Court of Appeals Rejects Latest Lack of Pre-suit Notice Argument
On Tuesday a unanimous Mississippi Court of Appeals reversed the Circuit Court of Harrison County’s dismissal of a lawsuit against two physicians for failure to comply with the pre-suit notice statute: Miss. Code Ann. 15–1–36(15). Here is the Court’s opinion in Hans v. Memorial Hospital.
The relevant facts were as follows:
- April 2006: alleged negligent medical care
- March 29, 2007: complaint filed
- May 2, 2007: notice letter sent to two doctors
- May 30, 2007: two doctors dismissed without prejudice based on failure to provide pre-suit notice
- March 26, 2008: plaintiffs filed amended complaint joining the two doctors who were dismissed
- August 27, 2008: circuit court again granted doctors’ motion to dismiss.
On appeal, the plaintiff argued that the doctors were properly dismissed from the first action, but were provided the necessary notice before the filing of the amended complaint. The doctors contended that this offended the plain meaning of the pre-suit notice statute. The doctors were in essence arguing that the dismissal without prejudice was really with prejudice. That’s a disingenuous argument.
The Court of Appeals agreed with the plaintiff and reinstated the action. I agree with the Court of Appeals. The doctors had notice of the action before the filing of the amended complaint that named them as defendants.
The lesson in this opinion for plaintiff lawyers is that the sooner the complaint is filed, the more time you have to address any claimed notice deficiencies. By filing the complaint in this case more than a year before the statute ran against the doctors, the plaintiff had plenty of time to correct the deficiency. Of course, plaintiffs often do not start looking for a lawyer until just before the statute of limitations expires—or even after.
The Court of Appeals affirmed the grant of summary judgment for Memorial Hospital on the grounds that the plaintiff failed to establish a prima facie case of medical malpractice against the hospital.
Judge Donna Barnes wrote the Court’s opinion.
I believe George Bloss III is also known as "Pete".