Salvador Arceo v. Myrtis Tolliver

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CA-00224-SCT
SALVADOR ARCEO, M.D., AND ST. DOMINIC-
JACKSON MEMORIAL HOSPITAL
v.
MYRTIS TOLLIVER, AS ADMINISTRATRIX OF
THE ESTATE OF TOMMIE C. TOLLIVER,
DECEASED, AND INDIVIDUALLY, AND THE
WRONGFUL DEATH BENEFICIARIES OF
TOMMIE C. TOLLIVER, DECEASED
DATE OF JUDGMENT: 01/09/2008
TRIAL JUDGE: HON. BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: PAUL E. BARNES
KIMBERLY N. HOWLAND
GRETCHEN W. KIMBLE
SHARON F. BRIDGES
JONATHAN R. WERNE
ATTORNEYS FOR APPELLEE: W. ANDREW NEELY
W. ERIC STRACENER
E. VINCENT DAVIS
DEBORAH McDONALD
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART- 08/20/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. Salvador Arceo, M.D., and St. Dominic-Jackson Memorial Hospital seek review of
the second dismissal without prejudice of Myrtis Tolliver’s medical malpractice claim for
failure to comply with the notice provisions of Mississippi Code Section 15-1-36(15).
FACTS AND PROCEDURAL HISTORY
¶2. This is the second appearance of these parties before this Court. Arceo v. Tolliver,
949 So. 2d 691 (Miss. 2006) (“Tolliver I”). As in that first appearance on interlocutory
appeal, this appeal deals with interpretation and application of the notice requirement for
initiation of medical malpractice suits pursuant to Mississippi Code Section 15-1-36.
¶3. On July 9, 2002, Tommie C. Tolliver (“Tommie”), daughter of Appellee Myrtis
Tolliver (“Tolliver”), was seen and evaluated in the emergency room at St. Dominic-Jackson
Memorial Hospital. Tolliver I, 949 So. 2d at 692.1 Over the course of several days, Tommie
was treated by Dr. Salvador Arceo and various hospital employees for meningococcal
meningitis and sepsis. Id. On July 13, 2002, Tommie died. Id.
¶4. On June 4, 2004, Tolliver filed a complaint for medical malpractice and negligence
against Dr. Arceo and John and Jane Doe defendants in Hinds County Circuit Court. Id.
Tolliver filed a first amended complaint on June 25, 2004, and on July 23, 2004, filed a
second amended complaint.2 Id. Tolliver failed to provide the notice required by Mississippi
1
This Court’s opinion in Arceo v. Tolliver will hereinafter be cited and referenced as
Tolliver I.
2
The original complaint was styled “Myrtis Tolliver, On Behalf of Tommie C.
Tolliver, Deceased v. Salvador Arceo, M.D., and John and Jane Does 1-5.” The first
amended complaint was styled “Myrtis Tolliver, as Administratrix of the Estate of Tommie
C. Tolliver, Deceased, Individually, and on Behalf of the Wrongful Death Beneficiaries of
Tommie C. Tolliver, Deceased v. St. Dominic-Jackson Memorial Hospital; Salvador Arceo,
M.D.; Amy Morehead, R.N.; (FNU) Cleveland, R.N.; and John and Jane Does 1-7.” The
2
Code Section 15-1-36(15) prior to the filing of these complaints. Id. at 693, Miss. Code Ann.
§ 15-1-36(15) (Rev. 2003).
¶5. Dr. Arceo filed a motion to dismiss, or in the alternative, for summary judgment,
which the trial court denied. Id. Thereafter, Dr. Arceo and St. Dominic petitioned this Court
for interlocutory appeal, which was granted. Id. This Court reversed the trial court’s denial
of the motion to dismiss, or in the alternative, for summary judgment, and rendered judgment
in favor of Dr. Arceo and St. Dominic, dismissing Tolliver’s second amended complaint
without prejudice for failure to provide the required pre-suit notice.3 Id. at 697-98. The Clerk
of the Supreme Court issued a mandate dismissing the original action without prejudice on
March 15, 2007.
¶6. On February 28, 2007, approximately two weeks before the mandate issued, Tolliver
forwarded letters to Dr. Arceo and St. Dominic, which read, “This letter is being sent
pursuant to Section 15-1-36(15) of the Mississippi Code of 1972, as amended. This letter
is to inform you of our intention to file suit on behalf of Tommie Tolliver. The basis of the
suit is negligence.” The letter closed with an invitation to discuss an amicable settlement.
On May 9, 2007, Tolliver filed another complaint, initiating the present action (“Tolliver
II”).
second amended complaint had the identical style, except that, with the first name of Nurse
Cleveland having been determined, “(FNU) Cleveland, R.N.,” was amended to read
“Stephanie Cleveland, R.N.” Tolliver I, 949 So. 2d at 693.
3
This Court reached only the issue of whether dismissal was required for non-
compliance with section 15-1-36(15), stating: “[b]ecause of our disposition of the statutory
notice issue consistent with our recent decision in Pitalo, the remaining issues raised by the
parties need not be addressed.” Tolliver I, 949 So. 2d at 697.
