Nina Price v. Steven Clark ( 2007 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2007-CA-01671-SCT
NINA PRICE, INDIVIDUALLY AND ON BEHALF
OF ALL WRONGFUL DEATH BENEFICIARIES OF
ALBERT B. PRICE, JR., DECEASED
v.
STEVEN CLARK, M.D., SAMUEL DUFF AUSTIN,
M.D., BENNIE BARNETTE WRIGHT, JR., M.D.,
ESTATE OF BARRY STEPHEN SULLIVAN, M.D.,
CLEVE LAN D M EDICAL ALLIAN CE, LLP,
C L EV E LA ND M E D IC AL C LIN IC , P LL C ,
CLEVELAND MEDICAL CLINIC, LTD AND
CLEVELAND CLINIC, P.A.
DATE OF JUDGMENT: 08/17/2007
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CHRISTOPHER MORGAN POSEY
EDWARD A. WILLIAMSON
JOHNNIE E. WALLS, JR.
ATTORNEYS FOR APPELLEES: JAMES LAWRENCE WILSON, IV
TOMMIE G. WILLIAMS
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN PART
AND REVERSED AND REMANDED IN
PART. ON CROSS-APPEAL: AFFIRMED -
07/23/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. This appeal involves various issues arising from medical-negligence/wrongful-death
litigation against various medical providers under both the Mississippi Tort Claims Act and
the medical-malpractice statute. We affirm in part and reverse in part the final judgment of
dismissal entered by the Circuit Court for the Second Judicial District of Bolivar County,
Judge Charles E. Webster presiding.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. Albert Price, Jr., Nina Price’s (“Price”) husband, was diagnosed with a pituitary tumor
on April 9, 2004, just four months prior to his death on August 14, 2004. Upon the death of
her husband, Nina Price commenced this litigation via a duly-filed complaint alleging that
her husband’s primary-care physician, Dr. Steven Clark, had proximately caused her
husband’s injuries and wrongful death due to his negligent failure to timely diagnose the
pituitary tumor. Pursuant to a theory of respondeat superior, Price also named as defendants
in her original complaint Dr. Clark’s employers: Cleveland Medical Clinic, PLLC;
Cleveland Medical Alliance, LLP (“Alliance”); and Providence Healthcare d/b/a Bolivar
Medical Center (“Bolivar Medical Center”).1 Price further alleged that her husband’s
neurologist, Dr. Ravi Pande, of Greenwood Neurology Clinic, was negligent in failing to
diagnose the tumor, which proximately caused injuries to Mr. and Mrs. Price and the
wrongful death of Mr. Price.
1
It was later determined that Providence Healthcare was improperly identified, and
that the proper name of the corporate entity that owned Bolivar Medical Center was PHC-
Cleveland, Inc.
2
¶3. Mr. Price had various health problems, receiving primary care from 1980 until the
time of his death in 2004 at what he believed to be the same medical clinic. However, this
clinic actually was a series of successive partnerships housed in the same facility. Alliance
was a limited-liability partnership formed on May 30, 1997, by the Board of Trustees for
Greenwood Leflore Hospital and physicians Charles F. Brock, M.D.; Benny B. Wright, Jr.,
M.D.; Samuel D. Austin, M.D.; and Barry S. Sullivan, M.D. Dr. Clark was an employee of
Alliance from December 20, 1999, through September 30, 2003. However, Price maintains
that at the time she filed the suit, she was unaware of any affiliation between Alliance and
Greenwood Leflore Hospital. Cleveland Medical Clinic, PLLC, was the successor clinic
organized and operated between October 1, 2003, and January 31, 2004, by physicians
Charles F. Brock, Jr., M.D.; James E. Warrington, Jr., M.D.; Benny B. Wright, Jr., M.D.; and
Steven Clark, M.D. After February 1, 2004, Cleveland Medical Clinic became an affiliated
entity of Delta Regional Medical Center. Bolivar Medical Center, formerly known as Bolivar
County Hospital, was the local hospital where Mr. Price received medical care.
¶4. The following is a procedural timeline of this case:
August 30, 2004 Price mailed notice-of-claim letters, as required by Mississippi Code
Section 15-1-36(15), to the following defendants: Dr. Steven Clark,
individually; Dr. Clark on behalf of Alliance; National Registered
Agents on behalf of Bolivar Medical; Gerald Jacks, a registered agent
of Cleveland Medical Clinic.
3
August 31, 2004 Price filed a complaint 2 against Dr. Steven Clark, Alliance, Bolivar
Medical, Cleveland Medical Clinic, Dr. Ravi Pande, and John Does 1-
5. The basis of the complaint was negligence and gross negligence in
failing to treat and diagnose the pituitary tumor. That same day, Price
mailed Dr. Pande a notice-of-claim letter.
December 7, The defendants were personally served with process. Dr. Clark was
2004 served individually and on behalf of Alliance, because Price
mistakenly believed him to be a former partner of the now-dissolved
limited-liability partnership.
January 4, 2005 Dr. Pande filed a Motion to Dismiss for Failure to State a Claim Upon
Which Relief Can Be Granted based on Dr. Pande’s alleged protected
status under the MTCA as a employee of Greenwood Neurology
Clinic, which was owned and operated by a public hospital,
Greenwood Leflore Hospital. Dr. Pande later was dismissed from the
suit by Agreed Order of Dismissal Without Prejudice filed on February
2, 2006.
February 3, Price sent notice-of-claim letters to additional defendants pursuant to
2005 the MTCA. Price sent these letters to Delta Regional Medical Center
(L. Ray Humphreys, CEO) due to its affiliation with Cleveland
Medical Clinic and to Greenwood Leflore Hospital (Jerry Adams,
Executive Director) due to its affiliation with Alliance and Greenwood
Neurology Clinic.
2
Price actually filed two complaints on August 31, 2004. The second complaint was
filed in the same cause number and added one additional defendant, Dr. Ravi Pande. The
record reveals that the second complaint was intended as a substitute for the first complaint.
Both complaints will be referred to collectively as the “original complaint.”
4
June 27, 2005 Without leave from the trial court, Price filed an “Amended
Complaint” adding defendants Greenwood Leflore Hospital and Delta
Regional Medical Center. The amended complaint retained all the
previously named defendants, but renamed Cleveland Medical Clinic
as “Cleveland Medical Clinic, PLLC.” The underlying basis of the
complaint remained the same – negligence and gross negligence. Dr.
Clark, Alliance, and Cleveland Medical Clinic, PLLC, were not served
with a copy of the amended complaint. Greenwood Leflore Hospital
eventually was dismissed by Agreed Order of Dismissal Without
Prejudice filed on February 2, 2006. Delta Regional was dismissed
from the suit by Agreed Order of Dismissal entered on March 13,
2006.
November 2, Price filed a “Second Amended Complaint” that retained the
2005 previously named defendants and underlying basis for the complaint,
but added PHC-Cleveland, Inc. d/b/a Bolivar Medical Center. PHC-
Cleveland, Inc. d/b/a Bolivar Medical Center was incorrectly identified
in the original complaint as “Province Healthcare Company.”Also on
this day, summonses were issued for service on Delta Regional
Medical Center, Greenwood Leflore Hospital, and PHC-Cleveland,
Inc., by way of CT Corporation Service in Lakeland, Florida.
December 27, Defendants, Dr. Steven Clark, Cleveland Medical Clinic, and Alliance
2005 filed their Answers, First Defenses, and Motions to Dismiss, raising
the defenses of failure to timely file notice of claim pursuant to
Mississippi Code Section 15-1-36; the failure of plaintiff to attach to
the second amended complaint a certificate executed by the plaintiff’s
attorney as required by Mississippi Code Section 11-1-58; the failure
to provide proper notice of claim under the MTCA; as well as all
applicable Rule 12 defenses under the Mississippi Rules of Civil
Procedure and other relevant defenses. Following a response from
Price, the defendants filed a Rebuttal in Support of Motions to Dismiss
and Notice of Conversion to Motion for Summary Judgment.
February 21, An Agreed Order of Dismissal was entered for PHC-Cleveland, Inc.
2006 (incorrectly named in the Complaint as Province Healthcare Company
d/b/a Bolivar Medical Center).
April 20, 2006 Price issued new notice-of-claim letters to Drs. Steven Clark, Barry
Sullivan, Samuel D. Austin, Bennie B. Wright, Jr., and Charles F.
Brock and Cleveland Medical Clinic c/o Drs. Brock, Austin, Wright,
and Sullivan.
5
April 27, 2006 Price filed a Motion for Voluntary Dismissal Without Prejudice as to
defendants Dr. Steven Clark, Alliance, and Cleveland Medical Clinic.
On May 8, 2006, Price filed a Motion to Substitute Parties by Filing
Amended Complaint to enable her to substitute named defendants for
John Does 1-5 in the original complaint. By the end of May, a hearing
was set for June 23, 2006, before Circuit Judge Charles Webster in
Clarksdale, Coahoma County, Mississippi.
July 24, 2006 Price’s motion to amend complaint was granted. An Order Granting
Partial Summary Judgment was entered by the trial judge and filed on
July 24, 2006, dismissing, with prejudice, all defendants subject to the
MTCA.
July 26, 2006 Price filed a third amended complaint identifying the following
defendants: Steven Clark, M.D.; Samuel Duff Austin, M.D.; Bennie
Barnette Wright, Jr., M.D.; the Estate of Barry Stephen Sullivan, M.D.
(“Dr. Sullivan”); Cleveland Clinic, PA; Cleveland Medical Clinic,
Ltd.; Alliance; and Cleveland Medical Clinic, PLLC. Price substituted
the newly named defendants for John Does 1-5 from the original
complaint. The complaint alleged negligence and gross negligence in
the failure to treat and/or properly diagnose Mr. Price’s pituitary
tumor. Dr. Sullivan treated Mr. Price from 1994 until 2000. Dr. Austin
treated Mr. Price in 1990. Dr. Wright treated Mr. Price from 2000
until 2002. Dr. Clark treated Mr. Price from 2000 until Mr. Price’s
death in June 2004.
August 28, 2006 Trial court entered an order denying defendants’ Motion to Amend
Judgment.
September 5, Defendants filed Answers and First Defenses and Motions to Dismiss.
2006
March 19, 2007 Trial court entered an Amended Order that dismissed the five
defendants substituted in the Third Amended Complaint for John Does
1-5: Drs. Samuel Austin, Bennie B. Wright, Jr. and Barry Stephen
Sullivan; and Cleveland Clinic, P.A., Cleveland Medical Clinic, Ltd.
The trial court clarified that the time period during which Dr. Clark
and Cleveland Medical Clinic, PLLC, were not subject to MTCA
immunity was from October 1, 2003, to January 31, 2004. Thus,
according to the trial court, Price could maintain a claim for conduct
that occurred only during this time period.
6
August 20, 2007 Trial court entered an order granting summary judgment for the
remaining defendants, Dr. Clark and Cleveland Medical Center, PLLC,
on the basis that Price was unable to establish any genuine issue of
material fact that Dr. Clark had deviated from the standard of care at
any point during the period of time from October 1, 2003, through
January 31, 2004.
¶5. The July 24, 2006, Order Granting Partial Summary Judgment dismissed with
prejudice the defendants subject to immunity under the MTCA. All claims not subject to the
MTCA were dismissed without prejudice. As to the original complaint, the trial court looked
at three separate issues: (1) what legal effect should be given to the original complaint, (2)
what legal effect should be given to the summonses issued and served following the original
complaint, and (3) what legal effect should be given to the responses that the defendants filed
in response to the original complaint. The trial court found no conflict or ambiguity between
the sixty-day-notice provision of Mississippi Code Section 15-1-36 and the noneconomic-
damages provision under Section 11-1-60.
¶6. The trial court, relying on University of Mississippi Medical Center v. Easterling,
928 So. 2d 815 (Miss. 2006), determined that the proper remedy for violating the notice
requirements of Sections 15-1-36(15) and 11-46-11 was dismissal. Moreover, the trial court
determined that, since the amended complaint, filed in June 2005, was the first complaint
filed after all defendants had been issued proper notice of claim, the amended complaint
should be treated as an original complaint. Thus, in referring to the original complaint filed
on August 31, 2004, the trial court opined that, “the summonses issued pursuant to such
complaint were of no legal effect and any pleadings filed in response thereto were likewise
7
mere surplusage.” The trial court also found that “no leave of [the] court was required” when
Price filed the June 27, 2005, amended complaint because “there was nothing to amend.”
¶7. Moreover, the trial court determined that April 9, 2004, the date of diagnosis of the
pituitary tumor, was the date that the plaintiff should have discovered the alleged negligence
that gave rise to the cause of action. Since the original complaint no longer had any legal
effect, the trial court started the tolling of the statute of limitations with the filing of the June
27, 2005, amended complaint. Because the amended complaint was never served on Dr.
Clark, Alliance, or Cleveland Medical Clinic, the trial court tolled the statute of limitations
for 120 days pursuant to Rule 4 of the Mississippi Rules of Civil Procedure. Likewise, the
trial court tolled the statute of limitations for only 120 days after the November 2, 2005,
second amended complaint was filed, because Price again failed to serve the defendants with
the second amended complaint. Ultimately, the trial court found that, with all available
tolling – ninety-five days for the notice-of-claim letters, and 120 days for each filed-but-
unserved amended complaint – the one-year statute of limitations under the MTCA had
expired on March 10, 2006. Thus, all claims against MTCA defendants were dismissed with
prejudice. All claims against non-MTCA defendants were dismissed without prejudice. The
trial court did not, however, specify which defendants were and were not subject to the
MTCA.
