Barnes v. Singing River Hosp. Systems, 97-CA-01552-SCT.

Citation733 So.2d 199
Decision Date21 January 1999
Docket NumberNo. 97-CA-01552-SCT.,97-CA-01552-SCT.
PartiesLisa Gail BARNES and Kenneth Barnes v. SINGING RIVER HOSPITAL SYSTEMS d/b/a Singing River Hospital.
CourtUnited States State Supreme Court of Mississippi

Earl L. Denham, Ocean Springs, Attorney for Appellants.

James H. Heidelberg, Pascagoula, Attorney for Appellee.

Before SULLIVAN, P.J., and BANKS and JAMES L. ROBERTS, Jr., JJ.

SULLIVAN, Presiding Justice, for the Court:

¶ 1. Between January of 1989, and September of 1995, Dr. Beverly Myers treated Lisa Barnes for rheumatoid arthritis. On August 28, 1995, Dr. Myers treated Lisa for pain and swelling in her right knee. Nine days later, on September 6, 1995, Lisa was treated in the emergency room at Singing River Hospital in Pascagoula, Mississippi due to symptoms of fever, vomiting, and pain in her right elbow. Dr. Steven Demetropoulos diagnosed Lisa with acute bronchitis and gastritis with dehydration and a right elbow fracture, then discharged her with instructions to return if her symptoms did not subside. Lisa's condition worsened over the next few hours, so her husband Kenneth returned Lisa to Singing River on September 7 at about 3:00 in the afternoon. She was diagnosed with sepsis and admitted to the hospital, where she remained in critical condition for approximately two weeks.

¶ 2. Once stabilized, Lisa was transferred to the University of South Alabama Medical Center in Mobile, Alabama on September 23, 1995. Her treatment there included the amputation of both legs, her right hand, and most of her left hand. Lisa was finally discharged from the hospital on January 9, 1996.

¶ 3. On November 13, 1995, while Lisa was still being treated, her attorney, Earl Denham, mailed a letter to Singing River requesting a copy of her medical records. When the records were not sent, Mr. Denham contacted the hospital and was informed that there was a fee for copying the file. On January 29, 1996, Mr. Denham paid Singing River for the medical records, which he received sometime in mid-February of 1996. On May 8, 1996, Mr. Denham mailed a letter to Singing River, not addressed to any individual, informing the hospital that his investigation led him to believe that Singing River was responsible for Lisa's injuries. Mr. Denham mailed another letter to Singing River's CEO, Robert Lingle, on June 28, 1996, putting the hospital on notice of Lisa's claims, pursuant to Miss.Code Ann. § 11-46-11 (Supp.1998). On July 24, 1996, Mr. Denham mailed a letter and draft complaint to Singing River's attorney. The draft complaint included Dr. Myers and Dr. Demetropoulos as defendants, but their names were dropped once the complaint was actually filed, due at least in part to a claim settlement. On August 30, 1996, Mr. Denham sent another letter to Singing River indicating that the one-year anniversary had passed since Lisa's injuries.

¶ 4. On March 5, 1997, more than seventeen months after Lisa was transferred from Singing River, Lisa and Kenneth Barnes filed their complaint against Singing River in Jackson County Circuit Court, alleging that Singing River was responsible for their damages resulting from Lisa's disabling injuries. Singing River filed its motion to dismiss on April 2, 1997, asserting that the Barneses' claims were barred by the one-year statute of limitations set out in the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-11(3) (Supp.1998). After an October 31, 1997, hearing, Circuit Court Judge Bill Jones granted Singing River's motion to dismiss in an order dated November 13, 1997. The Barneses appeal to this Court, assigning the following as error:

WHETHER THE STATUTE OF LIMITATIONS PROVISION OF THE MISSISSIPPI TORT CLAIMS ACT IS UNCONSTITUTIONAL WHEN APPLIED TO BAR SUITS AGAINST STATE-AFFILIATED HOSPITALS.

WHETHER THE ONE-YEAR STATUTE OF LIMITATIONS GOVERNING SUITS AGAINST GOVERNMENT ENTITIES SET OUT IN MISS. CODE ANN. § 11-46-11 BEGINS TO RUN AT THE TIME AN INJURY IS DISCOVERED.

WHETHER THE STATUTE OF LIMITATIONS WAS TOLLED IN THIS ACTION BY THE DEFENDANT HOSPITAL'S REFUSAL TO RELEASE LISA BARNES'S MEDICAL RECORDS.

WHETHER IMMUNITY IS WAIVED TO THE EXTENT OF EXCESS LIABILITY INSURANCE CARRIED BY THE DEFENDANT.

