Greenwood Leflore Hospital and John F. Lucas, III, In His Representative Capacity v. Roxanne Watson

• Court: Mississippi Supreme Court
• Decided: September 9, 2021
• Docket: 2020-IA-00037-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2020-IA-00037-SCT

GREENWOOD LEFLORE HOSPITAL AND JOHN F. LUCAS, III, IN HIS REPRESENTATIVE CAPACITY

v.

ROXANNE WATSON

DATE OF JUDGMENT: 12/26/2019 TRIAL JUDGE: HON. CAROL L. WHITE-RICHARD TRIAL COURT ATTORNEYS: CHYNEE ALLEN BAILEY TOMMIE GREGORY WILLIAMS, JR TOMMIE G. WILLIAMS COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: HARRIS FREDERICK POWERS, III TOMMIE GREGORY WILLIAMS, JR TOMMIE G. WILLIAMS ATTORNEY FOR APPELLEE: CHYNEE ALLEN BAILEY NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: AFFIRMED AND REMANDED - 09/09/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.

ISHEE, JUSTICE, FOR THE COURT:

¶1. Roxanne Watson filed two successive lawsuits against Greenwood Leflore Hospital

and Dr. John Lucas III (collectively, “GLH”), alleging medical negligence. Watson’s first

complaint was dismissed without prejudice because a notice of claim was not filed with the

chief executive officer of the governmental entity at least ninety days before instituting suit

as required by Mississippi Code Section 11-46-11(1) (Rev. 2019) of the Mississippi Tort Claims Act (MTCA). Watson then refiled the complaint. GLH sought dismissal of the

second complaint, contending that Watson was required to provide it with a second notice

of claim and that the one-year statute of limitations had expired. The trial court denied

GLH’s motion to dismiss, and this Court granted an interlocutory appeal. We conclude that

Watson satisfied the MTCA’s notice requirements, and we affirm the trial court’s order

denying the motion to dismiss.

FACTS1

¶2. Watson was a patient at GLH on May 22, 2017, when she underwent a surgical

procedure on her thyroid performed by Dr. Lucas. Watson filed her initial complaint alleging

medical malpractice on June 5, 2018. Before filing the complaint, Watson sent a notice of

claim letter to GLH and Dr. Lucas on April 6, 2018, pursuant to Mississippi Code Section

15-1-36(15) (Rev. 2019).2 The complaint asserted that it was filed pursuant to Mississippi

Code Sections 11-1-58 and 15-1-36(15). GLH filed a motion to dismiss Watson’s complaint

on October 5, 2018, contending that Watson failed to comply with the MTCA’s ninety-day

waiting period contained in Section 11-46-11(1). Watson’s lawsuit was filed sixty days after

her notice of claim letter. The trial court granted GLH’s motion to dismiss Watson’s

complaint without prejudice on January 7, 2019.

1 Because of the procedural posture of this case, some facts are drawn from the allegations in the complaint. 2 It appears that Watson mistakenly relied upon the sixty-day waiting period found in Section 15-1-36(15), the medical-malpractice-notice statute and not the ninety days required by Section 11-46-11(1) of the MTCA.

2 ¶3. Watson filed a second, identical complaint on March 14, 2019. GLH, in turn, filed

a second motion to dismiss, contending that the second complaint was not in compliance with

Section 11-46-11 because it was filed outside of the one-year statute of limitations, and no

notice of claim had been filed. The trial court denied the motion to dismiss, and GLH filed

a petition for interlocutory appeal, which this Court granted.

STANDARD OF REVIEW

¶4. “This Court reviews de novo a trial court’s grant or denial of a motion to dismiss.”

Johnson v. Rao, 952 So. 2d 151, 154 (Miss. 2007) (citing Harris v. Miss. Valley State Univ.,

873 So. 2d 970, 988 (Miss. 2004)). Additionally, this Court reviews the application of the

MTCA de novo. Lee v. Mem’l Hosp. at Gulfport, 999 So. 2d 1263, 1266 (Miss. 2008)

(citing City of Jackson v. Brister, 838 So. 2d 274, 278 (Miss. 2003)). As a question of law,

statutory interpretation is also reviewed under a de novo standard. Page v. Univ. of S. Miss.,

878 So. 2d 1003, 1004-05 (Miss. 2004) (citing Donald v. Amoco Prod. Co., 735 So. 2d 161,

165 (Miss. 1999)).