¶8. The March 19, 2007, order dismissed with prejudice the parties substituted for John
Does 1-5, including Samuel Duff Austin, M.D.; Bennie Barnette Wright, Jr., M.D.; Estate
of Barry Stephen Sullivan, M.D.; Cleveland Medical Clinic, Ltd.; and Cleveland Clinic, PA,
8
on the basis that all applicable statutes of limitations had run and the substituted parties did
not relate back to the original complaint under either Rule 15(c) or Rule 9(h) of the
Mississippi Rules of Civil Procedure. Furthermore, the trial court found that Price had failed
to use due diligence in ascertaining the identities of these parties. All claims arising against
Alliance were dismissed with prejudice. All claims against Dr. Clark, during his employment
with Alliance and Cleveland Medical Clinic, a service of Delta Regional Medical Center
were dismissed with prejudice in keeping with the trial court’s previous finding that these
defendants were subject to MTCA immunity, and thus entitled to dismissal with prejudice
due to the running of the statute of limitations. All other claims embraced by the third
amended complaint against Dr. Clark and Cleveland Medical Clinic, PLLC, from the time
period of October 1, 2003, through January 31, 2004, were not dismissed.
¶9. An order entered on August 20, 2007, granted summary judgment in favor of Dr.
Clark and Cleveland Medical Clinic, PLLC, on the basis that Price was unable to establish
any genuine issue of material fact that Dr. Clark had deviated from the applicable standard
of care at any point from October 1, 2003, through January 31, 2004. Thus, the circuit court
entered a judgment dismissing with prejudice all claims against Dr. Clark and Cleveland
Medical Clinic, PLLC.
DISCUSSION
¶10. Pursuant to Rule 56(c) of the Mississippi Rules of Civil Procedure, summary
judgment “shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is
9
no genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law.” Miss. R. Civ. P. 56(c). This Court reviews a trial court's grant or denial of a
motion for summary judgment or a motion to dismiss under a de novo standard. Arceo v.
Tolliver, 949 So. 2d 691, 694 (Miss. 2006) (citing Monsanto v. Hall, 912 So. 2d 134, 136
(Miss. 2005)). Moreover, this Court reviews the application of the MTCA de novo. Lee v.
Mem'l Hosp., 999 So. 2d 1263, 1266 (Miss. 2008) (citing City of Jackson v. Brister, 838 So.
2d 274, 278 (Miss. 2003)).
¶11. Plaintiff Price espouses ten assignments of error by the trial court for this Court’s
review:
(1) Whether the trial court erred in not granting Plaintiff an exemption from
the notice requirements under Mississippi Code Sections 15-1-36 and 11-46-11
because her cause of action arose within sixty days of September 1, 2004 (the
date the noneconomic damages pursuant to Section 11-1-60(a)(2) went into
effect);
(2) Whether the trial court erred in dismissing Plaintiff’s original complaint
due to Plaintiff filing her complaint only one day after the Notice-of-Claim
Letter;
(3) Whether the trial court erred in ruling that Plaintiff’s August 30, 2004,
Notice-of-Claim letters failed to substantially comply with Section 11-46-11;
(4) Whether the trial court erred in ruling that Plaintiff’s original August 31,
2004, complaint failed to toll the statute of limitations until the court entered
an order dismissing it in July 2006;
(5) Whether the trial court erred in holding Plaintiff to the knowledge of
Cleveland Medical Alliance’s status as an “instrumentality” of Greenwood
Leflore Hospital;
(6) Whether the trial court erred in not allowing the Plaintiff to conduct further
discovery and to take depositions to determine the level of control Greenwood
10
Leflore Hospital had over Cleveland Medical Alliance, LLP, and its
employees;
(7) Whether the trial court erred in ruling that Cleveland Medical Alliance,
LLP, was subject to the Mississippi Tort Claims Act, as an instrumentality of
Greenwood Leflore Hospital;
(8) Whether Cleveland Medical Alliance, LLP, and Dr. Clark waived
affirmative defenses of MTCA protections by waiting over one year before
raising the defense and by waiting an additional five months before noticing
motions to dismiss for a hearing, after actively participating in the litigation of
this matter;
(9) Whether the trial court erred in dismissing claims against Defendants Drs.
Austin, Wright, Sullivan, Cleveland Medical Clinic, LTD, and Cleveland
Medical Clinic, PA, which were added as named Defendants in the Plaintiff’s
Third Amended Complaint replacing the previously unnamed Defendants of
John Does 1-5;
(10) Whether the trial court, all circumstances considered, erred in not giving
Plaintiff her right to redress in the courts.
¶12. Dr. Steven Clark and Cleveland Medical Clinic, PLLC, cross-appeal the trial court’s
August 28, 2006, order denying their motion to amend judgment and the March 19, 2007,
amended order granting summary judgment on the basis that the trial court erred in failing
to dismiss the claims against them with prejudice due to the deficient original complaint and
subsequent amendments. Moreover, these defendants assert that, without any tolling effect
by the complaints, the only tolling is the sixty-day period following Price’s August 30, 2003,
notice-of-claim letters for all non-MTCA claims, meaning the statute of limitations would
have expired two years and sixty days after the April 9, 2004, diagnosis of Mr. Price’s
pituitary tumor. According to the defendants, the expiration of the statute of limitations
occurred on June 8, 2006, well before the July 26, 2006, filing of Price’s third amended
11
complaint. Therefore, the defendants contend the trial court erred in granting Price leave to
amend and to file the third amended complaint.
¶13. Defendants Drs. Austin, Wright, and Sullivan; and Cleveland Medical Clinic Ltd., and
Cleveland Clinic, P.A., ask this Court to affirm the trial court’s dismissal of all claims against
them with prejudice.
¶14. We combine, restate and reorder these various issues for the sake of today’s
discussion.
I. WHETHER THE TRIAL COURT ERRED IN DISMISSING
PLAINTIFF’S ORIGINAL COMPLAINT DUE TO PLAINTIFF’S
FAILURE TO COMPLY WITH THE STATUTORY NOTICE
REQUIREMENTS OF SECTIONS 15-1-36(15) AND 11-46-11(1).
¶15. Price first filed suit on August 31, 2004, having mailed notice-of-claim letters only
one day prior, on August 30, 2004. Price admits that, in an attempt to avoid the cap on
noneconomic damages effective September 1, 2004, she willfully ignored the sixty-day
notice requirement of Mississippi Code Section 15-1-36(15). Miss. Code Ann. § 15-1-36(15)
(Rev. 2003). Price argues that she should be exempt from the sixty-day notice-of-claim
requirement found in Section 15-1-36(15) and the ninety-day notice-of-claim requirement
found in Section 11-46-11(1) because those requirements would have subjected Price’s
original complaint to the noneconomic cap on damages found in Mississippi Code Section
11-1-60. Miss. Code Ann. § 11-46-11(1) (Rev. 2002); Miss. Code Ann. § 11-1-60 (Rev.
2004). She argues she should not be subject to the noneconomic-damages cap because the
limitation was not in effect at the time of Mr. Price’s death. The trial court’s opinion noted
12
that Price could have avoided being subject to the September 1, 2004, cap on damages only
if she had filed sixty days after her husband’s diagnosis and had not waited to file until after
his death. We agree with the trial court in this respect. The statute of limitations for a
wrongful-death claim is subject to, and limited by, the statute of limitations associated with
the underlying tort that resulted in the wrongful death. Thiroux v. Austin, 749 So. 2d 1040,
1042 (Miss. 1999). To be more precise,
the Mississippi wrongful-death statute, despite the Legislature’s assigned
nomenclature, encompasses all claims–including survival claims which could
have been brought by the decedent, wrongful-death claims, estate claims, and
other claims–resulting from a tort which proximately caused a death. And
where death is not an immediate result of the tort, the limitation periods for the
various kinds of claims may not begin to run at the same time.
Caves v. Yarbrough, 991 So. 2d 142, 149-50 (Miss. 2008). Thus, analysis of the running of
the statute of limitations in a wrongful-death case may differ from one claim to another,
depending on the particular claim asserted.
¶16. Strict compliance with statutory notice is required, regardless of why the plaintiff
failed to provide notice. See Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 819-20
(Miss. 2006); Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006).
¶17. Price argues that, because the caselaw prior to University of Mississippi Medical
Center v. Easterling, 928 So. 2d 815 (Miss. 2006), was more lenient as to notice
requirements and because this cause of action was filed in 2004, Easterling should not apply.
See e.g., City of Pascagoula v. Tomlinson, 741 So. 2d 224, 228 (Miss. 1999) (finding that
13
dismissal of a lawsuit for failure to comply with the waiting period was a disproportionate
remedy). However, we have held that the statutory notice is required for claims filed on or
after January 1, 2003, regardless of when the claim accrued. Pitalo, 933 So. 2d at 928-29.
¶18. Thus, dismissal was the proper remedy for failure to comply with the notice
requirements. The law did not change as to the notice provisions. It was this Court’s
tolerance of violating notice provisions that waned. As this Court stated in Easterling:
Since the MTCA's passage in 1993, a considerable amount of time has passed
for the legal profession to become aware of the ninety-day notice requirement
in section 11-46-11(1). See 1993 Miss. Laws 476. The result here, as in Ivy,
is that the ninety-day notice requirement under section 11-46-11(1) is a
“hard-edged, mandatory rule which the Court strictly enforces.”
Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (Miss. 2006) (quoting Ivy v.
GMAC, 612 So. 2d 1108, 1116 (Miss. 1992)).
¶19. As to the requisite notice required for medical-negligence claims falling under
Section 15-1-36(15), this Court has stated:
When interpreting a statute that is not ambiguous, this Court will apply the
plain meaning of the statute. Claypool v. Mladineo, 724 So. 2d 373, 382 (Miss.
1998). In construing a statute, the Court must seek the intention of the
Legislature, and knowing it, must adopt that interpretation which will meet the
real meaning of the Legislature. Evans v. Boyle Flying Service, Inc., 680 So.
2d 821, 825 (Miss. 1996). When drafting Miss. Code Ann. Section
15-1-36(15), the Legislature did not incorporate any given exceptions to this
rule which would alleviate the prerequisite condition of prior written notice.
Simply stated, "shall" is mandatory, while "may" is discretionary. Franklin v.
Franklin, 858 So. 2d 110, 114 (Miss. 2003). Pitalo's failure to send notice of
her intent to sue clearly violates the mandatory instructions concerning notice
in Miss. Code Ann. Section 15-1-36(15).
14
Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006). Unless otherwise specified,
decisions of the Mississippi Supreme Court are presumed to have a retroactive effect. Miss.
Transp. Comm'n v. Ronald Adams Contractor, Inc., 753 So. 2d 1077, 1093 (Miss. 2000).
Mississippi law now requires strict compliance with the ninety-day-notice requirement in the
Mississippi Tort Claims Act. See Miss. Code Ann. § 11-46-11(1) (Rev. 2002); Long v.
Mem'l Hosp. at Gulfport, 969 So. 2d 35, 41 (Miss. 2007); Easterling, 928 So. 2d at 819-20.
Accordingly, the trial court did not err in its finding that the notice requirements are clear,
must be strictly applied, and must be given retroactive effect.
II. WHETHER THE TRIAL COURT ERRED IN RULING THAT
PLAINTIFF’S AUGUST 30, 2004, NOTICE-OF-CLAIM
LETTERS FAILED TO SUBSTANTIALLY COMPLY WITH
SECTION 11-46-11(2).
¶20. Price argues that the trial court erred in finding that the August 30, 2004, notice-of-
claim letters did not substantially comply with the statutory requirements of MTCA, section
11-46-11(2). That section states:
Every notice of claim required by subsection (1) of this section shall be in
writing, and shall be delivered in person or by registered or certified United
States mail. Every notice of claim shall contain a short and plain statement of
the facts upon which the claim is based, including the circumstances which
brought about the injury, the extent of the injury, the time and place the injury
occurred, the names of all persons known to be involved, the amount of money
damages sought and the residence of the person making the claim at the time
of the injury and at the time of filing the notice.
Miss. Code Ann. §11-46-11(2) (Rev. 2002). Most recently, in Lee v. Memorial Hospital of
Gulfport, 999 So. 2d 1263 (Miss. 2008), this Court reaffirmed that substantial compliance,
15
not strict compliance, with Section 11-46-11(2) is required. Id. at 1266 (citing Reaves ex rel.
Rouse v. Randall, 729 So. 2d 1237,1240 (Miss.1998). “What constitutes substantial
compliance, while not a question of fact but one of law, is a fact-sensitive determination.”
Carr v. Town of Shubuta, 733 So. 2d 261, 263 (Miss. 1999).
¶21. Defendants argue that Price failed to comply substantially with Section 11-46-11(2)
inasmuch as the letters did not contain allegations of the nature of the negligent conduct or
actual circumstances that brought about the injury, the time and place of alleged negligent
conduct, the time and place where the injury occurred, the names of all persons known to be
involved, the amount of money damages sought, or claimant’s residence at the time of injury
and at the time of filing the notice. Defendants are correct in almost all of their assertions.
