HOWARD R. HOLADAY, JR., M.D.
KYLE MOORE AND MARLA MOORE
COURT FROM WHICH APPEALED: CIRCUIT COURT OF THE FIRST JUDICIAL. DATE OF JUDGMENT: 02/11/2013. TRIAL JUDGE: HON. JEFF WEILL, SR.
FOR APPELLANT: STEPHEN P. KRUGER, THURMAN LAVELLE BOYKIN, III.
FOR APPELLEES: CRYMES MORGAN PITTMAN, JOSEPH E. ROBERTS, JR.
KITCHENS, JUSTICE, FOR THE COURT. WALLER, C.J., DICKINSON, P.J., CHANDLER AND KING, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ.
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
[¶1] Kyle and Marla Moore timely filed a medical malpractice suit against St. Dominic Hospital, Jackson Neurosurgery Clinic, and several physicians, claiming that the physicians and hospital had been negligent in treating Kyle in May 2004. In March 2011, the Moores added Dr. Howard Holaday as a defendant. Dr. Holaday moved for summary judgment, asserting that the two-year statute of limitations had expired. The trial court denied summary judgment, and Dr. Holaday petitioned this Court for an interlocutory appeal. The issue now before this Court is whether the discovery rule tolled the statute of limitations against Dr. Holaday. We hold that whether the discovery rule tolls the statute of limitations requires a determination by the trier of fact--here, the jury--regarding the " date the alleged act, omission or neglect shall or with reasonable diligence might have been first discovered." Miss. Code Ann. § 15-1-36(2) (Rev. 2012). The trial court, therefore, properly denied summary judgment to Dr. Holaday.
Facts and Procedural History
[¶2] Kyle Moore went to the emergency room (ER) at St. Dominic Hospital on the morning of May 23, 2004, with pain in his lower back. The ER doctor, Dr. Jeff Hubacek, diagnosed the pain Moore was experiencing as lumbar strain and discharged him around noon. Kyle returned to the ER at 10:00 o'clock that evening complaining of back pain and leg weakness. Dr. Marshall Stout was the ER doctor for that shift. Rather than consulting the orthopaedist on call for the ER, Dr. Stout decided to consult Dr. Greg Wood, an orthopaedic surgeon, because Kyle had an appointment scheduled with Dr. Wood a few days later for the same problem. However, Dr. Holaday, a neurosurgeon, was taking Dr. Wood's calls that night. Dr. Stout spoke with Dr. Holaday and made a note that Dr. Holaday would come to the ER to see Kyle. Dr. Holaday did not appear at the ER, and he maintains that he never agreed to do so because he was out of town. Dr. Stout made two notes about consulting with Dr. Holaday, then ordered an MRI under Dr. Holaday's name.
[¶3] The MRI was performed at midnight, and the results showed an epidural abscess. Because Dr. Holaday's name was on the MRI report as the ordering physician, the radiologist contacted him with the results. Dr. Holaday says that, when he was told about the epidural abscess, he recommended that Kyle Moore be transferred to University of Mississippi Medical Center. Dr. Holaday testified that, after he received the MRI results, he had no further involvement with Kyle Moore's treatment. Dr. Stout's shift ended shortly after he had ordered the MRI, and Dr. Karl Hatten replaced him in the ER. Dr. Hatten received Kyle's MRI results and contacted the neurosurgeon on call for the ER, Dr. Adam Lewis with Jackson Neurosurgery Clinic. However, Dr. Jacob Mathis was taking Dr. Lewis's calls that night. Dr. Mathis admitted Moore to the hospital around 3:00 o'clock a.m. on May 24. Kyle Moore needed surgery, but Dr. Mathis deferred the surgery to Dr. Lewis, who operated on the epidural abscess at 9:15 o'clock that morning. The Moores contend that surgery should have been done sooner and that the delay in treatment resulted in neurological injury to Kyle.
