Caves v. Yarbrough, No. 2006-CA-01857-SCT (Miss. 11/1/2007)

• Decision Date: 01 November 2007
• Docket Number: No. 2006-CA-01857-SCT.,2006-CA-01857-SCT.
• Parties: IRENE CAVES, STATUTORY REPRESENTATIVE OF THE WRONGFUL DEATH BENEFICIARIES OF JIMMY CAVES v. BENJAMIN YARBROUGH, M.D., AND FRANKLIN COUNTY MEMORIAL HOSPITAL.
• Court: Mississippi Supreme Court

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IRENE CAVES, STATUTORY REPRESENTATIVE OF THE WRONGFUL DEATH BENEFICIARIES OF JIMMY CAVES v. BENJAMIN YARBROUGH, M.D., AND FRANKLIN COUNTY MEMORIAL HOSPITAL.

No. 2006-CA-01857-SCT.

Supreme Court of Mississippi.

November 1, 2007.

COURT FROM WHICH APPEALED: FRANKLIN COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. FORREST A. JOHNSON, JR., DATE OF JUDGMENT: 10/13/2006.

DISPOSITION: AFFIRMED.

ATTORNEY FOR APPELLANT: JOEL W. HOWELL, III

ATTORNEYS FOR APPELLEES: JAMES SCOTT ROGERS, WADE G. MANOR, LANE B. REED

BEFORE SMITH, C.J., DICKINSON AND LAMAR, JJ.

DICKINSON, JUSTICE, FOR THE COURT:

¶1. This is a medical negligence case filed pursuant to the Mississippi Tort Claims Act ("MTCA").¹ The plaintiff, who filed suit more than a year after the alleged acts of negligence, claims the MTCA's one-year limitation for filing claims should be tolled by a "discovery rule." The trial court granted summary judgment to the defendants.

¶2. The MTCA has no "discovery" rule. And furthermore — unlike statutes of limitation which begin to run upon accrual of the cause of action — the MTCA specifically provides that its limitation period begins to run on "the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based." Because in this case, that date was more than one year prior to the date this action was brought, we must affirm the trial court's grant of summary judgment.

BACKGROUND FACTS AND PROCEEDINGS

¶3. On April 15, 2000, 51-year-old Jimmy Caves began experiencing abdominal pain. The next day, Caves's condition worsened, and he suffered episodes of vomiting and diarrhea. He was admitted to the emergency room at Franklin County Memorial Hospital (the "Hospital"), where he was evaluated by Dr. Benjamin Yarbrough. After administering intravenous fluids and medication, Dr. Yarbrough ordered lab work and an abdominal x-ray.

¶4. Caves's condition worsened and, in the early morning hours of April 17, Dr. Yarbrough ordered more lab work and another abdominal x-ray. After consulting another physician over the phone, Dr. Yarbrough decided to transfer Caves, but before he could do so, Caves's heart stopped. He was resuscitated, only to have his heart stop again a little more than an hour later. Caves was pronounced dead at 3:35 a.m.

¶5. Caves's wife, Irene,² was present at the hospital upon her husband's admission, and she remained there until his death. To determine the cause of her husband's death, Mrs. Caves agreed to an autopsy, which was performed that night. The next day, the coroner informed Mrs. Caves that the cause of death was a "septic colon," which was later recorded as the cause of death on Caves's death certificate.

¶6. On April 21, 2000, Mrs. Caves requested and obtained the medical records pertaining to her husband's death. She later testified at the summary judgment hearing that, shortly after her husband's death, she attempted to obtain a copy of the autopsy report from the pathologist's office, but was told there would be a delay due to the death of the doctor who performed the autopsy. She continued to request the report on a weekly basis until September 2000, when she moved out of state. At that point, she turned the pursuit over to her son Kevin, who continued to request the report. The autopsy report was completed on September 28, 2000, and Mrs. Caves asserts that she did not receive it until March of 2001.

¶7. Before she received the autopsy report, Mrs. Caves contacted an attorney, because she suspected wrongdoing on the part of the Hospital and Dr. Yarbrough. Based on the information available at the time, the attorney declined to take Mrs. Caves's case. She then contacted another attorney, who took her case, and retained an expert, Dr. Gary Pfortmiller. Dr. Pfortmiller signed an affidavit on April 11, 2001, in which he opined that the Hospital and Dr. Yarbrough were negligent and failed to exercise a minimum standard of care in treating Caves.

