EN BANC ORDER
DENNIS COLEMAN, JUSTICE
instant matter is before the Court en banc on the Court's
own motion. The
Petition for Writ of Certiorari filed by Kim Hampton was
granted by order of the Court signed on May 18, 2017. Upon
further consideration, the Court finds that there is no need
for further review and that the writ of certiorari should be
dismissed, as authorized by Mississippi Rule of Appellate
the writ of certiorari is hereby dismissed.
DISMISS: RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM AND
KITCHENS, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN
STATEMENT JOINED BY KING, J.; WALLER, C.J., JOINS IN PART.
PARTICIPATING: ISHEE, J.
KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH
SEPARATE WRITTEN STATEMENT:
After undergoing treatment at the University of Mississippi
Medical Center (UMMC) for a stab wound to the chest, Kimrick
Smith died from an undetected heart wound. His mother, Kim
Hampton, filed suit pro se against UMMC on behalf of
Smith's wrongful death beneficiaries. The Circuit Court
of the First Judicial District of Hinds County, following a
bench trial, awarded a $500, 000 judgment to Hampton, finding
that UMMC had breached the applicable standard of care and
that such breach had been the proximate cause of Smith's
death. UMMC appealed and the Mississippi Court of Appeals
reversed and rendered, finding that Hampton had filed suit
outside the applicable statute of limitations. We granted
Hampton's petition for a writ of certiorari, and
now the Court has decided to dismiss the writ after grant.
For the reasons stated below, I object to this Court's
dismissal after grant. With respect, I would reverse the
decision of the Mississippi Court of Appeals and reinstate
and affirm the judgment of the Circuit Court of the First
Judicial District of Hinds County.
AND PROCEDURAL HISTORY
On October 30, 2010, Kimrick Smith was airlifted to UMMC
after having been stabbed in the chest. He was discharged
from UMMC three days later, on November 3, 2010; but, on
November 8, 2010, he died suddenly at Marion County General
Hospital from an undetected heart wound. The following
timeline is significant to the analysis:
● Nov. 11 or 12, 2010 Dr. Adele Shaker, who performed
Smith's autopsy, informed Kim Hampton, Smith's
mother, of the heart wound. The parties agree that November
12, 2010, is the latest possible discovery date by Hampton of
her cause of action and it triggered the one-year statute of
limitations. Miss. Code Ann. § 11-46-11(3) (2002).
● November 7, 2011 Hampton hand delivered a pre-suit
notice of claim letter to UMMC. Miss. Code Ann. §
11-46-11(1) (Rev. 2012). The parties agree that five days
remained on the original, one-year limitations period, but
such period was tolled for ninety-five days. Miss. Code Ann.
§ 11-46-11(3) (2002).
● February 10, 2012 The ninety-five day tolling period,
after UMMC received pre-suit notice of ...