Brumfield v. Lowe, 97-CA-01112-COA.

• Decision Date: 22 June 1999
• Docket Number: No. 97-CA-01112-COA.,97-CA-01112-COA.
• Citation: 744 So.2d 383
• Parties: Keith BRUMFIELD, Appellant, v. Dr. C. Foster LOWE and Sean Gill, Individually and in his official capacity as a Police Officer of the City of McComb, Mississippi, Appellees.
• Court: Mississippi Court of Appeals

744 So.2d 383

Keith BRUMFIELD, Appellant, v. Dr. C. Foster LOWE and Sean Gill, Individually and in his official capacity as a Police Officer of the City of McComb, Mississippi, Appellees.

No. 97-CA-01112-COA.

Court of Appeals of Mississippi.

June 22, 1999.

Everett T. Sanders, Natchez, Attorney for Appellant.

Rodney D. Robinson, Gulfport, W. Thomas Siler Jr., C. Catherine Scallan, Jackson, Austin R. Nimocks, Gulfport, Attorneys for Appellees.

BEFORE McMILLIN, C.J., DIAZ, AND LEE, JJ.

DIAZ, J., for the Court:

¶ 1. Brumfield appeals the decision of the Pike County Circuit Court granting summary judgment against him. He raises the following issues in this appeal: (1) whether the trial court erred in its application of Mississippi Code Annotated Section 15-1-36 to bar his medical negligence claim, (2) whether the trial court erred in summarily determining that his claim against Officer Gill was barred by sovereign and qualified immunity, and (3) whether the trial court erred in its dismissal of his complaint against Officer Gill as time barred. Finding no error, we affirm.

FACTS

¶ 2. On November 26, 1992, Keith Brumfield broke into his estranged wife's apartment in McComb. At that time, Anita Brumfield and he had been separated for a year and a half. In the apartment, L.J. Nichols shot Brumfield in the side. Anita immediately contacted the McComb Police Department after the shooting. However, Brumfield fled to a neighbor's apartment before the police arrived. Later, Brumfield returned to Anita's apartment, was questioned by police officers, and transported to the Southwest Mississippi Regional Medical Center emergency room.

¶ 3. According to Brumfield's hospital records, the staff who transported Brumfield to the emergency room found him to be incoherent, combative, and extremely uncooperative. It was noted that Brumfield did not want to be transported and had to be handcuffed and loaded into the ambulance by the McComb Police Department. Officer Sean Gill assisted the paramedics and accompanied Brumfield to the hospital.

¶ 4. Upon arriving at Southwest, Brumfield was under the care of Dr. Barry Suber. According to Brumfield, he remained at the hospital for an hour and a half and was given a shot and had his wound treated. In contrast, the Southwest medical records indicated that Brumfield was at the hospital for nearly three hours. Brumfield's medical records further reflect the extensive treatment and testing he received and indicated that he remained combative and uncooperative.

¶ 5. The hospital records indicate that Brumfield was examined and treated by Drs. Barry Suber, Thomas Jeffcoat, and C. Foster Lowe for his gunshot wound. Dr. Jeffcoat reported that although the bullet may need to be removed in the future, "no other treatment [is] needed now." Dr. Lowe stated that Brumfield was difficult to evaluate and schizophrenic. The records also indicate that Dr. James Boothe took at least four sets of x-rays of Brumfield that same night.

¶ 6. Officer Gill testified that Brumfield resisted all treatment and repeatedly attempted to leave the hospital. However, once the staff began treating Brumfield, Officer Gill left the hospital and resumed his patrol duties. When Officer Gill returned to the hospital on an unrelated matter, the staff informed him that Brumfield was being released. Officer Gill was informed that a warrant had been issued for Brumfield's arrest. Dr. Suber issued a certificate stating that Brumfield could be transported to the police station for booking and incarceration. Officer Gill took Brumfield into custody and transported him to the McComb City Jail. At the police station, Brumfield was uncooperative and complained that he was sleepy. Officer Gill was unsuccessful in booking Brumfield, so he placed him in a cell for the night.

¶ 7. Brumfield remained incarcerated in the McComb City Jail for nearly twelve hours until he was released on bail. He did not seek further medical care until two days later on the morning of November 29, 1992. Brumfield's subsequent treatment was extensive, and he was not discharged from the hospital until January 4, 1993. Thereafter, Brumfield instituted these causes of action against Officer Gill and Dr. Lowe.

¶ 8. In the present case, Brumfield appeals the entry of summary judgment by the trial court in favor of Officer Sean Gill and Dr. C. Foster Lowe. With respect to his cause of action against Officer Gill, both individually and in his official capacity, Brumfield alleged that Officer Gill failed to provide him with medical treatment.

