Walker, et al. v. Whitfield Nursing Center, Inc.


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Docket Number: 2005-CA-02248-SCT

Supreme Court: Opinion Link
Opinion Date: 06-08-2006
Opinion Author: EASLEY, J.
Holding: AFFIRMED

Additional Case Information: Topic: Medical malpractice - Application of section 11-1-58 - Certificate to accompany complaint - Waiver of affirmative defense
Judge(s) Concurring: SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ.
Dissenting Author : DIAZ AND GRAVES, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 11-01-2005
Appealed from: Alcorn County Circuit Court
Judge: Thomas J. Gardner
Disposition: Granted Appellee's Motion for Summary Judgment
Case Number: CV 04-099-GA

  Party Name: Attorney Name:  
Appellant: DOROTHY WALKER AS THE ADMINISTRATRIX OF THE ESTATE OF VADIE WALKER, DECEASED




PARKE S. MORRIS



 

Appellee: WHITFIELD NURSING CENTER, INC. d/b/a WHITFIELD NURSING HOME JAMES E. PRICE, JR.  

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Topic: Medical malpractice - Application of section 11-1-58 - Certificate to accompany complaint - Waiver of affirmative defense

Summary of the Facts: Dorothy Walker, as Administratrix of the Estate of Vadie Walker, filed suit against Whitfield Nursing Center, Inc., d/b/a Whitfield Nursing Home, as a result of Vadie’s fall from her bed when she tried to climb out of the bed and for her alleged resultant wrongful death. Whitfield filed a motion for summary judgment which the court granted. Walker appeals.

Summary of Opinion Analysis: Issue 1: Application of section 11-1-58 This is a case of first impression regarding the application and operation of section 11-1-58, effective on and after January 1, 2003, as to all causes of action filed on or after that date. This action was commenced in April 2004, so it is governed by that statute. Section 11-1-58(1)(a) provides that in any action against a licensed physician, health care provider or health care practitioner for injuries or wrongful death arising out of the course of medical, surgical or other professional services where expert testimony is otherwise required by law, the complaint shall be accompanied by a certificate executed by the attorney for the plaintiff declaring that the attorney has reviewed the facts of the case and has consulted with at least one expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who is qualified to give expert testimony as to standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action. Walker basically concedes her failure to strictly comply with section 11-1-58(1)(a) but asks the Court to find that she substantially complied with the statute because her attorney claimed in documents filed in September 2005, to have consulted with an expert in February 2004, before filing suit on April 7, 2004. The record reflects that even if Walker’s attorney did speak to the expert before filing suit, this information was not supplied to Whitfield until more than a year later in 2005, well after the complaint was filed and served in April 2004. Likewise, when the complaint was filed nothing accompanied the complaint to inform Whitfield that an expert had been consulted nor was any information from the expert supplied to Whitfield at the time. Alternatively, Walker claims to have complied with section 11-1-58(7). Walker focuses on the language allowing an expert’s information to be supplied in lieu of an attorney’s certificate regarding consultation with an expert required under section 11-1-58(1)(a). 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. A literal reading of section 11-1-58 provides that the stated purpose of sub-section (7) can reasonably be construed to provide an alternative to furnishing a certificate of expert consultation by the plaintiff’s attorney. However, the statute does not alter the time requirement stated under subsection (1) for furnishing the expert’s information. Therefore, the time for compliance as stated in sub-section (1) applies to sub-section (7). Thus, the trial court correctly found that Walker failed to comply with section 11-1-58. Issue 2: Waiver of affirmative defense Walker argues Whitfield waived its right to assert section 11-1-58 as a defense because it did not assert this statutory defense in its answer. Whitfield argues that its answer asserted two defenses and that Walker failed to state a claim upon which relief can be granted. Without an attorney’s certificate of compliance of consultation with an expert or a medical report from an expert attached to the complaint when the case was filed as required under the statute, Walker failed to state a claim upon which relief can be granted. As such, Walker is left unable to allege any claim of medical malpractice in the complaint.


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