¶8. On February 13, 2002, Mrs. Caves provided the Hospital³ notice of a claim under the MTCA. She filed an action against the Hospital and Dr. Yarbrough (collectively, the "Defendants") on April 12, 2002. The Defendants responded with an answer and a motion for summary judgment, asserting that Mrs. Caves failed to comply with the one-year statutory limitation for bringing actions under the MTCA. Although the trial court held that the discovery rule applies in cases involving latent injury, it found that Mr. Caves's injuries were not latent, and therefore the discovery rule did not apply to Mrs. Caves's claim. The trial court granted both defendants summary judgment, and Mrs. Caves timely appealed.

¶9. The issue presented is whether Mrs. Caves's claim is barred by the MTCA's one-year statute of repose because she did not commence the action within one year "next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based," as required by Section 11-46-11 (3) of the MTCA.

DISCUSSION

I.

¶10. We apply "a de novo standard of review to a trial court's grant of summary judgment." Moss v. Batesville Casket Co., 935 So. 2d 393, 398 (Miss. 2006). A motion for summary judgment "shall" be granted by a court if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56 (c). Furthermore, "the application of a statute of limitations is a question of law," which is reviewed de novo. Sarris v. Smith, 782 So. 2d 721, 723 (Miss. 2001).

¶11. There is no dispute that both defendants fall within the definition of a political subdivision of the state, and that compliance with the MTCA is required. The only issue for this Court's review is whether the plaintiff's suit is barred by the MTCA's one-year limitation of actions.

II.

Statutes of limitation and statutes of repose.

¶12. Statutory limitation periods which begin to run upon injury or the accrual of a cause of action are referred to by some authorities as "statutes of limitation," whereas those which begin to run at a time specified in the statute — irrespective of injury or the accrual of a cause of action — are often termed "statutes of repose." Thus, the terms "statute of limitations" and "statute of repose" are not always interchangeable. As observed in a recently published legal treatise:

Any statutory law which operates to prevent an action at law or suit in equity may be referred to as a `limitation of actions.' This includes `statutes of limitations' and `statutes of repose.' While these terms are sometimes used interchangeably, they are distinguishable. A `statute of limitation' normally governs the time within which legal proceedings must be commenced after the cause of action accrues. 54 C.J.S. Limitation of Actions §4 (1987). Generally, statutes of limitation begin to run as soon as a cause of action exists. Greenlee v. Mitchell, 607 So. 2d 97, 110 (Miss. 1992). This means a statute of limitation has no effect where a cause of action has not yet accrued. Also, saving statutes sometimes operate to toll the operation of a statute of limitations in favor of minors or persons with a mental disability to permit the assertion of claims after the statutory time. A statute of repose, however, limits the time within which an action may be brought and is unaffected by the accrual of any cause of action. 54 C.J.S. Limitation of Actions §4. Therefore, a statute of repose will absolutely cut off the remedy after the prescription period regardless of whether an injury has occurred, or whether the cause is discovered. In other words, `[t]he bar of a statute of repose is absolute, whereas, the bar of a statute of limitations is conditional.' 54 C.J.S. Limitation of Actions §4; also see, Evans v. Boyle oftlineFlying Service, Inc., 680 So. 2d 821 (Miss. 1996).

Jarrod W. Taylor & Thomas B. Walter, Gaggini's Mississippi Limitations of Actions 2d, §1:01, at 2 (2006). Black's Law Dictionary defines "statute of repose" as follows:

A statute barring any suit that is brought after a specifice time since the defendant acted (such as by designing or manufacturing a product, even if this period ends before the plaintiff has suffered a resulting injury. . . . "A statute of repose . . . limits the time within which an action may be brought and is not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted." 54 C.J.S. Limitations of Actions § 4, at 20-21 (1987).

Black's Law Dictionary 1451 (8^th ed. 2004).

¶13. The issue we must resolve in this case is whether the limitation period (regardless of its label) began to run on a date certain set by the statute; or upon the occurrence of an injury or the accrual of a cause of action. To answer this question, we need only look at the clear, unambiguous, language of the statute:

All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after . . . . 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...