Davis v. Hoss, No. 2002-CA-01356-SCT.
| Citation | 869 So.2d 397 |
| Decision Date | 01 April 2004 |
| Docket Number | No. 2002-CA-01356-SCT. |
| Parties | Cindy Lou DAVIS and Roy Lee Davis v. Dr. Arthur A. HOSS, Dr. Michael C. Doherty, Dr. Samuel Norwood, III, Dr. Rameshkumar B. Patel, Dr. Robert Brent Harrison, Dr. William P. English, Dr. Luis A. Hashimoto, Dr. William D. Donald, Dr. Phillip J. Kregor, The University Hospitals and Clinics, University Orthopaedic Association, University Radiology Associates, PLLC, and University Surgery Associates, PLLC. |
| Court | United States State Supreme Court of Mississippi |
G. Kenner Ellis, Jr., Greenville, attorney for appellants.
Jeffrey Ryan Baker, Walter T. Johnson, Jackson, attorneys for appellees.
¶ 1. Roy Lee and Cindy Lou Davis1 filed separate complaints alleging that, while Roy was a patient at the University of Mississippi Medical Center ("UMMC"), the defendants failed to diagnose the multiple hip fractures he had sustained in a automobile accident. Roy was injured in the accident in Lincoln County and was flown via helicopter to UMMC for treatment. During surgery at UMMC, a bar fell, injuring Roy's genitals. The circuit court granted the defendants' motion for summary judgment, finding the defendants were, at all times pertinent to the complaint, employees of UMMC and, thus, entitled to immunity pursuant to the Mississippi Tort Claims Act. See Miss.Code Ann. §§ 11-46-1 to -23. (2002). Davis appeals, contending that the circuit court erred in finding the defendants were entitled to immunity. Finding insufficient facts to enable a proper analysis under Miller v. Meeks, 762 So.2d 302 (Miss.2000), we affirm in part as to some defendants, reverse in part and remand for further proceedings.
¶ 2. Upon Roy's admission to UMMC, xrays were taken of his pelvis. No fractures were discovered. Roy was discharged a week later, but he subsequently sought treatment at the King's Daughters Hospital in Brookhaven where a hip fracture was diagnosed. Roy was then examined at UMMC, at which time several multiple hip fractures were discovered. He later underwent surgery at UMMC to repair the fractures.
¶ 3. The Davises filed suit, alleging that the defendants were negligent in failing to diagnose the multiple pelvis fractures during his first hospitalization at UMMC and in allowing him to be injured by the falling bar during surgery. He claims that the surgical injury caused him to become sexually dysfunctional. Named defendants were Arthur Hoss, M.D., Michael Doherty, M.D., Samuel Norwood, M.D., Rameshkumar Patel, M.D., Robert Harrison, M.D., William English, M.D., Luis Hashimoto, M.D., William Donald, M.D., Phillip Kregor, M.D., Art Leis, M.D., Electrodiagnostic Consultants, The University Hospital and Clinics (University Medical Center), University Orthopaedic Association, University Radiology Associates, PLLC, University Surgery Associates, PLLC, and John Does No. 1, 2, 3, 4 and 5.
¶ 4. The defendants responded by filing a motion for summary judgment, alleging that (1) Davis did not provide notice pursuant to § 11-46-11(1); (2) Davis' suit was barred by § 11-46-11(3)'s one-year statute of limitations; and (3) each of the physicians, except for Dr. Leis, were employees of the State by virtue of their relationship with UMMC and were entitled to immunity pursuant to § 11-46-1(f). In support of the motion for summary judgment, the defendants submitted affidavits from Paul Trussell, UMMC's Director of Human Resources, and George Powell, UMMC's Risk Manager.
¶ 5. In his affidavit, Trussell averred as follows: (1) the defendant physicians received compensation and benefits from UMMC; (2) the defendant physicians were subject to UMMC's policies, direction and supervision in the scope and conduct of their employment; (3) the defendant physicians did not have discretion or authority to choose their patients; (4) at the time of the alleged negligence, Doctors Hoss, Norwood, English, and Donald were all either residents or interns; and (5) at the time of the alleged negligence, Doctors Doherty, Patel, Harrison, Hashimoto, and Kregor were attending physicians.
