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The Law of Medical Malpractice in Mississippi: A Survey of Basic Considerations
This article provides an overview of Mississippi medical malpractice law. In the Magnolia State, plaintiffs planning to file malpractice lawsuits ordinarily must first consult with a medical expert to obtain an opinion about whether the case has merit, and also must give 60 days advance notice before initiating the suit to allow the defendant an opportunity to investigate or settle the claim. These presuit requirements were adopted in the early 2000s as part of a tort reform effort that also imposed an upper limit on pain-and-suffering damages.
Because it is useful for laypersons who have been injured by healthcare treatment to have some understanding of the law, this article will describe Mississippi law in plain language with minimal use of legal jargon, so that the material is accessible to nonlawyers as well as legal practitioners.
Section I below summarizes broad principles and concepts. Sections II through XI examine some of the mechanics of filing and litigating a medical malpractice lawsuit in Mississippi.
To jump directly to any topic in the Table of Contents, simply click on it.
I. Overview of Basic Principles and Concepts
To prevail on a medical malpractice claim in Mississippi, a plaintiff must show: (1) that the healthcare provider had a duty to conform to a specific standard of conduct; (2) what that standard of conduct was; (3) that the healthcare provider’s breach of the duty caused the plaintiff’s injury; and (4) that damages resulted. Barrow v. May, 107 So. 3d 1029 (Miss. Ct. App. 2012).
Before filing a medical malpractice lawsuit, plaintiffs in Mississippi must take certain preliminary steps involving notice and consultation. Failing to satisfy these presuit requirements may result in dismissal of the lawsuit, as discussed in Section III below.
II. Filing Deadlines for Medical Malpractice Claims
Basic Time Limit
In Mississippi, the basic time limit for filing a claim alleging medical malpractice (also known as medical negligence) is two years.Miss. Code Ann. § 15-1-36(2).
The same time limit applies to lawsuits alleging that a loved one died due to medical negligence (called “wrongful death” suits). Estate of Davis v. Blaylock, 212 So.3d 755 (Miss. 2017).
In applying the two-year time limit, a key question is when the clock starts ticking.
Mississippi has adopted the “discovery” rule, which says that the time limit does not commence until the healthcare provider’s negligence was, or could reasonably have been, detected. But a plaintiff must exercise reasonable diligence, because the clock begins ticking once the plaintiff could have discovered the negligence. See Stringer v. Trapp, 30 So. 3d 339 (Miss. 2010).
Even in cases involving undetectable negligence, there is an outer time limit of seven years. Thus, even if it was impossible to discover a doctor’s negligence until 10 years after the medical treatment, it is generally too late at that point to file a malpractice suit. Miss. Code Ann. § 15-1-36(2).
But the seven-year maximum does not apply in cases involving a foreign object (e.g., a sponge left in a patient during surgery) or a healthcare provider’s fraudulent concealment. In those cases the clock does not start ticking until the foreign object or fraud, as the case may be, is discovered or reasonably could have been discovered. Id.
These rules are best illustrated with an example. In Waldrup v. Eads, a daughter filed a medical malpractice claim two years and one month after her mother died in a nursing home. The defendant nurse practitioner sought to have the claim tossed out of court, arguing that it was filed too late. The Mississippi Court of Appeals agreed that the lawsuit was time-barred, explaining that the two-year clock commenced running on the date of the mother’s death because the evidence showed that the daughter first “discovered” the nurse practitioner’s alleged neglect on that date. While the daughter contended that the two-year clock did not start ticking until an autopsy report was produced, the autopsy “revealed nothing” about the nurse practitioner’s involvement in her mother’s care that the daughter had not already known. Thus the daughter’s claim against the nurse practitioner was properly dismissed on summary judgment because it was filed one month too late, the appeals court held. 180 So. 3d 820 (Miss. Ct. App. 2015); see also Holaday v. Moore, 169 So. 3d 847 (Miss. 2015).
Injured Patients Who Are Minors
Special time limits apply to malpractice suits involving young children. Generally speaking, if a child under six years old suffers a healthcare-related injury, a parent or guardian has until the child’s eighth birthday to bring a malpractice claim. But keep in mind that the discovery rule applies to claims involving children too. Miss. Code Ann. § 15-1-36(3), (4), (7), (8); Stringer, supra.