¶ 5. Because we find that the Barneses promptly filed their claim within one year of discovery of Singing River's alleged negligence in this case, we must reverse the trial court's award of summary judgment and remand this case to the Jackson County Circuit Court for further proceedings.

STATEMENT OF THE LAW
I.

WHETHER THE STATUTE OF LIMITATIONS PROVISION OF THE MISSISSIPPI TORT CLAIMS ACT IS UNCONSTITUTIONAL WHEN APPLIED TO BAR SUITS AGAINST STATE-AFFILIATED HOSPITALS.

¶ 6. The Barneses first urge this Court to extend the rule in Womble v. Singing River Hosp., 618 So.2d 1252 (Miss.1993), to prevent hospitals from claiming immunity unless acting in some governmental capacity. Their position is that state hospitals should not be immunized from medical malpractice lawsuits merely because they're owned by a governmental entity rather than privately held. "In Womble, this Court overruled then-existing Mississippi law which held that physicians engaged in the public service are qualifiedly immune from suit for medical treatment decisions made during the course of that service." Sparks v. Kim, 701 So.2d 1113, 1115 (Miss.1997). The portion of the decision in Womble cited by the Barneses involved common-law qualified immunity afforded state employees prior to the April, 1993, passage of the Mississippi Tort Claims Act. Womble, 618 So.2d at 1262. The Court determined that qualified immunity for state employees did not apply to decisions involving medical treatment. Id. at 1263-64. The Barneses sued a state entity protected by statutory immunity, not state employees subject to commonlaw qualified immunity. Womble does not apply to an interpretation of statutory immunity for a state entity, as is involved in this case. We refuse to extend the holding in Womble to lift statutory immunity in medical malpractice cases against state hospitals.

¶ 7. The Barneses next encourage this Court to find that medical malpractice actions against hospitals should be governed by Mississippi's two-year medical malpractice statute of limitations, § 15-1-36(1), instead of § 11-46-11(3), setting the statute of limitations for actions against state agencies at one year. The language of § 11-46-11(3) defeats the Barneses' argument on this point:

The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.

Miss.Code Ann. § 11-46-11(3) (Supp.1998) (emphasis added). The Mississippi Legislature has conclusively stated that the one-year statute of limitations set out in § 11-46-11(3) applies to all actions against governmental entities under the Mississippi Tort Claims Act, regardless of any other statutes of limitations that would otherwise apply. We therefore find that § 11-46-11(3), and not § 15-1-36, applies in this case.

¶ 8. The Barneses further argue that the Mississippi Tort Claims Act "is insufficient to protect the civil liberties of plaintiffs bringing medical malpractice actions." They contend that if medical malpractice claims are governed by the one-year statute of limitations set out in § 11-46-11(3), then patients asserting claims against state-owned hospitals will almost always be barred by the statute of limitations. The Barneses point to the difficulty in discovering and litigating medical malpractice claims, compounded by the Litigation Accountability Act of 1988, Miss.Code Ann. §§ 11-55-1 et seq. (Supp.1998), which provides for assessment of attorney's fees and costs against any plaintiff bringing an action on an insufficient factual basis. Miss.Code Ann. § 11-55-5(1) (Supp.1998). Their position is that one year is an insufficient amount of time to discover and investigate a potential medical malpractice claim for purposes of filing a complaint with an adequate factual basis.

¶ 9. As Singing River points out, the constitutionality issue is barred, because it was not raised in the trial court and because the Attorney General's Office was not properly notified. "We accept without hesitation the ordinarily sound principle that this Court sits to review actions of trial courts and that we should undertake consideration of no matter which has not first been presented to and decided by the trial court. We depart from this premise only in unusual circumstances." Educational Placement Services v. Wilson, 487 So.2d 1316, 1320 (Miss.1986). "The law has been well settled that the constitutionality of a statute will not be considered unless the point is specifically pleaded." Smith v. Fluor Corp., 514 So.2d 1227, 1232 (Miss.1987). Furthermore, Rule 24(d) of the Mississippi Rules of Civil Procedure requires that proper notice be given to the Attorney General when the constitutionality of a statute is challenged "to afford him an opportunity to intervene and argue the question of constitutionality." Miss. R. Civ. P. 24(d). Rule 44(a) of the Mississippi Rules of Appellate Procedure similarly requires service of any appellate brief challenging the validity of a statute "on the Attorney General, the city attorney, or other chief legal officer of the governmental body involved." M.R.A.P. 44(a). "Except by special order of the court to which the case is assigned, in the absence of such notice neither the Supreme Court nor the Court of Appeals will decide the question until the notice and right to respond contemplated by this rule has been given to the appropriate governmental body." M.R.A.P. 44(c). The Barneses'...

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