3
¶7. Dr. Arceo and St. Dominic again filed a motion for summary judgment with prejudice
for Tolliver’s failure once again to comply with the statutory notice requirements and/or
running of the statute of limitation. The trial court heard oral argument on the motion for
summary judgment and thereafter entered an order dismissing Tolliver’s lawsuit without
prejudice. The trial court found the contents of Tolliver’s February 28, 2007, notice to Dr.
Arceo and St. Dominic did not substantially comply with the statutory requirements of
Section 15-1-36(15). The trial court further found the statute of limitation had not expired,
and that the savings statute applied, and declined to dismiss the cause with prejudice.
¶8. Aggrieved that summary judgment was not granted with prejudice, Dr. Arceo and St.
Dominic timely perfected appeal to this Court. Dr. Arceo and St. Dominic assert four issues
on appeal, which we paraphrase for brevity as: (1) whether the trial court erred in entering
summary judgment without prejudice; (2) where the only issue was noncompliance with
Mississippi Code Section 15-1-36, did the trial court err in applying a substantial-compliance
standard; (3) whether the statute of limitation has expired; and (4) does the Mississippi
“savings statute” apply to this matter.4
DISCUSSION 5
I. Whether the trial court erred in applying the substantial-compliance standard
to the contents of a medical negligence statutory notice.
4
In her reply brief, Tolliver raises several other independent issues, including the
constitutionality of the medical negligence notice statute and argues the trial court erred in
granting the dismissal at all. However, Tolliver did not file a notice of cross-appeal or file
a cross-appellant’s brief, only a reply brief, and the issues are therefore not properly before
this Court.
5
For the sake of clarity, we have reworded and separated the issues.
4
¶9. The standard of review for questions of law is de novo. Powe v. Byrd, 892 So. 2d
223, 227 (Miss. 2004). Statutory interpretation is a question of law subject to de novo
review. Sheppard v. Miss. State Highway Patrol, 693 So. 2d 1326, 1328 (Miss. 1997).
¶10. Mississippi Code Section 15-1-36(15) expressly requires a plaintiff to provide a
defendant written notice of the intent to begin an action, and said notice must include the
legal basis of a medical negligence claim and the type of loss sustained, including with
specificity the nature of the injuries suffered. Miss. Code Ann. § 15-1-36(15) (Rev. 2003).
This notice must be provided sixty days in advance of filing a lawsuit. Id.
¶11. Dr. Arceo and St. Dominic maintain that, although the circuit court reached the right
result, dismissal, the court erred by applying a substantial compliance standard to determine
whether the content of Tolliver’s February 28, 2007, notice conformed to the statutory
requirements. According to Dr. Arceo and St. Dominic, because Tolliver left out an entire
category of information required by Section 15-1-36(15), namely “the type of loss sustained,
including with specificity the nature of the injuries suffered,” the issue was simply
compliance or noncompliance.
¶12. Tolliver argues that, under the facts of this case, a notice letter was not required.
Specifically, Tolliver argues that because Dr. Arceo and St. Dominic were served with the
complaint in Tolliver I, the first and second amended complaints in Tolliver II, and post-
filing notice letters and engaged in over two years of litigation, Dr. Arceo and St. Dominic
are fully aware of the legal bases of the claim and the type of loss sustained, including the
nature of the injuries suffered. Therefore, she argues, any further written notice would be
5
moot. Tolliver alternatively argues that, even if notice was required before the filing of
Tolliver II, the notice actually given was adequate under the circumstances.
¶13. As was fully discussed by this Court in Tolliver I, the statutory requirement of sixty
days’ written notice before filing a medical negligence suit is mandatory. Quoting Pitalo v.
GPCHP-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. Tolliver I, 949 So. 2d at 695 (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.
¶14. 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 language of the statute is unambiguous: “No action based upon the healthcare
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) (Rev. 2003). The statute’s notice requirement is not limited to the first filed
action, but applies to all. Tolliver’s assertion that no notice was required in this case is
without merit.
¶15. With respect to the information which must be included in the prelitigation written
notice, the statute states, “No particular form of notice is required, but it shall notify the
defendant of the legal basis of the claim and the type of loss sustained, including with
specificity the nature of the injuries suffered.” Miss. Code Ann. § 15-1-36(15) (Rev. 2003).
6
¶16. This Court repeatedly has applied the same standards of construction and application
to the Medical Malpractice Tort Reform Act as those applied to the Mississippi Tort Claims
Act (“MTCA”). See, e.g., Thomas v. Warden, 999 So. 2d 842 (Miss. 2008) (quoting Wimley
v. Reid, 991 So. 2d 135 (Miss. 2008)); Tolliver I, 949 So. 2d at 696 (citing Univ. of Miss.
Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (Miss. 2006)). Therefore, we look to this body
of law for clarity.
¶17. 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.
Easterling, 928 So. 2d at 820-21. Where a claimant does provide written notice, we have
adhered to the principle that substantial compliance is the standard for analyzing the contents
of the notice to determine its sufficiency. Lee v. Mem’l Hosp. at Gulfport, 999 So. 2d 1263
(Miss. 2008); Thomas v. Warden, 999 So. 2d 842; Tolliver I, 949 So. 2d at 696-97 & n.5.
