BEFORE ROY NOBLE LEE, SULLIVAN AND ANDERSON
SULLIVAN, JUSTICE, FOR THE COURT:
The Circuit Court of Hinds County, Mississippi, Charles T. Barber, circuit judge, granted a summary judgment on the ground that this medical malpractice action was barred by the two-year statute of limitations.
Smith sued Sanders on April 5, 1983, alleging that some time in July, 1978, the doctor had examined and treated him but either failed to properly diagnose his problem or failed to render the proper treatment after the diagnosis.
On April 28, Sanders filed his answer and his second affirmative defense was that this cause was barred by Mississippi Code Annotated 15-1-36 (Supp. 1985), the two-year statute of limitations applicable to medical malpractice. Under this defense, Sanders moved to dismiss the case with prejudice.
The court entered an order sustaining the statute of limitations defense, but granted Smith leave to amend and on May 13, 1983, Smith's amended declaration was filed. A new claim alleged that Smith with reasonable diligence could not have discovered his injuries within two years of Sanders' treatment and that he did file his action within two years after discovering the in, juries.
Sanders again raised the statute of limitations and moved for summary judgment pursuant to Rule 56 (b) Mississippi Rules of Civil Procedure. On November 13, 1984, a motion for summary judgment was granted and the case was dismissed with prejudice.
WAS THE SUMMARY JUDGMENT PROPERLY GRANTED?
WHEN DID THE CAUSE OF ACTION ACCRUE, THEREBY TRIGGERING THE RUNNING OF THE STATUTE OF LIMITATIONS?
The relevant portion of 15-1-36 is as follows:
No claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.
The two-year statute of limitations does not commence running until the patient discovers or should have discovered that he has a cause of action. Pittman v. Hodges, 462 So.2d 330 (Miss. 1984). The focus is upon the time that the patient discovers, or should have discovered by the
exercise of reasonable diligence, that he probably has an actionable injury. The operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.
There may be rare cases where the patient is aware of his injury prior to the two years immediately preceding the filing of his claim, but does not discover and could not have discovered with reasonable diligence the act or omission which caused the injury. In such cases, the action does not accrue until the latter discovery is made. See United States v. Kubric, 444 U.S. 111, 100 S. Ct. 352, 62 L.Ed.2d 259 (1979) (interpreted the statute of limitations under the Federal Tort Claims Act; the focus is not upon when the plaintiff actually discovered that legally he had a cause of action; instead, it is upon when he discovered, or should have discovered, that he had an injury and the cause of such injury; these discoveries give him sufficient knowledge to inquire as to whether he has a cause of action); Waits v. United ...