I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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8/21 cases: The Mississippi Supreme Court focuses upon (and changes the nature of) the notice provision in medical malpractice cases

There are two medical malpractice cases involving the statutory notice provision.  The various opinions two cases involve a somewhat interesting shifting cast of writers and results.  In the first case, Justice Graves writes for the court, holding the notice provisions are not jurisdictional and therefore waivable (overruling a line of cases saying they are).  Justice Randolph concurs to argue that the notice provision is a condition presedent to suit, but going along with the conclusion that the notice provisions could be waived and therefore was not jurisdictional.  The patient won.   In the second, the patient lost with a Waller majority opinion, a Graves dissent (joined by Kitchens), and another Randolph opinion, partly disagreeing again with the majority view of the notice requirements.

In the first case, the the victorious firm must think it’s had a moral victory–the partner of John Cocke of Wilson v. Scruggs fame (along with Will Raiford), got Judge DeLaughter reversed for granting a summary judgment against their client on the notice provision.

The second case about the statutory notice provision makes me tired.  The lawsuit commenced without a statutory notice, and, on appeal, round one, the Supreme Court held:  There must be a proper notice.  On remand, the plaintiff’s lawyers had to comply with the statute.  The statute (Miss. Code Ann. §15-1-36) requires the notice include “the type of loss sustained, including with specificity the nature of the injuries suffered….”  So, after remand, the plaintif’s lawyer sent a letter that said:

This letter is being sent pursuant to Section 15-1-36(15) of the Mississippi Code of 1972, as amended.  This letter is to inform you of our intention to file suit on behalf of Tommie Tolliver.  The basis of the suit is negligence.

At this point, the case had been in litigation for years.  There’s no question that the defendant had full notice of the type of loss sustained, etc.– but none of that came through the letter sent by plaintiff’s counsel.  So I’m completely unsympathetic with the “gotcha” of a contention that the plaintiff had not provided notice of the claim.  What purpose does that requirement serve other than as a trap?  But I’m equally unsympathetic with anyone trying to contend that this complied with the statute.  Couldn’t the plaintiff have at least attached one of their complaints as an explanation?  Phooey.

All of this stumbling about caused the court to contend with statute of limitations issues such as tolling and the savings statute, along with some discussion of dismissals with and without prejudice.  Justice Waller, writing for the majority, concluded that the notice was inadequate, the first lawsuit t0lled the statute of limitations, and from the first lawsuit, the savings statute gave the plaintiffs another year to file suit.  On the other hand, the defective notice above did not toll limitations– while the statute said a statutory notice tolled limitations, the court ruled that a defective one did not.  So the second lawsuit was time barred and should have been dismissed with prejudice.  Justice Randolph concurred to note that he thought the majority opinion’s discussion of tolling and the notice statute was “confusing at best, inconsistent as stated, following no logical reason and offering no precedent to address the obvious inconsistency.”  Justice Graves (joined by Justice Kitchens) contended that the notice quoted above substantially complied with the statutory notice provisions.

There’s not a lot other than the medical malpractice notice provision cases:

  • There’s an one post conviction review case where a jury sent out a note they were hung during lunch, and the judge told them to continue deliberating.  Neither the defendant nor his lawyer heard that, and no record was made (!!!!!); the defendant at post conviction put on a family member, who testified the judge had told them to continue till they reached a verdict– which the Supreme Court noted would have clearly entitled the defendant to post conviction relief.  But, because the trial judge held he did not believe the witnesses testimony, the court held the claim wasn’t proved.
  • There’s a case involving whether a construction contractor can file a counterclaim on a residential construction contract without being licensed.  Most of the court– in a Waller majority opinion– says that an unlicensed contractor can obtain a license after performance but prior to filing, a result that Justice Kitchens, concurring, argued was “patently perverse.”  Instead of post-facto licensing, Justice Kitchens would have found the builder licensed all along.  Justice Dickinson, concurring, agreed with Justice Kitchens the builder was licensed all along, but found the plain statutory language would have allowed post-facto licensing.
  • There’s also an order from Justice Kitchens expressing understandable frustration with the Judicial Performance Commission in the disciplining of a justice court judge.  The order reverses, noting that the court has no way to evaluate the case.  The parties come before the court on “agreed upon facts” on the issues, one of which involves whether the justice court judge was making inappropriate racial remarks.  About those remarks, the “agreed” facts state:  “‘It was alleged that Respondent has used inappropriate language on more than one occasion, which Respondent
    .’  (Emphasis added.)  Obviously, this is far from an agreement between the Commission and the Respondent….”  Try again, folks, the Court rules.

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