Sufficient information must be contained in the notice to permit the recipient to make a
reasonable investigation of the claims being made. Lee, 999 So. 2d at 1267.
¶18. Dr. Arceo and St. Dominic assert that Tolliver failed to include in her notice “the type
of loss sustained, including with specificity the nature of the injuries suffered,” one of the
statute’s designated categories of notice information. Tolliver does not dispute her notice
failed to include this information, but rather argues again that, given the more than two years
of litigation, neither Dr. Arceo nor St. Dominic legitimately can claim unawareness of the
claimed loss and injuries suffered. She also claims that such information was unnecessary.
¶19. The statute does not provide an exception to notice requirements for medical
negligence cases in which a defendant may have actual notice of the particulars of a claim,
7
nor does it provide a mechanism by which such an inquiry arguably could be made. The
statute makes notice, with the required content, mandatory. This Court previously has
rejected the argument that actual notice of a claim and its details obviates the necessity of
written notice under the MTCA. See South Cent. Reg’l Med. Ctr. v. Guffy, 930 So. 2d 1252
(Miss. 2006) and Fairley v. George Co., 871 So. 2d 713 (Miss. 2004). This assertion is
therefore without merit.
¶20. Just as there are no exceptions to providing notice vel non, there are no exceptions to
the requirement that notices provide information sufficient to fulfill the statutory notice
purposes. The mandatory nature of the notice requirement is such that what the recipient
may or may not actually have known is irrelevant.
¶21. With that framework in mind, it is readily apparent Tolliver’s February 28, 2007,
notice did not comply with the statute’s requirements. Merely advising a medical
practitioner of the intent to sue for negligence in no way satisfies the legislative requirement
as enacted. The notice did not include any description of the alleged injuries and/or the type
of loss sustained, as required by the statute. It stated only that Tolliver intended to file a
negligence lawsuit.
¶22. We therefore conclude dismissal was appropriate, and the trial court’s application of
the substantial-compliance standard to the contents of Tolliver’s February 28, 2007, notice
was correct.
II. Whether Tolliver’s February 28, 2007, notice triggered the sixty-day statute of
limitation tolling period under Mississippi Code Section 15-1-36(15).
8
¶23. Tolliver sent a notice to Dr. Arceo and St. Dominic on February 28, 2007. She argues
the statute of limitation was tolled for sixty days as of February 28, 2007, such that her
complaint filed on May 9, 2007, was within the remaining time (with tolling) of the statute
of limitation.
¶24. The medical negligence statute does provide for a sixty-day tolling period once notice
has been given. Miss. Code Ann. § 15-1-36(15) (Rev. 2003). However, we previously have
noted that statutory pre-suit-notice tolling provisions are contingent upon complying with the
notice requirements. See Andrews v. Arceo, 988 So. 2d 399, 402 (Miss. 2008) (“Therefore,
had Andrews provided Dr. Arceo . . . with a written notice of intent to file suit against him
. . . the statute of limitations would have been extended . . . .”) and Scaggs v. GPCH-CP,
Inc., 931 So. 2d 1274, 1277 (Miss. 2006) (“. . . this Court finds whenever a plaintiff files the
statutorily required sixty days of notice, the time to file an action is effectively extended by
sixty days.”)
¶25. In this case, the cause of action accrued no later than the death of Tolliver’s daughter,
July 13, 2002. In that event, the two-year statute of limitation would have expired on July
12, 2004, absent some tolling thereof.6 Tolliver filed suit, though without the required notice,
on June 4, 2004, thus tolling the statute of limitation. Watters v. Stripling, 675 So. 2d 1242,
1244 (Miss. 1996).
6
2004 was a leap year. Additionally, because it is not an issue in this case, discussion
of the 120-day tolling effect of Mississippi Rule of Civil Procedure 4(h) is unnecessary.
9
¶26. At that time, thirty-eight days remained in the limitation period. That thirty-eight-day
period began to run again on the date this Court issued its mandate in Tolliver I, March 15,
2007, and expired on April 23, 2007,7 again absent some tolling or suspension thereof.
¶27. Here, Tolliver sent a notice, but, as discussed above, it was noncompliant with the
statute’s requirements. As a result, simply stated, the noncompliant notice was of no legal
effect. Thomas v. Warden, 999 So. 2d 842, 846 (Miss. 2008).
¶28. Because there was no effective notice to trigger the sixty-day tolling period of the
applicable statute, the limitation period expired on April 22, 2007. The trial court therefore
erred in finding the statute of limitation had not expired by the time Tolliver II was filed.
III. Whether the “savings statute” applies to the claim.
¶29. Statutory interpretation is a matter of law which this Court reviews de novo. Donald
v. Amoco Prod. Co., 735 So. 2d 161, 165 (Miss. 1999).
¶30. Tolliver argues that Mississippi Code Section 15-1-69, popularly known as the
“savings statute,” applies to save her cause of action from being time-barred. This statute
provides:
If in any action, duly commenced within the time allowed, the writ shall be
abated, or the action otherwise avoided or defeated, by the death of any party
thereto, or for any matter of form . . . the plaintiff may commence a new action
for the same cause, at any time within one year after the abatement or other
determination of the original suit.