DISCUSSION

1. Whether Watson was required to provide a second presuit notice before filing her second complaint.

¶5. GLH argues that Watson was required to file a second notice of claim after the trial

court dismissed her first suit before filing a second complaint. Section 11-46-11(1) of the

MTCA mandates that a plaintiff must provide a state or local governmental entity with notice

of an impending claim at least ninety days before instituting the suit. “The purpose of the

Act is to insure that governmental boards, commissioners, and agencies are informed of

3 claims against them.” Reaves ex rel. Rouse v. Randall, 729 So. 2d 1237, 1240 (Miss. 1998).

Verbatim, the statute requires that:

After all procedures within a governmental entity have been exhausted, any person having a claim under this chapter shall proceed as he might in any action at law or in equity, except that at least ninety (90) days before instituting suit, the person must file a notice of claim with the chief executive officer of the governmental entity.

Miss. Code Ann. § 11-46-11(1) (Rev. 2019). The MTCA does not specifically require a

plaintiff to file a second notice of claim following the dismissal of the first complaint.

¶6. “This Court repeatedly has applied the same standards of construction and application

to the Medical Malpractice Tort Reform Act as those applied to the [MTCA].” Arceo v.

Toliver, 19 So. 3d 67, 71 (Miss. 2009). “Like the Medical Malpractice Tort Reform Act, the

MTCA requires written notice of a claim in advance of the filing of a lawsuit, a requirement

which also is strictly applied.” Id. at 72 (citing Univ. of Miss. Med. Ctr. v. Easterling, 928

So. 2d 815, 820-21 (Miss. 2006)).

¶7. But here it is uncontested that Watson provided adequate presuit notice that met the

statutory requirements under MTCA before filing her first complaint. The first complaint

was dismissed, however, because Watson did not wait the full ninety-day period before filing

the first complaint. At issue in this case is whether Watson was required to provide a second

notice of claim after her first complaint was dismissed without prejudice. GLH contends that

she was. In its brief, GLH relies heavily on Arceo v. Tolliver, 19 So. 3d 67 (Miss. 2009).

We find its reliance on Tolliver to be misplaced.

4 ¶8. The facts in Tolliver are notably different from the facts of this case. In Tolliver, the

plaintiff failed to provide any notice whatsoever before filing a medical-malpractice and

negligence claim against the defendants. Id. at 69. Then, on interlocutory appeal following

the trial judge’s denial of a motion to dismiss the complaint, this Court reversed and ordered

Tolliver’s complaint dismissed without prejudice for failure to provide presuit notice. Id. at

69-70. Tolliver subsequently sent the defendants a presuit-notice letter that did not meet the

requirements of Section 15-1-36. Id. at 70. GLH takes these sentences from Tolliver out of

context:

Nor is there any language in the statute which arguably could be construed to say that notice is not required when filing a second suit after dismissal of a first on the same cause of action. The statute’s notice requirement is not limited to the first filed action, but applies to all.

Tolliver, 19 So. 3d at 71.

¶9. The Court was, however, addressing Tolliver’s argument that her first lawsuit had

satisfied the notice requirement. This Court preceded these statements by saying:

[T]he statutory requirement of sixty days’ written notice before filing a medical negligence suit is mandatory. Quoting Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006), we stated that the Mississippi Legislature did not include any exceptions to the rule which would pretermit the written-notice prerequisite. [Arceo v. Tolliver, 949 So. 2d 691, 695 (Miss. 2006)] (quoting Pitalo, 933 So. 2d at 928-29). In the absence of any exceptions to the mandatory requirement, Tolliver’s argument that circumstances dictate when or if written notice is required is without merit.

Tolliver, 19 So. 3d at 71. When read in context, it is apparent that this Court’s actual holding

was that written notice under Section 15-1-36(15) is mandatory and that a lawsuit cannot

serve as notice. Tolliver therefore found that the plaintiff did not provide adequate notice

5 because of a lack of substantial compliance regarding the content of the notice. Id. at 72.

This Court did not hold that a new notice must be sent if the first suit is dismissed.

¶10. In today’s case, Watson provided valid presuit notice under both Section 15-1-36(15)

and the MTCA. She simply failed to send a second notice after her first lawsuit was

dismissed.

¶11. GLH does point to two decisions that follow its interpretation of Tolliver. The first

is an unpublished memorandum opinion and order from a United States District Court. See

Anderson v. S. Sunflower Co. Hosp., Civ. No. 3:18CV254TSL-RHW (S.D. Miss July 3,

2018). The district court in that case, admittedly, does seem to have been persuaded by the

surface-level reading of the sentence in Tolliver that GLH advances today, but that decision

is not binding on this Court. See id. at *2. GLH also cites the Court of Appeals’ decision

in Mosely v. Baptist Memorial Hospital-Golden Triangle, Inc., 232 So. 3d 162 (Miss. Ct.

