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EARNESTINE ROBINSON v. DR. MARY E. HAWKINS

APRIL 05, 1989

EARNESTINE ROBINSON
v.
DR. MARY E. HAWKINS, ET AL



BEFORE ROY NOBLE LEE, C.J., PRATHER AND BLASS, JJ.

PRATHER, JUSTICE, FOR THE COURT:

At issue in this medical malpractice suit is the sufficiency of an original complaint filed within the limitation of action period. If the court finds the original complaint insufficient, the issue then becomes whether the amended complaint filed after the statutory period of limitations related back to the time of filing the original complaint so as to be considered as within the limitations of actions period.

Earnestine Robinson, plaintiff below, brought this suit in the Circuit Court of Hinds County alleging medical malpractice on the part of Dr. Mary E. Hawkins, Dr. Earl Stubblefield and the Woman's Hospital of Jackson, Mississippi. Dr. Stubblefield and the hospital were dismissed from the lawsuit on demurrer, from which no appeal is taken. At the conclusion of the plaintiff's case, Dr. Hawkins moved for directed verdict and renewed her plea in bar and demurrer, which was granted by the trial court. From this adverse decision by the trial court, the plaintiff now perfects her appeal to this Court and assigns as error the following:

 (1) The trial court erred in granting the defendant's demurrer after the plaintiff had rested her case in chief.

 (2) The trial court erred in ruling that the plaintiff had failed to prove a prima facie case against Dr. Hawkins.

 (3) The trial court erred in making any ruling which granted litigation costs to the appellee.

 This Court reverses the trial court and remands for a trial on the merits.

 The appellant in this case, Mrs. Earnestine Robinson, delivered two children under the care of Dr. Mary E. Hawkins, the appellee, who is an obstetrician/gynecologist practicing in the Jackson area. Mrs. Robinson's first child was born in 1974 and a second child, a son, was born on July 12, 1977. When Mrs. Robinson's second child was born, she was 28 years old, with no apparent physical problems of any kind. On July 12, 1977, she went into premature labor and was admitted to the Woman's Hospital of Jackson to deliver this child. The medical treatment of Mrs. Robinson during and after the delivery of this second child is the subject matter of this lawsuit.

 The Court does not recite the testimony of the numerous witnesses for the reason that a retrial is ordered. Suffice it to say that Mrs. Robinson and her expert medical witness testified to the doctor-patient relationship of the medical treatment of her during childbirth and subsequent thereto, and of the duty of the defendant under a national standard of care to the plaintiff, of an alleged breach of that duty, and the damages that resulted from the breach of duty.

 On January 8, 1980, Mrs. Robinson filed her original declaration initiating this civil action. The procedural history of this lawsuit which transpired between 1980 and 1982 are not entirely clear because much of the trial court record is now missing; however, an attempt at reconstruction was made for this appeal. Mrs. Robinson's present counsel was employed to represent her in early 1982 and filed an amended declaration pursuant to an order issued on April 5, 1982. A second amended declaration was filed pursuant to court order on January 31, 1983. Dr. Hawkins filed a demurrer alleging that the 1980 original complaint failed to state a cause of action and that the two 1982 amended complaints were new and independent causes of action which were filed after the running of the two year statute of limitations in medical malpractice cases and were, therefore, barred. The circuit judge took these pleadings under advisement. Only the original declaration, the second amended declaration, the demurrer and plea in bar for the second amended declaration and the trial judge's ruling when the appellant rested her case in chief are being considered on this appeal.

 When Mrs. Robinson rested her case in chief, Dr. Hawkins renewed her demurrer and plea in bar. Additionally, she moved for a directed verdict based on the assertion that Mrs. Robinson had failed to prove a prima facie case. After hearing arguments by both parties, the trial court ruled that the original bill failed to state a cause of action and

 sustained the demurrer and motion for directed verdict. The trial court also held that the plea in bar was based on the statute of limitations, requiring dismissal of the two amended complaints. The appellant now appeals the trial court's decision to this Court.

 II.

 DID THE TRIAL COURT ERR IN GRANTING THE APPELLEE'S DEMURRER, PLEA IN BAR, AND NOTION FOR DIRECTED VERDICT AFTER THE ...


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