Lead Opinion
for the Court:
¶ 1. Kyle and Marla Moore timely filed a medical malpractice suit against St. Dominic Hospital, Jackson Neurosurgery Clinic, and several physicians, claiming that the physicians and hospital had been negligent in treating Kyle in May 2004. In March 2011, the Moores added Dr. Howard Holaday as a defendant. Dr. Ho-laday moved for summary judgment, asserting that the two-year statute of limitations had expired. The trial court denied summary judgment, and Dr. Holaday petitioned this Court for an interlocutory appeal. The issue now before this Court is whether the discovery rule tolled the statute of limitations against Dr. Holaday. We hold that whether the discovеry rule tolls the statute of limitations requires a determination by the trier of fact — here, the jury — regarding the “date the alleged act, omission or neglect shall or with reasonable diligence might have been first discovered.” Miss.Code Ann. § 15-1-36(2) (Rev.2012). The trial court, therefore, properly denied summary judgment to Dr. Holaday.
Facts and Procedural History
¶ 2. Kyle Moore went to the emergency room (ER) at St. Dominic Hospital on the morning of May 23, 2004, with pain in his lower back. The ER doctor, Dr. Jeff Hu-bacek, diagnosed the pain Moore was experiencing as lumbar strain and discharged him around noon. Kyle returned to the ER at 10:00 o’clock that evening complaining of back pain and leg weakness. Dr. Marshall Stout was the ER doctor for that shift. Rather than consulting the orthopaedist on call for the ER, Dr. Stout decided to consult Dr. Greg Wood, an orthopaedic surgeon, because Kyle had an appointment scheduled with Dr. Wood a few days later for the same problem. However, Dr. Holaday, a neurosurgeon, was taking Dr. Wood’s calls that night. Dr. Stout spoke with Dr. Holaday and made a note that Dr. Holaday would come to the ER to see Kyle. Dr. Holaday did not appear at the ER, and he maintains that he never agreed to do so because he was out of town. Dr. Stout made two nоtes about consulting with Dr. Hola-day, then ordered an MRI under Dr. Hola-day’s name.
¶ 3. The MRI was performed at midnight, and the results showed an epidural abscess. Because Dr. Holaday’s name was on the MRI report as the ordering physician, the radiologist contacted him with the results. Dr. Holaday says that, when he was told about the epidural abscess, he recommended that Kyle Moore be transferred to University of Mississippi Medical Center. Dr. Holaday testified that, after he received the MRI results, he had no further involvement with Kyle Moore’s treatment. Dr. Stout’s shift ended shortly after he had ordered the MRI, and Dr. Karl Hatten replaced him in thе ER. Dr. Hatten received Kyle’s MRI results and contacted the neurosurgeon on call for the ER, Dr. Adam Lewis with Jackson Neurosurgery Clinic. However, Dr. Jacob Mathis was taking Dr. Lewis’s calls that night. Dr. Mathis admitted Moore to the hospital around 3:00 o’clock a.m. on May 24. Kyle Moore needed surgery, but Dr. Mathis deferred the surgery to Dr. Lewis, who operated on the epidural abscess at 9:15 o’clock that morning. The Moores contend that surgery should have been done sooner and that the delay in treatment resulted in neurological injury to Kyle.
¶ 4. In considering Dr. Holaday’s motion for summary judgment on the statute of limitations issue, the trial court had befоre it the affidavit of Dr. W. Lynn Stringer. Dr. Stringer wrote that the Moores’ attorneys had asked him “to review the medical records and render an opinion as to whether there was a devia
¶ 5. Dr. Holaday was deposed оn February 19, 2010. His deposition was consistent with the affidavits of Dr. Stringer and Mr. Pittman. Dr. Holaday testified that he had driven from Jackson, Mississippi, to Carthage, Mississippi, on the afternoon of May 23, 2004. He had planned to return to Jackson that evening, but was not on call at St. Dominic Hospital. Dr. Holaday testified that he did not treat Moore on May 23, 2004, and that he was never Moore’s treating neurosurgeon. He stated “I have a vague recollection of getting a phone call or a page while I was in my vehicle there around Carthage.” Dr. Ho-laday understood that “they were calling me because there was no neurosurgeon on call fоr the emergency room at the time” and said that he had informed the emergency room doctor that he was not on call. Dr. Holaday could not remember whether he had informed the emergency room doctor that he was out of town, but he denied having said that he would come to see the patient. Holaday mentioned that he did have two conversations with treating physicians. With regard to the first, he testified “they were calling to get some guidance as to how to handle a patient like this” and that “I think I told them that this was a patient that needed an emergency MRI, needed additional workup to try to detеrmine a diagnosis, wasn’t something that could just be treated expectantly.” A second conversation occurred between Dr. Hatten and Dr. Holaday “and [Dr. Hatten] understood that the patient’s MRI scan demonstrated an epidural abscess.” According to Dr. Holaday, “I recommended that they transfer the patient to University.” According to Dr. Holaday, those conversations constituted the extent of his participation in Moore’s treatment.
