Arceo v. Tolliver, 2005-IA-00652-SCT.

• Citation: 949 So.2d 691
• Decision Date: 16 November 2006
• Docket Number: No. 2005-IA-00652-SCT.,2005-IA-00652-SCT.
• Parties: Salvador ARCEO, M.D. and St. Dominic-Jackson Memorial Hospital v. Myrtis TOLLIVER, as Administratrix of the Estate of Tommie C. Tolliver, Deceased, Individually, and on Behalf of the Wrongful Death Beneficiaries of Tommie C. Tolliver, Deceased.
• Court: United States State Supreme Court of Mississippi

949 So.2d 691

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

No. 2005-IA-00652-SCT.

Supreme Court of Mississippi.

November 16, 2006.

Paul E. Barnes, George Quinn Evans, Kathryn Russell Gilchrist, Edmund L. Brunini, Jackson, attorneys for appellants.

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

EN BANC.

ON MOTION FOR REHEARING

CARLSON, Justice, for the Court.

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Aggrieved by the trial court's refusal to dismiss this medical malpractice case due to the plaintiff's failure to give the required statutory notice, Salvador Arceo, M.D., petitioned this Court for an interlocutory appeal. St. Dominic—Jackson Memorial Hospital joined Dr. Arceo's petition. Having granted the interlocutory appeal, see M.R.A.P. 5, we find that since the plaintiff failed to comply with the notice provisions of Miss.Code Ann. § 15-1-36(15) (Rev.2003), the Hinds County Circuit Court erred in denying the defendants' motion to dismiss, or in the alternative, for summary judgment. Accordingly, we reverse the trial court judgment and render judgment here in favor of the defendants.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. On July 9, 2002, Tommie C. Tolliver, the daughter of the plaintiff, Myrtis Tolliver, was seen and evaluated in the emergency room at St. Dominic-Jackson Memorial Hospital. Over the course of several days, Tommie Tolliver was treated by Dr. Salvador Arceo and various hospital employees for meningococcal meningitis and sepsis; however, on July 13, 2002, Tommie Tolliver died. On June 4, 2004, Myrtis Tolliver filed a complaint for medical malpractice and negligence against Dr. Arceo and John and Jane Doe defendants. On June 25, 2004, the plaintiff filed a first amended complaint; and, on July 23, 2004, the plaintiff filed a second amended complaint.¹ Prior to the filing of these complaints, the plaintiff failed to submit the notice required by Miss.Code Ann. § 15-1-36(15) (Rev.2003).² After Dr. Arceo filed a motion to dismiss, or in the alternative, for summary judgment, the trial court denied the motion, stating in its order, inter alia:

The Court finds that while the Notice provisions of Miss.Code Ann. § 15-1-36(15) are mandatory, they are not jurisdictional. The Court finds that the purpose of such Notice provisions is to afford the parties a period of 60 days within which they can investigate and attempt an amicable resolution of the claim without the necessity of litigation. The Court further finds that while Plaintiff did not comply with the Notice provisions of Miss.Code Ann. § 15-1-36(15), to impose the ultimate sanction of dismissal is unduly harsh under the circumstances. The Court is of the opinion that the purpose of the Notice provision of Miss.Code Ann. § 15-1-36(15) will be fulfilled by an abatement of the action for a period of 60 days and that such abatement is proper. Jackson v. City of Wiggins, 760 So.2d 694 (Miss.2000); City of Pascagoula v. Tomlinson, 741 So.2d 224 (Miss.1999); Schepps v. Presbyterian Hospital of Dallas, 652 S.W.2d 934 (Tex.1983).

It is from this trial court order denying their motion to dismiss, that the defendants petitioned this Court for an interlocutory appeal. We granted the defendants' petition and stayed the trial court proceedings, pending resolution of this issue on appeal.