Miss. Code Ann. § 15-1-69 (Rev. 2003).
7
The statute of limitation technically would have expired on April 22, 2007; however,
that was a Sunday.
10
¶31. If this statute is to apply, it must do so as a dismissal for a matter of form after being
duly commenced. Dr. Arceo and St. Dominic assert that, because Tolliver failed to comply
with the statutory notice requirement, she had no legal right to file suit, therefore no suit filed
by Tolliver has been duly commenced, and the provisions of the savings statute do not
apply.
¶32. The savings statute was first enacted in 1848, more than 130 years before the adoption
of the Mississippi Rules of Civil Procedure. In the Twenty-First Century, the
commencement of a lawsuit is governed by Mississippi Rule of Civil Procedure 3(a), which
states that a civil action is commenced by filing a complaint with the court. Further, the
complaint must contain a short and plain statement of the claim showing the pleader is
entitled to relief and a demand for judgment for the relief to which he deems himself entitled,
including relief in the alternative. M.R.C.P. 8(c).
¶33. To the extent a legislative act purports to abridge the judicial branch’s authority to
promulgate rules and procedures for the conduct of business in its courts, we previously have
held it encroaches upon judicial authority in contravention of constitutional separation of
powers. Wimley v. Reid, 991 So. 2d 135 (Miss. 2008). Certainly the Legislature may enact
pre-suit requirements. That prerogative also has been recognized, as well as our duty to
enforce such requirements. Id. Failure to comply with pre-suit requirements will result in
dismissal, as Tolliver is well aware from her first appearance before this Court.
¶34. Nevertheless, the commencement of litigation is determined by the Rules of Civil
Procedure, not the requirements which may have existed prior to their adoption, nor pre-suit
statutory requirements which do not govern judicial procedural rules. For purposes of the
11
savings statute in a Rules world, “duly commenced” is a cause commenced consistent with
the requirements of the Rules. Otherwise, whether or not the savings statute applies in a
given circumstance remains unchanged.
¶35. Caselaw does not define specific “elements” required for a suit to be duly commenced
for purposes of the savings statute, though this Court previously has discussed application
of the savings statute. The seminal case, still quoted and cited as authority, on this issue is
Hawkins v. Scottish Union & National Insurance Company, 110 Miss. 23 (1915).
¶36. The savings statute is “highly remedial . . . and ought to be liberally construed for the
accomplishment of the purpose for which it was designed, namely, to save one who has
brought his suit within the time limited by law from loss of his right of action by reason of
accident or inadvertence, and it would be a narrow construction of that statute to say that
because, if plaintiff had, by mistake, attempted to assert his right in a court having no
jurisdiction, he is not entitled to the benefit of it.” Id.
¶37. Although Hawkins is of considerable vintage, it is still the standard by which we
have continued to measure application of the savings statute throughout the intervening
decades. See, e.g., Crawford v. Morris Transp., Inc., 990 So. 2d 162, 170 (Miss. 2008);
Ryan v. Wardlaw, 382 So. 2d 1078 (Miss. 1980); and Frederick Smith Enter. Co. v. Lucas,
204 Miss. 43 (1948).
¶38. We previously have observed that notice is “a pre-suit prerequisite to a claimant’s
right to file suit.” Thomas, 999 So. 2d at 847. It does not, however, touch on the merits of
the claim; Tolliver failed to follow the statutory requirement. Such situations fall within the
purview of the remedial savings statute. “Where the plaintiff has been defeated by some
12
matter not affecting the merits, some defect or informality, which he can remedy or avoid by
a new process, the statute shall not prevent him from doing so, provided he follows it
promptly, by suit within a year." Hawkins, 110 Miss. at 31.
¶39. Tolliver I was dismissed due to failure of the plaintiff to comply with the statutory
notice requirement. Dismissal was therefore proper, which we determined on interlocutory
appeal, a mandate memorializing that decision being issued on March 15, 2007. Being a
dismissal for failure to provide the statutory notice, Tolliver I falls within the parameters of
a matter of form such that the savings statute applied. Therefore, the one-year clock began
to run concurrently with the remaining thirty-eight days in the limitation period on March 15,
2007, and ended on March 14, 2008.8 Tolliver had this year in which to refile her suit.9
¶40. Tolliver did file a second complaint on May 9, 2007. The auspices of the savings
statute made this permissible, as the trial court correctly determined.
IV. Whether the cause of action should have been dismissed with prejudice.
¶41. Dr. Arceo and St. Dominic make two arguments that the trial court should have
dismissed this matter with prejudice, rather than without prejudice. First, they argue
Tolliver’s failure to comply with the statutory notice requirements, despite being given
repeated opportunities to do so and, presumably, with actual knowledge that she must do so,
8
2008 was a leap year.
9
In the present case, good faith in initiating the action under the savings statute was
never raised before the trial court and therefore is not before us for decision. In the absence
of good faith in initiating an action, the savings statute offers no shelter to a litigant.