[¶4] In considering Dr. Holaday's motion for summary judgment on the statute of limitations issue, the trial court had before it the affidavit of Dr. W. Lynn Stringer. Dr. Stringer wrote that the Moores' attorneys had asked him " to review the medical records and render an opinion as to whether there was a deviation
from the standard of care with regard to the neurosurgical treatment received by Kyle Moore." Dr. Stringer reported that, " after speaking with Howard Holaday, M.D., I determined that Dr. Holaday was not negligent and had not deviated from the standard of care." Also before the trial court was an affidavit of Crymes M. Pittman, one of the attorneys of record for the Moores. Pittman wrote that " Dr. Stringer advised that Dr. Howard Holaday, a neurosurgeon who is mentioned in the medical records of Kyle Moore as having been contacted by an emergency room physician, was not negligent." Pittman continued, " Dr. Stringer further advised that Dr. Holaday was not on call and was out of town during the time he was contacted regarding Kyle's condition." Because of the discussion between Dr. Stringer and Dr. Holaday, the Moores and their attorneys concluded that no basis for a claim against Dr. Holaday existed. While the Moores sent notice-of-claim letters to St. Dominic, Jackson Neurosurgery Clinic, and others, they did not name Dr. Holaday in the initial lawsuit.
[¶5] Dr. Holaday was deposed on February 19, 2010. His deposition was consistent with the affidavits of Dr. Stringer and Mr. Pittman. Dr. Holaday testified that he had driven from Jackson, Mississippi, to Carthage, Mississippi, on the afternoon of May 23, 2004. He had planned to return to Jackson that evening, but was not on call at St. Dominic Hospital. Dr. Holaday testified that he did not treat Moore on May 23, 2004, and that he was never Moore's treating neurosurgeon. He stated " I have a vague recollection of getting a phone call or a page while I was in my vehicle there around Carthage." Dr. Holaday understood that " they were calling me because there was no neurosurgeon on call for the emergency room at the time" and said that he had informed the emergency room doctor that he was not on call. Dr. Holaday could not remember whether he had informed the emergency room doctor that he was out of town, but he denied having said that he would come to see the patient. Holaday mentioned that he did have two conversations with treating physicians. With regard to the first, he testified " they were calling to get some guidance as to how to handle a patient like this" and that " I think I told them that this was a patient that needed an emergency MRI, needed additional workup to try to determine a diagnosis, wasn't something that could just be treated expectantly." A second conversation occurred between Dr. Hatten and Dr. Holaday " and [Dr. Hatten] understood that the patient's MRI scan demonstrated an epidural abscess." According to Dr. Holaday, " I recommended that they transfer the patient to University." According to Dr. Holaday, those conversations constituted the extent of his participation in Moore's treatment.
[¶6] On July 6, 2010, the Moores deposed Dr. Stout, an emergency room physician who had treated Kyle Moore. Contrary to what Dr. Holaday had testified, Dr. Stout's testimony was that Dr. Holaday was, in fact, on call that evening. Dr. Stout said that he had spoken to Dr. Holaday, who, instead of saying that he was not on call that evening, verified that he was. Dr. Stout said in his deposition that Dr. Holaday had indicated that he was going to come and care for Moore and that " he wanted me [Dr. Stout] to give him [Moore] some pain relief and get the MRI and have him called back with the results." Dr. Stout said that, after ordering the MRI, he had " signed off and told Karl Hatten where we were, that the patient was to go get his MRI and that Dr. Holaday was to be called back with the results . . . ." He testified that Dr. Holaday never mentioned that Moore ought to be transferred to University Medical Center (UMC). Dr.
Hatten, who had relieved Dr. Stout of Moore's care on May 23, 2004, also was deposed on July 6, 2010. He testified that, because " I had a neurosurgeon coming to see the patient," it was not necessary to transfer Moore to UMC.
[¶7] Dr. Holaday filed his first motion for summary judgment on the ground that there was no evidence that he had violated the appropriate standard of medical care or that he had contributed in any way to Kyle's alleged injuries. The trial court denied summary judgment, holding that questions of fact existed. Dr. Holaday then moved for summary judgment on the ground that the statute of limitations had expired. The trial judge denied the motion for summary judgment, holding that the discovery rule applied, so the statute of limitations had not run or, in the alternative, that the claim was proper under Rule 15 of the Mississippi Rules of Civil Procedure to conform the pleadings to the evidence.
Standard of Review
[¶8] This Court reviews the grant or denial of a motion for summary judgment de novo. Hospital MD, LLC v. Larry, 138 So.3d 922, 925 (Miss. 2014). Summary judgment should be granted if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c).
[¶9] The discovery rule provides that the two-year statute of limitations for medical malpractice claims begins to run " from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered . . . ." Miss. Code Ann. § 15-1-36(2) (Rev. 2012). While " [t]he 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," the discovery rule applies only to those " rare cases where the patient is aware of his injury . . . but does not discover and could not have discovered with reasonable diligence the act or omission which caused ...