Under certain circumstances, the statute of limitations will be extended for 60 additional days to give the plaintiff sufficient time to serve presuit notice, as discussed immediately below in Section III.
III. Presuit Notice and Medical Expert Consultation
Presuit Notice to Defendant
Under Mississippi law, a plaintiff must provide notice to the defendant before filing a medical malpractice suit. No malpractice lawsuit may be begun “unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action.” No particular form of presuit notice is required, but it must inform the defendant of the legal basis of the claim and the type of loss sustained, including the nature of the specific injuries suffered. Miss. Code Ann. § 15-1-36(15).
The presuit-notice requirement gives healthcare providers an opportunity before litigation to investigate or settle claims.
Courts will likely dismiss a lawsuit if the plaintiff fails to serve the statutorily required 60 days presuit notice. However, a plaintiff who neglects to provide the mandated notice may be able to “cure” the problem by quickly doing so and then filing an amended complaint or a new complaint—assuming the statute of limitations has not already run. Hans v. Memorial Hosp. at Gulfport, 40 So. 3d 1270 (Miss. Ct. App. 2010); see alsoThomas v. Warden, 999 So. 2d 842 (Miss. 2008).
In some situations, the statute of limitations will be extended 60 days to give the plaintiff sufficient time to serve the presuit notice. Miss. Code Ann. § 15-1-36(15).
Presuit Consultation with Medical Expert
A separate presuit requirement under Mississippi law is to obtain an opinion from a medical expert. By statute, the plaintiff’s attorney must (1) consult with a medical expert before filing suit in order to determine whether there is a reasonable basis for the claim; and (2) upon filing the suit, attach a certificate to the complaint declaring that the required consultation has taken place.Miss. Code Ann. § 11-1-58.
This is what the statute says, but the courts have weighed in on the matter too. While upholding the first requirement (to consult with an expert), the Mississippi Supreme Court has struck down the mandate to attach a “certificate of consultation” to the complaint. Wimley v. Reid, 991 So. 2d 135 (Miss. 2008).
The basic reason for the high court’s ruling in Wimleywas separation of powers. According to the justices, the legislature overstepped its bounds when it required plaintiffs to attach a certificate to the complaint, because the legislature does not have the power to adopt procedural court rules.
In other words, while the legislature has the authority to decide on prerequisites to suit, such as requiring plaintiffs to consult a medical expert before embarking on litigation, it cannot impose procedural court rules such as telling plaintiffs they must attach a particular certificate to the written complaint that initiates the lawsuit. Such a documentary requirement unconstitutionally infringes on the judiciary’s role in establishing procedural court rules, Wimley holds.
In sum, “a complaint, otherwise properly filed, may not be dismissed, and need not be amended, simply because the plaintiff failed to attach a certificate [proving consultation with a medical expert].” But this holding “in no way diminishes [the statute’s] requirement of consultation with an expert prior to filing suit,” the high court explained. Id.
Importantly, there are some statutory exceptions to the consultation requirement itself. For instance, there is no need to consult a medical expert before filing suit if the malpractice claim is of the rare type that can be proved without expert medical testimony. Miss. Code Ann. § 11-1-58(3).
Unless an exception applies, a plaintiff who fails to consult with a medical expert before filing suit risks having the lawsuit dismissed, once this fact comes to light during the litigation. Wimley, supra.
Arbitration is a method of resolving disputes outside of court. It applies only when the parties both agree to have the case heard by a professional arbitrator rather than a judge and jury. Unlike some states, Mississippi has no statute specifically defining the rules and procedures that apply in medical malpractice arbitrations.
IV. Immunities and Limitations on Liability
It can be difficult to sue doctors and other healthcare providers who are government employees because they may be protected by a form of immunity.
For instance, immunity has shielded doctors employed by the University of Mississippi Medical Center and public community hospitals. In one such case, the Mississippi Supreme Court noted that in determining whether a physician is a government employee for purposes of immunity, “we have looked past form, malpractice insurance, practice plans to the substance of the physician’s relationship with the state hospital.” Wright v. Quesnel, 876 So. 2d 362 (Miss. 2004); see also Estate of Johnson v. Chatelain, 943 So. 2d 684 (Miss. 2006); Mozingo v. Scharf, 828 So.2d 1246 (Miss. 2002).