¶ 6. On July 6, 2010, the Moores deposed Dr. Stout, an emergency room physician who had treated Kyle Moore. Contrary to what Dr. Holaday had testified, Dr. Stout’s testimony was that Dr. Hola-dаy was, in fact, on call that evening. Dr. Stout said that he had spoken to Dr. Hola-day, who, instead of saying that he was not on call that evening, verified that he was. Dr. Stout said in his deposition that Dr. Holaday had indicated that he was going to come and care for Moore and that “he wanted me [Dr. Stout] to give him [Moore] some pain relief and get the MRI and have him called back with the results.” Dr. Stout said that, after ordering the MRI, he had “signed off and told Karl Hatten where we were, that the patient was to go get his MRI and that Dr. Holaday was to be called back with the results.... ” He testified that Dr. Holaday never mentioned that Moore оught to be transferred to University Medical Center (UMC). Dr.
¶ 7. Dr. Holaday filed his first motion for summary judgment on the ground that there was no evidence that he had violated the appropriate standard of medical care or that he had contributed in any way to Kyle’s alleged injuries. The trial court denied summary judgment, holding that questions of fact existed. Dr. Holaday then moved for summary judgment on the ground that the statutе of limitations had expired. The trial judge denied the motion for summary judgment, holding that the discovery rule applied, so the statute of limitations had not run or, in the alternative, that the claim was proper under Rule 15 of the Mississippi Rules of Civil Procedure to conform the pleadings to the evidence.
Standard of Review
¶ 8. This Court reviews the grant or denial of a motion for summary judgment de novo. Hospital MD, LLC v. Larry,
Discussion
¶ 9. The discovery rule provides that the two-year statute of limitations for medical malpractice claims begins to run “from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered....” Miss.Code Ann. §15-1-36(2) (Rev.2012). While “[t]he operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner,” the discovery rule applies only to those “rare cases where the patient is aware of his injury ... but does not discover and could not have discovered with reasonable diligence the act or omission which caused the injury.” Huss v. Gayden,
¶ 10. This Court has held that “[discovery of an injury ‘is an issue of fact to be decided by a jury when there is a genuine dispute.’” Phillips 66 Co. v. Lofton,
¶ 11. Dr. Holaday takes the position that, because his name appeared on various pages of Kyle’s medical records and because the Moores knew his identity, the discovery rule did not operate to toll the statute of limitations on their claims against him. But the record is clear that Dr. Holaday’s fervent denial of his partic
¶ 12. The present case is wholly distinguishable from Sutherland, in which a patient knew of undesired side effects of the medication prescribed by his treating physician. Id. at 1009. In this case, Moore was given to understand, from Dr. Hola-day’s own discussions with Moore’s consultant, Dr. Stringer, that no legitimate medical negligence claim could be brought against Dr. Holaday. Beyond acknowledging a limited consultation with Moore’s treating physicians and a recommendation that an MRI be given, Dr. Holaday had denied, both in conversations with Dr. Stringer and in his deposition on February 19, 2010, involvement in Moore’s treatment. It was not until July 6, 2010, that the Moores purportedly became aware that Dr. Holaday’s involvement in treatment may have been far greater than he initially had related to them. Of course, this is a jury question, as the trial court correctly found.
¶ 13. This case is also unlike Wright v. Quesnel,
¶ 14. Both Wright and Hayes are distinguishable from the present case. Hayes involved an individual who knew the symptoms she was experiencing and was, under the circumstances, on notice that the doctor may have been negligent in declining to treat her beyond advising bed rest. In Hayes, the plaintiff had waited to file suit until a third party suggested that negligence had occurred. Here, Dr. Holaday, unequivocally, both in conversations with Dr. Stringer and in an affidavit, strongly denied involvement in Moore’s treatment, though he said that he vaguely recalled recommending an MRI. It was
¶ 15. Here,- the depositions of Drs. Stout and Hаtten created a genuine issue of material fact regarding the point at which the Moores had notice of potential claims against Dr. Holaday. The Moores may have become aware that Dr. Hola-day’s version of events was contradicted only when Drs. Stout and Hatten were deposed on July 6, 2010. The Moores and their attorney appear to have investigated diligently, going to the extraordinary length of having their pre-suit medical consultant actually conduct an investigation, concluding that, based on Dr. Holaday’s representations, no viable medical negligence claims against Dr. Hоladay were present. It remains a question for the jury whether the plaintiffs had reason to know, based solely on the appearance of Dr. Holaday’s name in Kyle Moore’s medical records, of potential medical negligence claims against Dr. Holaday or whether those claims remained concealed until Drs. Stout and Hatten were deposed on July 6, 2010.