The three letters, identical in content, contained no language concerning the time period
when Mr. Price allegedly suffered his injury. Also, there also was no mention of the names
of the persons involved. In fact, no mention of any physicians’ names appeared in the body
of the letter. While Dr. Clark’s letter put him on sufficient notice, the letters addressed to
Cleveland Medical Clinic, PLLC, Providence Healthcare Company, and Alliance could have
referred to anyone employed at those facilities. Moreover, the notice-of-claim letter for
Alliance was served on Dr. Clark, who at no time was authorized to accept service on behalf
of the clinic. Letters to Greenwood Leflore Hospital and Delta Regional Medical Center were
not sent until February 2005. Furthermore, the letters did not contain a monetary amount of
the damages sought or the residence of the claimant either at the time of injury or at the time
16
of the filing of the complaint. See Parker v. Harrison County Bd. of Supervisors, 987 So.
2d 435, 441 (Miss. 2008).
¶22. Accordingly, the trial court did not err in concluding that substantial compliance with
Section 11-46-11(2) was the proper standard, and in finding that the August 30, 2004, notice-
of-claim letters did not substantially comply with Section 11-46-11(2). This issue is without
merit.
III. WHETHER THE TRIAL COURT ERRED IN RULING THAT
PLAINTIFF’S ORIGINAL, AUGUST 31, 2004, COMPLAINT
FAILED TO TOLL THE STATUTE OF LIMITATIONS UNTIL
THE COURT ENTERED AN ORDER DISMISSING IT IN JULY
2006.
¶23. In its initial ruling on July 24, 2006, the trial court granted partial summary judgment
in favor of defendants, dismissing all defendants subject to MTCA immunity with prejudice
and all defendants not subject to MTCA immunity without prejudice. The trial court in its
Amended Order, entered March 19, 2007, clarified that Alliance, at all times during its
existence (May 30, 1997, until September 30, 2003) was subject to MTCA immunity due to
its affiliation with Greenwood Leflore Hospital. Dr. Clark was an employee of Alliance from
1999 until September 30, 2003; therefore, he was subject to MTCA immunity during this
time period. Moreover, on February 1, 2004, Dr. Clark became an employee of Cleveland
Medical Clinic, an entity owned and operated by Delta Regional Medical Center–thus
regaining his MTCA immunity.
17
¶24. Price argues that the original August 31, 2004, complaint tolled the statute of
limitations as to both the MTCA and Section 15-1-36 claims, given that it was filed within
the one-year statute of limitations under the MTCA and the two-year statute of limitations
under Section 15-1-36. According to the defendants, all claims against MTCA and non-
MTCA defendants should have been dismissed against them with prejudice because the
original complaint was invalid for want of either sixty-day notice pursuant to Section 15-1-36
or ninety-day notice pursuant to the MTCA, thus, that complaint failed to have any tolling
effect.
¶25. Because it was dismissed for want of proper notice, the trial court gave no legal effect
to the original complaint. Therefore, the trial court found that this complaint should have no
tolling effect for either the MTCA or Section 15-1-36 claims. The trial court treated the June
2005 Amended Complaint as the original complaint because it was the first complaint filed
after all defendants had been served notice-of-claim letters.
¶26. The trial court began the tolling of the statute of limitations with the February 3, 2005,
MTCA notice-of-claim letters. As of February 3, 2005, according to the trial court, there
were sixty-five days left in which to file the complaint. Thus, May 9, 2005, was the ninety-
fifth day. Because the Amended Complaint and the Second Amended Complaint were never
served on Dr. Clark, Alliance, or Cleveland Medical Clinic, the trial court allowed 120 days
of tolling for each amended complaint to be counted toward the MTCA and Section 15-1-36
statute of limitations. According to the trial court, by June 27, 2005, sixteen days were left,
18
and the remaining sixteen days began to run on the one-hundred-twentieth day, that being
October 25, 2005. The trial court found that, with possible stays and tolling, the one-year
statute of limitations ran against all MTCA defendants on March 10, 2006. As a result, the
trial court dismissed with prejudice all defendants subject to the MTCA. All non-MTCA
defendants were dismissed without prejudice based on the trial court’s finding that the two-
year statute of limitations had not run for Section 15-1-36. This order was entered on July
24, 2006.
¶27. No precedent is cited by either the trial court or the parties supporting the trial court’s
failure to give a tolling effect to the original complaint due to Price’s failure to provide
statutory notice. Rule 3(a) of the Mississippi Rules of Civil Procedure states “[a] civil action
is commenced by filing a complaint with the court.” Ordinarily, when a complaint is filed
and properly served, that complaint tolls the running of the statute of limitations. Owens v.
Mai, 891 So. 2d 220, 223 (Miss. 2005).
¶28. The defendants argue that dismissal with prejudice of MTCA claims should be
affirmed and that all Section 15-1-36 claims against them should have been dismissed with
prejudice because no valid original complaint was ever filed due to the violation of the
statutory notice requirements. The defendants contend that the trial court was correct in its
finding that the sixty-day notice is mandatory for filing a valid Section 15-1-36 complaint
and ninety-day notice is mandatory for filing a valid MTCA complaint. Moreover, the
defendants interpret Bunton v. King, 995 So. 2d 694 (Miss. 2008), as holding that
19
subsequent amendments to pleadings cannot be found to cure violations of notice
requirements, thus, no valid complaints have been filed to date.
¶29. Defendants are correct in their assertion that Bunton stands for the premise that
notice-of-claim letters and amendments filed after the suit is commenced will not constitute
valid notice or prevent dismissal of a suit. Id. at 696. In Bunton, the plaintiffs filed suit only
seven days after sending a MTCA notice-of-claim letter in clear violation of the ninety-day-
notice requirement of Section 11-46-11(1). Id. The trial court granted the plaintiffs leave to
amend and subsequently held that the amended complaint related back to the date of the
original complaint under Mississippi Rule of Civil Procedure 15(c), for the purpose of the
statute of limitations. Id. at 695. This Court held the plaintiffs’ amended complaint could
not serve to cure the failure to provide ninety-day notice and that dismissal was the proper
remedy. Id. at 696. Bunton should not, however, be interpreted as abrogating the
Mississippi Rules of Civil Procedure in favor of statutory pre-suit notice requirements by
invalidating complaints that were properly filed and served.
¶30. While failure to provide proper statutory notice cannot be cured by serving notice-of-
claim letters after a complaint is filed, a properly served complaint–albeit a complaint that
is wanting of proper pre-suit notice–should still serve to toll the statute of limitations until
there is a ruling from the trial court. In treating the original complaint as if it was never filed,
the trial court determined that the summonses issued pursuant to the original complaint and
the response filed by Dr. Pande were surplusage. In doing so, the trial court declined to
20
address the defendants’ contention that Dr. Clark was improperly served on behalf of
Alliance on the basis that he was not a designated agent for service of process. Because
there is no finding on the record by the trial court on the issue of whether Alliance has ever
been properly served with process, this case must be remanded to the trial court for a
determination of this issue.
¶31. Accordingly, we agree with Price that the August 31, 2004, complaint was properly
filed and served within both the one-year statute of limitations under MTCA and the two-
year statute of limitations under Section 15-1-36 as to defendants Dr. Clark and the
Cleveland Medical Clinic. Because Price failed to comply with the requisite notice
requirements, dismissal was the proper remedy; however, the trial court erred in dismissing
these defendants with prejudice, given that the complaint served to toll the statute of
limitations until the trial court’s July 2006 ruling.
IV. WHETHER THE TRIAL COURT ERRED IN HOLDING
PLAINTIFF TO THE KNOWLEDGE OF CLEVELAND
MEDICAL ALLIANCE’S STATUS AS AN
“INSTRUMENTALITY” OF GREENW OOD LEFLORE
HOSPITAL.
¶32. Cleveland Medical Alliance has been found by this Court to be an instrumentality of
Greenwood Leflore Hospital subject to the protections of MTCA. See Estate of Grimes v.
Warrington, 982 So. 2d 365, 369 (Miss. 2008). Price argues that she had no way of knowing
of the affiliation between Cleveland Medical Alliance and Greenwood Leflore Hospital
before filing suit, since Cleveland Medical Alliance was no longer in existence and did not
21
at any time advertise its affiliation with Greenwood Leflore Hospital. The defendants contend
that, after Price was informed of Cleveland Medical Alliance’s status as a MTCA-covered
entity, she had ample time before the statute of limitations expired to provide proper notice
and file suit against it. In support of this argument, the defendants refer to a letter sent to
Price dated December 23, 2004, that indicated that Cleveland Medical Alliance, LLP, was
an instrumentality of Greenwood-Leflore Hospital. Additionally, the defendants maintain
that, along with this letter, they provided the Agreement of Partnership for Alliance, the
Physician Employment Agreement between Dr. Steven Clark and Alliance; and the
Partnership Dissolution for Alliance; the Operating Agreement for Cleveland Medical Clinic,
PLLC; and the Physician Employment Agreement for Dr. Steven Clark and Delta Regional
Medical Center. Price concedes that she received this documentation and the December 23,
2004, letter.
¶33. The defendants further argue that, even if Price had filed the suit with limited
knowledge of the affiliation, she could have cured any procedural deficits upon receipt of
notice by defense counsel as early as December 23, 2004. The trial court did not err in
holding Price to knowledge of the affiliation.
¶34. We thus find this issue to have no merit.
V. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING
PLAINTIFF TO CONDUCT FURTHER DISCOVERY AND
TAKE DEPOSITIONS TO DETERMINE THE LEVEL OF
CONTROL GREENWOOD LEFLORE HOSPITAL HAD OVER
22
CLEVELAND MEDICAL ALLIANCE, LLP, AND ITS
EMPLOYEES.
VI. WHETHER THE TRIAL COURT ERRED IN RULING THAT
CLEVELAND MEDICAL ALLIANCE, LLP, WAS SUBJECT TO
T H E M ISSISSIPPI T O R T C L A IM S A C T , A S A N
IN S T R U M E N T A L IT Y O F G R E E N W O O D L E F L O R E
HOSPITAL.
¶35. Price argues that the trial court erred in not allowing her the opportunity, via
discovery, to prove that Cleveland Medical Alliance, LLP, was not an instrumentality of
Greenwood Leflore Hospital. The defendants point to the fact that scheduled depositions of
Dr. Steven Clark were cancelled at the agreement of Price and were never rescheduled by
Price. Moreover, the defendants argue that Price would have made the same arguments at
trial that were made by the plaintiff in Estate of Grimes v. Warrington, 982 So. 2d 365
(Miss. 2008), which were rejected flatly by this Court in Grimes. Finally, the defendants
argue that, even if Price had been allowed discovery as to this issue, it would not have served
to divest Alliance of its MTCA protection.
¶36. In Estate of Grimes, the issue before this Court was whether Alliance was entitled to
the protections, limitations, and immunities of the MTCA as an “instrumentality” of
Greenwood Leflore Hospital. In reaching its decision, the Court in Grimes relied on Bolivar
Leflore Medical Alliance, LLP v. Williams, 938 So. 2d 1222 (Miss. 2006), a case involving
a partnership agreement between a medical clinic and Greenwood Leflore Hospital that was
nearly identical in its provisions to the agreement between Alliance and Greenwood Leflore
23
Hospital. Just as in Bolivar Leflore Medical Alliance, the Court in Grimes found that the
partnership agreement between Greenwood Leflore Hospital and Alliance entitled the clinic
and its employee to the protection of the MTCA, because Greenwood Leflore Hospital had
maintained sufficient control over the clinic and its employee. Estate of Grimes, 982 So. 2d
at 369 (Miss. 2008).
¶37. Price attempts to distinguish the defendant in Grimes from the defendants in this case
by pointing to the fact that Dr. Warrington, the defendant in Grimes, was a partner of
Cleveland Medical Alliance rather than an employee, as is the case with Dr. Clark. The
analysis by this Court in Grimes, however, was not based on Dr. Warrington’s status as a
partner, nor does the MTCA make immunity contingent on whether a defendant is a partner
versus an employee. Moreover, Price had notice of Cleveland Medical Alliance’s MTCA
status as early as December 2004. As previously discussed, the trial court did not err in
finding that Price had ample opportunity to correct her procedural missteps. For the reasons
stated, we thus find this issue to have no merit.
VII. WHETHER THE CLEVELAND MEDICAL ALLIANCE, LLP,
AND DR. CLARK WAIVED AFFIRMATIVE DEFENSES OF
MTCA PROTECTIONS BY WAITING MORE THAN ONE
YEAR BEFORE RAISING THE DEFENSE AND BY WAITING
AN ADDITIONAL FIVE MONTHS BEFORE NOTICING
MOTIONS TO DISMISS FOR A HEARING AFTER
PARTICIPATING IN THE LITIGATION OF THIS MATTER.
¶38. Price contends that the defendants waived the affirmative defense of MTCA
protection by their delay in raising the defense in their answer and by subsequent active
24
participation in the litigation. The defendants contend that their delay in answering was at
Price’s request so that she could have an opportunity to cure any procedural defects.
¶39. Ordinarily, delay coupled with active participation in a lawsuit serves to waive
affirmative defenses that otherwise would terminate the action. MS Credit Center, Inc. v.
