Saul v. Jenkins


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Docket Number: 2006-CA-01118-SCT

Supreme Court: Opinion Link
Opinion Date: 08-30-2007
Opinion Author: WALLER, P.J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Medical malpractice - Notice requirement - Section 15-1-36(15) - Licensed institutions - Section 43-11-5
Judge(s) Concurring: SMITH, C.J., EASLEY, CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ.
Concurs in Result Only: DIAZ, P.J.
Procedural History: Dismissal
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 06-26-2006
Appealed from: Jones County Circuit Court
Judge: Billy Joe Landrum
Disposition: Granted Appellee's Motion to Dismiss
Case Number: CR2006-613CD

  Party Name: Attorney Name:  
Appellant: ROBERT LEE SAUL




JOHN N. SATCHER, II GARY D. THRASH



 

Appellee: YVONNE JENKINS d/b/a EXTRA CARE ERIC A. TIEBAUER  

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Topic: Medical malpractice - Notice requirement - Section 15-1-36(15) - Licensed institutions - Section 43-11-5

Summary of the Facts: Robert Saul filed a negligence lawsuit against Yvonne Jenkins d/b/a Extra Care. Jenkins moved to dismiss the suit, arguing that Saul failed to comply with section 11-1-58, which requires a plaintiff in a medical malpractice suit to file a certificate of consultation stating that her attorney has consulted at least one qualified expert. At the trial court’s hearing on the motion to dismiss, Jenkins also argued that Saul failed to comply with the sixty-day notice requirements of section 15-1-36(15). The court granted the motion to dismiss, and Saul appeals.

Summary of Opinion Analysis: Saul argues that Jenkins was not entitled to invoke the sixty-day notice requirement of section 15-1-36(15) because she failed to plead or argue the applicability of the notice requirement. Because the notice requirement of section 15-1-36(15) is mandatory and jurisdictional, a defendant need not plead or argue it as a defense. Jenkins argues that Extra Care, as a health care provider, is a party contemplated by section 15-1-36, which details the limitations placed on medical malpractice suits. Section 43-11-5 requires that institutions for the aged or infirm be licensed. This licensing requirement exists to insure safe, sanitary, and reasonably adequate care of individuals while under the care of nursing home facilities. Section 15-1-36, by its plain terms, applies only to those health care providers that have been licensed to provide medical services. It is not clear from the record whether Extra Care was a licensed health care provider entitled to the notice requirement of section 15-1-36(15). If Jenkins’ own description of Extra Care as a nursing home is accurate, then it could not avail itself of the notice requirement unless it was a licensed institution as required by section 43-11-5. If Jenkins lacked a proper license during this time, she is not entitled to the same protections given to those properly licensed institutions contemplated by section 15-1-36. Because the status of Extra Care is a material issue of fact, the trial court erred in granting the motion to dismiss.


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