Hospital MD, LLC v. Larry, 138 So. 3d 922

On December 1, 2009 Rickesha Larry was treated in KDH’s ER by Dr. David Johnson; she later alleged malpractice from that treatment.
Dr. Johnson was employed by Hospital M.D., an emergency-physician provider; that employment was not apparent from Larry’s medical records.
Larry requested records in 2011, sent pre-suit notice to Dr. Johnson and KDH on October 8, 2011, and learned of Hospital M.D.’s role by December 9, 2011 via insurer communications.
The two-year statute of limitations expired on December 1, 2011; Larry filed her initial complaint on January 3, 2012 and served Hospital M.D. with notice on June 5, 2012.
Hospital M.D. moved for summary judgment asserting Larry failed to provide the statutorily required 60-day pre-suit notice and her claim against Hospital M.D. was time-barred; the trial court denied the motion, tolled the statute under the medical-malpractice discovery rule, and allowed leave to amend.
The Mississippi Supreme Court granted interlocutory review and reversed, holding the discovery rule did not toll the limitation as to employer identity and that dismissal with prejudice was required because the claim against Hospital M.D. was filed after the limitations period without proper pre-suit notice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether discovery rule tolled statute as to Hospital M.D.’s identity/employment	Larry: she exercised diligence, did not learn employer relation until Dec 9, 2011, so discovery rule tolled limitations until that date	Hospital M.D.: plaintiff knew treating physician and injury; discovery rule applies to cause/practitioner–injury link, not to employer identity; no tolling	Discovery rule does not apply to toll statute for identifying physician’s employer; claim against Hospital M.D. was time-barred
Whether dismissal without prejudice (per Price) was proper remedy	Larry: if complaint filed outside notice requirements but within limitations, dismissal without prejudice appropriate; allow amendment	Hospital M.D.: Arceo controls—where statute expired, dismissal with prejudice warranted	Because suit against Hospital M.D. was filed after limitations expired and pre-suit notice was not given, dismissal with prejudice (summary judgment for Hospital M.D.) is required

Stringer v. Trapp, 30 So.3d 339 (Miss. 2010) (articulates medical-malpractice discovery rule: knowledge of injury, cause, and practitioner–injury relationship tolls statute)
Price v. Clark, 21 So.3d 509 (Miss. 2009) (properly served complaint lacking pre-suit notice can toll limitations pending court ruling; dismissal without prejudice may be appropriate)
Arceo v. Tolliver, 19 So.3d 67 (Miss. 2009) (if statute of limitations expired at dismissal, dismissal with prejudice may be required)
Sutherland v. Estate of Ritter, 959 So.2d 1004 (Miss. 2007) (discovery rule tolls for unknown negligence causing a known injury)