Jackson Medical Clinic for Women v. Moore, 1999-IA-01286-SCT.

• Decision Date: 30 January 2003
• Docket Number: No. 1999-IA-01286-SCT.,1999-IA-01286-SCT.
• Citation: 836 So.2d 767
• Parties: JACKSON MEDICAL CLINIC FOR WOMEN, P.A., Mercer Lee, III, M.D., Darden H. North, M.D. and Paracelsus Woman's Hospital, Inc. v. Grace Polles MOORE and Robert Alan Moore, Individually and as Personal Representatives and Wrongful Death Beneficiaries of Robert Alan Moore, Jr., Deceased.
• Court: Mississippi Supreme Court

836 So.2d 767

JACKSON MEDICAL CLINIC FOR WOMEN, P.A., Mercer Lee, III, M.D., Darden H. North, M.D. and Paracelsus Woman's Hospital, Inc. v. Grace Polles MOORE and Robert Alan Moore, Individually and as Personal Representatives and Wrongful Death Beneficiaries of Robert Alan Moore, Jr., Deceased.

No. 1999-IA-01286-SCT.

Supreme Court of Mississippi.

January 30, 2003.

Whitman B. Johnson, III, Thomas Creagher Turner, Jackson, Joseph L. McNamara, Ridgeland, attorneys for appellants.

Dana J. Swan, Richard B. Lewis, Clarksdale, Dennis C. Sweet, III, Jackson, attorneys for appellees.

EN BANC.

COBB, J., for the court.

¶ 1. On August 7, 1995, Grace Polles Moore and Robert Alan Moore (the Moores), individually, and as personal representatives and wrongful death beneficiaries of Robert Alan Moore, Jr., filed their complaint in the Circuit Court of Hinds County, First Judicial District. The Moores claimed medical negligence against the Jackson Clinic for Women, P.A., Dr. A. Mercer Lee, III, Dr. Darden H. North (collectively, Jackson Clinic), and Paracelsus Woman's Hospital (now the Woman's Hospital), alleging damages for the wrongful death of their stillborn child, and for personal injuries sustained by themselves. On November 14, 1995, Jackson Clinic filed a motion for summary judgment,¹ claiming the Moores' action was barred by the two-year statute of limitations for medical negligence, Miss.Code Ann. § 15-1-36. The motion for summary judgment was denied. Jackson Clinic then filed a petition for interlocutory appeal with this Court concerning the statute of limitations issue, which we denied on May 22, 1996.

¶ 2. On February 20, 1997, Jackson Clinic issued a subpoena duces tecum to Mrs. Moore's previous attorney, Michael Hartung, to produce all files, correspondence, documents, or other things related to the representation of the Moores in this matter. The Moores filed a motion to quash the subpoena duces tecum, which was granted by the circuit court by order on March 10, 1997. A motion to reconsider was then filed, which was similarly denied.

¶ 3. On October 29, 1998, Jackson Clinic again filed a motion for summary judgment, along with a motion for disclosure of records and other relief, which was denied by the circuit court on July 19, 1999. On April 28, 2000, Jackson Clinic again petitioned this Court for an interlocutory appeal, this time on the issue of waiver of attorney-client privilege, which this Court granted by order on April 13, 2000. See M.R.A.P. 5. Jackson Clinic states its issue on interlocutory appeal as follows:

DOES THE PLAINTIFFS' VOLUNTARY USE OF ADVICE AND COMMUNICATIONS FROM THEIR FORMER ATTORNEY AS A BASIS TO AVOID DEFENDANTS' STATUTE OF LIMITATIONS DEFENSE WAIVE THE ATTORNEY CLIENT PRIVILEGE SO AS TO ALLOW DEFENDANTS TO CONDUCT DISCOVERY REGARDING THE FORMER ATTORNEY'S FILE AND ADVICE?

¶ 4. Concluding that Jackson Clinic's appeal is well taken, we reverse and remand.

FACTS

¶ 5. On or about August 24, 1992, Grace Polles Moore, who was pregnant at the time, entered Woman's Hospital complaining of abdominal pain. Moore was under the care of Dr. Lee and Dr. North, physicians practicing with the Jackson Clinic for Women. It was determined that Moore was suffering from a twisted bowel, which required a cesarian section be performed, along with a resection of her small bowel; the baby was stillborn.