Horton, 926 So. 2d 167, 181 (Miss. 2006). This Court considers MTCA immunity an
affirmative defense. Estate of Grimes v. Warrington, 982 So. 2d 365, 370 (Miss. 2008)
(citing City of Ellisville v. Richardson, 913 So. 2d 973, 975 (Miss. 2005); Lumberman's
Underwriting Alliance v. City of Rosedale, 727 So. 2d 710, 712 (Miss. 1998); Dixon v.
Singing River Hosp. Sys., 632 So. 2d 951, 952 (Miss. 1991)). In Grimes, this Court found
that Dr. Warrington waived his MTCA defense when he raised it in his answer but failed to
file a motion to dismiss on this ground and instead engaged in litigation by consenting to a
scheduling order, participating in written discovery, and conducting depositions. Grimes, 982
So. 2d at 370.
¶40. The defendants argue that, at Price’s request, they waited more than one year to
answer Price’s original August 31, 2004, complaint. Moreover, Price failed to serve her
amended Complaint and second amended complaint on the defendants. This Court agrees
with the defendants that Price should not be able to make an argument that her case was
prejudiced by the defendants’ delay when she requested that all defendants not file any
responsive pleadings until she was able to ascertain which defendants were subject to MTCA
immunity. Accordingly, this issue is without merit.
25
VIII. WHETHER THE TRIAL COURT ERRED IN DISMISSING
CLAIMS AGAINST NEWLY-NAMED DEFENDANTS DRS.
AUSTIN, WRIGHT, SULLIVAN, CLEVELAND MEDICAL
CLINIC, LTD, AND CLEVELAND MEDICAL CLINIC, PA,
WHICH WERE ADDED AS NAMED DEFENDANTS IN THE
PLAINTIFF’S THIRD AMENDED COMPLAINT, REPLACING
THE PREVIOUSLY-UNNAMED DEFENDANTS JOHN DOES 1-
5.
¶41. This assignment of error involves the trial court’s ruling as to the newly-named
defendants in the third amended complaint. Price filed this third amended complaint more
than two years after the diagnosis of her husband’s tumor; thus, if the substituted parties did
not relate back to John Does 1-5, Price’s complaint was time-barred as to the newly-named
defendants. The defendants in this third amended complaint, filed July 26, 2006, were as
follows: Steven Clark, M.D.; Samuel Duff Austin, M.D.; Bennie Barnette Wright, Jr., M.D.;
Estate of Barry Stephen Sullivan, M.D.; Cleveland Medical Alliance, LLP; Cleveland
Medical Clinic, PLLC; Cleveland Medical Clinic, Ltd.; and Cleveland Clinic, P.A. Drs.
Austin, Wright, and Sullivan, as well as Cleveland Medical Clinic, Ltd. and Cleveland
Clinic, P.A., were added in the third amended complaint in place of John Does 1-5, as set out
in the original August 31, 2004, complaint.
¶42. Dr. Clark, Alliance, and Cleveland Medical Clinic, PLLC, argue that, because the
original complaint had no effect once dismissed, any amended complaint cannot relate back
to the August 31, 2004, original complaint under Mississippi Rule of Civil Procedure 15(c),
which allows for changing a party where a previously-named party was mistakenly included
in the original complaint. Rule 15(c)(2) makes the following distinction between changing
26
a party and substituting a party: “An amendment pursuant to 9(h) is not an amendment
changing the party against whom a claim is asserted and such amendment relates back to the
date of the original pleading.” Miss. R. Civ. P. 15(c)(2).
¶43. The trial court found that, because John Does 1-5 were retained in both the amended
and second amended complaints, but eliminated in the third amended complaint, it was clear
that Price intended for the newly-named defendants in the third amended complaint to be
substituted for John Does 1-5, as opposed to replacing mistakenly-identified parties with the
correct parties. Likewise, Price chooses to travel under Mississippi Rule of Civil Procedure
9(h) in support of her argument that the John Does 1-5 were fictitious parties. Rule 9(h)
states:
When a party is ignorant of the name of an opposing party and so alleges in his
pleading, the opposing party may be designated by any name, and when his
true name is discovered the process and all pleadings and proceedings in the
action may be amended by substituting the true name and giving proper notice
to the opposing party.
Miss. R. Civ. P. 9(h). As the trial court aptly explained, a Rule 9(h) amendment does not
change the party, but supplies “the true identity of a party who is already in litigation.” The
trial court’s opinion explained the purpose of Rule 9(h) as follows:
It is significant that the word “unknown” does not appear in MRCP 9(h).
Rather the rule speak[s] in terms of a plaintiff being “ignorant of the name of
an opposing party.” Thus, the language of MRCP 9(h) assumes the existence
of such a party and the plaintiff’s awareness of such existence. It is not the
intent of MRCP 9(h) to permit a plaintiff to bring into the litigation defendants
whose existence was unknown to the plaintiff at the commencement of the
action.
27
The trial court found that, at the time the original complaint was filed, Price neither knew the
identities of the parties, nor was she aware of any facts giving rise to any cause of action
against such unknown individual or corporate entity; therefore, the trial court did not err in
finding that Price’s substitution did not comport with the purpose of Rule 9(h). Furthermore,
the trial court found that Price did not act with reasonable diligence in identifying these
parties.
¶44. The defendants argue that the trial court was correct inasmuch as Price’s third
amended complaint cannot relate back to her original August 31, 2004, complaint, because
she failed to use due diligence in ascertaining the identity of the alleged tortfeasors. Price
concedes that in July 2004, she obtained medical records from Cleveland Medical Clinic that
dated back to 2001; however, Price argues that Cleveland Medical Clinic, Ltd., Alliance, and
Cleveland Medical Clinic, PLLC, were identified ambiguously in the medical records as
Cleveland Clinic, thus, according to Price, giving the impression that they were all the same
clinic. Price admits that she consulted an expert prior to filing suit; however, upon obtaining
more medical records, Price’s expert was able to offer an opinion that a referral for an MRI
should have been made after Mr. Price became blind in 1989. In support of her argument
that Rule 9(h) allows for fictitious parties where a plaintiff is ignorant of the facts giving rise
to a cause of action, Price cites Womble v. Singing River Hospital, 618 So. 2d 1252 (Miss.
1993). In Womble this Court stated:
It is a principle of general application, though, that ignorance of the opposing
party for fictitious party practice extends beyond mere lack of knowledge of
the opposing party's name. Even if the plaintiff knows the true name of the
28
person, he is still ignorant of his name if he lacks knowledge of the facts
giving him a cause of action against that person.
Id. at 1267.
¶45. On the other hand, the defendants cite Rawson v. Jones, 816 So. 2d 367 (Miss. 2001),
for the premise that Rule 9(h) requires a plaintiff to pursue reasonably diligent inquiry into
the true identities of the fictitious parties “through the use of judicial mechanisms such as
discovery.” Id. at 369 (citing Doe v. Miss. Blood Servs., Inc., 704 So. 2d 1016, 1019 (Miss.
1997)). The Court in Rawson emphasized that the language of Womble is not to be
interpreted as giving “potential plaintiffs permission to sit on their rights.” Rawson, 816 So.
2d at 369.
¶46. The trial court did not err in finding that Price was not reasonably diligent in
ascertaining the facts that gave rise to her claims against the substituted defendants and that
she thus was not entitled to the shield of Rule 9(h). Price received medical records pertaining
to her husband’s treatment prior to filing suit, and the defendants provided her with
Alliance’s partnership agreement and Dr. Clark’s employment records as early as December
2004. Accordingly, we find that the trial court committed no error in determining that the
complaint naming the substituted parties did not relate back to the original complaint under
any applicable rule of civil procedure. The trial court did not err in finding that Price had
failed to use due diligence in ascertaining the identities of the proper parties, and that the
MTCA one-year statute of limitations had thus run at the time Price filed suit against the
29
aforementioned defendants. In sum, the trial court committed no error in dismissing those
defendants with prejudice.
IX. WHETHER THE TRIAL COURT ERRED IN NOT GIVING
PLAINTIFF HER RIGHT TO REDRESS IN THE COURTS.
¶47. Price asserts that she was denied her right to redress in the courts. This Court has held
that a plaintiff’s right to redress is not absolute. See Arceo v. Tolliver, 949 So. 2d 691 (Miss.
2006). In Arceo, this Court stated:
“There is no absolute right of access to the courts. All that is required is a
reasonable right of access to the courts –a reasonable opportunity to be heard.”
Wayne v. Tenn. Valley Auth., 730 F.2d 392, 403 (5th Cir. 1984) (cited with
approval in Townsend [v. Estate of Gilbert], 616 So. 2d 333, 337 (Miss.
1993)).
While the right under our state and federal constitutions to access to our courts
is a matter beyond debate, this right is coupled with responsibility, including
the responsibility to comply with legislative enactments, rules, and judicial
decisions. While the plaintiff in today's case had the constitutional right to seek
redress in our state courts for the unfortunate death of her daughter, she
likewise had the responsibility to comply with the applicable rules and statutes,
including section 15-1-36(15). Any different approach would render
meaningless any rule or statute setting time limitations on litigants.
Id. at 697 (emphasis in original). Article 3, Section 24 of the Mississippi Constitution
provides:
All courts shall be open; and every person for an injury done him in his lands,
goods, person, or reputation, shall have remedy by due course of law, and right
and justice shall be administered without sale, denial, or delay.
Miss. Const. art. 3, § 24 (1890). However, notwithstanding this constitutional right, the
Legislature has certain authority via statutory enactments, and this Court possesses its
inherent rule-making authority to set guidelines as to how redress may be sought through our
30
courts. No party may sit on his or her rights. “The law is created for the watchful and not for
the negligent.” Harrison Enters. v. Trilogy Commc’ns, Inc., 818 So. 2d 1088, 1095 (Miss.
2002).
¶48. Additionally, as this Court stated in Carter v. Mississippi Department of Corrections,
860 So. 2d 1187, 1194 (Miss. 2003):
[T]he remedy clause, Miss. Const. art. 3, § 24, does not conflict with sovereign
immunity, does not require exceptions to sovereign immunity and does not
grant an absolute guarantee of a trial.
Id. at 1194 (citing Gentry v. Wallace, 606 So. 2d 1117 (Miss. 1992) (overruled on other
grounds by Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923, 926 (Miss. 2006)); see
also Robinson v. Stewart, 655 So. 2d 866 (Miss. 1995).
¶49. Accordingly, this assignment of error is without merit.3
3
In her Appellant’s Combined Reply and Response Brief for Appellants/Cross-
Appellees, Price asserted that the MTCA is unconstitutional, which prompted the Appellees
to file a Motion to Strike New Arguments on Appeal. By single justice order, this motion
was passed for consideration on the merits of this appeal. We note that this Court has been
consistent in holding that, especially when constitutional questions are raised for the first
time on appeal, we will not consider the merits of such issues. Stockstill v. State, 854 So.
2d 1017, 1023 (Miss. 2003). When the constitutionality of a statute is called into question,
it should be done at the trial court level so that the Attorney General may be given proper
notice pursuant to Mississippi Rule of Civil Procedure 24(d). Cockrell v. Pearl River Valley
Water Dist., 865 So. 2d 357, 360 (Miss. 2004) (citing Barnes v. Singing River Hosp. Sys.,
733 So. 2d 199, 202-03 (Miss. 1999)). See also Williams v. Skelton, 6 So. 3d 428, 429-30
(Miss. 2009) (citing Alexander v. Daniel, 904 So. 2d 172, 183 (Miss. 2005)). However, it
appears that Price’s issue raised in her Reply Brief is merely an extension of the issue raised
in her original Appellant’s Brief filed with this Court. Thus, we are satisfied that our
discussion of Issue IX adequately addresses the issue as initially couched in Price’s original
Appellant’s Brief filed with this Court. Accordingly, we have this day entered an order
dismissing as moot the Appellees’ Motion to Strike new Arguments on Appeal.
31
X. WHETHER THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT IN ITS AUGUST 20, 2007, ORDER.
¶50. Price appeals the trial court’s August 20, 2007, final order granting summary
judgment in favor of Dr. Clark and Cleveland Medical Clinic, PLLC. The trial court
ultimately found that Price was unable to show any negligible acts by Dr. Clark (and thus his
employer) from October 1, 2003, through January 31, 2004; therefore, the trial court granted
summary judgment to the defendants based on Price’s expert declining to offer an opinion
that Dr. Clark had deviated from the standard of care at any point after September 9, 2003.
While Price has appealed the trial court’s August 20, 2007, Order Granting Summary
Judgment, she has not briefed any arguments showing any issue of material fact that Dr.
Clark deviated from the standard of care during the time period he was not subject to MTCA
immunity. Tupelo Redevelopment Agency v. Gray Corp., 972 So. 2d 495, 517 (Miss. 2007)
(failure to cite authority in support of claims of error precludes appellate review of those
claims) (citing Grey v. Grey, 638 So. 2d 488, 491 (Miss. 1994)) (other citations omitted)).
¶51. Thus, we find no merit in the appeal of the August 20, 2007, Order.
XI. WHETHER THE TRIAL COURT ERRED IN NOT DISMISSING
ALL CLAIMS AGAINST DEFENDANTS STEVEN CLARK AND
CLEVELAND MEDICAL CLINIC, PLLC, WITH PREJUDICE.
¶52. Dr. Steven Clark and Cleveland Medical Clinic, PLLC, cross-appeal the trial court’s
August 28, 2006, order denying their Motion to Amend Judgment and the March 19, 2007,
Amended Order Granting Summary Judgment on the basis that the trial court erred in not
32
dismissing all claims against them with prejudice. As previously discussed, this Court found
that the trial court erroneously dismissed the MTCA defendants with prejudice.
