Gentry v. Wallace

• Decision Date: 19 August 1992
• Docket Number: No. 89-CA-133,89-CA-133
• Citation: 606 So.2d 1117
• Parties: John Billy GENTRY v. Dr. John M. WALLACE, Dr. Thomas K. Judd, Dr. Daniel W. Jones, d/b/a Internal Medicine Clinic of Laurel, P.A.; Dr. P.A. Pittman; Dr. Peeler G. Lacey; Dr. Clyde R. Allen; Dr. C.G. Hull, III; Dr. Susan S. Cannon; Dr. Kelly E. Hutchins.
• Court: Mississippi Supreme Court

Page 1117

606 So.2d 1117

John Billy GENTRY v. Dr. John M. WALLACE, Dr. Thomas K. Judd, Dr. Daniel W Jones, d/b/a Internal Medicine Clinic of Laurel, P.A.; Dr P.A. Pittman; Dr. Peeler G. Lacey; Dr. Clyde R. Allen Dr. C.G. Hull, III; Dr. Susan S. Cannon; Dr. Kelly E Hutchins.

No. 89-CA-133.

Supreme Court of Mississippi.

Aug. 19, 1992.

Rehearing Denied Oct. 8, 1992.

T. Mack Brabham, Brabham & Bean, McComb, for appellant.

Anthony L. Thaxton, Gilchrist Sumrall Thaxton & Yoder, Robert D. Gholson, Gilchrist Sumrall Thaxton Firm, Laurel, Dorrance Aultman, Aultman Tyner McNeese & Ruffin, Hattiesburg, Brooke Ferris, Gibbes Graves Mullins Bullock & Ferris, Ernest W. Graves, Gibbes Graves Mullins Firm, Laurel, Douglas E. Levanway, Wise Carter Child & Caraway, R. Mark Hodges, Wise Carter Firm, Jackson, for appellee.

EN BANC.

McRAE, Justice, for the Court:

This appeal arises from a September 16, 1988, order of the Jones County Circuit Court granting summary judgment to the appellees in a wrongful death medical negligence action. Finding that the Circuit Court erred in concluding that the statute of limitations on a wrongful death action began to run when the negligence of the physicians was discovered prior to death, we reverse and remand for a full trial on the merits.

I.

Sometime in 1981, Mary D. Gentry was diagnosed as having cancer in her right breast and underwent a radical mastectomy. Several years later, she experienced swollen lymph nodes and other disturbing symptoms. Between September, 1984, and March 1, 1985, she was under the care of Dr. P.A. Pittman and Dr. John M. Wallace. Neither physician diagnosed or treated Mrs. Gentry for cancer. Her condition continued to worsen and out of dissatisfaction with the treatment she was receiving from both Dr. Pittman and Dr. Wallace, she sought another opinion. She consulted Dr. Charles J. Parkman of the Hattiesburg Clinic in Hattiesburg, Mississippi. Dr. Parkman immediately diagnosed metastatic breast carcinoma and advised her on March 1, 1985, that her condition was so far advanced due to the lack of treatment that he would be unable to take any reasonable medical treatment to prolong or save her life. On March 15, 1985, Mary D. Gentry departed this world, hastened along by "adenocarcinoma of the breast, metastatic to the lung."

Mrs. Gentry's son and sole surviving heir, John Billy Gentry, filed this wrongful death action on March 16, 1987. This was exactly 2 years and 1 day after her death, but allowance was made for March 15, 1987, which was a Sunday. The suit charged that the defendant physicians were remiss in "their duty to exercise that minimum degree of care, skill, diligence and prudence as other physicians in the United States practicing in their field of specialty, subject to available facilities." Gentry further averred that: [t]he plaintiff would show that as a direct and proximate result of the negligence of any one of or all of the above named defendants that such caused or contributed to the death of Mary D. Gentry and that the Estate is entitled to recover all burial fees and expenses and that John Billy Gentry is entitled to recover statutory damages allowed to him as the sole surviving heir of Mary D. Gentry including, but not limited to, the loss of society and companionship, the present net cash value of the life expectancy of Mary D. Gentry, the pain and suffering endured by Mary D. Gentry prior to her death, all reasonable medical expenses, and any other damages allowed by law.