PROCEDURAL HISTORY

¶ 9. After a voluntary dismissal from the federal district court, the case was filed in Pike County Circuit Court against Officer Gill, Southwest Mississippi Regional Medical Center, and three treating doctors, including Dr. Lowe. The trial judge granted Officer Sean Gill's motion for summary judgment based on sovereign and qualified immunity.

¶ 10. With respect to the cause of action filed against Dr. Lowe, Brumfield filed a civil suit on November 23, 1994, in the Pike County Circuit Court alleging, inter alia, medical malpractice. On March 2, 1995, summons was issued for the Dr. Lowe.

¶ 11. On May 15, 1995, Dr. Lowe filed a motion to dismiss for Brumfield's failure to serve process within 120 days of filing the complaint as required by the rules. On June 14, 1995, the trial court entered an order dismissing the suit against Dr. Lowe unless he was served by June 22, 1995. Although the trial court's order of dismissal was effective on June 22, 1995, Brumfield filed motions on June 26 and June 29, 1995, for enlargement of time to serve Dr. Lowe.

¶ 12. On July 3, 1995, Dr. Lowe was finally served with process in the first suit. Thereafter, Brumfield filed a motion to reconsider the order of dismissal as to Dr. Lowe. After a hearing on the motion to reconsider by Brumfield and a motion to dismiss by Dr. Lowe, the trial judge overruled Brumfield's motion and affirmed his dismissal of the first suit with respect to Dr. Lowe.

¶ 13. On December 20, 1996, Brumfield filed his notice of appeal, filed his designation of the record, but failed to pay his filing fee or file his certificate of compliance. On February 24, 1997, the appeal was dismissed because of these deficiencies.

¶ 14. After the August 21, 1995 hearing on Dr. Lowe's motion to dismiss the first suit, Brumfield filed a second complaint against Dr. Lowe on August 22, 1995. On September 1, 1995, six days before Dr. Lowe was served with process for the second suit, he answered Brumfield's complaint by setting forth the affirmative defense of the statute of limitations. On October 2, 1995, the trial judge consolidated Brumfield's actions against the remaining parties in the first suit and Dr. Lowe in the second suit.

¶ 15. On July 11, 1996, Dr. Lowe filed a motion for summary judgment based on the affirmative defense of the statute of limitations. On August 14, 1997, the trial judge granted Dr. Lowe and Officer Gill summary judgment.

¶ 16. On September 15, 1997, Brumfield properly filed his appeal in the second suit. However, in his notice of appeal, Brumfield noticed the appeal of the two rulings as to Dr. Lowe. Brumfield appeals not only the order of summary judgment entered in the second suit, but again the order of dismissal in the first suit.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN ITS APPLICATION OF MISSISSIPPI CODE ANNOTATED SECTION 15-1-36 TO BAR BRUMFIELD'S MEDICAL NEGLIGENCE CLAIM

¶ 17. The standard of review for the appeal of a granted motion for summary judgment is de novo. Collier v. Trustmark Nat'l Bank, 678 So.2d 693, 695 (Miss.1996)

. Summary judgment is appropriate where "there is no genuine issue as to any material fact," and therefore, reasonable minds cannot differ as to the disposition of the issues presented for review. Miss. R. Civ. P. 56(c). The moving party is entitled to a judgment on the merits as a matter of law and summary judgment must be ordered. Miss. R. Civ. P. 56(c) & cmt.

¶ 18. In Mississippi, medical malpractice tort claims are controlled by Mississippi Code Annotated Section 15-1-36 (Rev.1995) instead of the general six-year statute of limitations which is now three years as provided in Section 15-1-49. Kilgore v. Barnes, 508 So.2d 1042 (Miss.1987). In pertinent part, Section 15-1-36 provides that:

[N]o claim in tort may be brought ... for injuries ... arising out of the course of medical, surgical, or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.

As indicated by the plain language of the statute, Mississippi employs the discovery rule in making limitations determinations in medical malpractice claims. Fortenberry v. Memorial Hosp. at Gulfport, Inc., 676 So.2d 252, 255 (Miss.1996). Under Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986), the Section 15-1-36 two-year statute of limitations commences when the patient does or should discover a basis for a medical malpractice cause of action. Under Fortenberry, this is a proper question for resolution by the trial judge. Fortenberry, 676 So.2d at 255. Furthermore, when the applicable statute of limitation is tolled by the filing of a complaint, that tolling ends 120 days after the complaint was filed. Watters v. Stripling, 675 So.2d 1242, 1244 (Miss.1996).

¶ 19. Mississippi Code Annotated Section 15-1-59 provides in part that:

If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law.

¶ 20. "The term `unsound mind,' when used in any statute in reference to persons, shall include idiots, lunatics, and persons non compos mentis."...