Arceo v. Tolliver

• Decision Date: 20 August 2009
• Docket Number: No. 2008-CA-00224-SCT.,2008-CA-00224-SCT.
• Citation: 19 So.3d 67
• Parties: Salvador ARCEO, M.D., and St. Dominic-Jackson Memorial Hospital v. Myrtis TOLLIVER, as Administratrix of the Estate of Tommie C. Tolliver, Deceased, and Individually, and the Wrongful Death Beneficiaries of Tommie C. Tolliver, Deceased.
• Court: Mississippi Supreme Court

19 So.3d 67

Salvador ARCEO, M.D., and St. Dominic-Jackson Memorial Hospital v. Myrtis TOLLIVER, as Administratrix of the Estate of Tommie C. Tolliver, Deceased, and Individually, and the Wrongful Death Beneficiaries of Tommie C. Tolliver, Deceased.

No. 2008-CA-00224-SCT.

Supreme Court of Mississippi.

August 20, 2009.

Rehearing Denied October 29, 2009.

Paul E. Barnes, Kimberly N. Howland, Gretchen W. Kimble, Sharon F. Bridges, Jackson, Jonathan R. Werne, attorneys for appellants.

W. Andrew Neely, W. Eric Stracener, E. Vincent Davis, Natchez, Deborah McDonald, attorneys for appellee.

EN BANC.

WALLER, Chief Justice, for the Court.

¶ 1. Salvador Arceo, M.D., and St. Dominic-Jackson Memorial Hospital seek review of the second dismissal without prejudice of Myrtis Tolliver's medical malpractice claim for failure to comply with the notice provisions of Mississippi Code Section 15-1-36(15).

FACTS AND PROCEDURAL HISTORY

¶ 2. This is the second appearance of these parties before this Court. Arceo v. Tolliver, 949 So.2d 691 (Miss.2006) ("Tolliver I"). As in that first appearance on interlocutory appeal, this appeal deals with interpretation and application of the notice requirement for initiation of medical malpractice suits pursuant to Mississippi Code Section 15-1-36.

¶ 3. On July 9, 2002, Tommie C. Tolliver ("Tommie"), daughter of Appellee Myrtis Tolliver ("Tolliver"), was seen and evaluated in the emergency room at St. Dominic-Jackson Memorial Hospital. Tolliver I, 949 So.2d at 692.¹ Over the course of several days, Tommie was treated by Dr. Salvador Arceo and various hospital employees for meningococcal meningitis and sepsis. Id. On July 13, 2002, Tommie died. Id.

¶ 4. On June 4, 2004, Tolliver filed a complaint for medical malpractice and negligence against Dr. Arceo and John and Jane Doe defendants in Hinds County Circuit Court. Id. Tolliver filed a first amended complaint on June 25, 2004, and on July 23, 2004, filed a second amended complaint.² Id. Tolliver failed to provide the notice required by Mississippi Code Section 15-1-36(15) prior to the filing of these complaints. Id. at 693, Miss.Code Ann. § 15-1-36(15) (Rev.2003).

¶ 5. Dr. Arceo filed a motion to dismiss, or in the alternative, for summary judgment, which the trial court denied. Id. Thereafter, Dr. Arceo and St. Dominic petitioned this Court for interlocutory appeal, which was granted. Id. This Court reversed the trial court's denial of the motion to dismiss, or in the alternative, for summary judgment, and rendered judgment in favor of Dr. Arceo and St. Dominic, dismissing Tolliver's second amended complaint without prejudice for failure to provide the required pre-suit notice.³ Id. at 697-98. The Clerk of the Supreme Court issued a mandate dismissing the original action without prejudice on March 15, 2007.

¶ 6. On February 28, 2007, approximately two weeks before the mandate issued, Tolliver forwarded letters to Dr. Arceo and St. Dominic, which read, "This letter is being sent pursuant to Section 15-1-36(15) of the Mississippi Code of 1972, as amended. This letter is to inform you of our intention to file suit on behalf of Tommie Tolliver. The basis of the suit is negligence." The letter closed with an invitation to discuss an amicable settlement. On May 9, 2007, Tolliver filed another complaint, initiating the present action ("Tolliver II").

¶ 7. Dr. Arceo and St. Dominic again filed a motion for summary judgment with prejudice for Tolliver's failure once again to comply with the statutory notice requirements and/or running of the statute of limitation. The trial court heard oral argument on the motion for summary judgment and thereafter entered an order dismissing Tolliver's lawsuit without prejudice. The trial court found the contents of Tolliver's February 28, 2007, notice to Dr. Arceo and St. Dominic did not substantially comply with the statutory requirements of Section 15-1-36(15). The trial court further found the statute of limitation had not expired, and that the savings statute applied, and declined to dismiss the cause with prejudice.

