Sarris v. Smith, 1999-CA-01782-SCT.

• Decision Date: 05 April 2001
• Docket Number: No. 1999-CA-01782-SCT.,1999-CA-01782-SCT.
• Citation: 782 So.2d 721
• Parties: Shirley C. Johnson SARRIS, as Wife and Personal Representative of the Wrongful Death Beneficiaries of Shelby V. Johnson, Deceased v. Dr. McKamy SMITH and Jackson Heart Clinic, Professional Association.
• Court: Mississippi Supreme Court

782 So.2d 721

Shirley C. Johnson SARRIS, as Wife and Personal Representative of the Wrongful Death Beneficiaries of Shelby V. Johnson, Deceased v. Dr. McKamy SMITH and Jackson Heart Clinic, Professional Association.

No. 1999-CA-01782-SCT.

Supreme Court of Mississippi.

April 5, 2001.

John H. Cocke, Clarksdale, for Appellant.

George Quinn Evans, Carolyn Alleen McLain, Jackson, for Appellees.

Before PITTMAN, C.J., MILLS and COBB, JJ.

COBB, Justice, for the Court:

¶ 1. Shirley C. Johnson Sarris brought suit in the Hinds County Circuit Court against Dr. McKamy Smith and his employer, the Jackson Heart Clinic, P.A. (JHC),¹ alleging medical malpractice arising out of the death of Sarris's husband Shelby V. Johnson. After depositions and other discovery, Dr. Smith and JHC filed a motion for summary judgment asserting that Sarris's claim was barred by the statute of limitations.² The circuit court granted the motion and dismissed the case. Sarris has perfected a timely appeal and lists three issues, all of which regard the statute of limitations, as follows: (1) the trial court erred in granting summary judgment on the basis that the statute of limitations had run prior to the filing of the complaint in this action; (2) the trial court erred in ruling that the statute of limitations ran from the date of death rather than from the time Sarris knew or should have known of the negligent treatment of the decedent; and (3) the trial court erred in ruling that the statute of limitations was not tolled pending Sarris's efforts to obtain the medical records which were delayed by no fault of Sarris. Dr. Smith and JHC did not cross-appeal, but present additional arguments regarding the applicability of the statute of limitations. Thus the only issue before this Court is:

I. DID THE LOWER COURT ERR IN HOLDING THAT THE APPELLANT'S CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS?

¶ 2. We find that the lower court did err in holding that Sarris's claim was barred by the statute of limitations, and we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 3. Shirley Johnson Sarris's late husband Shelby V. Johnson suffered the first of two heart attacks early on the morning of March 24, 1995. Sarris drove Johnson to St. Dominic Hospital in Jackson, where he was examined by emergency room physician Dr. Frank Koe and Dr. Raymond Grenfell, Jr. Later that day, Grenfell contacted Dr. McKamy Smith, a cardiologist, and requested that he examine Johnson. Grenfell testified that he relied on Smith's judgment as to whether Johnson should leave the hospital and whether follow-up care was necessary.

¶ 4. Dr. Smith admitted that he had an obligation to tell Johnson to seek follow-up care for possible cardiac problems and to put that recommendation on Johnson's hospital chart in order to communicate his opinion to Grenfell, neither of which he apparently did. Grenfell, in the absence of any indication that follow-up care was needed, dismissed Johnson from the hospital the next day, being March 25. On April 9, Johnson suffered a fatal heart attack in his home.

¶ 5. In June, Sarris attempted to gain access to Johnson's medical records, but hospital personnel informed her that the records were not yet on file. Sarris tried repeatedly over the following months to acquire Johnson's records, before they were finally produced in early January of 1996. In June of 1997, a medical expert employed by Sarris's attorney concluded that Johnson's death was caused by Smith's negligence. Sarris filed suit in December of 1997, within two years of her acquisition of the records, but well over two years after Johnson's death.