¶ 6. Moore, herself a registered nurse, contacted attorney Michael Hartung in December of 1992, who in turn requested the medical records of her treatment in August from the two doctors, the clinic and the hospital. Hartung forwarded the records to an expert, Dr. Richard A. Nicholls, for review. Dr. Nicholls opined, in a letter dated April 5, 1993, that Jackson Clinic was not negligent and may have in fact saved her life:

Although Mrs. Polles [Moore] presented at multiple times with abdominal pain during her pregnancy, she had a history of multiple gastrointestinal problems and previous abdominal surgeries which alone could have accounted for her abdominal pain, manifesting the signs and symptoms that she presented with. Volvulus with gangrene of the bowel is an acute happening, not chronic. There was no way to diagnose this condition until it happened. It is unfortunate that the patient was pregnant at the time, because gangrene of the bowel did cause her baby's death; however, she was very fortunate that her physicians recognized that she had an acute surgical abdomen and that they acted appropriately because had they not, she would also be dead. Her physicians are not guilty of malpractice, but they are responsible for saving her life.

¶ 7. According to Moore, later that year in November of 1993, she was hospitalized at the Mississippi Baptist Medical Center due to chronic abdominal pain, nausea, vomiting, bloating, and diarrhea, as a result of her short bowel syndrome. Her treating physician referred her to the Mayo Clinic in Jacksonville, Florida. Moore claims that it was during this treatment at the Mayo Clinic, in January of 1994, that "she was alerted to the fact that her treatment in August 1992, may have been the cause of the death of her baby and of her short bowel syndrome." Moore retained a different attorney, Richard B. Lewis, in April 1994, who then forwarded her medical records to Dr. Charles Cesare, a gynecologist licensed to practice in Mississippi. Dr. Cesare reached a different conclusion than Dr. Nicholls had previously:

Subsequently, on or about September 15, 1994, more complete medical records of Mrs. Moore were made available to me. Based upon the additional records of the hospital, I was able to determine that she did not receive the minimum standard of care from the treating physicians, and from the hospital, Paracelsus Woman's Hospital. She was not properly evaluated and monitored during the night. Had a proper evaluation been done, her baby could have been saved and her intestine could have been saved.

In my opinion, the type of injury sustained by Mrs. Moore resulting from the medical care given by her treating physicians, as well as Paracelsus Woman's Hospital, Inc., was a latent injury whose cause could not be readily ascertained except by a thorough review of all medical records by a physician. I am aware that Mrs. Moore is a registered nurse, however, this would not give her the expertise necessary to determine whether or not there was a causal relationship between her injuries and the care which she received on August 24, 1992.

On October 8, 1995, I met with Mr. and Mrs. Moore and informed them of my opinion.

STANDARD OF REVIEW

¶ 8. When the issues presented on an interlocutory appeal are questions of law, this Court will review those issues, as other questions of law, de novo. Gant v. Maness, 786 So.2d 401, 403 (Miss.2001).

DISCUSSION

¶ 9. Jackson Clinic devotes a considerable amount of its brief to discussing why the Moores' causes of action should have been barred by the statute of limitations and why summary judgment should have been granted by the trial court. However, we did not grant this interlocutory appeal to consider that issue. Since this Court has previously denied an interlocutory appeal on the issue on the statute of limitations and summary judgment, we will limit our discussion of that issue to what is necessary to fully understand the issue that is properly before this Court, namely, whether Moore has effectively waived the attorney-client privilege.

A. Statute of Limitations—Discovery Rule

¶ 10. Mississippi has a two-year statute of limitations for medical malpractice claims. Miss.Code Ann. § 15-1-36 (Supp.2002). The action must be "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." Id. § 15-1-36(1). This Court has termed this the "discovery rule" and has interpreted the rule to mean that "the operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner." Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001) (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986)). "Application of the discovery rule is a fact-intensive process." Sarris, 782 So.2d at 725. Still, if the plaintiff "fails to bring suit because he is incompetently or mistakenly told he does not have a case, we discern no sound reason for visiting the consequences of such on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit." United States v. Kubrick, 444 U.S. 111, 124, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).

¶ 11. Jackson Clinic argues that the statute of limitations for the Moores' causes of action began to run upon receipt of Mrs. Moore's medical records by her former attorney, Michael Hartung, around January of 1993. In that case, the suit would be time barred because the Moores did not file their complaint until more than two and one-half years later. Contrarily, the Moores claim that the injury sustained by Mrs. Moore was latent and was not discovered until sometime between January and September of 1994; thus, the claim was filed well within the two-year statute of limitations. However, this Court need not decide which party is correct as that issue is not now before this Court. The only issue on this interlocutory appeal is whether Moore waived the attorney-client privilege by allegedly revealing otherwise privileged communications with her previous attorney, Michael Hartung, to defeat Jackson Clinic's motion for summary judgment.

B. Waiver of Attorney-Client Privilege

¶ 12. In Mississippi, the attorney-client privilege is established by the Mississippi Rules of Evidence. Pursuant to our evidentiary rules: "A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications...