Wimley v. Reid


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Docket Number: 2007-CA-00593-SCT

Supreme Court: Opinion Link
Opinion Date: 09-18-2008
Opinion Author: DICKINSON, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Medical malpractice - Attachment of certificate - Constitutionality of section 11-1-58 - M.R.C.P. 8 - Presuit requirements
Judge(s) Concurring: SMITH, C.J., CARLSON, RANDOLPH AND LAMAR, JJ.; GRAVES, J., (CONCURS IN PART).
Judge(s) Concurring Separately: RANDOLPH, J. (SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION) JOINED BY SMITH, C.J., CARLSON, DICKINSON AND LAMAR, JJ.
Concur in Part, Concur in Result 1: EASLEY, J.
Concur in Part, Dissent in Part 1: WALLER, P.J. with separate written opinion
Concur in Part, Dissent in Part Joined By 1: DIAZ, P.J., EASLEY AND GRAVES, JJ. Join in part.
Concurs in Result Only: DIAZ, P.J.
Procedural History: Dismissal
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 04-02-2007
Appealed from: LEFLORE COUNTY CIRCUIT COURT
Judge: W. Ashley Hines
Disposition: In this medical-negligence suit, the plaintiff failed to attach either an attorney’s certificate of consultation, or an expert disclosure in lieu of the certificate, as required by Mississippi Code Annotated Section 11-1-58 (Rev. 2007).
Case Number: 2005-0020

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: CHARLIE DOYLE WIMLEY, INDIVIDUALLY AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES OF JEANETTE DOYLE, DECEASED




DENNIS C. SWEET, III, WARREN LOUIS MARTIN, JR.



 
  • Appellant #1 Brief
  • Supplemental Brief

  • Appellee: BILL REID LOREN HENAGAN PRATT, R. MARK HODGES  
    Appellee #2:  
    Amicus #1:  
  • Brief

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    Topic: Medical malpractice - Attachment of certificate - Constitutionality of section 11-1-58 - M.R.C.P. 8 - Presuit requirements

    Summary of the Facts: Charlie Wimley filed suit against several healthcare providers for the wrongful death of her mother, Jeanette Doyle. When filing her complaint, Wimley included neither an attorney’s certificate of consultation nor an expert disclosure in lieu of the certificate, as required by section 11-1-58. Less than a week after Reid filed an answer, Wimley filed a certificate and a motion seeking leave to amend her complaint to attach the certificate. Reid filed a motion to dismiss. The trial court denied Wimley’s motion to amend, granted Reid’s motion to dismiss, and dismissed the case with prejudice. Wimley appeals.

    Summary of Opinion Analysis: The parties raised and briefed the issue of whether failure to attach a certificate to the complaint in compliance with section 11-1-58 should result in dismissal of the suit. Because the parties failed to brief the constitutionality of the statute, insofar as it usurps the Court’s constitutional authority and duty to promulgate procedural rules for the courts of Mississippi, the Court required supplemental briefs. M.R.C.P. 8(a) requires a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief to which he deems himself entitled. M.R.C.P. 8(e) provides that averments in the complaint be simple, concise, and direct, and that no technical forms of pleading are required. Section 11-1-58's requirement that a certificate accompany the filing of the complaint contradicts these provisions of the Mississippi Rules of Civil Procedure. Furthermore, the statutory requirement is totally inconsistent with Rule 8(f)’s requirement that pleadings shall be so construed as to do substantial justice. Therefore, 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. Cases which have held otherwise are overruled. Pre-suit requirements are clearly within the purview of the Legislature, and the enforceability of section 11-1-58's presuit requirements is not at issue here. However, the record does not show whether those requirements are met. The certificate does not indicate whether Wimley’s attorney consulted with the expert prior to, or after, filing the complaint. If the former, then Wimley is in compliance with the enforceable portion of section 11-1-58. If the latter, then the pretrial statutory requirement was not met, and the trial court should dismiss the complaint without prejudice.


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