The Supreme Court of Mississippi held in its opinion dated September 9, 2021 that the Mississippi medical malpractice plaintiff “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 … [the plaintiff] 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 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.”
The Mississippi Supreme Court explained: “Watson [the plaintiff] 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 … 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).”
The Underlying Facts
Roxanne Watson filed two successive lawsuits against Greenwood Leflore Hospital and Dr. John Lucas III (“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 the Mississippi Supreme Court had granted an interlocutory appeal.
A dissenting opinion argued: “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.”
“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.”
Source Greenwood Leflore Hospital v. Watson, No. 2020-IA-00037-SCT.
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