Filed: Dec. 08, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 8, 2005 _ Charles R. Fulbruge III Clerk No. 05-60089 _ DAVID HUNTER, Plaintiff-Appellant, versus C. MICHAEL SMITH, JR.; MEMPHIS LUNG PHYSICIANS, P.C., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Mississippi USDC Case No. 2:04CV108-PA _ Before JONES, DeMOSS, and CLEMENT, Circuit Judges. PER CURIAM:* This case concerns the proper
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 8, 2005 _ Charles R. Fulbruge III Clerk No. 05-60089 _ DAVID HUNTER, Plaintiff-Appellant, versus C. MICHAEL SMITH, JR.; MEMPHIS LUNG PHYSICIANS, P.C., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Mississippi USDC Case No. 2:04CV108-PA _ Before JONES, DeMOSS, and CLEMENT, Circuit Judges. PER CURIAM:* This case concerns the proper ..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 8, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 05-60089
_______________________
DAVID HUNTER,
Plaintiff-Appellant,
versus
C. MICHAEL SMITH, JR.;
MEMPHIS LUNG PHYSICIANS, P.C.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC Case No. 2:04CV108-PA
_________________________________________________________________
Before JONES, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This case concerns the proper calculation of the statute
of limitations for medical malpractice claims in Mississippi.
Finding Appellant David Hunter’s claim time-barred, the district
court granted summary judgment to Appellees Dr. C. Michael Smith
and Memphis Lung Physicians, P.C. (“practice group”). Because
recently published Mississippi case law has interpreted MISS. CODE
ANN. § 15-1-36(15) in a manner that makes Appellant’s claim timely
brought, we REVERSE and REMAND.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I. BACKGROUND
This diversity action stems from the emergency medical
treatment received by Hunter, who was brought to Baptist Memorial
Hospital-Desoto in Southaven, Mississippi on February 16, 2002.
While at Baptist Memorial, Hunter was treated by Smith, a partner
with the practice group. Hunter alleges that Smith committed
medical malpractice in treating him; as a result of Smith’s alleged
negligence, Hunter maintains that he had to undergo additional
surgery and spent a number of days in intensive care. Hunter now
claims to have limited movement and weakness in his right hand and
arm.
Hunter filed a complaint against Smith and the practice
group on April 15, 2004. Smith then moved for summary judgment on
the grounds that Hunter’s claim was time barred, and the district
court granted the motion. Hunter now brings this appeal, which may
be heard under 28 U.S.C. § 1291.
II. ISSUES ON APPEAL
Hunter raises three arguments as to why his complaint was
timely. First, he argues that the relevant statute of limitations
in this case, MISS. CODE ANN. § 15-1-36(2), is tolled for sixty days
by MISS. CODE ANN. § 15-1-36(15). This interpretation of § 15-1-
36(15) would make Hunter’s claim timely. In the alternative,
Hunter argues that the district court erred in failing to apply the
discovery rule to his case, as he could not have reasonably known
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of Smith’s negligence until August 13, 2003, when he was able to
review his medical records. Hunter also claims that he pleaded a
breach of contract case against Smith, which carries a three-year
statute of limitations, thus preserving his claim.
III. DISCUSSION
This court reviews the district court’s grant of summary
judgment de novo, applying the same legal standards as the district
court. Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 403 (5th Cir.
2004)(citing Morris v. Covan World Wide Moving, Inc.,
144 F.3d 377,
380 (5th Cir. 1998)). Summary judgment is appropriate where there
is “no genuine issue as to any material fact and [] the movant is
entitled to judgment as a matter of law.” Copeland v. Wasserstein,
Perella & Co.,
278 F.3d 472, 477 (5th Cir. 2002).
In Mississippi, medical malpractice claims must be “filed
within two (2) years of the date of the alleged act, omission or
neglect shall or with reasonable diligence might have been first
known or discovered.” MISS. CODE ANN. § 15-1-36(2). This means that,
absent tolling or application of the discovery rule, Hunter would
have had to file suit against Smith and his practice group by
February 16, 2004.
However, Mississippi also requires medical malpractice
plaintiffs to supply defendants with at least sixty days’ prior
written notice of their intention to sue. MISS. CODE ANN. § 15-1-
36(15). Smith and his practice group received written notice from
Hunter on February 2, 2004, fourteen days before the statute of
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limitations was set to expire on Hunter’s claim. The sixty-day
notice provision of § 15-1-36(15) is not waived in situations where
plaintiffs have fewer than sixty days to timely bring suit.
Instead, § 15-1-36(15) provides that:
If the notice is served within sixty (60) days prior to
the expiration of the applicable statute of limitations,
the time for the commencement of the action shall be
extended sixty (60) days from the service of the notice
for said health care providers and others.
This portion of § 15-1-36(15) is at the heart of the
case. Hunter argued that the effect of § 15-1-36(15) was to toll
the statute of limitations for sixty days, such that he would have
two years, plus sixty days, to bring his claim.1 Appellees seized
upon language indicating that the sixty day “exten[sion]” was “from
the service of the notice” and argued that the statute of
limitations expired once the sixty day notice period had run. The
district court accepted the latter interpretation of § 15-1-36(15),
and concluded that Hunter needed to bring suit by April 2, 2004,
sixty days after Appellees received notice from him.
At the time the district court considered this case,
there was no case law from the Supreme Court of Mississippi
interpreting the effect of § 15-1-36(15) upon the state’s two-year
1
Hunter’s interpretation of § 15-1-36(15) is informed by reference to
MISS. CODE ANN. § 15-1-57, which states that “[w]hen any person shall be prohibited
by law . . . from commencing or prosecuting any action or remedy, the time during
which such person shall be so prohibited . . . shall not be computed as any part
of the period of time limited by this chapter for the commencement of such
action.” Hunter argues that as there were sixty days where he could not legally
bring suit against Smith and the practice group, § 15-1-57 prevents those days
from counting against him for statute of limitations purposes.
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statute of limitations. The district court was thus forced to make
an “Erie-guess” as to how the state court would interpret § 15-1-
36(15). Mayo, 354 F.3d at 406. We review the district court's
Erie-guess de novo.
Id. (citing Williamson v. Elf Aquitaine, Inc.
138 F.3d 546, 549 (5th Cir. 1998)).
This court no longer has to guess how Mississippi would
interpret § 15-1-36(15), as the Mississippi Supreme Court very
recently held in Pope v. Brock, 912 So. 2d 935, reh’g denied, 2005
Miss. LEXIS 719 (Miss. Nov. 3, 2005) that § 15-1-36(15) tolls the
statute of limitations on medical malpractice claims for sixty
days. Thus, “[§ 15-1-36(15)] requires a sixty-day tolling of the
two-year statute of limitations.”
Id. at 939.
Applying Pope to the facts of this case, it becomes
apparent that the district court erred in granting summary judgment
in favor of Appellees. Hunter alleges that Smith committed medical
malpractice in treating him on February 16, 2002. Under Pope,
Hunter had two years and sixty days from February 16, 2002—or until
April 16, 2004—to bring his suit against Smith. As Hunter filed
suit on April 15, 2004, his suit was timely. Thus, the district
court erred in granting summary judgment to Appellees on the theory
that Hunter’s claim was time-barred.
CONCLUSION
The district court’s interpretation of MISS. CODE ANN. §
15-1-36(15) is now foreclosed by Pope. Therefore, the grant of
5
summary judgment in favor of Appellees is REVERSED and the case is
REMANDED to the district court for further proceedings consistent
with this opinion.
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