DISCUSSION

¶ 4. Dr. Arceo and St. Dominic frame the issues this way: "(1) Section 15-1-36(15) of the Mississippi Code states that `[n]o action based upon the health care 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.' Does the Plaintiff's noncompliance with this notice requirement require dismissal of her medical malpractice claims against Dr. Arceo? (2) Are the Plaintiff's claims now time-barred by the two year medical malpractice statute of limitations? (3) If Plaintiff's noncompliance requires dismissal, should her Motion for Leave to Amend Complaint have been denied?"<sup>3</sup> On the other hand, the plaintiff presents the issues by stating: "1. Whether this Court should affirm the trial court's ruling that a proper remedy for a failure to comply with the `notice provision' of Mississippi Code Annotated Section 15-1-36(15) is to order a 60 day stay. 2. In the alternative, whether this Court should decide that the proper remedy is to dismiss the suit without prejudice and allow the Plaintiff to refile her Complaint, pursuant to the `savings clause' found in Miss.Code Ann. § 15-1-69. 3. Whether the `discovery rule' should apply to extend the two year statute of limitations in this case, under the facts of this case, including the fraudulent concealment of certain facts by the Defendants. 4. Whether Miss.Code Ann. § 15-1-36(15) is ambiguous. 5. Whether Plaintiff should be allowed to amend her Complaint pursuant to the trial court's Order Denying Defendants' Motion to Dismiss." (Emphasis in original).

¶ 5. We will restate these issues for clarity.

WHETHER IT WAS ERROR FOR THE CIRCUIT COURT TO DENY THE DEFENDANTS' MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

¶ 6. This Court reviews a trial court's grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard. Monsanto v. Hall, 912 So.2d 134, 136 (Miss.2005). Under Miss.Code Ann. § 15-1-36(1) (Rev. 2003), a plaintiff has two years from the date of the alleged negligent act in which to commence a lawsuit against medical providers. Also, effective from and after January 1, 2003, Miss.Code Ann. § 15-1-36(15) provides:

No action based upon the health care 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. 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. If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.

¶ 7. In today's case, the plaintiff wholly failed to provide any written notice to any medical provider concerning her intention to commence suit. We recently addressed this specific issue in Pitalo v. GPCH-GP, Inc., 933 So.2d 927 (Miss.2006). In Pitalo, the plaintiff failed to provide the statutory notice prior to commencement of her negligence suit against the doctor and the hospital. In affirming the trial court's dismissal for failure to comply with section 15-1-36(15), we stated:

On appeal, Pitalo argues that it was error for the trial court to dismiss her cause of action because she failed to send a letter to the defendant as provided in Miss.Code Ann. Section 15-1-36(15) (Rev.2003). Miss.Code Ann. Section 15-1-36 was amended in the special session of the Mississippi Legislature on tort reform in 2002. Section 15 was added and became effective January 1, 2003. It requires that an action based on professional negligence of a health care provider may not begin unless the defendant has been given at least 60 days prior written notice of the intention to begin the action.

When interpreting a statute that is not ambiguous, this Court will apply the plain meaning of the statute. Claypool v. Mladineo, 724 So.2d 373, 382 (Miss. 1998). In construing a statute, the Court must seek the intention of the Legislature, and knowing it, must adopt that interpretation which will meet the real meaning of the Legislature. Evans v. Boyle Flying Service, Inc., 680 So.2d 821, 825 (Miss.1996). When drafting Miss.Code Ann. Section 15-1-36(15), the Legislature did not incorporate any given exceptions to this rule which would alleviate the prerequisite condition of prior written notice. Simply stated, "shall" is mandatory, while "may" is discretionary. Franklin v. Franklin, 858 So.2d 110, 114 (Miss.2003). Pitalo's failure to send notice of her intent to sue clearly violates the mandatory instructions concerning notice in Miss.Code Ann. Section 15-1-36(15).

Pitalo contends that even though she failed to provide notice of her intent to sue, the circuit court's dismissal of her action violates our holding in Jackson v. City of Wiggins, 760 So.2d 694 (Miss.2000). Pitalo's claim is clearly distinguishable from Jackson as the present case concerns medical negligence actions under Miss.Code Ann. Section 15-1-36 (Rev.2003) — not the Mississippi Tort Claims Act, and Pitalo did not at any time attempt to send a notice of intent to sue to Dr. Graham or Garden Park, as had been done in Jackson. Pitalo's arguments do not excuse the absence of notice of an intent to sue being sent to the defendants in the present case.

. . .

Pitalo's failure to send to defendants a notice of intent to sue is an inexcusable deviation from the Legislature's requirements for process and notice under Miss.Code Ann. Section 15-1-36(15), and such failure warrants dismissal of her claim. Accordingly we affirm the judgment of the circuit court.

933 So.2d at 928-29.

¶ 8. While we find that, consistent with Pitalo, the trial judge erred in failing to grant the defendants' motion to dismiss, or in the alternative, for summary judgment, we acknowledge that the trial judge did not have the benefit of our ...