Assuming that a government defendant does not have immunity from suit, a plaintiff’s lawsuit will need to follow special procedural rules. For one thing, the statute of limitations in the government context is only one year, and presuit notice must be given at least 90 days before filing suit. Miss. Code Ann. § 11-46-11(3); see alsoEstate of Davis v. Blaylock, 212 So. 3d 755 (Miss. 2017); McDonald v. Memorial Hosp. at Gulfport, 8 So.3d 175 (Miss. 2009).
Charitable Medical Care
Under Mississippi law, a patient ordinarily may not bring a malpractice claim against a licensed physician, physician assistant, or certified nurse practitioner who provides medical care on a charitable basis. Generally, the immunity applies only if the patient signs a written waiver before treatment begins specifying that the services are provided without the expectation of payment and that the healthcare provider will be immune from liability except for acts of “willful or gross negligence” (i.e., particularly egregious conduct).Miss. Code Ann. § 73-25-38.
Emergency Medical Care
Unlike some states, Mississippi does not impose special statutory obstacles to suing emergency room physicians and nurses.
Injury Caused by Prescription Drugs
Under Mississippi law, licensed physicians and pharmacists are shielded in most cases from being sued for recommending that a patient try an investigational drug (or biological product or device). This protection is connected to Mississippi’s Right to Try Act. See Miss. Code Ann. §§ 41-131-1 and 73-25-37(7).
With regard to prescription drugs more broadly, if the Food and Drug Administration has approved a drug, a medical provider may not be sued for injuries the drug causes unless the plaintiff pleads “specific facts” amounting to the medical provider’s negligence. The statute’s express purpose is “to immunize innocent medical providers . . . from forum-driven lawsuits.” Miss. Code Ann. § 11-1-62.
V. Medical Expert Witnesses
Mississippi has a one-sentence statute that directly addresses who may serve as a medical expert witness in a malpractice case. The statute states that if an expert witness is testifying against a physician on the issue of negligence, the witness must be “licensed in this state, or some other state, as a doctor of medicine.” Miss. Code Ann. § 11-1-61.
Beyond this, Mississippi courts handle the issue of who may serve as a medical expert witness in essentially the same manner as they do for experts in non-medical fields—that is, by applying Mississippi Rule of Evidence 702. This evidentiary rule says that an expert witness must possess the requisite “knowledge, skill, experience, training, or education,” and that the individual’s testimony must be based on scientifically reliable methods.Miss. R. Evid. 702.
In deciding who may serve as a medical expert witness, the focus is whether the standards of Rule 702 are met.
These standards were applied in McDonald v. Memorial Hosp. at Gulfport, where a patient died due to alleged negligent medical treatment by a gastroenterologist. Bringing a wrongful death lawsuit, the patient’s wife sought to rely on the expert testimony of two pathologists. But the trial court ruled that the pathologists could not serve as medical experts in the case because they lacked expertise in gastroenterology, and the Mississippi Supreme Court found no error in the trial court’s ruling. While a medical expert witness does not have to be of the same specialty as the defendant doctor, the high court emphasized, the expert still must show “satisfactory familiarity” with the defendant doctor’s specialty, and that was not demonstrated here. Thus the wife’s wrongful death claim/malpractice was properly dismissed on summary judgment because she had no expert medical witness to support her assertion that her husband was a victim of negligence, the high court held. 8 So. 3d 175 (Miss. 2009); see also Barrow v. May, 107 So. 3d 1029 (Miss. Ct. App. 2012).
VI. Comparative Negligence / Proportionate Liability
Sometimes a healthcare provider will try to pin blame for a poor treatment outcome on the patient, accusing him or her of neglecting to follow post-surgery instructions or supplying inaccurate health history information, for instance. In cases where a patient bears some fault for causing his or her own medical injury, Mississippi applies the doctrine of “comparative negligence.” Under this doctrine, a careless or negligent patient’s lawsuit is not barred completely, but any monetary damages obtained are reduced.
