Nelson v. Baptist Mem'l Hosp. - North Miss., Inc.
| Docket Number: | 2009-CA-00081-COA Linked Case(s): 2009-CA-00081-COA2009-CT-00081-SCT2009-CT-00081-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-21-2010 Opinion Author: Griffis, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Wrongful death - Tolling of statute of limitations - Section 11-1-58 - Section 15-1-36(15) - Expiration of statute of limitations - Section 15-1-36(2), (3) & (5) - Section 15-1-55 - Disability of minority - Service of process Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Ishee and Roberts, JJ. Non Participating Judge(s): Barnes and Maxwell, JJ. Concurs in Result Only: Carlton, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 07-01-2008 Appealed from: Lafayette County Circuit Court Judge: Henry L. Lackey Disposition: SUMMARY JUDGMENT GRANTED TO DEFEN Case Number: L08-236 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Billy Nelson and Gaynelle Nelson, Individually and as Parents and Next Friends of Justin Nelson, and as Representatives of all Wrongful Death Beneficiaries and Heirs of Bobby Nelson, Deceased |
MARGARET P. ELLIS, RODERICK WARD III |
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| Appellee: | Baptist Memorial Hospital - North Mississippi, Inc.; William E. Henderson, Jr., M.D.; Oxford Clinic for Women, a Partnership; Ira Lamar Couey, M.D., General Partner; R. Blake Smith, M.D., General Partner; William E. Henderson, Jr., M.D., General Partner; and Bo Martin, M.D. | WALTER ALAN DAVIS | ||
| 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. |
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| Topic: | Wrongful death - Tolling of statute of limitations - Section 11-1-58 - Section 15-1-36(15) - Expiration of statute of limitations - Section 15-1-36(2), (3) & (5) - Section 15-1-55 - Disability of minority - Service of process |
| Summary of the Facts: | Billy and Gaynelle Nelson filed a lawsuit alleging that the negligence of Baptist Memorial Hospital – North Mississippi, Inc., Oxford Clinic for Women, Dr. William E. Henderson Jr., and other doctors and employees of the Clinic, had caused the wrongful death of their son. The Nelsons’ complaint did not provide the required sixty days’ notice to the defendants before the complaint was filed. Also, the Nelsons did not attach an expert-consultation certificate to the complaint. The Nelsons filed a motion for more time to serve process which the court granted. Thereafter, the Nelsons sent the required pre-suit notice to all defendants. The Nelsons then waited sixty days and filed an amended complaint which included the required certificate that stated that their attorney had consulted a qualified expert. Then, the judge recused himself from the case and a new judge was assigned the case. The Hospital then filed a motion to reconsider the ninety-day time extension order that had been entered by the first judge. The circuit court vacated the original order granting the time extension for lack of good cause and dismissed the Nelsons’ claim with prejudice. The Nelsons appealed, and the Court of Appeals held that the case should be dismissed without prejudice, rather than dismissed with prejudice. The Nelsons then followed the statutory requirements for pre-suit notice. A new complaint was filed on March 26, 2008. The defendants responded with a motion to dismiss. In their motion, the defendants argued that the statute of limitations had expired on April 26, 2003. The judge entered an order that granted the defendants’ motion to dismiss. The Nelsons appeal. |
| Summary of Opinion Analysis: | Issue 1: Tolling of statute of limitations Section 11-1-58 requires that the attorney in a lawsuit against a healthcare provider perform certain acts prior to filing suit, and when the suit is filed, attach a certificate to the complaint declaring that the required acts were performed. 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. However, the plaintiff still must comply with the pre-suit requirements of section 11-1-58 and consult with an expert prior to filing suit. Because the Nelsons’ attorney had consulted an expert prior to filing the original complaint, the Nelsons were in compliance with section 11-1-58. The Hospital argues that since the lawsuit was not lawfully filed as required by section 15-1-36(15), it is without legal effect; thus, the filing failed to toll the statute of limitations. The statute of limitations is tolled when a plaintiff files a complaint, even though they fail to provide the statutorily required pre-suit notice. Accordingly, the circuit court was in error when it determined that the Nelsons’ filing of their first complaint was a nullity and that it did not toll the statute of limitations. Indeed, the Nelsons’ filing of the original complaint tolled the statute of limitations from July 9, 2003, until the appellate court issued its mandate in the first appeal on January 23, 2008. Issue 2: Expiration of statute of limitations The Hospital, the Clinic, and the doctors argue that the statute of limitations expired before the Nelsons filed their original complaint on July 9, 2003. The statute of limitations for the wrongful-death action is limited by the statute of limitations for the underlying tort. Here, the underlying tort is medical negligence. It is subject to a two-year statute of limitations pursuant to section 15-1-36(2). Where death is not an immediate result of the tort, the limitation periods for the various kinds of claims may not begin to run at the same time. These claims under the wrongful-death action include the beneficiaries' wrongful-death” claims, such as loss of consortium, society, and companionship, as well as the decedent's own pre-death “survival-type” claims, such as claims for his or her personal injury, property damage, and medical expenses. Here, the Nelsons asserted two separate claims – a wrongful-death claim and a survival claim based in medical malpractice. Since death was not an immediate result of the alleged negligence, the limitations periods for the two claims may not necessarily begin to run at the same time. The Nelsons argue that the wrongful-death claims accrued on July 14, 2001, the day their son died. The Hospital argues that the wrongful-death claims accrued on April 25, 2001, the same day as the survival claims, because the wrongful-death claims are derivatives of the survival claims. The statute of limitations for wrongful death claims cannot begin to run until, at the earliest, the date of death, and the date the wrongful-death claimant's damages accrued. Thus, the statute of limitations for the Nelsons’ wrongful-death claims began to run on the day their son died, which was July 14, 2001, and the limitations period had not expired by the time the Nelsons had filed the original complaint on July 9, 2003. The survival claim was a claim for medical malpractice. Medical-malpractice claims are subject to a two-year statute of limitations found in section 15-1-36(2). If this limitations period applied, the Nelsons’ claim would have accrued two years from April 25, 2001, the day the alleged act, omission, or neglect occurred. However, the Mississippi Legislature has provided a specific statute of limitations for a minor plaintiff with a medical-malpractice claim, section 15-1-36(3). The Hospital argues that section 15-1-36(6) restricts the limitations period to one year from the day the Nelsons’ son died, i.e., at the time the son’s claims accrued he was under the disability of being a minor and he departed this life without having ceased to be under such disability of his minority. Thus, the limitations period can be no more than the period allowed under section 15-1-55 – one year from the date of death. The Supreme Court has recently stated that the statute of limitations for plaintiffs with medical malpractice claims who are under the disability of unsoundness of mind, like the disability of minority, is specifically provided for in section 15-1-36(5). In this case, the date which the alleged cause of action occurred is April 25, 2001, and the plaintiff was a minor. On July 14, 2001, he died while still under the disability of minority. The Nelsons had two years from the date of his death to file their action; they had until July 14, 2003, to file their action. Accordingly, the Nelsons’ claims had not expired when they filed their original complaint on July 9, 2003. Thus, the circuit court was in error when it decided that the filing of the first complaint was a nullity and that the original complaint was filed after the expiration of the statute of limitations. Issue 3: Service of process The Clinic and the doctors ask the Court to consider whether the service of process on them was sufficient. This matter was not presented to the circuit court. On remand, the circuit court may consider the issue. |
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