Caldwell v. North Miss. Med. Ctr., Inc., et al.
| Docket Number: | 2006-CA-00630-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 05-24-2007 Opinion Author: EASLEY, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Certificate of counsel - Section 11-1-58 Judge(s) Concurring: SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ. Judge(s) Concurring Separately: RANDOLPH, J. JOINED BY SMITH, C.J., WALLER, P.J., Non Participating Judge(s): LAMAR, J. Dissenting Author : DIAZ, P.J. Dissent Joined By : GRAVES, J. Procedural History: Bench Trial Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 03-21-0200 Appealed from: LEE COUNTY CIRCUIT COURT Judge: Sharion R. Aycock Disposition: Entered Order of Dismissal Case Number: CV05-065(A)L |
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| Party Name: | Attorney Name: | |||
| Appellant: | JANICE CALDWELL AND HUSBAND, ROBERT
C. CALDWELL |
JOHN H. COCKE |
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| Appellee: | NORTH MISSISSIPPI MEDICAL CENTER, INC. AND ELIZABETH BROWN, EXECUTRIX OF THE ESTATE OF ALAN PAUL BROWN, M.D., DECEASED | JOHN G. WHEELER WILLIAM DANIEL PRESTAGE |
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| Topic: | Medical malpractice - Certificate of counsel - Section 11-1-58 |
| Summary of the Facts: | Janice Caldwell and Robert C. Caldwell, filed suit against North Mississippi Medical Center, Inc. and Alan Paul Brown, M.D., alleging medical malpractice. After filing his answer and defenses, Dr. Brown died. The Caldwells filed a motion for substitution to replace Dr. Brown as the defendant and substitute the Estate of Alan Paul Brown, M.D., Deceased as the defendant. The trial court granted the substitution of the Estate in place of Dr. Brown. The Caldwells filed an expert disclosure in lieu of certificate of counsel. The Caldwells filed an amended complaint substituting the Estate for Dr. Brown. However, neither a certificate executed by the attorney for the plaintiff nor an expert disclosure in lieu of certificate of counsel accompanied the amended complaint filed against NMMC and the Estate. NMMC and the Estate then filed an amended joint answer and defenses to the amended complaint. Among the defenses raised, NMMC and the Estate, now substituted for Dr. Brown, raised the affirmative defense that the Caldwells had failed to comply with section 11-1-58. The defendants filed a joint motion to dismiss. The court entered an order of dismissal without prejudice. The Caldwells appeal. |
| Summary of Opinion Analysis: | The Caldwells argue that the trial court erred by granting NMMC’s motion to dismiss for the Caldwells’ failure to strictly comply with the statutory requirements of section 11-1-58, because the error was corrected before NMMC filed its motion to dismiss, thereby substantially complying with the requirements the statute. Strict compliance is required in examining whether the requirements of section 11-1-58(1) were satisfied. Here, neither a certificate executed by the attorney for the plaintiff nor an expert disclosure in lieu of certificate of counsel was attached to the amended complaint when filed as required under section 11-1-58. The Estate was substituted in place of the deceased Dr. Brown to allow the action after Dr. Brown’s death. Dr. Brown originally had raised the affirmative defense that the Caldwells failed to state a claim upon which relief could be granted due to their failure to comply with section 11-1-58 in his answer and defenses. The Estate reasserted this defense in its answer to the amended complaint. The Caldwells appear to have failed to act upon information contained in the defendants’ answer and defenses informing them that the requirements of section 11-1-58 had not been met. The Caldwells argue that since they filed an expert disclosure in lieu of certificate of counsel as provided in section 11-1-58(7) months after the complaint was filed, they are not bound by any time restrictions as contained in section 11-1-58(1). While section 11-1-58(7) allows the expert's information, e.g., written report or records, to be substituted in lieu of a certificate of compliance from the attorney, it does not alleviate the requirement of furnishing the expert's information as required under section 11-1-58(1). Thus, the court reached the correct result in finding that the Caldwells failed to comply with section 11-1-58. |
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