Lewis v. Pasha


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Docket Number: 2009-CP-01387-COA

Court of Appeals: Opinion Link
Opinion Date: 07-27-2010
Opinion Author: King, C.J.
Holding: Affirmed.

Additional Case Information: Topic: Medical malpractice - Libel - Statute of limitations - Section 15-1-35 - Notice - Section 15-1-36(15)
Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Procedural History: Dismissal
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 07-27-2009
Appealed from: Lauderdale County Circuit Court
Judge: Lester F. Williamson
Disposition: DISMISSED COMPLAINT AS TIMEBARRED
Case Number: 09-CV-056-W

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Harrison Lewis, Jr.




PRO SE



 
  • Appellant #1 Brief

  • Appellee: Ashar Pasha, M.D. CHARLES W. WRIGHT JR.  

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    Topic: Medical malpractice - Libel - Statute of limitations - Section 15-1-35 - Notice - Section 15-1-36(15)

    Summary of the Facts: Harrison Lewis Jr. filed a complaint against Dr. Ashar Pasha, alleging libel and medical malpractice. The trial court dismissed the complaint as time-barred. Lewis appeals.

    Summary of Opinion Analysis: Lewis argues that the trial court erred by dismissing his claim for libel as time-barred, because the statute of limitations was tolled until he learned about the statements contained in Dr. Pasha’s report. Section 15-1-35 provides a one-year statute of limitations for claims of libel. Usually, the statute of limitations for a libel claim begins to run at the time of first publication. However, there is an exception which tolls the statute of limitations in that limited class of libel cases in which, because of the secretive or inherently undiscoverable nature of the publication the plaintiff did not know, or with reasonable diligence could not have discovered, that he had been defamed. Lewis’s libel claim stems from statements Dr. Pasha made in his 2006 medical examination report regarding Lewis’s alleged history of alcohol abuse and smoking. Dr. Pasha states that his report was published to the Social Security Administration on March 15, 2006, and Lewis does not refute this claim. Lewis did not file his complaint against Dr. Pasha regarding these allegedly libelous statements until May 26, 2009, which is more than one year after the publication of the report. Using reasonable diligence, Lewis could have obtained Dr. Pasha’s report in 2006 and discovered the allegations of smoking and alcohol abuse. Thus, the trial court properly dismissed the claim as time barred. Lewis also argues that his claim for medical malpractice was timely and that he gave proper notice. Lewis could have discovered Dr. Pasha’s report with reasonable diligence in 2006. Lewis filed his medical-malpractice claim approximately three years later on May 26, 2009. Additionally, during the hearing on the motion to dismiss, Lewis admitted that he did not follow the notice requirements pursuant to section 15-1-36(15). Thus, the trial court properly dismissed the action.


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