¶ 6. Powell is the Risk Manager at UMMC and is responsible for responding to legal claims against UMMC. He stated that UMMC did not receive notice of Davis' lawsuit until it had already been filed and that the defendants were not served process until October 18, 2001, which was outside the one year limitation period to bring suit under the MTCA. He also stated that UMMC required that the physicians employed in their respective departments create and maintain private entities for billing and collection purposes, and that the parties named in the lawsuit, University Orthopaedic, University Radiology, and University Surgery, existed solely to facilitate billing and collections for UMMC.
¶ 7. A hearing on the motion for summary judgment was set for January 14, 2002. Davis filed a motion for continuance, requesting in part that additional time was needed to conduct discovery, in part because the requested medical records had not been forthcoming. The motion for continuance was not ruled upon, but the record shows that no hearing on the motion for summary judgment was ever held. The circuit court did grant the defendants' motion to consolidate the two Davis complaints, but did not rule on the motion for summary judgment.
¶ 8. On March 15, 2002, Davis propounded discovery and filed a motion for additional time to conduct discovery. Davis submitted the affidavit of his attorney stating that no scheduling order was ever entered in the case, discovery had been served on the defendants with no response, depositions were scheduled to determine the defendant physicians' employment status, and that the defendant physicians had provided no evidence on their contractual employment status. Davis also attached letters mailed to the Medical Center Records Librarian, whereby Davis' medical records had been requested on March 1, 2000, October 22, 2001, and November 16, 2001. The records were not made available until December 26, 2001.
¶ 9. The circuit court never ruled on any of Davis' motions. Instead, the circuit court granted the defendants' motions for summary judgment without a hearing.2 It found that: (1) Davis did not comply with the MTCA notice provision; (2) Davis did not comply with the one year statute of limitations found in the MTCA; (3) Davis failed to state a claim against the individual physicians because they were state employees entitled to immunity; and (4) there were no genuine issues of material fact. Davis appeals.
¶ 10. We employ a de novo standard of review of a trial court's grant or denial of summary judgment and examine all the evidentiary matters before it, admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Hurdle v. Holloway, 848 So.2d 183, 185 (Miss. 2003).3 The evidence is viewed in the light most favorable to the party opposing the motion. If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. The burden of demonstrating that no genuine issue of fact exists is on the moving party. Moore ex rel. Moore v. Mem'l Hosp. of Gulfport, 825 So.2d 658, 663 (Miss.2002). The party opposing the motion must be diligent and may not rest upon mere allegations or denials in the pleadings but must by allegations or denials set forth specific facts showing there are genuine issues for trial. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997).
¶ 11. Davis argues that the circuit court erred in granting summary judgment in favor of UMMC. He contends that the statute of limitations was tolled because UMMC concealed his medical records until December 26, 2001. He further claims that his injury was latent and not discoverable until he had an opportunity to review his medical records.
¶ 12. UMMC is an instrument of the State of Mississippi and is subject to the requirements of the MTCA. Miss.Code Ann. § 11-46-1(j). A plaintiff must provide notice of a claim to the chief executive officer of a state institution ninety days prior to bringing a civil suit against the state entity. Id. § 11-46-11(1). All actions brought under the provision of the MTCA must be brought within one year of the tortious conduct. Id. § 11-46-11(3).
¶ 13. Under the MTCA, we require substantial compliance with regard to filing a notice of claim and the institution of a suit. Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999). However, "substantial compliance is not the same as, nor a substitute for, non compliance." Id. at 265. In the present case, Davis did not substantially comply with the MTCA's requirements. He gave notice of his claim against UMMC on the day that he filed his lawsuit.
¶ 14. Davis contends that the discovery rule applies because UMMC did not produce his medical records until December 26, 2001. He claims that his injury was latent and not discoverable until he had an opportunity to review his medical records.
¶ 15. The discovery rule applies only when the injured party is unaware of his injuries and the conduct that caused the injuries. Robinson v. Singing River Hosp. Sys. 732 So.2d 204, 208 (Miss.1999). The discovery rule will toll the statute of limitations "until a plaintiff `should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent.'" Moore ex rel. Moore v. Mem'l Hosp. of Gulfport, 825 So.2d at 667 (quoting Sarris v. Smith, 782 So.2d 721, 725 (Miss.2001)). While it is true that a plaintiff's access to medical records may have an impact on whether his injuries are deemed to be latent, we have expressly rejected "a bright line rule that the statute of limitations can never start to run until the plaintiff has...
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