¶ 16. We concur in the judgment of the Circuit Court of the First Judicial District of Hinds County, which correctly denied summary judgment: “there is a genuine issue of material fact regarding the treatment of Plaintiff Kyle Moore on May 23, 2004. Specifically, a genuine issue of matеrial fact remains on the question of whether Dr. Holaday treated Mr. Moore, or participated in his treatment. There is converse deposition testimony from two physicians on this issue.”
¶ 17. Further, Mississippi Code Section 15-1-67 provides that:
If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and*853 not before, the time at which such fraud be, or with reasonable diligence, might have been, first known or discovered.
Miss.Code Ann. § 15-1-67 (Rev.2012). This Court has held that “[flraudulent concealment of a cause of action tolls its statute of limitations” and “[t]he fraudulent concealment doctrine ‘applies to any cause of action.’” Robinson v. Cobb,
¶ 18. If Drs. Stout and Hatten were telling the truth, then Dr. Holaday’s statements denying involvement may have been untruthful. Again, this remains a question for the jury. His denial of participation in Moore’s treatment and his assertion that Moore’s medical records were erroneous could constitute “some affirmative act or conduct [which] was done and prevented discovery of a claim.” Channel,
Conclusion
¶ 19. Dismissing this case at the summary judgment stage potentially allows Dr. Holaday to deny any involvement in Moore’s care and then hide behind the statute of limitations when the Moores discovered that he may have lied. A jury ought to be permitted to assess the credibility of Dr. Holaday and Drs. Stout and Hatten for the purpose of discerning the truth. Whether Dr. Holaday is lying is a genuine issue of material fact for the jury to determine. We therefore affirm the judgment of the Circuit Court of the First Judicial District of Hinds County denying summary judgment to Dr. Holaday.
¶ 20. AFFIRMED.
Notes
. According to Dr. Hatten, the policy of St. Dominic allowed for transfer only if neurological assistance was unavailable: "if [neurological assistance] were to become unavailable, then you can initiate a transfer.”
. Indeed, had the Moores filed suit against Dr. Holaday prior to the depositions of Drs. Stout and Hatten, they may have subjected themselves to Rule 11 sanctions under our Mississippi Rules of Civil Procedure.
If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or dely, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorney fees.
Miss. R. Civ. P. 11(b). Dr. Holaday’s conversations with Dr. Stringer and his February 19,-2010, deposition testimony tended to relieve him of potential liability, because he asserted that those records were erroneous, a position he maintains on appeal.
. Finding dispositive and correct the trial court’s ruling that the discovery rule had .tolled the statute of limitations, because a genuine issue of material fact existed regarding Dr. Holaday's participation, we decline to address the trial сourt’s alternative ruling that our Mississippi Rule of Civil Procedure 15(b) allowed the Moores to add Dr. Holaday as an amendment to conform to the evidence.
Dissenting Opinion
dissenting:
¶ 21. The trial judge denied Dr. Hola-day’s motion for summary judgment on the basis that the discovery rule applied or, in the alternative, because the Moores’ amended complaint was proper under Mississippi Rule of Civil Procedure 15. In my
A. Discovery Rule
¶ 22. The statute of limitations for medical malpractice claims is two years. Miss. Code Ann. § 15-1-36(2) (Rev.2012). Under thе “discovery rule,” the two-year statute of limitations begins to run “from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered,” but medical malpractice claims cannot be brought in any event “more than seven (7) years after the alleged act, omission or neglect occurred.” Id. The discovery rule tolls the statute of limitations for (1) latent injuries or (2) nonlatent injuries where the negligence that caused the injury is not known. See Huss v. Gayden,
¶28. The emphasis is on “reasonable diligence”-when the plaintiff, “exercising reasonable diligence, should have first discoverеd” the injury or the negligence. Huss,
the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury. The operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.
There may be rare cases where the patient is aware of his injury prior to the two years immediately preceding the filing of his claim, but does not discover and could not have discovered with reasonable diligence the act or omission which caused the injury. In such cases, the action does not accrue until the latter discovery is made.
Huss,
¶ 24. In Sutherland v. Estate of Ritter, the plaintiff knew soon after being prescribed a medication that it caused undesirable side effects. Sutherland,
¶ 25. In the case sub judice, not only is the injury not latent, but the alleged cause of the injury and the identity of the individuals involved have been known since 2004. The Moores began collecting Kyle’s medical records just days after his surgery in May 2004, and Dr. Holaday’s name was on several pages of the records. The medical records, standing alone, put the Moores on notice that Dr. Holaday may have told Dr. Stout he would report to the ER to see Kyle. Then, the Moores’ pre-suit investigation of the claim revealed contradiсtory information, ie., Dr. Hola-day’s denial of treatment and denial that he was on call.