App. 2017). But the question of whether the plaintiff should have filed a second notice was

not a contested issue in that case. “At the hearing on the motions to dismiss, Mosely

conceded that the second action should be dismissed under Arceo v. Tolliver, 949 So. 2d 691,

697-98 (¶16) (Miss. 2006), due to lack of presuit notice, but argued that the dismissal should

be without prejudice.” Id. at 165.

¶12. We take this opportunity to correct a misapprehension of law. Here, Watson delivered

a proper notice of claim more than ninety days before filing the second suit. Nowhere does

the MTCA (strictly construed or not) require Watson to send a second notice of claim; the

statute requires a notice of a claim, not a notice of a complaint. Whether an intervening first

6 complaint was filed is of no consequence. The trial court was correct in finding that GLH’s

motion to dismiss should be denied on this point.

2. Whether the ninety-five day tolling period under Section 11-46- 11(3) is itself tolled when a complaint is filed before the ninety-five day period.

¶13. Finally, GLH contends that Watson’s second complaint was filed outside the one-year

statute of limitations under Section 11-46-11(3)(a), and, as such, the trial court erroneously

denied GLH’s motion to dismiss. Section 11-46-11(3) of the MTCA mandates that all

actions:

shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after, except that filing a notice of claim within the required one-year period will toll the statute of limitations for ninety-five (95) days from the date the [chief executive officer] receives notice of claim.

Miss. Code Ann. § 11-46-11(3)(a) (Rev. 2019) (emphasis added). Section 11-46-11(3)(b)

goes on to state:

No action whatsoever may be maintained by the claimant until the claimant receives a notice of denial of claim or the tolling period expires, whichever comes first, after which the claimant has an additional ninety (90) days to file suit; failure to file within the time allowed is an absolute bar to any further proceedings under this chapter.

Miss. Code Ann. § 11-46-11(3)(b) (Rev. 2019) (emphasis added).

¶14. GLH concedes that Watson’s initial complaint operated to toll the one-year statute of

limitations. However, it contends that Watson failed to follow the procedures contained in

Mississippi Code Section 11-46-11 with respect to the filing of her second complaint,

resulting in the second complaint’s being time-barred. Specifically, GLH claims that Watson

7 was not entitled to any tolling of the statute of limitations because she did not send a presuit

notice before filing the second complaint. This Court is tasked here with deciding whether

the premature filing of a complaint, before the ninety-five day notice toll was up, operates

to toll the one year statute of limitations. Looking at the plain language of the statute at

issue, we conclude that the trial court was correct. Watson sent GLH a notice of claim, after

which the one-year statute of limitations was tolled for ninety-five days. She filed her first

complaint sixty days into the tolling period. Thirty-five days of tolling remained that halted

until the dismissal of her first complaint. Watson had forty-six days remaining on the

original statute of limitations. And pursuant to Section 11-46-11(3)(b), Watson had an

additional ninety days to file suit.

¶15. The trial court stated in its order denying GLH’s motion to dismiss:

[W]hen [Watson’s] lawsuit was dismissed on January 5, 2019, [she] was placed in the same position she was in, on June 5, 2018, prior to filing the first lawsuit. The general principal in Mississippi is when a complaint is filed and properly served, that complaint tolls the running of the statute of limitations. Price v. Clark, 21 So. 3d 509, 521 (Miss. 2009).

We agree with the trial court’s analysis: despite Watson’s early filing of the initial lawsuit,

she remained entitled to benefit from the tolling provisions. Importantly, the second lawsuit

was identical to the first in all respects. Watson filed her second complaint within the

additional time allotted to her by Section 11-46-11(3)(b).

¶16. We affirm the trial court’s denial of GLH’s motion to dismiss, and we remand the case

for proceedings consistent with this opinion.

¶17. AFFIRMED AND REMANDED.

8 RANDOLPH, C.J., KITCHENS AND KING, P.JJ., MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, J.

COLEMAN, JUSTICE, DISSENTING:

¶18. Regardless of the outcome of the first issue, i.e., whether the plaintiff, Roxanne

Watson, had to serve notice again following the dismissal of her first complaint, the statute

of limitations had run against her claims. Accordingly, and with respect, I dissent.

