Thomas v. Miss. Baptist Med. Ctr.


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Docket Number: 2007-CA-00821-SCT
Linked Case(s): 2007-CA-00821-SCT

Supreme Court: Opinion Link
Opinion Date: 12-11-2008
Opinion Author: Dickinson, J.
Holding: AFFIRMED IN PART; REVERSED AND RENDERED IN PART

Additional Case Information: Topic: Medical malpractice - Certificate of compliance - Section 11-1-58 - Notice requirement - Section 15-1-36(15)
Judge(s) Concurring: Smith, C.J., Waller, P.J., Carlson, Randolph and Lamar, JJ.
Concur in Part, Dissent in Part 1: Graves, J. with separate written opinion.
Concur in Part, Dissent in Part Joined By 1: Diaz, P.J., and Easley, J.
Procedural History: Dismissal
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 03-09-2007
Appealed from: Hinds County Circuit Court
Judge: W. Swan Yerger
Disposition: The trial court dismissed the case prior to adjudication of the merits because the plaintiff failed to comply with statutory requirements.
Case Number: 251-05-1026CIV
  Consolidated: Consolidated with 2006-CA-01703-SCT; Norman Q. Thomas, Jr., Individually and on behalf of William Thomas and Anna Thomas, Two Minors v. Clark G. Warden, M.D.; Hinds Circuit Court 1st District; LC Case #: 251-05-1026CIV; Ruling Date: 08/28/2006; Ruling Judge: W. Yerger.

  Party Name: Attorney Name:  
Appellant: Norman Q. Thomas, Jr., Individually and on behalf of William Thomas and Anna Thomas, Two Minors




L. BRELAND HILBURN; CARROLL LOUIS CLIFFORD; PATRICK JOSEPH SCHEPENS; ROGER LANE McGEHEE, JR.



 

Appellee: MISSISSIPPI BAPTIST MEDICAL CENTER AND CLARK G. WARDEN, M.D. EUGENE RANDOLPH NAYLOR; ELIZABETH G. HOOPER  

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Topic: Medical malpractice - Certificate of compliance - Section 11-1-58 - Notice requirement - Section 15-1-36(15)

Summary of the Facts: After Melinda Thomas died at Mississippi Baptist Medical Center, Norman Thomas, Jr. sent a pre-suit notice letter to MBMC and Dr. Clark Warden. The notice addressed to Dr. Warden was returned, and Thomas sent another notice to a different address. After Thomas filed suit against MBMC and Dr. Warden, MBMC raised as affirmative defenses the “plaintiffs’ failure to comply with § 11-1-58,” and “plaintiffs’ failure to comply with conditions precedent to the initiation of litigation.” Thomas filed a certificate of compliance with section 11-1-58. Dr. Warden filed a motion to dismiss the complaint, alleging that the plaintiffs failed to wait sixty days after notice before filing suit. The trial court granted Dr. Warden’s motion to dismiss. MBMC filed a Motion to Dismiss or, in the Alternative, for Summary Judgment which the court also granted. Thomas appeals.

Summary of Opinion Analysis: In Wimley v. Reid, 991 So. 2d 135 (Miss. 2008), the issue was whether a complaint should be dismissed where the plaintiff failed to attach a certificate or waiver as required by section 11-1-58. The Court held that a complaint, otherwise properly filed, may not be dismissed, and need not be amended, simply because the plaintiff failed to attach a certificate or waiver. Thus, the trial court was in error, insofar as it based its dismissal of Thomas’s complaint on his failure to include a certificate of compliance with the complaint. Because the defendants in this case did not have sixty days’ prior written notice of the intention to begin the action as required by section 15-1-36(15), this lawsuit was not lawfully filed, and it is of no legal effect. While it is true that the rules governing litigation in Mississippi courts are within the Supreme Court’s purview, section 15-1-36(15)’s notice requirement is a pre-suit prerequisite to a claimant’s right to file suit. The Legislature’s authority to make law gives way to the Court’s rule-making authority when the suit is filed, not before. Although the trial court erred in granting summary judgment to either defendant, the trial court’s dismissal of the complaint for the plaintiff’s failure to comply with the notice requirement of section 15-1-36(15) is affirmed. The dismissal, however, should have been without prejudice.


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