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Hospital MD, LLC v. Larry

Supreme Court of Mississippi, En Banc

May 22, 2014

HOSPITAL MD, LLC AND HOSPITAL MD OF YAZOO CITY, INC.
v.
RICKESHA LARRY

COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/24/2012. TRIAL JUDGE: HON. JANNIE M. LEWIS.

FOR APPELLANTS: L. CARL HAGWOOD, MARY FRANCES STALLINGS-ENGLAND.

FOR APPELLEE: PRECIOUS TYRONE MARTIN, SUZANNE GRIGGINS KEYS.

WALLER, CHIEF JUSTICE. DICKINSON AND RANDOLPH, P.JJ., LAMAR AND COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING, JJ. PIERCE, J., NOT PARTICIPATING.

OPINION

Page 923

NATURE OF THE CASE: CIVIL - MEDICAL-MALPRACTICE

WALLER, CHIEF JUSTICE.

¶1. Rickesha Larry filed suit against Hospital M.D., LLC, and Hospital M.D. of Yazoo City, Inc. (collectively Hospital M.D.), among other defendants, in a medical-malpractice action. Hospital M.D. moved for summary judgment, arguing Larry had failed to provide it with notice pursuant to Mississippi Code Section 15-1-36(15); thus the sixty-day tolling period was not triggered and the statute of limitations had expired prior to Larry filing her initial complaint. The trial court denied Hospital M.D.'s motion for summary judgment and entered two orders. Hospital M.D. filed an interlocutory appeal with this Court, which was granted. See M.R.A.P. 5. This Court finds that the motion should have been granted, because Larry failed to send Hospital M.D. the statutorily required pre-suit notice and subsequently filed her complaint outside the applicable statute of limitations. Further, the medical-malpractice-discovery rule did not serve to toll the two-year statute of limitations. Accordingly, we reverse the Yazoo County Circuit Court's orders denying the motion for summary judgment and remand the case to the trial court to grant summary judgment in favor of Hospital M.D.,

Page 924

and to conduct further proceedings as to any remaining parties.

FACTS AND PROCEDURAL HISTORY

¶2. Larry began to experience complications from a flu vaccine she received at the University of Southern Mississippi. After returning home to Yazoo City, Larry was treated by Dr. David Johnson at the emergency room of King's Daughters Hospital of Yazoo City (KDH) on December 1, 2009. Dr. Johnson was employed by Hospital M.D., which provided emergency-room physicians for KDH. Larry's underlying medical-malpractice claim relates to Dr. Johnson's treatment of her at KDH.

¶3. The asserted negligence occurred on December 1, 2009. Larry allegedly requested her medical records in April 2011 and again on June 2, 2011; however, the record does not indicate the exact date she received them. On October 3, 2011, Larry sent pre-suit notice letters to Dr. Johnson and KDH. December 1, 2011, marked two years from the date of the alleged negligence. On December 9, 2011, Larry's counsel alleged they first learned of the existence of Hospital M.D. and that Dr. Johnson was not an employee of KDH in an email sent by a senior claims consultant for KDH's insurer. The record also indicates that Hospital M.D. was named as an additional insured on Dr. Johnson's insurance policy and appeared in the " cc" line of a letter sent by KDH's insurance adjuster to Larry on October 12, 2011.

¶4. On January 3, 2012, Larry filed her initial complaint, naming KDH, Dr. Johnson, Hospital M.D. of Yazoo City, Hospital M.D., LLC, and John Does 1-5, as defendants. On March 13, 2012, Larry filed her first amended complaint to add the University of Southern Mississippi as a defendant.[1] Hospital M.D. moved for summary judgment on May 23, 2012. Larry's notice-of-claim letters were finally served on Hospital M.D. on June 5, 2012. A hearing was held on Hospital M.D.'s motion for summary judgment on September 18, 2012.

¶5. At the hearing, Hospital M.D. argued the motion should be granted because Larry failed to serve Hospital M.D. with pre-suit notice as required by Mississippi Code Section 15-1-36(15), and that subsequently, she filed her complaint after the two-year statute of limitations had run. Further, Hospital M.D. argued it was Larry's duty to determine Dr. Johnson's employment status and not the duty of any other party involved. In Hospital M.D.'s opinion, any order allowing Larry to amend her complaint would be futile because her initial complaint was filed without notice and after the limitations period.

¶6. Larry argued she performed her due diligence by acquiring her medical records from KDH, and those records made no mention of Hospital M.D. It was only after she had sent out her notice-of-claim letters to defendants known at that time and beyond the initial two-year statute of limitations had ostensibly run that she learned from KDH's insurance company that Hospital M.D. was Dr. Johnson's employer. In light of this, Larry argued the medical-malpractice discovery rule applied to toll the applicable statute of limitations until she learned of this relationship. Further, Larry argued the proper remedy was for the trial court to dismiss her amended complaint without prejudice and then allow her leave to file a second amended complaint to bring in Hospital M.D.

¶7. The trial court denied Hospital M.D.'s motion for summary judgment, finding Larry " put forth due diligence in ascertaining ...


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