For example, if the plaintiff was 25 percent at fault for the bad treatment outcome and the physician 75 percent, the plaintiff can recover monetary damages from the physician but the amount will be reduced by 25 percent.Miss. Code Ann. § 11-7-15.
But if the plaintiff was guilty of a criminal act or other serious misconduct, he or she may be completed barred from recovering damages, even if the healthcare provider was also at fault. Cahn v. Copac, Inc., 198 So. 3d 347 (Miss. Ct. App. 2015).
On a different issue, if there are multiple defendants, who pays what share of the monetary damages? Under Mississippi law, each defendant generally is liable only in proportion to that defendant’s percentage of fault. For instance, if a particular defendant bore 30 percent of the fault, that defendant pays 30 percent of the monetary damages. Miss. Code Ann. § 85-5-7; see also Blailock v. Hubbs, 919 So. 2d 126 (Miss. 2005).
VII. Limitations on Damages
Money claimed by a plaintiff as compensation for a loss is referred to as “damages.” In Mississippi some types of damages are limited or “capped.”
There is no cap on damages for objectively verifiable losses such as the cost of medical care, rehabilitation services, custodial care, loss of earning capacity, and loss of income.
By statute, there is a $500,000 cap on monetary awards for more subjective damages such as pain and suffering. Miss. Code Ann. § 11-1-60.
With that said, a question exists whether this cap on so-called “noneconomic” damages is constitutional. One Mississippi trial judge has ruled that the cap violates several clauses of the state constitution, including separation of powers and right to jury trial. Tanner v. Eagle Oil & Gas Co., No. 111-0013 (Miss. Cir. Oct. 23, 2012).
As of this writing, Mississippi’s appellate courts have yet to decide the statute’s constitutionality. See Sears, Roebuck & Co. v. Learmonth, 95 So. 3d 633 (Miss. 2012) (declining to answer a question certified to it by the 5th U.S. Court of Appeals); Manhattan Nursing & Rehabilitation Center, LLC v. Pace, 134 So. 3d 810 (Miss. Ct. App. 2014) (declining to rule on the damage cap’s constitutionality).
Mississippi also caps punitive damages, which are a type of damages used to punish an especially badly behaving defendant. Unlike other forms of damages, punitive damages are not limited by the amount of the plaintiff’s proven loss.
Under state law, a punitive damages award must not exceed 2 percent of the defendant’s net worth (for defendants with a net worth up to $50 million; different rules govern if the defendant has a larger net worth). The percentage limit does not apply if the injury occurred while the defendant was under the influence of alcohol or illegal drugs.Miss. Code Ann. § 11-1-65(3); see generally Causey v. Sanders, 998 So. 2d 393 (Miss. 2008) (holding that doctor’s conduct did not justify punitive damages).
On a separate point relating to pleading damages, a medical malpractice complaint should not allege that the plaintiff has suffered a specific dollar amount of damages but instead indicate that the court’s jurisdictional threshold is met. Miss. Code Ann. § 11-1-59.
VIII. Limitations on Attorney Fees
No Mississippi medical malpractice statute sets an upper limit on attorney fees.
IX. Patient Compensation Funds
While some states have created compensation funds to reimburse certain patients injured by healthcare treatment, Mississippi has not done so.
X. Apologies and Sympathetic Gestures
If a healthcare provider apologizes for a poor treatment outcome, can the apology be used in court as evidence of negligence? Unlike some states, Mississippi has no statute specifically addressing this issue.
XI. Communications with Treating Physicians
May defense counsel communicate informally with a patient’s treating physicians without the patient’s consent?
The answer in Mississippi is no. If the defense wishes to question the patient’s treating physician(s) before trial, defense counsel must follow proper “discovery” procedures and interview the physician in an official manner with the plaintiff’s lawyer present. Informal communications (so-called “ex parte contacts”) with the physician violate patient-physician confidentiality and are not allowed unless the patient consents to them. Scott v. Flynt, 704 So. 2d 998 (Miss. 1996).
Also keep in mind that patient confidentiality is protected by the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which may restrict physicians’ informal disclosures of information as well. See45 C.F.R. § 164.512(e).
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