Limitations starts to run when pt. 'knows' or 'should know'.

CASE ON POINT: Jackson Clinic for Women, P.A. v. Henley, No. (06/19/2007) So.2d--MS

ISSUE: Once the statute of limitations has run a patient who has a claim for medical malpractice is barred from bringing suit, no matter how meritorious his or her claim might be. However, often there

CASE FACTS: On August 24, 1992, Grace Polles Moore, who was approximately thirty-four weeks pregnant at the time, visited Dr. Darden North at his office at the Jackson Clinic for Women, P.A. (Clinic) complaining of abdominal pain. Moore had visited the Clinic complaining of abdominal pain on several occasions during her pregnancy. Dr. North advised Moore to take Tylenol #3 and sent her home, but the Tylenol did not ease Moore's pain. Dr. North admitted Moore to Paracelsus Woman's Hospital (Paracelsus) later that same day because Moore complained that the pain radiated through her back. Physicians considered Moore's history of drug abuse and also ran several tests on Moore which showed normal results. Moore stayed in the hospital overnight and was given Demerol every three hours. At approximately 8:15 a.m., on August 25, 1992, Moore was taken to the x-ray room at the hospital and, a sonogram was conducted. It was then discovered that Moore's baby had died in utero due to sepsis, and a Cesarean section was performed. Additionally, Moore was diagnosed with mid-gut volvulus, and a resection of her small bowel, or small intestine, was performed in which she lost ninety percent of her small intestine. While still in the hospital, Moore, a registered nurse, discussed what had happen to her with her sister, Dr. Alexis Posses (Alexis), a medical doctor. The Executrix of the Estate of Moore (who had died), and Robert Moore, individually and as personal representatives and wrongful death beneficiaries of Robert Moore, Jr. (the dead fetus), brought suit against the Clinic, Paracelsus, and two of Moore's treating physicians alleging that the negligent care and treatment she received at the hands of the defendants caused the death of her fetus in utero as well as the loss of a substantial section of her small intestine. The defendants filed a motion to dismiss Moore's suit on the grounds that the statute of limitations had run and that Moore's suit was brought after the statute of limitations had run. The defendants filed a motion for summary judgment which was denied by the Hinds County Circuit Court. The defendants then filed a petition for an interlocutory appeal, which the Supreme Court of Mississippi granted. The plaintiffs appealed.

COURT'S OPINION: The Supreme Court of Mississippi reversed the judgment of the trial court on the grounds that it had erred in denying the defendants' motion for summary judgment and ordered that summary judgment be entered for the defendants. The court held, inter alia, that it was clear that Moore knew, or should have known that there was a bona fide question as to whether anything that any one or more of the defendants had done, or failed to do, contributed to the death of the fetus as well as the necessity for the resection of her small intestine which resulted in the loss of approximately ninety percent of it.

LEGAL COMMENTARY: The court observed that the discovery rule was not applicable because Moore's injury was not latent. Moore's alleged inability to find an expert witness to testify in her favor did not prevent her from filing suit. Further Moore had been given actual notice of a potential statute of limitations problem. In citing another case, the court stated that the inquiry does not center on a latent injury, but rather on the date the alleged act, omission or neglect should, or with reasonable diligence might have been first known or discovered. The court observed that it had observed in a similar case that it found that the patient's "own suspicions and actions thereon together with the passage of time when the patient first recognized the adverse effects (of the alleged negligence), until the patient checked himself into a hospital were enough to satisfy the statutory requirement of discovery of the alleged medical negligence. The court concluded that there was no doubt that Moore believed that some type of negligence had occurred while she was in the hospital talking with Alexis. She knew that-something was wrong. Something was real wrong. Moore then proceeded to hire an attorney, obtain her medical records, and make an outline of all of the acts that she deemed negligent. The court noted that it had previously made it clear that a patient's own suspensions regarding possible negligent conduct "starts the clock running." The court noted that Moore did not need an expert's opinion in order to file suit. Accordingly, Moore knew that negligent conduct might have occurred no later than the date of her conversation with her sister, Alexis, while still in the hospital, shortly after her surgery of August 25, 1992. The statute of limitations clearly began to run by late August, 1992, Therefore, by the time Moore commenced her suit on August 7, 1995, the applicable two-year statute of limitations had long since run. It was then almost three years after Moore knew or should have known of the possibility of malpractice.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.