¶ 8. Aggrieved that summary judgment was not granted with prejudice, Dr. Arceo and St. Dominic timely perfected appeal to this Court. Dr. Arceo and St. Dominic assert four issues on appeal, which we paraphrase for brevity as: (1) whether the trial court erred in entering summary judgment without prejudice; (2) where the only issue was noncompliance with Mississippi Code Section 15-1-36, did the trial court err in applying a substantial-compliance standard; (3) whether the statute of limitation has expired; and (4) does the Mississippi "savings statute" apply to this matter.⁴

DISCUSSION⁵

I. Whether the trial court erred in applying the substantial-compliance standard to the contents of a medical negligence statutory notice.

¶ 9. The standard of review for questions of law is de novo. Powe v. Byrd, 892 So.2d 223, 227 (Miss.2004). Statutory interpretation is a question of law subject to de novo review. Sheppard v. Miss. State Highway Patrol, 693 So.2d 1326, 1328 (Miss.1997).

¶ 10. Mississippi Code Section 15-1-36(15) expressly requires a plaintiff to provide a defendant written notice of the intent to begin an action, and said notice must include the legal basis of a medical negligence claim and the type of loss sustained, including with specificity the nature of the injuries suffered. Miss.Code Ann. § 15-1-36(15) (Rev.2003). This notice must be provided sixty days in advance of filing a lawsuit. Id.

¶ 11. Dr. Arceo and St. Dominic maintain that, although the circuit court reached the right result, dismissal, the court erred by applying a substantial compliance standard to determine whether the content of Tolliver's February 28, 2007, notice conformed to the statutory requirements. According to Dr. Arceo and St. Dominic, because Tolliver left out an entire category of information required by Section 15-1-36(15), namely "the type of loss sustained, including with specificity the nature of the injuries suffered," the issue was simply compliance or noncompliance.

¶ 12. Tolliver argues that, under the facts of this case, a notice letter was not required. Specifically, Tolliver argues that because Dr. Arceo and St. Dominic were served with the complaint in Tolliver I, the first and second amended complaints in Tolliver II, and post-filing notice letters and engaged in over two years of litigation, Dr. Arceo and St. Dominic are fully aware of the legal bases of the claim and the type of loss sustained, including the nature of the injuries suffered. Therefore, she argues, any further written notice would be moot. Tolliver alternatively argues that, even if notice was required before the filing of Tolliver II, the notice actually given was adequate under the circumstances.

¶ 13. As was fully discussed by this Court in Tolliver I, the statutory requirement of sixty days' written notice before filing a medical negligence suit is mandatory. Quoting Pitalo v. GPCH-GP, Inc., 933 So.2d 927 (Miss.2006), we stated that the Mississippi Legislature did not include any exceptions to the rule which would pretermit the written-notice prerequisite. Tolliver I, 949 So.2d at 695 (quoting Pitalo, 933 So.2d at 928-29). In the absence of any exceptions to the mandatory requirement, Tolliver's argument that circumstances dictate when or if written notice is required is without merit.

¶ 14. Nor is there any language in the statute which arguably could be construed to say that notice is not required when filing a second suit after dismissal of a first on the same cause of action. The language of the statute is unambiguous: "No action based upon the healthcare provider's professional negligence may be begun unless the defendant has been given at least sixty (60) days' prior written notice of the intention to begin the action." Miss. Code Ann. § 15-1-36(15) (Rev.2003). The statute's notice requirement is not limited to the first filed action, but applies to all. Tolliver's assertion that no notice was required in this case is without merit.

¶ 15. With respect to the information which must be included in the prelitigation written notice, the statute states, "No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered." Miss.Code Ann. § 15-1-36(15) (Rev.2003).

¶ 16. This Court repeatedly has applied the same standards of construction and application to the Medical Malpractice Tort Reform Act as those applied to the Mississippi Tort Claims Act ("MTCA"). See, e.g., Thomas v. Warden, 999 So.2d 842 (Miss.2008) (quoting Wimley v. Reid, 991 So.2d 135 (Miss.2008)); Tolliver I, 949 So.2d at 696 (citing Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 820 (Miss.2006)). Therefore, we look to this body of law for clarity.

¶ 17. Like the Medical Malpractice Tort Reform Act, the MTCA requires written notice of a claim in advance of the filing of a lawsuit, a requirement which also is strictly applied. Easterling, 928 So.2d at 820-21. Where a claimant does provide written notice, we have adhered to the principle that substantial compliance is the standard for analyzing the contents of the notice to determine its sufficiency. Lee v. Mem'l Hosp. at Gulfport, 999 So.2d 1263 (Miss.2008); Thomas v. Warden, 999 So.2d 842; Tolliver I, 949 So.2d at 696-97 & n. 5. Sufficient information must be contained in the notice to permit the recipient to make a reasonable investigation of the claims being made. Lee, 999 So.2d at 1267.

¶ 18. Dr. Arceo and St. Dominic assert that Tolliver failed to include in her notice "the type of loss sustained, including with specificity the nature of the injuries suffered," one of the statute's designated categories of notice information. Tolliver does not dispute her notice failed to include this information, but rather argues again that, given the more than...