After limited discovery, the defendant physicians moved for summary judgment, citing the affirmative defense of the two year wrongful death statute of limitations embodied at Miss.Code Ann. Sec. 15-1-36(1) (Supp.1987). On September 16, 1988, the Circuit Court of Jones County granted summary judgment as to all the defendants. In so ruling, the trial judge relied principally on Tribou v. Gunn, 410 So.2d 378 (Miss.1982) and Kilgore v. Barnes, 508 So.2d 1042 (Miss.1987). These cases articulate the now familiar point that in a medical malpractice suit, the cause of action accrues when the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered. The trial judge reasoned that the cause of action accrued on March 1, 1985, when the misdiagnosis--or more accurately, the failure to diagnose--came to light. At that point, the statute of limitations started running. The last date on which Mary Gentry could have filed a medical malpractice claim would have been two years later, on March 1, 1987. John Billy Gentry filed the wrongful death action on March 16, 1987, two years after his mother's death. The trial judge ruled that under the statute, his claim was barred and entered summary judgment in favor of the physicians.

II.

On appeal, we consider only the question of whether a wrongful death action arising in the context of medical negligence is measured from the date the decedent knew or should have known about the act of negligence. We hold that it does not. Rather, the cause of action does not accrue until the death of the negligently injured person. Accordingly, Gentry's suit is not barred by the statute of limitations.

The statute governing the limitation period in a medical negligence action reads in part:

Except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, ... for injuries or wrongful death 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.

Miss.Code Ann. Sec. 15-1-36(1) (Supp.1991).

Had Mary Gentry lived to bring a medical negligence action for the personal injuries she sustained, the clock would have begun to tick on March 1, the date she might have reasonably discovered the negligence of her physicians. However, this is a wrongful death action brought by John Billy Gentry in his capacity as his mother's sole surviving heir. Wrongful death is a separate and distinct cause of action, which can be brought only by the survivors of the deceased. Miss.Code Ann. Sec. 11-7-13 (1972 and Supp.1991). Without and until the death of Mary Gentry, there was no cause of action under the wrongful death statute to trigger the two year statute of limitations. Further, under the statute, the limitations period does not begin to run until the heir knows or should reasonably know about the medical negligence which caused the death.

As it stands, the ruling of the trial court erroneously assumes that wrongful death and medical negligence causes of action are synonymous. However, wrongful death has been recognized as a tort separate and distinct from other personal injury actions. See Partyka v. Yazoo Development Corp., 376 So.2d 646, 650 (Miss.1979); Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So.2d 791, 792 (1944); see also Matthews v. Celotex Corporation, 569 F.Supp. 1539, 1543 (D.C.N.D.1983); Woods v. Monroe Manor Nursing Homes, Inc., 530 So.2d 1221, 1222 (Fla.1988); Sheets v. Graco, Inc., 292 N.W.2d 63, 67 (Mo.1980); Ratka v. St. Francis Hospital, 44 N.Y.2d 604, 609, 407 N.Y.S.2d 458, 460, 378 N.E.2d 1027, 1030 (1978). We are reminded that while a personal injury case enables an injured party to recover damages for the injuries he has sustained, a wrongful death action is intended to compensate the heirs of the deceased for losses stemming from the death of the injured party. Sheets, 292 N.W.2d at 67. Thus the damages sought are likewise separate and distinct and must not be confused with the cause of action raised.

A review of the history of the wrongful death action is instructive in illustrating the distinction between that and other personal injury or negligence actions. In earlier times, we adhered to the common law rule that recovery of damages was allowed for the negligent injury of another, but upon the death of the injured party, the right to recover was extinguished because it was personal. Courts obeyed the maxim that actio personalis moritur cum persona or in modern parlance--a personal action dies with the person. This rule is thought to have originated with Baker v. Bolton, 170 Eng.Rep. 1033 (1808) wherein Lord Ellenborough declared: "In a civil court, the death of a human being could not be complained of as an injury." T.A. Smedley, Wrongful Death--Bases of the Common Law Rules, 13 Vanderbilt Law Review 605, 606 n. 4 (and accompanying text) (1960). A similar prohibition against causes sounding in the death of another goes to an even earlier period of the common law. See 3 W. Blackstone, Commentaries *302: "And in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, such as trespass, battery, and slander, the rule is that actio personalis moritur cum persona; and it never shall be revived either by or against the executors or other representatives." Thus, at common law, the wrongful death cause of action did not exist. Smith v. Garrett, 287 So.2d 258, 260 (Miss.1973); Logan v. Durham, 231 Miss. 232, 95 So.2d 227 (1957).

The rule in Baker v. Bolton crossed the Atlantic Ocean and spread throughout the United States. Speiser, Recovery for Wrongful Death Sec. 1:3 (1966). But its harshness soon brought forth a clamor for relief and in 1846, the English Parliament passed what is now known as "Lord Campbell's Act." This statute provided that whenever the death of any person was caused by the wrongful act, neglect or default of another, in such a manner as would have entitled the party injured to have sued had death not ensued, an action could be maintained if brought within twelve months after his death in the name of his executor or administrator for the benefit of certain relatives. Hence, this Act created a new cause of action based upon a wrongful act, limited recovery to certain named beneficiaries, and...