Hawkins, 110 Miss. at 29-30. See also Marshall v. Kan. City S. Ry. Co., 7 So. 3d 210, 214
(Miss. 2009).
13
warrants a dismissal with prejudice. Second, they argue the statute of limitation has expired,
so that the cause of action is now barred.
¶42. Ordinarily, dismissal without prejudice is appropriate where, as here, dismissal of a
suit was based upon a plaintiff’s failure to comply with statutory pre-suit notice provisions
not governed by the Mississippi Rules of Procedure. See Tolliver I, 949 So. 2d at 697-98
(citing Pitalo v. GPCHP-GP, Inc., 933 So. 2d 927, 928-29 (Miss. 2006)). However, in all
civil suits, where a suit is dismissed for any reason and the statute of limitation has expired,
dismissal with prejudice is warranted. Tolliver v. Mladineo, 987 So. 2d 989, 996-97 (Miss.
2007) and Watters v. Stripling, 675 So. 2d 1242, 1243, 1244 (Miss. 1996). This is the
required outcome, unless some other mechanism applies to take the case out of that general
rule.
¶43. With respect to the first contention, Dr. Arceo and St. Dominic appear to be arguing
for sanctions in the form of dismissal with prejudice for what amounts to an intentional
disregard of the applicable statute. When and under what circumstances such sanctions
should be imposed is a separate body of law which neither Dr. Arceo nor St. Dominic has
cited. Neither has, in fact, cited any authority for this argument. In the absence of such, we
decline to address the argument. Conley v. State, 790 So. 2d 773, 784 (Miss. 2001). We
proceed to the second contention.
¶44. The statute of limitation had expired by the time Tolliver II was filed. The only
authority which permitted Tolliver’s cause of action to be filed on May 9, 2007, was the
savings statute. Deposit Guar. Nat’l Bank v. Roberts, 483 So. 2d 348, 355 (Miss. 1986).
14
¶45. A second suit commenced under the grace of the savings statute is still subject to the
same affirmative defenses and substantive challenges as the original suit. Canadian Nat’l
/Ill. Centr. R. Co. v. Smith, 926 So. 2d 839, 845 (Miss. 2006). The trial court recognized this
and granted dismissal.
¶46. The savings statute, however, applies only to the “abatement or other determination
of the original suit.” Miss. Code Ann. § 15-1-69. The effect of this limitation on the
application of the statute is to prohibit repeated refilings of the same cause of action. Once
a party has utilized the benefit of the savings statute, it is not available to her again, as a
second or third complaint can never be the original suit.
¶47. When the language used by the Legislature is plain and unambiguous and the statute
conveys a clear and definite meaning, as here, we will have no occasion to resort to the rules
of statutory interpretation. Marx v. Broom, 632 So. 2d 1315, 1318 (Miss. 1994). By the
plain terms of the savings statute, its grace does not extend to save a second suit.
¶48. Tolliver I was “the original suit.” Tolliver II was a subsequent suit, permitted to be
filed because of the savings statute. Having used the opportunity to refile, Tolliver II was
subject to the same rules of law as any other case, including application of the statute of
limitation. That limitation period having expired with no further grace available to Tolliver,
the trial court should have dismissed this cause with prejudice.
CONCLUSION
¶49. We find the trial court was correct in finding that the savings statute applied to permit
Tolliver II to be filed. We also affirm the trial court’s dismissal of Tolliver II because of the
failure to meet the substantial-compliance standard in the contents of Tolliver’s claim notice.
15
However, the statute of limitation had expired prior to dismissal of Tolliver II, and dismissal
of that suit should have been with prejudice.
¶50. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.
CARLSON, P.J., DICKINSON, LAMAR AND PIERCE, JJ., CONCUR.
RANDOLPH, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN
OPINION. GRAVES, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY KITCHENS, J. CHANDLER, J., NOT PARTICIPATING.
RANDOLPH, JUSTICE, CONCURRING IN RESULT ONLY:
¶51. I agree with the Majority that Tolliver’s suit should have been dismissed with
prejudice. However, I reject the Majority’s determination that this “situatio[n] falls within
the purview of the remedial savings clause.” A “duly commenced” action is essential to
trigger application of the “savings statute.” Miss. Code Ann. § 15-1-69 (Rev. 2003). In the
absence of compliance with the pre-suit-notice requirements of Mississippi Code Section 15-
1-36(15), a necessary “condition precedent” to filing suit thereunder, Wimley v. Reid, 991
So. 2d 135, 139 (Miss. 2008), no “duly commenced” action may exist. Miss. Code Ann. §
15-1-69. Therefore, satisfaction of the pre-suit-notice requirements is not a mere “matter of
form” (Maj. Op. at ¶ 39), but rather a prerequisite to a “duly commenced” action. Without
such notice, the “savings clause” is inapplicable.
¶52. Less than one year ago, in Wimley, this Court firmly proclaimed that “we guard . . .
diligently the Legislature’s prerogative to set forth in legislation whatever substantive, pre-
suit requirements for causes of action, and prerequisites to filing suit, it deems appropriate.”
