Ctr., Inc.
| Docket Number: | 2007-CA-01315-COA Linked Case(s): 2007-CA-01315-SCT |
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| Oral Argument: | 07-30-2008 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-16-2008 Opinion Author: KING, C.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Medical malpractice - Compliance with section 11-1-58 Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts, and Carlton, JJ. Non Participating Judge(s): CHANDLER AND BARNES, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 10-24-2006 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: MEDICAL MALPRACTICE SUIT DISMISSED Case Number: 251-05-53-CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DEBRA W. ELLIS, EXECUTRIX OF THE ESTATE OF WILLIE B. WOODRUFF, DECEASED, GEORGE MITCHELL, JAMES MITCHELL, M.D. AND BETTY MITCHELL, INDIVIDUALLY AND ON BEHALF OF ALL OTHER WRONGFUL DEATH BENEFICIARIES |
BARRY H. POWELL |
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| Appellee: | MISSISSIPPI BAPTIST MEDICAL CENTER, INC. AND MISSISSIPPI BAPTIST HEALTH SYSTEMS, INC. D/B/A BAPTIST MEDICAL CENTER | D. COLLIER GRAHAM |
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| Topic: | Medical malpractice - Compliance with section 11-1-58 |
| Summary of the Facts: | Debra Ellis filed a medical malpractice suit against Mississippi Baptist Medical Center, Inc., and Mississippi Health Systems, Inc., on behalf of the Estate of Willie B. Woodruff, deceased, and all wrongful death beneficiaries. Baptist filed a motion to dismiss the action, and the trial court granted the motion. Ellis appeals. |
| Summary of Opinion Analysis: | Ellis argues that the trial court erred by dismissing her lawsuit, because Baptist did not raise lack of the statutorily required notice as a defense in either its first answer or its answer to Ellis’s third amended complaint; Baptist did not object to Ellis’s motion to file a third amended complaint; and Ellis’s third amended complaint is not time-barred because it relates back to the date of the filing of the original complaint. A complaint, otherwise properly filed, may not be dismissed, and need not be amended, simply because the plaintiff failed to attach a certificate or waiver. Thus, Ellis’s complaint should not have been dismissed simply because she did not attach a certificate of consultation to her complaint. Although Ellis did not attach her certificate of consultation to her original complaint, the trial court granted Ellis leave of court to amend her complaint. In her third amended complaint, Ellis attached a certificate of consultation. The certificate of consultation failed to specifically state whether Ellis’s attorneys consulted with the medical expert before the lawsuit was filed. After the trial court dismissed Ellis’s lawsuit against Baptist, Ellis filed a motion to reconsider and included affidavits from her attorneys and an affidavit and summary of medical findings from the expert witness. Based on the affidavits and the medical opinion, Ellis is in compliance with section 11-1-58 because Ellis’s attorneys consulted with a qualified medical expert before filing the lawsuit in January 2005 and determined that there was a reasonable basis for filing the lawsuit. Therefore, the trial court’s dismissal of Ellis’s motion to reconsider was error. |
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