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Malpractice Complaint Filed Without Proper Pre-suit Notice; Limitations


A woman died at the county hospital. Her wrongful death beneficiaries provided a Notice of Claim to the county clerk and to the county attorney. But they did not provide notice to the county hospital’s chief executive officer (CEO), as required by the Mississippi Tort Claims Act (MTCA). Just short of a year after the woman died, the beneficiaries sued the county hospital for medical malpractice and served its CEO with a copy of the complaint.

 

The hospital moved to dismiss the complaint, arguing that the beneficiaries had failed to provide its CEO with presuit notice, and that the complaint was barred by the one-year statute of limitations. The trial court denied the motion, finding that the woman had substantially complied with the notice statute. On appeal, the Supreme Court of Mississippi reversed the trial court's order, finding that the beneficiaries' substantial compliance was insufficient. On remand, the trial court dismissed the beneficiaries' complaint without prejudice, holding that a properly served complaint, albeit a complaint that was wanting of proper pre-suit notice, should still serve to toll the statute of limitations until there was a ruling from the trial court. The day after the trial court dismissed the complaint, the woman served a Notice of Claim on the county hospital's CEO.

 

The county hospital moved to dismiss the second complaint with prejudice, arguing that, because the beneficiaries had not provided notice to the county hospital within one year after the date of the woman’s death the county hospital’s sovereign immunity had not been waived. The Tallahatchie County Circuit Court denied the hospital's motion to dismiss.

 

The Supreme Court of Mississippi affirmed. The court held that the initial complaint tolled the running of the one-year limitations period governing the suit until the trial court dismissed the complaint without prejudice to provide the wrongful death beneficiaries with the opportunity to provide the hospital with proper presuit notice.

 

The initial complaint tolled the running of the one-year limitations period governing suit until the trial court dismissed the complaint without prejudice to provide the wrongful death beneficiaries with the opportunity to provide the hospital with proper presuit notice. The court held that a properly served complaint that lacks proper pre-suit notice tolled the statute of limitations until there was a ruling from the trial court. The beneficiaries’ filing of the complaint tolled the statute of limitations, despite their failure to provide the hospital proper presuit notice. The beneficiaries filed a complaint before the expiration of the one-year statute of limitations. The statute of limitations was tolled until the trial court dismissed her case without prejudice for her failure to provide the county hospital with proper presuit notice. The day after the case was dismissed, the beneficiaries provided the county hospital with proper presuit notice, thereby tolling the limitation period again. The hospital denied the beneficiaries' claims quickly, and they timely and properly filed and served her second complaint, which tolls the one-year statute of limitations under the MTCA. The court found that the beneficiaries' second presuit notice was proper, and they filed the second complaint within the time remaining under the statute of limitations.

 

The Supreme Court of Mississippi affirmed the trial court’s denial of the hospital’s motion to dismiss on limitations grounds.

 

See: Tallahatchie General Hosp. v. Howe, 2015 WL 110617 (Miss., January 8, 2015) (not designated for publication).

 

 

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