Miller v. Myers


<- Return to Search Results


Docket Number: 2009-CA-00200-COA
Oral Argument: 03-23-2010
 

 

* This video is best viewed in the most current version of Google Chrome, Internet Explorer with Windows Media Player plug-in, or Safari (Mac Users).


Court of Appeals: Opinion Link
Opinion Date: 06-22-2010
Opinion Author: Maxwell, J.
Holding: Affirmed

Additional Case Information: Topic: Medical malpractice - Statute of limitations - Section 15-1-36(1) - Tolling of period - M.R.C.P. 4(h) - Service on agent - M.R.C.P. 4(d)(1)(A) - Savings clause - Section 15-1-69 - Pre-suit notice - Section 15-1-36(15) - Summary judgment hearing - M.R.C.P. 56(c)
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Roberts, JJ.
Non Participating Judge(s): Carlton, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 12-15-2008
Appealed from: Hinds County Circuit Court
Judge: Tomie Green
Disposition: SUMMARY JUDGMENT GRANTED TO DEFENDANT
Case Number: 251-05-1120-CIV

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Talmadge Miller




MICHAEL P. YOUNGER



 
  • Appellant #1 Reply Brief

  • Appellee: Ann Myers ANASTASIA G. JONES, MILDRED M. MORRIS, TIMOTHY LEE SENSING  
    Appellee #2:  

    Synopsis provided by:

    If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals
    hand downs please contact Tammy Upton in the MLI Press office.

    Topic: Medical malpractice - Statute of limitations - Section 15-1-36(1) - Tolling of period - M.R.C.P. 4(h) - Service on agent - M.R.C.P. 4(d)(1)(A) - Savings clause - Section 15-1-69 - Pre-suit notice - Section 15-1-36(15) - Summary judgment hearing - M.R.C.P. 56(c)

    Summary of the Facts: Talmadge Miller filed suit after being diagnosed with Guillian-Barre Syndrome and lupus. He alleged these diseases resulted from his use of the drug Remicade, which Dr. Ann Myers had prescribed him. The court granted summary judgment in favor of Dr. Myers. Miller appeals.

    Summary of Opinion Analysis: Medical-malpractice claims are governed by the limitations period in section 15-1-36(1). It is undisputed that on March 24, 2003, Miller discovered his medical conditions that form the basis of his lawsuit. Thus, the limitations period commenced running that day. However, Miller argues that the filing of his initial Rankin County action tolled the limitations period. The filing of a complaint only tolls the statute of limitations for the 120-day service period of M.R.C.P. 4(h). Unless process is properly served within the 120-day period of Rule 4(h), running of the limitations period automatically resumes. The order of dismissal in the Rankin County action reflected that Miller did not oppose dismissal and that Dr. Myers was not properly served with process. In addition, while M.R.C.P. 4(d)(1)(A) provides for service on an agent authorized by appointment, nothing in the record establishes Dr. Myers’s receptionist had actual or apparent authority to accept process. Miller wholly failed to support the record with information related to his alleged service on Dr. Myers’s receptionist. The savings clause in section 15-1-69 lends no help in salvaging Miller’s malpractice action. When a case is dismissed because a defendant was not properly served within 120 days as mandated by M.R.C.P. 4(h), such a dismissal is not a ‘matter of form’ that comes within the intent of sections 15-1-69. While the filing of a complaint tolls the statute of limitations, if service is not made upon the defendant within 120 days as required by M.R.C.P. 4(h), the limitations period resumes running at the end of the 120 days. Here, the statute of limitations began to run on March 24, 2003, the date Miller was diagnosed with Guillian-Barre Syndrome and lupus. On August 31, 2004, Miller filed his first complaint in the Rankin County Circuit Court. This complaint initially tolled the limitation period for 120 days. After this 120-day period, on December 30, 2004, the limitations period resumed running, with a new end date of July 23, 2005. Miller filed the Hinds County Circuit Court action against Dr. Myers on December 13, 2005, nearly five months too late. Thus, Miller’s claim is untimely. Miller alternatively argues that sending of his pre-suit notice to Dr. Myers, before he filed his initial complaint in Rankin County Circuit Court, tolled the two-year limitations period. While section 15-1-36(15) provides for a sixty-day tolling period once notice has been given, statutory pre-suit-notice tolling provisions are contingent upon complying with the notice requirements. The record is devoid of any written notice from Miller to Dr. Myers, prior to Miller filing the Rankin County action. This insufficiency falls on Miller’s shoulders. In addition, the limitations period would have expired well before December 13, 2005, the date he commenced the subsequent malpractice action in Hinds County. Miller also argues that the circuit judge erred by not conducting a subsequent summary judgment hearing. There is no explicit or implicit right to a hearing under M.R.C.P. 56(c). In addition, Miller presents no additional material factual evidence that if argued at a subsequent hearing would raise a legitimate issue about his untimely second lawsuit.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court