¶53. The defendants now argue that the two-year statute of limitations pursuant to Section
15-1-36, even with the sixty-day tolling effect of the notice-of-claim letters, expired on June
8, 2006. In essence, the defendants again argue that no tolling effect for the purposes of
Section 15-1-36 should have been given to the original complaint, because the sixty-day
notice requirement was violated. As previously stated, this Court has found no precedent that
supports this premise. Despite the fact that Price filed her claim only one day after sending
her notice-of-claim letters, the proper remedy was dismissal without prejudice because the
claim, albeit in violation of the sixty-day notice requirement, did serve to toll the two-year
statute of limitations until the trial court dismissed the claims against Dr. Clark and
Cleveland Medical Clinic without prejudice on July 24, 2006. We find no error on the part
of the trial court in doing so. Accordingly, the defendants’ cross-appeal is without merit.
XII. WHETHER THE TRIAL COURT ERRED IN ALLOWING
PRICE TO FILE A THIRD AMENDED COMPLAINT.
¶54. Drs. Austin, Wright, and Sullivan, and Cleveland Medical Clinic, Ltd., and Cleveland
Clinic, P.A., cross-appeal the trial court’s July 24, 2006, order granting Price leave to file her
third amended complaint on the basis that it was improvidently granted. The trial court’s July
24, 2006, order cites Rule 15(a) of the Mississippi Rules of Civil Procedure, which states,
in pertinent part, “leave shall be freely given when justice so requires.” Thus, leave to amend
was properly granted, given that to deny it would deny a plaintiff recourse where an
33
argument could be made that the substituted parties in the amended complaint related back
to the fictional parties in the original complaint. Accordingly, this issue is without merit.
CONCLUSION
¶55. We affirm in part and reverse in part the trial court’s Order Granting Partial Summary
Judgment entered on July 24, 2006, and the Amended Order entered on March 19, 2007. We
affirm the dismissal without prejudice of Dr. Clark and Cleveland Medical Clinic, PLLC,
for want of statutory notice of claim pursuant to Section 15-1-36(15). We reverse the trial
court’s dismissal with prejudice of all claims against the MTCA defendants, Cleveland
Medical Alliance, LLP, and Dr. Steven Clark for his periods of employment with Cleveland
Medical Alliance, LLP and Cleveland Medical Clinic, a service of Delta Regional Medical
Center, based on our finding that the one-year statute of limitations should have been tolled
upon the filing of the August 31, 2004, complaint until such time as the trial court issued its
ruling in July 2006.
¶56. We also affirm the Amended Order in part as to the dismissal with prejudice of all
claims against Defendants Samuel Duff Austin, M.D.; Bennie Barnette Wright, Jr., M.D.;
Estate of Barry Stephen Sullivan, M.D.; Cleveland Medical Clinic, Ltd.; and Cleveland
Clinic, P.A.; as set forth in the third amended complaint, because the statute of limitations
for both the MTCA and Section 15-1-36 had run prior to Price filing the June 26, 2006, third
amended complaint. Finally, this Court affirms the trial court’s Order Granting Summary
Judgment entered on August 20, 2007, in favor of Dr. Steven Clark and Cleveland Medical
Clinic, PLLC, dismissing all remaining claims in Price’s third amended complaint for
34
conduct that occurred between October 1, 2003, and January 31, 2004, on the basis that
Price’s expert was unable to establish any genuine issue of material fact that Dr. Steven Clark
had breached the standard of care during this time period. Price failed to make any argument
before this Court that any issue of material fact existed under Rule 56(c) of the Mississippi
Rules of Civil Procedure that Dr. Clark and Cleveland Medical Clinic, PLLC, had deviated
from the standard of care during the time period of October 1, 2003, through January 31,
2004.
¶57. The cross-appeal by Dr. Clark and Cleveland Medical Clinic, PLLC, of the trial
court’s August 28, 2006, order denying their motion to amend judgment and the March 19,
2007, amended order granting summary judgment is without merit in light of our holding that
the trial court did not err in dismissing the Section 15-1-36 claims without prejudice.
Accordingly, we affirm the August 2006 and March 2007 orders in part as to this issue.
¶58. As to the cross-appeal by Drs. Austin, Wright, and Sullivan, Cleveland Medical
Clinic, Ltd., and Cleveland Medical P.A. of the July 21, 2006, Order Granting Motion to
Amend, we find that the trial court’s permitting Price to file the third amended complaint was
not an abuse of discretion inasmuch as the trial court’s order granting leave to amend
comported with Rule 15(a) of the Mississippi Rules of Civil Procedure. Accordingly, on
cross-appeal we affirm the trial court’s July 2006 order.
¶59. ON DIRECT APPEAL: AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED.
WALLER, C.J., DICKINSON, LAMAR AND PIERCE, JJ., CONCUR.
DICKINSON, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY
35
WALLER, C.J., CARLSON, P.J., AND LAMAR, J. GRAVES, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ.;
RANDOLPH, J., JOINS IN PART. RANDOLPH, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.
DICKINSON, JUSTICE, CONCURRING:
¶60. Although I agree with – and fully join – the majority, I write separately to address
Justice Randolph’s concerns with Justice Carlson’s disposition of Issue III.
¶61. Justice Randolph correctly recites the views I expressed on behalf of the Court in
Wimley v. Reid, 991 So. 2d 135 (Miss. 2008), and I do not today retreat from those views,
nor do I find in today’s majority any view to the contrary. Indeed, neither Wimley nor the
statutes at issue in this case mention the tolling of the statute of limitations, and I am of the
opinion that Justice Carlson’s excellent analysis of the issue is correct.
¶62. To be clear, I continue to firmly believe this Court must apply statutes as they are
written. And to that end, I reaffirm my support for the proposition that – for quantitative
statutory mandates – the term “substantial compliance” is a non sequitur,4 employed
primarily by two well-meaning but (in my view) misguided schools of judicial philosophy:
those who mistakenly believe they can read the mind of the Legislature (as if it had only one
mind); and those who interpret statutes as they think they should have been written.
4
Indeed, I also am of the opinion that “substantial compliance” is a non sequitur in
any context (one either complies, or one doesn’t). I have, however, yielded to the populist
affection for the term, but only as it applies to qualitative requirements. A better (and more
accurate) phrase, in my opinion, would be “the information provided is substantial enough
to comply with the statute’s requirement.”
36
¶63. It is not my intent to criticize those who hold the view that a statute’s perceived
purpose may trump the statute’s precise language – I just disagree with them. Thus, in my
view, where a statute specifically and unambiguously declares that a claimant must wait
ninety days to file suit (a quantitative requirement), the claimant must wait ninety days,
regardless of whether the assumed purposes of the statute may have been earlier met.
¶64. But strict compliance with statutory time limits does not require that we read into a
statute provisions which are not there. I am convinced that suits filed prior to the expiration
of the statutory notice periods should be dismissed, but I am prepared to go no further. That
is to say, I will not agree to read into the Mississippi Tort Claims Act, or the pre-suit notice
requirement of Section 15-1-36(15), a prohibition against tolling the statute of limitations for
the period of time the suit was pending, notwithstanding the plaintiff’s failure to give proper
notice. If the Legislature wishes to eliminate tolling of the statute of limitations, it is free to
enact a statute of repose. I see no reason whatsoever, under the facts of this case, to depart
from the general rule that the filing of a complaint tolls the statute of limitations.
WALLER, C.J., CARLSON, P.J., AND LAMAR, J., JOIN THIS OPINION.
GRAVES, PRESIDING JUSTICE, DISSENTING:
¶65. In today’s opinion, the majority of this Court finds that Price failed to substantially
comply with the statutory requirements of Mississippi Code Section 11-46-11(1)-(2) (Rev.
2002), which is part of the Mississippi Tort Claims Act (MTCA), and Mississippi Code
Section 15-1-36(15) (Rev. 2003). I have previously stated my disagreement with this Court’s
insistence on strictly applying the requirements set out in Sections 11-46-11(1) and 15-1-
37
36(15). See Bunton v. King, 995 So. 2d 694, 697-98 (Miss. 2008) (Graves, J., dissenting);
Arceo v. Tolliver, 949 So. 2d 691, 698-704 (Miss. 2006) (Graves, J., dissenting). In Fairley
v. George County, 871 So. 2d 713, 718-28 (Miss. 2004) (Easley, J., concurring), I joined
Justice Easley’s opinion, in which he concurred in result only, finding that the plaintiff had
substantially complied with Section 11-46-11(2), though the majority held that she had not
complied. In light of the facts of this case, the legal precedent, and the rationale behind the
statutory requirements, I am compelled to restate my disagreement with this Court’s
application of the requirements set out in Sections 11-46-11(1)-(2) and 15-1-36(15).
I.
¶66. In this case, the majority recognizes that this Court held in Lee v. Memorial Hospital
at Gulfport, 999 So. 2d 1263, 1266-67 (Miss. 2008), that only substantial compliance is
required with respect to the requirements set out in Section 11-46-11(2). Maj. Op. ¶ 20.
However, the majority finds that the notices of claim sent by Nina Price (Price) failed to
substantially comply with Section 11-46-11(2). Maj. Op. ¶ 22. Because the notices of claim
do substantially comply with the requirements in Section 11-46-11(2), I respectfully dissent.
¶67. Section 11-46-11(2) requires that a notice of claim set out seven categories of
information: 1) the circumstances which brought about the injury; 2) the extent of the injury;
3) the time and place the injury occurred; 4) the names of all persons known to be involved;
5) the amount of money damages sought; 6) the residence of the person making the claim at
the time of the injury; and 7) the residence of the person making the claim at the time the
notice is filed. Miss. Code Ann. § 11-46-11(2).
38
¶68. The notices of claim at issue, which were dated August 30, 2004, and were delivered
via certified mail, stated:
I am writing this letter as an official notice that a formal complaint will
be filed against you on behalf of our client, Albert Bruce Price, Jr., who has
suffered injuries and sustained damages as a result of the negligent medical
treatment that he received at your facility located in Cleveland, Mississippi.
Mr. Price had been a patient of yours and your predecessors for well
over twenty years. Beginning in 2001, Mr. Price began weakening especially
in his lower extremities. His health continually worsened over the next three
years and although he was partaking in physical therapy and occupational
therapy, he was not improving. He slowly went from losing his balance, to
needing a cane, to needing a walker, to needing a wheelchair, to basically
being bed bound. At no time was an MRI or CT scan performed on Mr. Price
to determine any potential neurological problems. In the end when the MRI
and/or CT scan were executed, a rather large pituitary tumor which had been
growing for several years was discovered. After consulting with specialists
from several states, the family and Mr. Price learned that not only was the
tumor inoperable but that radiation was not an option. Less than two weeks
after his last consultation with a neurologist concerning his health, Mr. Price
died on or about August 14, 2004.
Mr. Price’s family has been forced to alter their lifestyle due to the
deterioration of his health and his subsequent death. Mr. Price had to limit his
former daily activities. Due to his physical condition caused by the pituitary
tumor, Mr. Price could no longer engage in his usual day-to-day activities once
exhibited such as: walking, playing with his grandchildren, driving, working
on his cars and entertaining crowds of people and his family with his talent of
playing the keyboard, singing and just plain rockin’ n’ rollin’. Prior to his
health problems caused by the undiagnosed tumor, Mr. Price was very
involved in the community and with his family.
For the foregoing reasons, we will be filing a complaint on behalf of our
client for past, present and future medical expenses, pain and suffering, mental
and emotional distress, and loss of society. However, if you are willing to
discuss the settlement of this matter prior to the initiation of a lawsuit, please
do not hesitate to contact us in a timely manner. If we do not hear from you,
we will proceed by filing a complaint against you on behalf of our client.
39
¶69. The majority concludes that the notices of claim failed to substantially comply with
Section 11-46-11(2). Maj. Op. ¶ 22. I disagree with this conclusion because the notices of
claim provided sufficient notice to the defendants of the claim and they provided all seven
categories of information required pursuant to Section 11-46-11(2).
The Circumstances Which Brought About the Injury
¶70. The notices of claim clearly described the circumstances which brought about Albert
Price’s injury. The first sentence of the notices of claim stated that he suffered injuries as a
result of negligent medical treatment at the defendants’ medical facilities. The notices of
claim further pointed out that Albert Price had been a patient of the defendants for more than
twenty years and that, despite the fact that his condition began worsening in 2001, “[a]t no
time was an MRI or CT scan performed on Mr. Price to determine any potential neurological
problems.” As a consequence, the notices stated, Albert Price’s tumor was not discovered
until it was inoperable and unresponsive to radiation therapy. Thus, the notices of claim met
the first requirement set out in Section 11-46-11(2) by adequately describing the
circumstances which brought about the injury.
The Extent of the Injury
¶71. As for the extent of the injury, the notices of claim made abundantly clear that the
claim was that Albert Price had suffered from the deterioration of his physical condition,
which ultimately led to his death. The notices described the progression of his loss of
mobility: “[h]e slowly went from losing his balance, to needing a cane, to needing a walker,
to needing a wheelchair, to basically being bed bound.” The third paragraph of the notices
40
of claim provided further details regarding the specific ways in which Albert Price’s
worsening physical condition caused him injury. Therefore, the second category of
information set out in Section 11-46-11(2) was also provided in the notices of claim.