Wimley, 991 So. 2d at 139. This Court elaborated further that
pre-suit requirements are clearly within the purview of the Legislature, and do
not encroach upon this Court’s rule-making responsibility. Indeed, we
16
consistently have held that the Legislature has authority to establish presuit
requirements as a condition precedent to filing particular kinds of lawsuits.
For instance, the Legislature promulgated, and we have enforced, Section 11-
46-11(1), which requires that notice be provided to the putative defendant prior
to bringing a claim under the Mississippi Tort Claims Act. Miss. Code Ann.
§ 11-46-11(1) (Rev. 2002). Similarly, the Legislature promulgated, and we
have enforced, Section 15-1-36(15)’s requirement of notice prior to bringing
a medical-negligence claim. Miss. Code Ann. § 15-1-36(15) (Rev. 2003); see
e.g. Arceo v. Tolliver, 949 So. 2d 691, 693-97 (Miss. 2006) (strictly construing
and applying statute which requires plaintiffs to give notice before
commencing a medical negligence action).
Wimley, 991 So. 2d at 139 (emphasis added). See also Thomas v. Warden, 999 So. 2d 842,
847 (Miss. 2008) (a Section 15-1-36(15) case in which this Court avowed that “[t]he
Legislature’s authority to make law gives way to this Court’s rule-making authority when
the suit is filed, not before”); Forest Hill Nursing Ctr. v. Brister, 992 So. 2d 1179, 1189
(Miss. 2008) (“we clearly acknowledged in Wimley the Legislature’s constitutional authority
to set out pre-suit requirements . . . .”) (emphasis added).
¶53. The sixty-day-notice requirement of Section 15-1-36(15) has been strictly construed
by this Court. See Williams v. Skelton, 6 So. 3d 428, 430 (Miss. 2009) (quoting Williams
v. Skelton, 6 So. 3d 433, 435 (Miss. Ct. App. 2008)) (“[w]e agree with the Court of Appeals
that this Court ‘has required strict compliance with the mandates of Mississippi Code
Annotated Section 15-1-36 such that failure to satisfy the pre-suit notice requirement
mandates dismissal of the plaintiff’s complaint’”) (emphasis added); Thomas, 999 So. 2d at
847 (“[b]ecause Thomas failed to provide a sixty-day notice as required by Section 15-1-
36(15), we must affirm the trial court’s dismissal of the complaint”); Brister, 992 So. 2d at
1188 (“Mississippi Code Annotated Section 15-1-36(15) clearly states that no action may be
begun without prior notice.”) (emphasis added); Saul v. Jenkins, 963 So. 2d 552, 554 (Miss.
17
2007) (“Section 15-1-36(15) requires plaintiffs to provide sixty days’ notice of intention to
commence an action . . . .”) (emphasis added); Arceo, 949 So. 2d at 694-97; Pitalo v. GPCH-
GP, Inc., 933 So. 2d 927, 929 (Miss. 2006) (Section 15-1-36(15) “requires that an action
based on professional negligence of a health care provider may not begin unless the
defendant has been given at least 60 days prior written notice of the intention to begin the
action.”) (emphasis added). Simply stated, “[w]hen drafting Miss. Code Ann. Section 15-1-
36(15), the Legislature did not incorporate any given exceptions to this rule which would
alleviate the prerequisite condition of prior written notice.” Pitalo, 933 So. 2d at 929
(emphasis added). “Section 15-1-36(15)’s notice requirement is a pre-suit prerequisite to
a claimant’s right to file suit.” Thomas, 999 So. 2d at 847 (emphasis added).
¶54. The Majority acknowledges that the sixty-day-notice requirement of Section 15-1-
36(15) is “unambiguous,” and adds that “there are no exceptions to providing notice . . . .”
(Maj. Op. at ¶¶ 14, 20). But then the Majority finds that the “dismissal for failure to provide
. . . statutory notice [in] Tolliver I falls within the parameters of a matter of form such that
the savings statute applied . . . .” (Maj. Op. at ¶ 39) (emphasis added). Finally, the Majority
concludes that Tolliver II was “permitted to be filed because of the savings statute.” (Maj.
Op. at ¶ 48). The effect of this conclusion is an unspoken repudiation of the proposition that
the legislatively-mandated pre-suit-notice requirements of Section 15-1-36(15) constitutes
“a condition precedent to filing particular kinds of lawsuits.” Wimley, 991 So. 2d at 139
(emphasis added). See also Thomas, 999 So. 2d at 846 (“because the defendants in this case
did not have ‘sixty (60) days’ prior written notice of the intention to begin the action,’ this
lawsuit was not lawfully filed, and it is of no legal effect”) (emphasis added).
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¶55. The right to sue is conditioned upon fulfillment of the statutory notice requirement.
“It is certainly an undisputable and invariable rule of law that a right of action must be
complete when an action therefor is commenced . . . .” Crawford Commercial Constructors,
Inc. v. Marine Indus. Residential Insulation, Inc., 437 So. 2d 15, 16 (Miss. 1983) (quoting
Ga. Pac. Ry. Co. v. Baird, 76 Miss. 521, 24 So. 195, 196 (1898)). Thus, in the absence of
satisfying the statutory notice requirement, the right of action is not complete and, therefore,
no “duly commenced” civil action can exist.
