Before Sullivan, P.j., Banks And Roberts, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice
DATE OF JUDGMENT: 11/13/1997
TRIAL JUDGE: HON. BILL JONES
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
¶1. Between January of 1989, and September of 1995, Dr. Beverly Myers treated Lisa Barnes for rheumatoid arthritis. On August 28, 1995, Dr. Myers treated Lisa for pain and swelling in her right knee. Nine days later, on September 6, 1995, Lisa was treated in the emergency room at Singing River Hospital in Pascagoula, Mississippi due to symptoms of fever, vomiting, and pain in her right elbow. Dr. Steven Demetropoulos diagnosed Lisa with acute bronchitis and gastritis with dehydration and a right elbow fracture, then discharged her with instructions to return if her symptoms did not subside. Lisa's condition worsened over the next few hours, so her husband Kenneth returned Lisa to Singing River on September 7 at about 3:00 in the afternoon. She was diagnosed with sepsis and admitted to the hospital, where she remained in critical condition for approximately two weeks.
¶2. Once stabilized, Lisa was transferred to the University of South Alabama Medical Center in Mobile, Alabama on September 23, 1995. Her treatment there included the amputation of both legs, her right hand, and most of her left hand. Lisa was finally discharged from the hospital on January 9, 1996.
¶3. On November 13, 1995, while Lisa was still being treated, her attorney, Earl Denham, mailed a letter to Singing River requesting a copy of her medical records. When the records were not sent, Mr. Denham contacted the hospital and was informed that there was a fee for copying the file. On January 29, 1996, Mr. Denham paid Singing River for the medical records, which he received sometime in mid-February of 1996. On May 8, 1996, Mr. Denham mailed a letter to Singing River, not addressed to any individual, informing the hospital that his investigation led him to believe that Singing River was responsible for Lisa's injuries. Mr. Denham mailed another letter to Singing River's CEO, Robert Lingle, on June 28, 1996, putting the hospital on notice of Lisa's claims, pursuant to Miss. Code Ann. § 11-46-11 (Supp. 1998). On July 24, 1996, Mr. Denham mailed a letter and draft complaint to Singing River's attorney. The draft complaint included Dr. Myers and Dr. Demetropoulos as defendants, but their names were dropped once the complaint was actually filed, due at least in part to a claim settlement. On August 30, 1996, Mr. Denham sent another letter to Singing River indicating that the one- year anniversary had passed since Lisa's injuries.
¶4. On March 5, 1997, more than seventeen months after Lisa was transferred from Singing River, Lisa and Kenneth Barnes filed their complaint against Singing River in Jackson County Circuit Court, alleging that Singing River was responsible for their damages resulting from Lisa's disabling injuries. Singing River filed its motion to dismiss on April 2, 1997, asserting that the Barneses' claims were barred by the one-year statute of limitations set out in the Mississippi Tort Claims Act, Miss. Code Ann. § 11-46-11(3) (Supp. 1998). After an October 31, 1997, hearing, Circuit Court Judge Bill Jones granted Singing River's motion to dismiss in an order dated November 13, 1997. The Barneses appeal to this Court, assigning the following as error:
WHETHER THE STATUTE OF LIMITATIONS PROVISION OF THE MISSISSIPPI TORT CLAIMS ACT IS UNCONSTITUTIONAL WHEN APPLIED TO BAR SUITS AGAINST STATE- AFFILIATED HOSPITALS.
WHETHER THE ONE-YEAR STATUTE OF LIMITATIONS GOVERNING SUITS AGAINST GOVERNMENT ENTITIES SET OUT IN MISS. CODE ANN. § 11-46-11 BEGINS TO RUN AT THE TIME AN INJURY IS DISCOVERED.
WHETHER THE STATUTE OF LIMITATIONS WAS TOLLED IN THIS ACTION BY THE DEFENDANT HOSPITAL'S REFUSAL TO RELEASE LISA BARNES'S MEDICAL RECORDS.
WHETHER IMMUNITY IS WAIVED TO THE EXTENT OF EXCESS LIABILITY INSURANCE CARRIED BY THE DEFENDANT.
¶5. Because we find that the Barneses promptly filed their claim within one year of discovery of Singing River's alleged negligence in this case, we must reverse the trial court's award of summary judgment and remand this case to the Jackson County Circuit Court for further proceedings.