¶26. The Moores complied with the pre-suit investigation requirement of Mississippi Code Section 11 — 1—58(l)(a) and employed Dr. Stringer to review Kyle’s medical records.
¶ 27. Contrary to the trial court’s findings (but consistent with the Moores’ earlier representation), Dr. Stout’s deposition did not reveal any new information. The instant case is not one of the “rare cases” in which the patient “could not have discovered with reasonable diligеnce” Dr. Ho-laday’s involvement — or the discrepancies regarding his alleged involvement — such that the discovery rule would have tolled the statute of limitations. The pertinent question is not whether the Moores knew exactly which set of facts — Dr. Holaday’s representations to their expert or the in
¶28. While I agree that it appears harsh to apply the statute of limitations to bar the Moores’ claims after they made a good faith attempt to accurately investigаte their claims before filing suit, my understanding of the pertinent law will allow me to reach no other result. The conflicting facts available to the Moores from the two sources — the medical records and Dr. Holaday’s interview with their expert — gave rise to a dispute of material facts that in turn gave rise to a claim needing resolution through the litigation process. Harsh though it may be, in the instant case, the Moores chose to believe one set of facts over the other rather than vetting the dispute through the discovery process and a finder of fact at trial at their own peril.
B. Mississippi Rule of Civil Procedure 15
¶ 29. The trial judge wrote that, in thе alternative to the discovery rule, adding Dr. Holaday as a defendant was proper under Mississippi Rule of Civil Procedure 15 as an amendment to conform to the evidence. Adding a defendant is not an “amendment to conform to the evidence” as allowed by Rule 15(b). The plain language of that rule refers to amendments related to “issues” not raised in the pleadings that arose and were tried by consent of the parties at trial; it does not refer to parties who were not named in the pleadings. Miss. R. Civ. P. 15(b). See also Webb v. Braswell,
¶ 30. While Rule 15(b) does not apply tо amending pleadings to add parties, the “relation back rule” of Rule 15(c) does apply to new parties. The judge seemingly combined the “amendment to conform to the evidence” rule of subpart (b) and the “relation back” rule of subpart (c). However, neither subpart is applicable. Rule 15(c) provides:
(c) Relation Back of Amendments.
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to- the date of the original pleading. An amendmеnt changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party’s defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.
Miss. R. Civ. P. 15(c). First, Rule 4(h) requires the plaintiff to serve a defendant with the summons and complaint within 120 days of filing the complaint. The Moores did not serve Dr. Holaday within 120 days of filing the complaint. Second, there was no mistake in identity; the Moores knew of Dr. Holaday’s involvement and chose not to bring a claim against him.
¶ 32. The statute of limitations as to Dr. Holaday ran on May 24, 2006, and had long expired by March 13, 2011, when the Moores - filed their amended complaint. Neither the discovery rule nor Rule 15 applies to give the Moores any relief. Therefore, I would reverse the trial court’s denial of Dr. Holaday’s motion for summary judgment.
. Mississippi Code Section 11-1-58 requires an attorney filing a medical malpractice suit to consult with an expert “qualified to give expert testimony as to standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action....” Miss.Code Ann. § 11 — 1—58(l)(a) (Rev.2014).
. Following Dr. Stout's deposition, Dr. Huba-cek attempted to amend his answer to assert a new defense related to Dr. Holaday's alleged involvement. The Moores opposed Dr. Huba-cek’s motion to amend his answer, claiming that it was untimely and that Dr. Stout's deposition did not reveal any new information. Dr. Hubacek withdrew his request to amend his answer, but the Moores filed an amended complaint naming Dr. Holaday as a defendant. The Moores wrote that they had no option but to add Dr. Holaday, because Dr. Hubacek intended to present evidence at trial that Dr. Holaday was negligent.
Dr. Holaday moved for summary judgment on the ground that there was no evidence that he had violated the appropriate standard of medical care or that he had contributed in any way to Kyle's alleged injuries. The Moores filed a motion for partial summary judgment on the same ground. The other defendants opposed the motions, and the trial court denied summary judgment. Dr. Hola-day then moved for summary judgment on the ground that the statute of limitations had expired. The other defendants did not oppose summary judgment on that ground. But the Moores opposed summary judgment, arguing that the statute of limitations had not expired, although they made the opposite argument when Dr. Hubacek tried to bring Dr. Holaday into the suit.