The Time and Place the Injury Occurred
¶72. The notices of claim specifically stated that Albert Price “suffered injuries and
sustained damages as a result of the negligent medical treatment that he received at your
facility located in Cleveland, Mississippi.” (Emphasis added.) Thus, there is no question that
the claim was that the injury occurred at the defendants’ medical facilities in Cleveland,
Mississippi. The notices of claim also stated that Albert Bruce Price, Jr. was a patient at the
defendants’ medical facilities for more than twenty years. Price’s primary allegation was that
the defendants should have diagnosed the pituitary tumor that caused Albert Price’s death
before the tumor became inoperable and unresponsive to radiation therapy. The notices of
claim clearly stated that the tumor “had been growing for several years.” Therefore, the time
the injury occurred spanned the period of time from the formation of the tumor until Albert
Price’s death. The notices of claim contained sufficient information for the defendants to
draw this common-sense conclusion. In addition, the notices also stated that Albert Price’s
health began to deteriorate in 2001. Thus, contrary to the majority’s conclusion, the notices
of claim sufficiently identified the time the injury occurred. Maj. Op. ¶ 21.
The Names of All Persons Known to be Involved
¶73. Section 11-46-11(2) only requires that a notice of claim specify “the names of all
persons known to be involved.” Miss. Code Ann. § 11-46-11(2) (emphasis added). This
41
Court underscored in Lee that only “all persons known to be involved” need to be identified
in a notice of claim. Lee, 999 So. 2d at 1267. If Price did not know the identity of all persons
involved, then Section 11-46-11(2) did not require that she provide their names since she did
not know all persons who were involved. See Miss. Code Ann. § 11-46-11(2). I note that the
defendants easily could have consulted Albert Price’s medical file and their records to
determine which of its employees were involved in his treatment. Therefore, I disagree with
the majority’s conclusion that Price failed to comply with Section 11-46-11(2) because “there
also was no mention of the names of the persons involved.” Maj. Op. ¶ 21.
The Amount of Money Damages Sought
¶74. Although the notices of claim did not specify the amount of money damages sought,
they did include a list of the types of damages Price sought. Presumably, the Legislature
included this requirement in Section 11-46-11(2) so that defendants would have more
information regarding the nature of the claim in order to give them a general sense of whether
settlement is desirable, and if so, the range of potential settlement amounts. Listing the
various types of damages claimed adequately serves this purpose. Since Price provided a
detailed list of the types of damages sought, she substantially complied with this statutory
requirement. Therefore, I disagree with the majority’s finding that the notices of claim did
not satisfy this requirement set out in Section 11-46-11(2). Maj. Op. ¶ 21.
¶75. I am compelled to add, however, that I find the mere existence of this requirement, and
this Court’s enforcement of it, to be highly problematic. Requiring claimants to indicate the
amount of damages sought in their notice of claim serves no purpose other than to create yet
42
another hurdle in an effort to thwart viable claims against governmental entities and medical
providers. Mississippi Rule of Civil Procedure 8(a) does not require plaintiffs to specify a
monetary amount of damages in a pleading setting forth a claim for relief and only requires
that a plaintiff include “a demand for judgment for the relief to which he deems himself
entitled.” Miss. R. Civ. P. 8(a)(2). More pertinent to this case is the fact that a plaintiff
pursuing a negligence claim against medical providers is statutorily prohibited from
specifying a damages amount in his or her complaint or counterclaim. Miss. Code Ann. § 11-
1-59 (Rev. 2002). Section 11-1-59 states, in relevant part:
In any action at law against a licensed physician, osteopath, dentist, hospital,
nurse, pharmacist, podiatrist, optometrist or chiropractor to recover damages
based upon a professional negligence theory, the complaint or counterclaim
shall not specify the amount of damages claimed, but shall only state that the
damages claimed are within the jurisdictional limits of the court to which the
pleadings are addressed . . . .
Miss. Code Ann. § 11-1-59 (emphasis added). Thus, individuals pursuing claims against
providers for medical negligence are not even permitted to specify the amount of money
damages sought in their complaint or counterclaim, but are required to specify the amount of
money damages sought in their notice of claim. This is absurd. There is no rational
explanation for why claimants must specify a damages amount in their notice of claim when
they are not permitted, much less required, to do so in their formal complaint or counterclaim.
¶76. Furthermore, the exact amount of money damages sought may be very difficult to
calculate and may, in fact, require consultation with experts. Thus, it can be extremely
burdensome for claimants to specify an amount of damages in their notice of claim –
43
especially given the fact that they need not determine a specific damages amount to include
in their complaint or counterclaim. In the instant case, Price is seeking damages for, inter alia,
pain and suffering, mental and emotional distress, and loss of society. It would have been
extraordinarily difficult for her to determine a specific amount of money damages for these
types of damages in her notices of claim, which were required to be sent before litigation was
commenced, and which were sent only approximately two weeks after her husband’s death.
The Residence of the Person Making the Claim at the Time of the Injury and at the Time
the Notice is Filed
¶77. The majority finds that the notices of claim did not include the claimant’s residence
at the time of the injury or at the time the notice is filed. Maj. Op. ¶ 21. In all likelihood,
Section 11-46-11(2) requires that a notice of claim include the claimant’s address at the time
of the injury is so that defendants can identify the claimant. In this case, Albert Price had
been a patient at the defendants’ facilities for more than twenty years. Also, his full name –
Albert Bruce Price, Jr. – was provided in bold-face type in the subject line of the notices of
claim and in the first sentence of the substance of the notices. His full name was more than
adequate in assisting the defendants in identifying him. Furthermore, Albert Price’s address
at the time of injury was most likely provided to the defendants at least once during the
twenty-year period during which they treated him and was readily available in the defendants’
records. The defendants were put on sufficient notice of which of their patients was pursuing
this claim against them.
44
¶78. As for the requirement that a notice of claim include the claimant’s address at the time
the notice is filed, this information is most likely required so that defendants can contact the
claimant in an effort to investigate or settle the claim. Here, Price was making a claim
through counsel, whose office address, office phone number, and office website were
provided in the notices of claim. Notably, it would have been a violation of Mississippi Rule
of Professional Conduct 4.2 5 for a lawyer representing a defendant to attempt to contact a
claimant directly when it is known that the claimant is represented by counsel. See Miss. R.
Prof’l Conduct 4.2. Accordingly, the notices of claim invited the defendants to “contact us,”
clearly referring to counsel, whose signature followed shortly thereafter, and his law firm.
The notices of claim provided sufficient information to the defendants such that they could
have identified Albert Price and contacted Price’s counsel regarding the claim.
¶79. This conclusion is consistent with this Court’s prior case law. In Thornburg v.
Magnolia Regional Health Center, 741 So. 2d 220, 223 (Miss. 1999), this Court addressed
the defendant’s argument that the plaintiff’s notice of claim was deficient for failure to
provide her address. This Court stated that
notwithstanding Thornburg’s failure to include her address in her letter, her
notice letter nevertheless informed Magnolia of the substance of her claim and
provided Magnolia with sufficient information to conduct a proper
investigation. . . . [T]he letter provided the address of the attorney handling the
5
Rule 4.2 states: “In representing a client, a lawyer shall not communicate about the
subject of the representation with a party the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized
by law to do so.” Miss. R. Prof’l Conduct 4.2.
45
claim, and Magnolia could have presumably obtained the information
regarding Thornburg’s residence by conducting a brief investigation.
Id. In Powell v. City of Pascagoula, 752 So. 2d 999, 1005 (Miss. 1999), this Court found that
the plaintiff had substantially complied with Section 11-46-11(2) despite her failure to include
her address, stating that:
The City suffered no actual prejudice as a result of Powell’s failure to
include her own address, where she was represented by an attorney at the time
and his address was included. Furthermore, the City was on actual notice of
Powell’s address on the date of the incident, in that the police officer who
reported the incident included Powell’s address on the Uniform Accident
Report.
Because Powell’s Notice bore the address of her attorney, we find this
to be substantial compliance with the statute.
¶80. As this Court recognized in both Thornburg and Powell, as a practical matter, it is
inconsequential that a claimant failed to include his or her residence at the time of the injury
and the time the notice is filed when the defendants can easily access the claimant’s residence
at the time of the injury and can contact the claimant’s attorney, whose contact information
is provided.
¶81. In the instant case, it is evident that Price provided all seven categories of information.
The information provided in the notice was sufficient to meet the purpose of the statute by
enabling the defendants to investigate and evaluate Price’s claim. Therefore, I would find that
Price’s notices of claim substantially complied with Section 11-46-11(2). I note that this
Court found substantial compliance in Reaves ex rel. Rouse v. Randall, 729 So. 2d 1237,
1240 (Miss. 1999), where the notice of claim sent to the governmental entity included only
the persons involved in the accident, when the accident occurred, where the accident occurred,
46
and what vehicles were involved. In Carr v. Town of Shubuta, 733 So. 2d 261, 263 (Miss.
1999), this Court stated:
The purpose of the notice statute being to advise the city of the accident
so that it may promptly investigate the surrounding circumstances, we see no
need to endorse a policy which renders the statute a trap for the unwary where
such purpose has in fact been satisfied.
Thus, a notice is sufficient if it substantially complies with the content
requirements of the statute. What constitutes substantial compliance, while not
a question of fact but one of law, is a fact-sensitive determination. In general,
a notice that is filed within the [requisite] period, informs the municipality of
the claimant’s intent to make a claim and contains sufficient information which
reasonable [sic] affords the municipality an opportunity to promptly investigate
the claim satisfies the purpose of the statute and will be held to substantially
comply with it.
Id. at 263 (emphasis added). This Court further stated that, “[e]ven though this Court now
finds substantial compliance to be sufficient, we stress that substantial compliance is not the
same as, nor a substitute for non-compliance.” Id. at 265. This Court has since unfairly and
unreasonably cited that statement as support for finding noncompliance where claimants have,
in fact, substantially complied. See, e.g., Parker v. Harrison County Bd. of Supervisors, 987
So. 2d 435 (Miss. 2008); Fairley v. George County, 871 So. 2d 713 (Miss. 2004); Harris v.
Miss. Valley State Univ., 873 So. 2d 970 (Miss. 2004).
¶82. I write today to denounce the manipulation of “substantial compliance” into a mere
judicial illusion and to implore the application of the statute as intended – to provide notice
of a claim – and not to prohibit the pursuit of claims. Based on the statutory requirements and
the applicable caselaw, I would find that Price substantially complied with the notice
requirements set out in Section 11-46-11(2).
47
II.
¶83. I also write to express my disagreement with the majority’s reliance on University of
Mississippi Medical Center v. Easterling, 928 So. 2d 815 (Miss. 2006), and Pitalo v. GPCH-
GP, Inc., 933 So. 2d 927 (Miss. 2006), for the proposition that Mississippi Code Sections 11-
46-11(1) and 15-1-36(15) should be strictly construed and applied. Maj. Op. ¶¶ 16-19.
The Ninety-Day-Notice Requirement
¶84. Mississippi Code Section 11-46-11(1), which is part of the Mississippi Tort Claims Act
(MTCA), states, in relevant part:
After all procedures within a governmental entity have been exhausted, any
person having a claim for injury arising under the provisions of this chapter
against a governmental entity or its employee shall proceed as he might in any
action at law or in equity; provided, however, that ninety (90) days prior to
maintaining an action thereon, such person shall file a notice of claim with the
chief executive officer of the governmental entity.
Miss. Code Ann. § 11-46-11(1). Thus, Section 11-46-11(1) requires that, when suing a state
entity, a plaintiff must file a notice of claim with the chief executive officer of the
governmental entity ninety days prior to maintaining an action on a claim for injury. Miss.
Code Ann. § 11-46-11(1).6 This Court has long applied a substantial-compliance standard
when reviewing cases involving the ninety-day-notice requirement. See, e.g., Wright v.
Quesnel, 876 So. 2d 362, 366 (Miss. 2004); Davis v. Hoss, 869 So. 2d 397, 401-02 (Miss.
2004); Jones ex rel. Jones v. Miss. Sch. for the Blind, 758 So. 2d 428, 429 (Miss. 2000),
6
Although Section 11-46-11 was revised in 1999, the language regarding the ninety-
day-notice requirement remains unaltered from the pre-1999 version of Section 11-46-11.
See Miss. Code Ann. § 11-46-11 (Rev. 1998).
48
overruled by Easterling, 928 So. 2d 815; Jackson v. City of Wiggins, 760 So. 2d 694, 695-96
(Miss. 2000), overruled by Easterling, 928 So. 2d 815; Leflore County v. Givens, 754 So. 2d
1223, 1232 (Miss. 2000), overruled by Easterling, 928 So. 2d 815; Jackson v. City of
Booneville, 738 So. 2d 1241, 1246 (Miss. 1999), overruled by Easterling, 928 So. 2d 815;
City of Pascagoula v. Tomlinson, 741 So. 2d 224, 226-27 (Miss. 1999), overruled by
Easterling, 928 So. 2d 815. This Court has also long held that a stay for the remainder of the
ninety-day period is the sole remedy available to a defendant when the plaintiff fails to
substantially comply with the ninety-day-notice requirement. See, e.g., Jones, 758 So. 2d at
429 (stating that a stay was the defendant’s sole remedy for the plaintiff’s failure to comply
with the ninety-day waiting period); City of Wiggins, 760 So. 2d at 696 (same); City of
Booneville, 738 So. 2d at 1246 (finding that the proper remedy for failure to comply with the
ninety-day waiting period is a stay); Tomlinson, 741 So. 2d at 228 (same).