¶19. Watson’s claim accrued on May 22, 2017, the date of the alleged negligent treatment.

Miss. Code Ann. § 11-46-11(3)(a) (Rev. 2019). On April 6, 2018, when Watson served

notice on the defendant, forty-six days remained in the limitations period. The forty-six day

remainder began running again on January 7, 2019, when the trial court dismissed her initial

complaint and expired on February 22, 2019. Accordingly, she filed her second complaint

twenty days too late when she filed it on March 14, 2019.

¶20. The majority reaches a different result by holding not only that filing the initial

complaint tolled the running of the one-year statute of limitations but also that the filing of

the initial compliant tolled the ninety-five day tolling period applicable to the running of the

one-year period established in Mississippi Code Section 11-46-11(3). However, the majority

reaches its holding without any citation of authority suggesting that the tolling period itself

is tolled along with the statute of limitations.

¶21. The purpose of requiring notice of a claim and a ninety-day waiting period before

filing suit is to allow the governmental entity to take prompt corrective action and settle

claims when appropriate. Lane v. Miss. Dep’t of Transp., 220 So. 3d 254, 259 (¶ 19) (Miss.

9 2017). The ninety-five day tolling of the statute of limitations then ensures that, in the event

that the prospective defendant does not reply to the notice within ninety days, the plaintiff

will have at least five days left to file suit before the statute of limitations expires. Miss.

Code Ann. § 11-46-11(3)(a). Neither Watson nor the majority cite any precedent holding the

filing of a fatally flawed complaint tolls the ninety-day waiting period that exists for the

benefit of the governmental entity and, by extension, the ninety-five day tolling period that

goes with it. Without more well-grounded reasons for doing so, I would decline to create

that rule here.

¶22. While, as set forth above, I would reverse the judgment on grounds that the one-year

limitations period ran before Watson filed her second complaint, I also agree with the

majority’s refusal to apply Arceo v. Tolliver, 19 So. 3d 67 (Miss. 2009), to hold that Watson

was required to re-serve presuit notice. However, I agree for a different reason.

¶23. Regarding the question of whether a dismissed complaint may satisfy the statutory

notice of claim requirement, the Arceo Court wrote, “The statute’s notice requirement is not

limited to the first filed action, but applies to all.” Id. at 71 (¶ 14). The Arceo Court wrote

the above-quoted language in response to the Arceo plaintiff’s argument that the first filed

lawsuit contained enough information to put the defendant on notice of the claims, and,

therefore, no further notice was needed before filing a second lawsuit. Id. at 71 (¶ 12). The

Arceo Court rejected the plaintiff’s argument because it held that the plain language of the

statute required that new notice be given before filing the second complaint. Id. at 71 (¶ 14).

10 ¶24. The majority does not follow Arceo based on the factual distinction that, in Arceo, the

plaintiff was arguing that the complaint and other filings from the first, fatally flawed attempt

at litigation provided sufficient notice, but that, here, Watson provided sufficient written

notice prior to filing her first complaint. Some holdings are, by their plain reading, of

broader application than the facts of the specific case that give rise to them. Here is one such

holding. The Arceo Court’s conclusion, that each complaint requires presuit notice, was

based on the language of the applicable statute—not the form of the notice the Arceo plaintiff

argued was sufficient. The majority’s holding today, that the statute did not require Watson

to serve presuit notice before filing her second complaint contradicts the Arceo holding.

¶25. Arceo, however, addressed the presuit notice requirement found in Mississippi Code

Section 15-1-36(15) (Rev. 2019) applicable to claims for medical negligence. Today’s case

involves the application of the Mississippi Tort Claims Act’s presuit notice requirements.

The medical negligence notice requirement provides, in pertinent 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). By contrast, the Tort Claims Act notice

requirement provides as follow:

After all procedures within a governmental entity have been exhausted, any person having a claim under this chapter shall proceed as he might in any action at law or in equity, except that at least ninety (90) days before instituting suit, the person must file a notice of claim with the chief executive officer of the governmental entity.

11 Miss. Code Ann. § 11-46-11(1) (Rev. 2019). The latter language does not readily support

the Arceo Court’s conclusion that presuit notice must be served again after the dismissal of

a first complaint. In the case sub judice, it is undisputed that Watson served presuit notice

more than ninety days prior to filing the complaint now at issue. I do not see how the Court

can apply Arceo to the language of Section 11-46-11(1) as written. Accordingly, I agree with

the majority’s disposition of the first issue albeit for a different reason.

GRIFFIS, J., JOINS THIS OPINION.