EMAIL TO A FRIEND COMMENT

 

Failure to Prosecute Malpractice; Limitations Not Tolled


After seeking treatment at a hospital, a woman died. About a year later, the woman’s wrongful death beneficiary sued the hospital, doctor, and nurse practitioner for medical malpractice. The complaint claimed that the nurse practitioner failed to accurately diagnose and provide necessary medical treatment to the woman causing the woman’s death.

 

After eight years, the hospital, doctor, and nurse practitioner moved to dismiss the case for failure to prosecute. The Forrest County Circuit Court dismissed the case without prejudice.

 

Later that year, the wrongful death beneficiary refiled the complaint. The nurse practitioner moved to dismiss the complaint as barred by the applicable statute of limitations. The trial court denied the nurse practitioner’s motion to dismiss the complaint. The trial court reasoned that the statute of limitations had been tolled during the first proceeding because the motion to dismiss the case for failure to prosecute was not brought by the clerk.

 

The Supreme Court of Mississippi reversed. The court held that the wrongful death beneficiary’s filing of a medical malpractice action against the nurse practitioner did not toll the applicable statute of limitations and the nurse practitioner was not estopped from arguing that the statute of limitations applicable to medical malpractice cases had run.

 

The wrongful death beneficiary’s filing of a medical malpractice action against the nurse practitioner did not toll the applicable statute of limitations. Mississippi’s statute of limitations for medical malpractice claims provided any such claim must be brought within two years from the alleged act, omission or neglect, and in no event, more than seven years after the alleged act, omission, or neglect occurred. The wrongful death beneficiary’s first complaint was dismissed without prejudice for failure to prosecute. The wrongful death beneficiary’s second complaint was filed nine years after the alleged negligent conduct occurred. The court held that when an action is dismissed without prejudice for failure to prosecute, the statute of limitations does not toll, and the parties are left in the same position as if they had never filed the action. The court explained that the filing of an action does not toll the applicable statute of limitations in a case that is subsequently dismissed for failure to prosecute, regardless of whether the dismissal is initiated by the clerk, the judge, or a party.

 

The nurse practitioner was not estopped from arguing that the statute of limitations applicable to medical malpractice cases had run. The court reasoned that whether a dismissal is “without prejudice” and whether the statute of limitations has run are distinct inquiries. Therefore, even if the nurse practitioner had agreed to a dismissal without prejudice, that agreement, standing alone, did not amount to a concession that the statute of limitations had not run.

 

The Supreme Court of Mississippi reversed the trial court’s denial of the nurse practitioner’s motion to dismiss the woman’s complaint as barred by the applicable statute of limitations.

 

See: Thornhill v. Ingram, 2015 WL 5730728 (Miss., Oct. 1, 2015) (not designated for publication).  

 

 

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