¶85. It was not until Davis that a majority of this Court abandoned its earlier position
regarding the remedy for noncompliance with the ninety-day-notice requirement. Davis, 869
So. 2d at 401-02. And it was not until Easterling that a majority of this Court decided, in a
drastic departure from the legal precedent, to declare that the ninety-day-notice requirement
would be strictly enforced. Easterling, 928 So. 2d 815, 819-20 (Miss. 2006).
¶86. The majority opinion in Easterling is rife with incoherence and inconsistency, which
becomes especially clear when it is considered in the context of the relevant precedent and
Section 11-46-11(1). The Easterling majority cited Davis and Wright in an attempt to
49
demonstrate that strict compliance was consistent with the legal precedent. Id. at 818-20.
However, both Davis and Wright applied a substantial-compliance standard to the ninety-day-
notice requirement. Davis, 869 So. 2d at 401-02; Wright, 876 So. 2d at 366. Furthermore,
the majority opinions in Davis and Wright were themselves deviations from this Court’s
caselaw establishing that a stay is the sole remedy for a plaintiff’s failure to substantially
comply with the ninety-day-notice requirement. See, e.g., Jones, 758 So. 2d at 429; City of
Wiggins, 760 So. 2d at 696; City of Booneville, 738 So. 2d at 1246; Tomlinson, 741 So. 2d
at 228. The majorities in Davis and Wright found that the plaintiffs had not substantially
complied with the ninety-day-notice requirement because they had not complied at all. Davis,
869 So. 2d at 401-02; Wright, 876 So. 2d at 366. The majorities then set out a new remedy
for defendants when plaintiffs fail to comply at all with the ninety-day-notice requirement –
dismissal of the case. Davis, 869 So. 2d at 401-02; Wright, 876 So. 2d at 366.
¶87. Even more troubling is that, in order to support its abrupt shift from substantial
compliance to strict compliance, the Easterling majority mischaracterized what had been set
out in Davis and Wright. Easterling, 928 So. 2d at 818. The Easterling majority claimed
that “in 2004, this Court announced in Davis, 869 So.[]2d at 402, [that] it was no longer the
defendant’s duty to request a stay or face a waiver of the ninety days when the plaintiff failed
to comply with the statutory notice period.” Id. However, the majority in Davis never stated
that it was no longer the defendant’s duty to request a stay for the ninety-day period when the
plaintiff failed to comply with the statutory notice period. See Davis, 869 So. 2d at 401-02.
50
In fact, the majority in Davis never addressed whether or not the defendants should have
requested a stay. Davis, 869 So. 2d at 401-02. The Davis majority found that the plaintiff
failed to substantially comply with the ninety-day-notice requirement by filing the notice of
claim on the same day as the complaint. Id. at 402. The majority then concluded that the
plaintiff had failed to comply at all with the ninety-day-notice requirement, clearly stating that
“‘substantial compliance is not the same as, nor a substitute for, non compliance.’” Davis,
869 So. 2d at 402 (quoting Carr v. Town of Shubuta, 733 So. 2d 261, 265 (Miss. 1999)). The
Easterling majority also cited Wright in support of applying a strict-compliance standard, but
failed to mention that the majority in Wright had also applied a substantial-compliance
standard to the ninety-day-notice requirement. Easterling, 928 So. 2d at 818-19; Wright, 876
So. 2d at 366.
¶88. The Easterling majority went on to state that “[t]here is no doubt the language of Davis
and Wright is in conflict with our prior rulings in which we have called for the defendant to
request a stay of the proceedings.” Easterling, 928 So. 2d at 819. As stated above, Davis and
Wright were already a departure from the well-established policy that a stay was the sole
remedy for noncompliance with the ninety-day-notice requirement. Nevertheless, this did not
justify this Court’s sudden adoption of a strict-compliance standard in Easterling in light of
this Court’s precedent. See, e.g., Wright, 876 So. 2d at 366 (stating that this Court applies a
substantial-compliance standard); Davis, 869 So. 2d at 401-02 (same); Jones, 758 So. 2d at
429 (same); City of Wiggins, 760 So. 2d at 696 (same); Givens, 754 So. 2d at 1231 (same);
51
City of Booneville, 738 So. 2d at 1243-44, 1246 (same); Tomlinson, 741 So. 2d at 226-27
(same). The Easterling majority claimed that Davis and Wright “served to shift the
responsibility to correct the plaintiff’s failure to follow the ninety-day notice requirement from
the defendant to the plaintiff,” although it was forced to concede that this was “not explicitly
stated in Davis and Wright.” Easterling, 928 So. 2d at 819.
¶89. The Easterling majority also stated that “[i]n order to make it perfectly clear to all that
strict compliance is required, as stated in Davis and Wright, we hereby overrule Tomlinson
and its progeny.” Easterling, 928 So. 2d at 819-20. The reason the majority had to make this
“perfectly clear to all” was because it was not at all clear that the majority opinions in Davis
and Wright stated what the Easterling majority claimed they stated. Again, neither Davis nor
Wright applied a strict-compliance standard to the ninety-day-notice requirement. Davis, 869
So. 2d at 401-02; Wright, 876 So. 2d at 366. Thus, it was only by misrepresenting what was
stated in prior decisions that the Easterling majority was able to justify its leap from
substantial compliance to strict compliance.
¶90. This Court has noted before that the purpose of the ninety-day-notice requirement is
to notify the defendant of the plaintiff’s claim so that the defendant can use the ninety days
to investigate the claim and pursue any avenues available to settle the dispute before the
plaintiff seeks formal legal redress in the courts. See, e.g., City of Booneville, 738 So. 2d at
1243-44; Givens, 754 So. 2d at 1231. This Court has held:
The purpose of the [Mississippi Tort Claims] Act is to insure that
governmental boards, commissioners, and agencies are informed of claims
against them. Such notice encourages entities to take corrective action as soon
52
as possible when necessary; encourages pre-litigation settlement of claims; and
encourages more responsibility by these agencies. . . .
In order to carry out the legislative purpose of providing relief to
injured citizens, we hold that substantial compliance with the notice provisions
of the Act is sufficient.
City of Booneville, 738 So. 2d at 1243-44 (quoting Reaves ex rel. Rouse v. Randall, 729 So.
2d 1237, 1240 (Miss. 1999)). As noted above in Section I, this Court has also stated:
The purpose of the notice statute being to advise the city of the accident so that
it may promptly investigate the surrounding circumstances, we see no need to
endorse a policy which renders the statute a trap for the unwary where such
purpose has in fact been satisfied. Thus, a notice is sufficient if it substantially
complies with the content requirements of the statute.
Givens, 754 So. 2d at 1231 (quoting Carr, 733 So. 2d at 263). If the defendant decides not
to take advantage of the ninety-day period to investigate the plaintiff’s claim and pursue
settlement options, then there is no logical reason for delaying the formal initiation of the
lawsuit in the courts. It does not promote judicial economy to enforce a ninety-day waiting
period and deny the plaintiff the possibility of redress for ninety days when neither party
wishes to wait for the case to proceed. That is why the most sensible penalty for failing to
comply with the ninety-day-notice requirement is for the court to grant a stay for the
remainder of the ninety-day period, at the defendant’s request. If the defendant does not wish
to have the benefit of the full ninety-day period before the plaintiff files suit in court, then the
plaintiff should be allowed to file a formal complaint before the ninety-day period expires,
and the defendant should be barred from objecting to the plaintiff’s noncompliance with the
ninety-day-notice requirement.
53
¶91. Given our legal precedent and the most rational interpretation of Section 11-46-11(1),
it becomes clear that Easterling was an aberration in our jurisprudence regarding the ninety-
day-notice requirement. The ninety-day-notice requirement in Section 11-46-11(1) should
not be reviewed with a strict-compliance standard. To the extent Section 11-46-11(1) requires
strict compliance with the ninety-day-notice requirement, it unconstitutionally deprives
plaintiffs of their right to seek redress for their legal claims in our courts. See Miss. Const.
art. 3, § 24; see Bunton v. King, 995 So. 2d 694, 697-98 (Miss. 2008) (Graves, J., dissenting).
For this Court to strictly construe and then strictly apply the requirement that plaintiffs with
claims against a specific set of defendants – governmental entities – give ninety days’ notice
of their claims unfairly protects these defendants and unfairly burdens these plaintiffs by
hindering their ability to pursue their claims in court. It adds yet another hurdle to the process
of seeking legal redress against this separate class of defendants. This is unconstitutional.
See Miss. Const. art. 3, § 24; see also Bunton, 995 So. 2d at 697-98 (Graves, J., dissenting).
To the extent that Section 11-46-11(1) does not require strict compliance, this Court’s
application of a strict-compliance standard is unconstitutional for the same reasons.
The Sixty-Day-Notice Requirement
¶92. Mississippi Code Section 15-1-36(15) states, in relevant part: “No action based upon
the health care provider’s professional negligence may be begun unless the defendant has
been given at least sixty (60) days’ prior written notice of the intention to begin the action.”
Miss. Code Ann. § 15-1-36(15). Thus, Section 11-46-11(1) requires that when suing a health
care provider, a plaintiff must give the health-care provider written notice of his or her
54
intention to begin an action for professional negligence sixty days prior to initiating an action
on a claim for injury. Miss. Code Ann. § 15-1-36(15).
¶93. I have previously expressed my disagreement with this Court’s strict construction and
application of the sixty-day-notice requirement in Section 15-1-36(15) in Arceo v. Tolliver,
949 So. 2d 691, 698-704 (Miss. 2006) (Graves, J., dissenting), and I hereby incorporate those
arguments. As I stated in that opinion, it is unconstitutional for this Court to strictly enforce
the requirement that plaintiffs filing lawsuits against a particular class of defendants – medical
providers – provide written notice of their claims and then to dismiss their claims, regardless
of viability, if they fail to wait sixty days before filing a complaint. See Miss. Const. art. 3,
§ 24; see also Arceo, 949 So. 2d at 698-704 (Graves, J., dissenting).
¶94. For all the reasons set out above, I respectfully dissent.
KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION. RANDOLPH, J.,
JOINS THIS OPINION IN PART.
RANDOLPH, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:
¶95. Regarding Issue I, I agree with the Majority’s conclusion that “the trial court did not
err in its finding that the notice requirements are clear, must be strictly applied, and must be
given retroactive effect.” 7 (Majority Opinion at ¶ 19). However, as to Issue II, I join Section
7
However, I would note that within Issue I, the trial court erroneously found that
“Price could have avoided being subject to the September 1, 2004, cap on damages only if
she had filed sixty days after her husband’s diagnosis and had not waited to file until after
his death.” (Majority Opinion at ¶ 15). University of Mississippi Medical Center v. McGee,
999 So. 2d 837 (Miss. 2008), provides that:
55
I of Presiding Justice Graves’s dissenting opinion which concludes that Price “substantially
complied” with the statutory requirements of Mississippi Code Section 11-46-11(2), as we
addressed in Lee v. Memorial Hospital at Gulfport, 999 So. 2d 1263, 1266-67 (Miss. 2008).8
[t]his Court recently has explained when the statute of limitations begins to run
for survival claims and wrongful-death claims under the MTCA. Caves v.
Yarbrough, No. 2006-CA-01857-SCT at 6, (Miss. 2008). In a suit under the
wrongful-death statute, there may be several different kinds of claims, and
each kind of claim is subject to its own statute of limitations. The limitation
period begins to run on the earliest date all of the elements of a tort are present.
Caves, No. 2006-CA-01857-SCT at 8-9, 11. . . . In summary, “the MTCA’s
one-year statute of limitations begins to run when the claimant knows, or by
exercise of reasonable diligence should know, of both the damage or injury,
and the act or omission which proximately caused it.” Caves, No. 2006-CA-
01857-SCT at 23.
...
However, for a wrongful-death claim brought under the MTCA, the tort is not
complete until the final element of the tort manifests and the cause of action
is known. At the earliest, this is the date of death. Caves, No. 2006-CA-
01857-SCT at 23.
McGee, 999 So. 2d at 840-41 (emphasis added). The trial court found that the statute of
limitations began to run on April 9, 2004, despite the presence of wrongful-death claims.
Accordingly, I would remand for a new computation of the statute of limitations on such
wrongful-death claims.
8
While I agree with Presiding Justice Graves’s Section I conclusion, I reject portions
of the reasoning employed, including, but not limited to, his opinion that the legislative
purpose is “absurd,” without “rational explanation,” and “extremely burdensome” upon the
parties. (Dissenting Opinion at ¶¶ 75-76). Although some persons may agree that numerous
statutes passed by the Legislature are without rational explanation and/or burdensome on the
citizens they affect, it is not the prerogative of this Court to refuse enforcement of laws
which it deems unwise. See Thomas v. Warden, 999 So. 2d 842, 846 (Miss. 2008) (“[o]ur
constitutional duty is to interpret and apply the law as it is written, not as we think it might
have been more fairly written.”).
