Proli v. Hathorn, et al.


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Docket Number: 2005-IA-00286-SCT

Supreme Court: Opinion Link
Opinion Date: 04-27-2006
Opinion Author: Easley, J.
Holding: AFFIRMED AND REMANDED

Additional Case Information: Topic: Medical malpractice - Written notice - Section 15-1-36 - M.R.C.P. 4(c)(5) - M.R.C.P. 5 - Statute of limitations - Section 15-1-57
Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson and Dickinson, JJ.
Non Participating Judge(s): Diaz, Graves and Randolph, JJ.
Procedural History: Dismissal
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 01-19-2005
Appealed from: Jones County Circuit Court
Judge: Billy Joe Landrum
Disposition: Denied Appellant's Motion to Dismiss
Case Number: 2004-108-CV6

  Party Name: Attorney Name:  
Appellant: Joseph A. Proli, M.D.




ROMNEY HASTINGS ENTREKIN, RYAN JEFFREY MITCHELL



 

Appellee: Melinda Hathorn and Janice Davis, Individually and on Behalf of the Wrongful Death Beneficiaries of Tressie D. Bedwell, Deceased ROSALIND HAYDEN JORDAN  

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Topic: Medical malpractice - Written notice - Section 15-1-36 - M.R.C.P. 4(c)(5) - M.R.C.P. 5 - Statute of limitations - Section 15-1-57

Summary of the Facts: Melinda Hathorn and Janice Davis filed a medical malpractice case against Dr. Joseph A. Proli, individually and on behalf of the wrongful death beneficiaries of Tressie Bedwell, deceased. Hathorn admitted in her brief that the statute of limitations began to run on May 18, 2002, the date of Bedwell’s death, and it was set to expire on May 18, 2004. On April 22, 2004, Hathorn mailed a certified letter to Dr. Proli informing him that counsel was retained to investigate Bedwell’s alleged wrongful death. Dr. Proli received the notice on April 30, 2004. After the initial notice, Hathorn filed a complaint on June 24, 2004. Dr. Proli filed an answer to the complaint asserting the statute of limitations pursuant to section 15-1-36(15) as a defense. Dr. Proli filed a motion to dismiss. The trial court found the action was not time-barred by the statute of limitations because Dr. Proli received the notice via certified mail on April 30, 2004. Following this ruling, the trial court granted Dr. Proli’s motion for certification for interlocutory appeal and stay of proceedings. The Supreme Court granted an interlocutory appeal.

Summary of Opinion Analysis: Prior to filing suit, written notice is required for legal actions against health care providers for alleged negligence. Section 15-1-36 provides, in part, for a two-year statute of limitations from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered. This notice statute also has a provision that extends the time for the commencement of the action for 60 days from the date of service of the notice if the notice is served within 60 days prior to the expiration date of the applicable statute of limitations. The trial court determined that the notice was served upon Dr. Proli when he received the certified mail notice on April 30, 2004, pursuant to M.R.C.P. 4(c)(5). Dr. Proli argues that service of the notice was complete on the date it was mailed, April 22, 2004, pursuant to M.R.C.P. 5. In Brocato v. Mississippi Publishers Corp., 503 So.2d 241 (Miss. 1987), the Court held that the mechanics of M.R.C.P. 5 are controlling when notice is required as a preliminary step to filing a lawsuit. Even though Brocato concerns a libel action it is analogous to this case because the applicable statute has a requirement to provide notice prior to filing suit. Likewise, in this case, section 15-1-36 concerns notice to health care providers prior to filing suit. Further, M.R.C.P. 4(c)(5) is distinguishable from M.R.C.P. 5 because it concerns issuing a summons and complaint on a person outside the state of Mississippi, which is not the fact situation here. Dr. Proli is not outside the State of Mississippi. Therefore, notice was complete on the date Hathorn mailed the letter to Dr. Proli. Hathorn mailed the notice to Dr. Proli on April 22, 2004. Dr. Proli argues that because Hathorn mailed the notice on April 22, 2004, the complaint had to be filed on or before June 21, 2004, in order to comply with the two-year statute of limitations. Pursuant to the language of section 15-1-36(15), the time period is extended, not tolled. When Hathorn mailed her notice to Proli on April 22, 2004, she had 26 days until the 2 year statute of limitation expired on May 18, 2004. However, Hathorn had to send 60 days notice prior to commencing an action against any health care provider. On April 22, 2004, Hathorn began the 60 day waiting period as set forth in section 15-1-36(15). Pursuant to section 15-1-57, when a person is prohibited from commencing an action, the time during which a person is prohibited shall not be computed as any part of the period of time limited for the commencement of the action.” The notice period prohibited Hathorn from commencing her action for a 60 day period. The normal statute of limitations on a case of this nature is two years. Therefore, the 60 day notice period could not be computed as part of the two year statute of limitations. Here, the statute of limitations began to run on May 18, 2002. Normally, the statute of limitations would end on May 18, 2004. However, section 15-1-36(15) required a 60 day notice period, but this 60 day period could not be computed as part of the two year statute of limitations. When Hathorn mailed her service of notice on April 22, 2004, she had to wait until June 21, 2004, and no later than July 17, 2004, to file her case. Hathorn filed her complaint on June 24, 2004, which was within the statute of limitations.


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