Aikens v. Whites


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Docket Number: 2007-CA-00573-SCT
Linked Case(s): 2007-CA-00573-SCT

Supreme Court: Opinion Link
Opinion Date: 10-02-2008
Opinion Author: Diaz, P.J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Medical malpractice - Tort Claims Act - Section 11-46-5 - Waiver of immunity defense
Judge(s) Concurring: Waller, P.J., Easley, Carlson, Graves, Dickinson, Randolph and Lamar, JJ.
Non Participating Judge(s): Smith, C.J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 11-20-2006
Appealed from: George County Circuit Court
Judge: Dale Harkey
Disposition: The trial court granted the motion for summary judgment in favor of Dr. Whites.
Case Number: 95-0034(3)

  Party Name: Attorney Name:  
Appellant: GRACE K. AIKENS AND JOSEPH W. AIKENS




MARGARET P. ELLIS, JAMES W. KITCHENS



 

Appellee: DR. DAYTON WHITES MATTHEW D. MILLER  

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Topic: Medical malpractice - Tort Claims Act - Section 11-46-5 - Waiver of immunity defense

Summary of the Facts: In 1995, Grace Aikens and her husband filed an action against Dr. Dayton Whites alleging medical malpractice. Also included was a loss of consortium claim on behalf of Aikens’ husband. Dr. Whites filed a motion for summary judgment, and for the first time raised the affirmative defense of immunity because his practice had been purchased by George County Hospital in November 1992. The court granted his motion, and the Aikenses appeal.

Summary of Opinion Analysis: The plaintiffs argue that Dr. Whites waived the affirmative defense of immunity because of the unreasonable delay of eleven years in asserting the defense. Section 11-46-5 of the Tort Claims Act provides immunity to employees when acting within the course and scope of their employment. Such immunity is an affirmative defense, and failure to actively and specifically pursue the affirmative defense while participating in the litigation serves as a waiver of the defense. Because Dr. Whites participated in the litigation for eleven years, he has waived his immunity defense.


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