Christopher Pollan v. Andrew Wartak
240 So. 3d 1185
| Miss. | 2017Background
- Shirley Pollan was admitted to NMMC-West Point on Oct. 8, 2008 with severe hyponatremia; her serum sodium rose rapidly during treatment.
- She was transferred to NMMC-Tupelo (Oct. 11–14, 2008); physicians noted possible central pontine myelinolysis (CPM) but MRIs initially showed no demyelination.
- Over the next two years Shirley suffered persistent neurological/behavioral deficits and saw multiple providers; some clinicians doubted CPM.
- Shirley died Jan. 18, 2011; autopsy (issued July 11, 2011) listed death from CPM following rapid sodium correction.
- Christopher Pollan filed suit Jan. 10, 2013 raising wrongful-death, survival, and estate claims; defendants asserted the two-year medical-malpractice statute of limitations.
- Trial court granted partial summary judgment holding survival claims time-barred because, by Aug. 24, 2010 (patient intake noting suspected injury from rapid sodium correction), Shirley knew or suspected her injury’s cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants waived statute-of-limitations defense | Defendants delayed asserting it and actively litigated, so they waived the defense | Participation in discovery to develop the defense does not waive it absent prejudice | No waiver; trial court did not abuse discretion (defendants did discovery and plaintiff showed no prejudice) |
| When statute of limitations began to run for survival claims (discovery rule) | Limitations tolled until definitive diagnosis of CPM (autopsy July 2011); suspicion of causation is insufficient | Statute runs when plaintiff knew or should have known injury and probable cause; Shirley’s Aug. 24, 2010 intake showed she knew/suspected cause | Limitations began by Aug. 24, 2010; survival claims time-barred (complaint filed 2013) |
| Whether a specific medical diagnosis is required to trigger the statute | Diagnosis (e.g., CPM) is required to start the limitations period | Diagnosis not required; reasonable suspicion or knowledge of causation can start the clock | Diagnosis not required; plaintiff’s suspicions and records showing suspected causation suffice to start limitations |
| Whether a genuine factual dispute existed over discovery date precluding summary judgment | Multiple dates argued and conflicting medical opinions create fact issue for jury | Reasonable minds could not differ; records show Shirley knew/suspected cause by Aug. 24, 2010 | No genuine issue; summary judgment appropriate as a matter of law |
Key Cases Cited
- Kinsey v. Pangborn Corp., 78 So.3d 301 (Miss. 2011) (standard of review for waiver of affirmative defenses)
- Ashmore v. Mississippi Auth. on Educ. Television, 148 So.3d 977 (Miss. 2014) (appellate review of discretionary rulings)
- Webb v. Braswell, 930 So.2d 387 (Miss. 2006) (standard for de novo review of summary judgment)
- Duckworth v. Warren, 10 So.3d 433 (Miss. 2009) (summary judgment burdens and viewing evidence for nonmovant)
- Empire Abrasive Equip. Corp. v. Morgan, 87 So.3d 455 (Miss. 2012) (participation in discovery does not necessarily waive statute-of-limitations defense)
- MS Credit Ctr., Inc. v. Horton, 926 So.2d 167 (Miss. 2006) (prejudice is relevant in waiver analysis)
- Stringer v. Trapp, 30 So.3d 339 (Miss. 2010) (discovery rule elements: knowledge of injury, cause, and relationship to practitioner)
- Smith v. Sanders, 485 So.2d 1051 (Miss. 1986) (statute begins when injury and likely cause are known or should be discovered)
- Sutherland v. Estate of Ritter, 959 So.2d 1004 (Miss. 2007) (focus on discovery of negligent conduct, not merely diagnosis)
- Jackson Clinic for Women, P.A. v. Henley, 965 So.2d 643 (Miss. 2007) (patient’s suspicions can start limitations)
- Sarris v. Smith, 782 So.2d 721 (Miss. 2001) (plaintiff not entitled to wait for medical records before limitations runs)
- Schiro v. American Tobacco Co., 611 So.2d 962 (Miss. 1992) (distinguishing statutes focused on discovery of injury vs. discovery of negligent conduct)
- Caves v. Yarbrough, 991 So.2d 142 (Miss. 2008) (comparison of discovery rules in different statutes)
- Neglen v. Breazeale, 945 So.2d 988 (Miss. 2006) (limitations may be tolled by reasonable reliance on physician assurances)
- Huss v. Gayden, 991 So.2d 162 (Miss. 2008) (limitations may be tolled where patient reasonably had no reason to know negligence caused complications)
- Holaday v. Moore, 169 So.3d 847 (Miss. 2015) (fact disputes on discovery ordinarily for jury)