¶56. To hold otherwise nullifies the legislatively-enacted, pre-suit-notice requirements of
Section 15-1-36(15) and repudiates the prior holdings of this very Court. See ¶ 53 supra.
Today’s ruling grants litigants license to spurn legislative directives, and rewards those who
intentionally fail to follow statutorily-prescribed conduct. “While the right under our state
and federal constitutions to access to our courts is a matter beyond debate, this right is
coupled with responsibility, including the responsibility to comply with legislative
enactments, rules, and judicial decisions.” Arceo, 949 So. 2d at 697. Nullification of
statutory requirements, absent constitutional infirmity, is a decision for the Legislature, not
this Court.
¶57. I find the Majority’s description of the interplay between Section 15-1-36(15) and
tolling to be confusing at best, inconsistent as stated, following no logical reason and offering
no precedent to address the obvious inconsistency. First, the Majority holds that “statutory
pre-suit-notice tolling provisions are contingent upon complying with the notice
requirements.” (Maj. Op. at ¶ 24). The reasoning and precedent are clear, as noncompliant
notice is “of no legal effect.” (Maj. Op. at ¶ 27) (citing Thomas, 999 So. 2d at 846). But
19
then the Majority strays from this foundational reasoning and our caselaw, presumptively
declaring that “Tolliver filed suit, though without the required notice, on June 4, 2004, thus
tolling the statute of limitation.” (Maj. Op. at ¶ 25) (citing Watters v. Stripling, 675 So. 2d
1242, 1244 (Miss. 1996)) (emphasis added). In concluding that filing without notice serves
to toll the statute of limitations, the Majority is silent as to its first premise, that noncompliant
notice is of no legal effect.
¶58. Reliance upon Watters is misplaced, as that case is clearly distinguishable. The issue
addressed in Watters was “whether an action is properly dismissed if service is not
effectuated within 120 days after filing, absent good cause.” Watters, 675 So. 2d at 1243.
Unlike the pre-suit-notice requirements of Section 15-1-36(15), “clearly within the purview
of the Legislature,” Wimley, 991 So. 2d at 139, the failure to serve is a subject clearly within
the realm of “this Court’s rule-making responsibility.” Id. As such, our precedent dictates
that the failure to abide by such pre-suit-notice requirements forecloses the possibility of a
“duly commenced,” legally effective complaint. As Tolliver’s complaint “is of no legal
effect” (including, inter alia, not “duly commenced”), no consideration should be given to
the “savings statute.”
¶59. Accordingly, I concur in result only.
GRAVES, PRESIDING JUSTICE, DISSENTING:
¶60. I have previously expressed my disagreement with this Court’s interpretation and
application of the ninety-day-notice requirement and the requirements regarding the contents
of a notice of claim under Mississippi Code Section 11-46-11 of the Mississippi Tort Claims
Act (MTCA), as well as the sixty-day-notice requirement under Mississippi Code Section
20
15-1-36(15) of the Medical Malpractice Tort Reform Act (MMTRA). See Bunton v. King,
995 So. 2d 694, 697-98 (Miss. 2008) (Graves, J., dissenting) (addressing Section 11-46-
11(1)); Arceo v. Tolliver, 949 So. 2d 691, 698-704 (Miss. 2006) (Graves, J., dissenting)
(addressing Section 15-1-36(15)); Fairley v. George County, 871 So. 2d 713, 718-28 (Miss.
2004) (Easley, J., concurring) (addressing section 11-46-11(2)). Today, I write to state my
disagreement with this Court’s interpretation and application of the requirements regarding
the contents of a notice of claim under Section 15-1-36(15) of the MMTRA.
¶61. Section 15-1-36(15) states, in relevant part: “No particular form of notice is required,
but it shall notify the defendant of the legal basis of the claim and the type of loss sustained,
including with specificity the nature of the injuries suffered.” Miss. Code Ann. § 15-1-
36(15) (Rev. 2003). The majority properly notes that this Court reviews the contents of
notices of claim under Section 15-1-36(15) for substantial compliance. Maj. Op. ¶ 17.
However, the majority finds that Myrtis Tolliver’s February 28, 2007, notice of claim failed
to comply with the content requirements in Section 15-1-36(15). Maj. Op. ¶ 31. I disagree.
¶62. Tolliver’s notice of claim stated the following:
This letter is being sent pursuant to Section 15-1-36(15) of the
Mississippi Code of 1972, as amended. This letter is to inform you of our
intention to file suit on behalf of Tommie Tolliver. The basis of the suit is
negligence.
Should you wish to discuss an amicable resolution of this matter, do not
hesitate to call.
¶63. Tolliver argues that her notice of claim was adequate. Moreover, she maintains that
the notice-of-claim letter was unnecessary, given the fact that litigation concerning these
claims has been ongoing since June 2004. See Arceo, 949 So. 2d at 692. She asserts that Dr.
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Arceo and St. Dominic-Jackson Memorial Hospital were fully aware of the legal bases of her
claims and the types of loss sustained, including the nature of the injuries suffered. Tolliver
is correct. She should not have been required to provide notice of her claims – particularly
under the facts of this case. The defendants do not dispute that they had full knowledge and
actual notice of the nature of her claims against them.