STANDARD OF REVIEW

¶ 6. A trial court's grant of summary judgment is reviewed de novo, with this Court viewing the evidence in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622 (Miss. 1997). Furthermore, application of a statute of limitation is a question of law to which a de novo standard also applies. ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999).

ANALYSIS

II. DID THE LOWER COURT ERR IN HOLDING THAT THE APPELLANT'S CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS?

¶ 7. At the time of Johnson's death, Mississippi's statute of limitations for medical malpractice actions stated in relevant 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. § 15-1-36(1)(1995).³

A. Is the discovery rule applicable?

¶ 8. The parties do not dispute that Sarris filed suit more than two years after Johnson's death. Sarris argues, however, that the statute of limitations was tolled until she was able to secure her husband's medical records, since she exercised reasonable diligence in getting those records and could not reasonably be expected to know of Dr. Smith's and JHC's tortious conduct without the records. Smith and JHC argue that the trial court was correct in holding that the statute of limitations began to run at Johnson's death, because Sarris was on notice that some negligent act might have occurred to cause that death. The resolution of this issue therefore turns on when Sarris "discovered" the wrongful conduct within the meaning of the statute.

¶ 9. This Court interpreted the discovery 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." Smith v. Sanders, 485 So.2d 1051, 1052 (Miss. 1986); see also Kilgore v. Barnes, 508 So.2d 1042, 1043-46 (Miss.1987)

(holding statute of limitations did not bar malpractice suit over surgical needle left in lining of plaintiff's heart in 1974 but not discovered by plaintiff until 1982).

¶ 10. Smith and JHC argue that the question is when Sarris knew or should of known of (1) Johnson's death; (2) the cause of his death; and (3) the relationship between Johnson's death and Smith's purportedly negligent treatment of him. Smith and JHC further argue that Sarris knew all three things the day of Johnson's death. This Court disagrees. We believe that Sarris could not reasonably have known, until she reviewed the medical records, the causal relationship between Johnson's death and Smith's failure to inform either him or Dr. Grenfell that Johnson needed follow-up treatment.

B. Does the statute of limitations for wrongful death automatically begin to run upon the date of the death?

¶ 11. Smith and JHC argue that this Court has "repeatedly" held that the discovery rule only applies to latent injuries and "steadfastly stated" that the statute of limitations for wrongful death begins to run on the date of the death. In support of these arguments, they cite three cases which they claim must be overruled if this Court allows Sarris's suit to proceed: Chamberlin v. City of Hernando, 716 So.2d 596, 601 (Miss.1998) (the discovery rule was inapplicable because the plaintiff was present at all times when negligent conduct allegedly occurred and because her own son-in-law was one of the paramedics who were present at the scene); Gentry v. Wallace, 606 So.2d 1117, 1119 (Miss.1992) (notwithstanding the express terms of § 15-1-36(1), the statute of limitations for wrongful death could not begin to run prior to the death that is the basis for the suit); and Sweeney v. Preston, 642 So.2d 332, 333 (Miss.1994) (tolling statute of limitations where plaintiff actually discovered defendant doctor's mistake more than twelve years after doctor negligently mistyped plaintiff's blood, resulting in death of two of plaintiff's children). We do not find the argument of Smith and JHC persuasive. Moreover, Sweeney stands squarely for the proposition that the statute of limitations can be tolled until a plaintiff gains actual knowledge of the defendant's negligent conduct even if that knowledge is not gained until years after the death that is the basis for the suit. Sweeney is directly on point. The discovery rule should have been applied to toll the statute of limitations, because while Sarris knew that her husband was dead, under the facts of this case, she could not reasonably have known that the death was the result of negligence.

C. Was the statute of limitations tolled until Sarris could secure expert opinion supporting her claim?

¶ 12. Smith and JHC next argue that under the rule announced in United States v. Kubrick, Sarris's claim accrued when she knew of the cause of her husband's death (a heart attack), not when she knew that Smith's acts might constitute medical malpractice. In that case, Kubrick brought suit against a Veteran's Administration hospital...