McClain v. Clark
| Docket Number: | 2007-CA-00316-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-16-2008 Opinion Author: Smith, C.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Medical malpractice - Failure to attach a certificate - Section 11-1-58 Judge(s) Concurring: Waller and Diaz, P.JJ., Carlson, Dickinson, Randolph and Lamar, JJ. Concur in Part, Concur in Result 1: Easley, J. Concurs in Result Only: Graves, J. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 02-16-2007 Appealed from: Bolivar County Circuit Court Judge: Charles E. Webster Disposition: The Circuit Court of Bolivar County granted Clark's’ and other defendants' motions to dismiss. Case Number: 2006-0035 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Leanora McClain, Individually and on Behalf of the Wrongful Death Beneficiaries of Carlton McClain, Deceased |
Charles M. Merkel, Jr.; Alma Walls |
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| Appellee: | Steven B. Clark, M.D., Bennie B. Wright, M.D., Tarence E. Wade, M.D., Bolivar Medical Center, and John and Jane Does 1-5 | JAMES LAWRENCE WILSON, IV; TOMMIE WILLIAMS; L. CARL HAGWOOD; JASON EDWARD DARE; ANASTASIA G. JONES; KIMBERLY NELSON HOWLAND; JAMES A. BECKER, JR. | ||
| Appellee #2: | ||||
| Appellee #3: | ||||
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| Topic: | Medical malpractice - Failure to attach a certificate - Section 11-1-58 |
| Summary of the Facts: | Carlton McClain died as a result of alleged negligent medical care and treatment by defendants Steven Clark, M.D.; Bennie Wright, M.D.; Tarence Wade, M.D.; and Bolivar Medical Center. In January 2006, Lenora McClain served defendants with a notice of claim and certificate of review. In April 2006, McClain filed a wrongful-death complaint. Later that month, McClain filed an amended complaint. Defendants each filed a motion to dismiss. The trial court dismissed McClain’s action with prejudice after concluding that the statute of limitations had run. McClain appeals. |
| Summary of Opinion Analysis: | The defendants argue that the trial court’s order dismissing McClain’s action should be affirmed because neither the complaint nor the amended complaint was accompanied by a certificate as required by section 11-1-58. The Court has recently held in Wimley v. Reid, No. 2007-CA-00593-SCT (Miss. Sept. 18, 2008) that the Mississippi Constitution dictates that the Legislature may not promulgate procedural statutes which require dismissal of a complaint. Accordingly, a complaint otherwise properly filed, may not be dismissed simply because the plaintiff failed to attach a Certificate or Waiver, pursuant to section 11-1-58. The plaintiff must nevertheless comply with the pre-suit requirements of Section 11-1-58, and compliance is attested to by a certificate of review. McClain, who served her certificate of review in January 2006 before she filed suit in April 2006, satisfied the pre-suit requirements of section 11-1-58. In accordance with the intervening change in the law, the trial court should not have dismissed McClain’s complaint. Dismissal with prejudice might be in order as to Clark. Clark argued in his motion to dismiss as well as on appeal that the applicable statute of limitations as to him was the one-year period prescribed by the Tort Claims Act. On remand, the trial court needs to determine whether at the time of the alleged negligent conduct, Clark was an employee of a state entity covered by the Act. |
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