¶64. Even assuming arguendo that Tolliver was required to send a notice of claim, she
adequately provided notice of her claims to the defendants. This becomes especially clear
when one considers the fact that, when the defendants received Tolliver’s notice of claim,
they had been actively defending against Tolliver’s wrongful-death-related negligence claims
for more than two years and eight months. See Arceo, 949 So. 2d at 692. As Tolliver rightly
states on appeal, “it would be preposterous to believe that any of the letter’s recipients, either
the named Defendant or the Defendants’ counsel, did not know precisely the subject matter
to which the [notice-of-claim] letter pertained.”
¶65. The majority notes that “there are no exceptions to providing notice” and to providing
“information sufficient to fulfill the statutory notice purposes,” but, here, Tolliver has
provided information sufficient to fulfill the relevant statutory purposes. Maj. Op. ¶ 20. This
Court has held that “[t]he purpose of the [Mississippi Tort Claims] Act is to insure that
governmental boards, commissioners, and agencies are informed of claims against them.
Such notice encourages entities to take corrective action as soon as possible when necessary;
encourages pre-litigation settlement of claims; and encourages more responsibility by these
agencies.” Lee v. Mem’l Hosp., 999 So. 2d 1263, 1266 (Miss. 2008) (quoting Reaves ex rel.
22
Rouse v. Randall, 729 So. 2d 1237, 1240 (Miss. 1998)) 10. In addition, this Court has also
stated that:
The purpose of the notice statute [in the MTCA] being to advise the city
of the accident so that it may promptly investigate the surrounding
circumstances, we see no need to endorse a policy which renders the statute a
trap for the unwary where such purpose has in fact been satisfied.
Thus, a notice is sufficient if it substantially complies with the content
requirements of the statute. What constitutes substantial compliance, while
not a question of fact but one of law, is a fact-sensitive determination. In
general, a notice that is filed within the [requisite] period, informs the
municipality of the claimant’s intent to make a claim and contains sufficient
information which reasonable [sic] affords the municipality an opportunity to
promptly investigate the claim satisfies the purpose of the statute and will be
held to substantially comply with it.
Carr v. Town of Shubuta, 733 So. 2d 261, 263 (Miss. 1999) (emphasis added).11
¶66. Thus, a notice of claim substantially complies with the notice requirement when it
provides sufficient information for the defendant(s) to promptly investigate the claim. It is
undeniable that, in this case, the defendants had enough information from the notice to
promptly investigate Tolliver’s claims. They had actively participated in this lawsuit for
more than two-and-a-half years, during which time, they had received a complaint and two
amended complaints setting out Tolliver’s claims and had filed a responsive pleading. See
Arceo, 949 So. 2d at 692-93, 693 n.1. The majority places great emphasis on the fact that
10
Although Lee and Reaves are MTCA cases, as the majority states, “[t]his Court
repeatedly has applied the same standards of construction and application to the Medical
Malpractice Tort Reform Act as those applied to the Mississippi Tort Claims Act.” Maj. Op.
¶ 16.
11
Again, although Carr is an MTCA case, as the majority states, “[t]his Court
repeatedly has applied the same standards of construction and application to the Medical
Malpractice Tort Reform Act as those applied to the Mississippi Tort Claims Act.” Maj. Op.
¶ 16.
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Section 15-1-36(15) makes no exception for cases in which the defendant(s) had actual notice
of the plaintiff’s claims, as is the case here. This flies in the face of the statutory purpose of
providing notice to an MMTRA (or MTCA) defendant before suing her. See Carr, 733 So.
2d at 263; Lee, 999 So. 2d at 1266. In addition, by overlooking the fact that Dr. Arceo and
St. Dominic-Jackson Memorial Hospital had actual notice and knowledge of Tolliver’s
claims against them, the majority ignores the fact that the determination of whether a notice
of claim substantially complies is a fact-sensitive determination. See Carr, 733 So. 2d at
263. Today’s majority opinion is in direct conflict with Carr and Lee.
¶67. Furthermore, the conclusion reached by the majority today belies its claim that it is
truly applying a substantial-compliance standard. The majority is, in actuality, strictly
construing the requirement that the notice of claim include the information set out in Section
15-1-36(15) – without taking into consideration the particular facts of this case, including the
fact that the defendants knew exactly what Tolliver’s claims and injuries were. Maj. Op. ¶
12. Tolliver’s notice of claim substantially complied with Section 15-1-36(15). In other
words, there was “[s]ufficient information . . . contained in the notice so as to permit the
recipient to make a reasonable investigation of the claims being made.” Maj. Op. ¶ 17 (citing
Lee v. Mem’l Hosp., 999 So. 2d at 1267 (Miss. 2008)). Therefore, I disagree with the
majority’s finding that Tolliver’s notice of claim did not substantially comply with the
content requirements set out in Section 15-1-36(15). The trial court’s dismissal of Tolliver’s
claims for failure to substantially comply with Section 15-1-36(15) was not proper. I would
reverse and remand.
KITCHENS, J., JOINS THIS OPINION.
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