56
Having a different opinion regarding Issue III, I join neither the Majority Opinion, nor Section
II of Presiding Justice Graves’s dissenting opinion, as discussed infra. As to the remaining
issues, I agree with the Majority. Accordingly, I respectfully concur in part and dissent in
part.
¶96. Not long ago, via tort reform, the Legislature wrought significant changes affecting
suits against the sovereign and medical providers. The implemented statutes were enacted
after considerable and heated debate in the public realm and within the Legislature. The
appropriate constitutional body, the Legislature, determined their adoption was in the best
interests of the citizens of this State. The resulting legislation included the pre-suit notice
requirements of Mississippi Code Sections 11-46-11(1) and 15-1-36(15), which are at issue
today. See Miss. Code Ann. § 11-46-11(1) (Rev. 2002); Miss. Code Ann. § 15-1-36(15) (Rev.
2003). The effect of today’s decision is a judicial nullification of those pre-suit notice
requirements 9 and a repudiation of decisions of this Court requiring compliance therewith.
¶97. Less than one year ago, in Wimley v. Reid, 991 So. 2d 135 (Miss. 2008), this Court
firmly proclaimed that “we guard . . . diligently the Legislature’s prerogative to set forth in
legislation whatever substantive, pre-suit requirements for causes of action, and prerequisites
to filing suit, it deems appropriate.” Id. at 139. This Court elaborated further that:
9
See Miss. Const. art. 1, §1 (“[t]he powers of the government of the State of
Mississippi shall be divided into three distinct departments, and each of them confided to a
separate magistracy, to wit: those which are legislative to one, those which are judicial to
another, and those which are executive to another.”); Miss. Const. art 1, § 2 (“[n]o person or
collection of persons, being one or belonging to one of these departments, shall exercise any
power properly belonging to either of the others.”).
57
pre-suit requirements are clearly within the purview of the Legislature, and do
not encroach upon this Court’s rule-making responsibility. Indeed, we
consistently have held that the Legislature has authority to establish presuit
requirements as a condition precedent to filing particular kinds of lawsuits.
For instance, the Legislature promulgated, and we have enforced, Section 11-
46-11(1), which requires that notice be provided to the putative defendant prior
to bringing a claim under the Mississippi Tort Claims Act. Miss. Code Ann. §
11-46-11(1) (Rev. 2002). Similarly, the Legislature promulgated, and we have
enforced, Section 15-1-36(15)’s requirement of notice prior to bringing a
medical-negligence claim. Miss. Code Ann. § 15-1-36(15) (Rev. 2003); see
e.g. Arceo v. Tolliver, 949 So. 2d 691, 693-97 (Miss. 2006) (strictly construing
and applying statute which requires plaintiffs to give notice before commencing
a medical negligence action).
Wimley, 991 So. 2d at 139 (emphasis added). See also Thomas, 999 So. 2d at 847 (a Section
15-1-36(15) case in which this Court avowed that “[t]he Legislature’s authority to make law
gives way to this Court’s rule-making authority when the suit is filed, not before”); Forest
Hill Nursing Ctr. v. Brister, 992 So. 2d 1179, 1189 (Miss. 2008) (“we clearly acknowledged
in Wimley the Legislature’s constitutional authority to set out pre-suit requirements . . . .”)
(emphasis added).
¶98. Regarding Section 11-46-11(1), this Court has declared that, following notice, the
plaintiff must wait the requisite ninety days prior to filing suit. See Parker v. Harrison
County Bd. of Supervisors, 987 So. 2d 435, 441 (Miss. 2008) (strict compliance with the
ninety-day-notice provision of Section 11-46-11(1) is required); Long v. Mem’l Hosp. at
Gulfport, 969 So. 2d 35, 41 (Miss. 2007) (“[t]he [MTCA] gives a governmental entity
defendant ninety days from the filing of a notice of claim to consider the claim before a
lawsuit can be maintained”) (emphasis added); S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So. 2d
1252, 1259 (Miss. 2006) (“[t]he MTCA specifically requires the plaintiff to wait ninety days
58
after providing notice before maintaining an action against a governmental entity . . . .”)
(emphasis added); Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (Miss. 2006)
(this Court has a “constitutional mandate to faithfully apply the provisions of constitutionally
enacted legislation”).
¶99. As to Section 15-1-36(15), its sixty-day-notice requirement likewise has been strictly
construed by this Court. See Williams v. Skelton, 6 So. 3d 428, 430 (Miss. 2009) (quoting
Williams v. Skelton, 6 So. 3d 433, 435 (Miss. Ct. App. 2008)) (“[w]e agree with the Court of
Appeals that this Court ‘has required strict compliance with the mandates of Mississippi Code
Annotated Section 15-1-36 such that failure to satisfy the pre-suit notice requirement
mandates dismissal of the plaintiff’s complaint’”) (emphasis added); Thomas, 999 So. 2d at
847 (“[b]ecause Thomas failed to provide a sixty-day notice as required by Section 15-1-
36(15), we must affirm the trial court’s dismissal of the complaint”); Brister, 992 So. 2d at
1188 (“Mississippi Code Annotated Section 15-1-36(15) clearly states that no action may be
begun without prior notice.”) (emphasis added); Saul v. Jenkins, 963 So. 2d 552, 554 (Miss.
2007) (“Section 15-1-36(15) requires plaintiffs to provide sixty days’ notice of intention to
commence an action . . . .”) (emphasis added); Arceo, 949 So. 2d at 694-97; Pitalo v. GPCH-
GP, Inc., 933 So. 2d 927, 929 (Miss. 2006) (Section 15-1-36(15) “requires that an action
based on professional negligence of a health care provider may not begin unless the defendant
has been given at least 60 days prior written notice of the intention to begin the action.”)
(emphasis added). Simply stated, “[w]hen drafting Miss. Code Ann. Section 15-1-36(15), the
Legislature did not incorporate any given exceptions to this rule which would alleviate the
59
prerequisite condition of prior written notice.” Pitalo, 933 So. 2d at 929 (emphasis added).
“Section 15-1-36(15)’s notice requirement is a pre-suit prerequisite to a claimant’s right to
file suit.” Thomas, 999 So. 2d at 847 (emphasis added).
¶100. According to the Majority Opinion:
no precedent is cited by either the trial court or the parties supporting the trial
court’s failure to give a tolling effect to the original complaint due to Price’s
failure to provide statutory notice.
(Majority Opinion at ¶ 27). Initially, I note that the “[f]ailure to cite relevant authority
obviates the appellate court’s obligation to review such issues.” In re Smith, 926 So. 2d 878,
886 (Miss. 2006) (quoting Byrom v. State, 863 So. 2d 836, 863 (Miss. 2003)). Nonetheless,
the Majority chooses to review this issue, citing Owens v. Mai, 891 So. 2d 220 (Miss. 2005),
which is irrelevant to the issues presented in this case. See ¶ 103 infra. In so doing, the
Majority rejects the proposition that the legislatively-mandated pre-suit notice requirements
of Mississippi Code Sections 11-46-11(1) and 15-1-36(15) constitute “a condition precedent
to filing particular kinds of lawsuits.” Wimley, 991 So. 2d at 139 (emphasis added). See also
Thomas, 999 So. 2d at 846 (“because the defendants in this case did not have ‘sixty (60) days
prior written notice of the intention to begin the action,’ this lawsuit was not lawfully filed,
and it is of no legal effect”) (emphasis added); Easterling, 928 So. 2d at 819 (absent the
requisite notice, the complaint is deemed “prematurely filed . . . .”).
¶101. In short, the right to sue heretofore has been conditioned upon fulfillment of the
statutory notice requirement. “It is certainly an undisputable and invariable rule of law that
a right of action must be complete when an action therefor is commenced . . . .” Crawford
60
Commercial Constructors, Inc. v. Marine Indust. Residential Insulation, Inc., 437 So. 2d
15, 16 (Miss. 1983) (quoting Georgia Pac. Ry. Co. v. Baird, 76 Miss. 521, 24 So. 195, 196
(1898)). Thus, in the absence of satisfying the statutory notice requirement, no right of action
exists and, therefore, no “duly filed” 10 or “duly commenced” 11 civil action exists, as
presumptively declared by the Majority in the absence of authority or citation. While this
Court previously has erroneously held that the MTCA’s pre-suit notice requirements are
jurisdictional, they are not merely “directive” either. Jackson v. Lumpkin, 697 So. 2d 1179,
1181 (Miss. 1997) (incorrectly holding that the notice requirements are jurisdictional;
correctly holding that such requirements are not simply “directive”), overruled on other
grounds by Carr v. Town of Shubuta, 733 So. 2d 261, 263 (Miss. 1999). Instead, the pre-suit
notice requirements of the MTCA are akin to federal statutory notice requirements in
employment discrimination suits. For instance, under the Age Discrimination in Employment
Act, “before an aggrieved party can commence a civil action on an age discrimination claim
he must file a charge with [the] EEOC ‘within 180 days after the alleged unlawful practice
occurred.’” Pruet Prod. Co. v. Ayles, 784 F.2d 1275, 1279 (5th Cir. 1986) (quoting 29
U.S.C. § 626(d)(1)). See also Yee v. Baldwin, 2009 WL 1361527, at *2 (5th Cir. May 15,
2009) (“‘[f]ailure to notify the EEO counselor in [a] timely fashion may bar’ the employee’s
claim”). In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d
10
See Majority Opinion at ¶ 2.
11
See Miss. Code Ann. § 15-1-69.
61
234 (1982), the United States Supreme Court determined that “filing a timely charge of
discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but
a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable
tolling.” Zipes, 455 U.S. at 393 (emphasis added). In Ayles, the Fifth Circuit cited Zipes in
finding that “this timely filing of a charge is not a jurisdictional requirement in the sense that
failure to do so deprives the district court of subject matter jurisdiction, but is akin to a
limitations statute which a plaintiff must satisfy as a condition precedent to filing suit.” Ayles,
784 F.2d at 1279 (citing Zipes, 455 U.S. at 393) (emphasis added). See also Yee, 2009 WL
1361527, at *2 (“[t]he exhaustion requirement is not jurisdictional, however, and is subject
to the traditional equitable defenses of waiver, estoppel, and equitable tolling”).
¶102. Similarly, pre-suit notice requirements could be compared to standing disputes.
Standing, like satisfaction of the pre-suit notice requirements, “is to be determined as of the
commencement of suit . . . .” Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 n.5, 112 S.
Ct. 2130, 2142, 119 L. Ed. 2d 351, 371 (1992). In Delta Health Group, Inc. v. Estate of
Pope ex rel. Payne, 995 So. 2d 123 (Miss. 2008), this Court determined that “[t]he Legislature
failed to confer standing on a great-nephew. . . . This Court is without authority to . . .
empowe[r] him with a legal right to commence suit.” Id. at 126. Similarly, this Court is
without authority to empower Price with the right to commence suit. “Were this Court to
allow such a scenario, any person could commence an action, toll the statute of limitations,
[and] . . . keep the courthouse door open . . . .” Id.
62
¶103. Why is the Majority’s reliance on Mai misplaced? The issue addressed in Mai was
“whether failure to serve a defendant within 120 days as required by Rule 4(h) of the
Mississippi Rules of Civil Procedure is a ‘matter of form’ as contemplated by Miss. Code
Ann. § 15-1-69.” Mai, 891 So. 2d at 222. Unlike the pre-suit notice requirements of
Mississippi Code Sections 11-46-11(1) and 15-1-36(15), “clearly within the purview of the
Legislature,” Wimley, 991 So. 2d at 139, the failure to serve is a subject clearly within the
realm of “this Court’s rule-making responsibility.” Id. As such, the pre-suit notice
requirements do not “abrogat[e] the Mississippi Rules of Civil Procedure . . . by invalidating
complaints that were properly filed and served.” (Majority Opinion at ¶ 29). Rather, our
precedent dictates that the failure to abide by such pre-suit notice requirements forecloses the
possibility of a “properly filed,” legally effective complaint. As this complaint “is of no legal
effect[,]” according to the prior holdings of this Court, Thomas, 999 So. 2d at 846, I am at a
loss as to why the statute of limitations would be tolled.12
¶104. To hold otherwise nullifies the legislatively-enacted, pre-suit notice requirements and
repudiates the prior holdings of this very Court. The ruling grants litigants license to spurn
legislative directives, as was done in this case.13 Decisions such as this reward those who
12
While “equitable tolling” could be permissible, see Zipes, 455 U.S. at 393 (emphasis
added), it is clearly not implicated in the case sub judice. See footnote 7 infra.
13
Price’s brief provides that the decision to file the complaint on August 31, 2004, one
day after sending notice of claim letters, “was not a simple mistake but rather the result of
a strategic decision . . . .” In making that decision, Price does not dispute that Sections 11-
46-11(1) and 15-1-36(15) “are clear in their meaning and not ambiguous . . . .”
63
intentionally fail to follow statutorily-prescribed conduct and likely will lead to further
erosion of the legislation, such as application of Mississippi Code Section 15-1-69 to
complaints filed without proper notice.
¶105. “While the right under our state and federal constitutions to access to our courts is a
matter beyond debate, this right is coupled with responsibility, including the responsibility to
comply with legislative enactments, rules, and judicial decisions.” Arceo, 949 So. 2d at 697.
Today’s decision acts to “render meaningless any rule or statute setting time limitations on
litigants.” Id. Nullification of the statutory notice requirements, absent constitutional
infirmity, is a decision for the Legislature alone.
64