* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 8, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 05-60089

_______________________

DAVID HUNTER,

Plaintiff-Appellant,

versus

C. MICHAEL SMITH, JR.;

MEMPHIS LUNG PHYSICIANS, P.C.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

USDC Case No. 2:04CV108-PA

_________________________________________________________________

Before JONES, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM: *

This case concerns the proper calculation of the statute

of limitations for medical ma l practice claims in Mississippi.

Finding Appellant David Hunter’s claim time-barred, the district

court granted summary judgment to Appellees Dr. C. Michael S mith

a nd Memphis Lung Physicians, P.C. (“practice group”). Because

recently published Mississippi case law has interpreted M ISS

. C O DE

A NN

. § 15-1-36(15) in a manner that makes Appellant’s claim timely

brought, we REVERSE and REMAND

.2 I. BACKGROUND

This diversity action stems from the emergency me dical

treatment received by Hunter, who was brought to Baptist Memorial

Hospital-Desoto in Southaven, Mississippi on February 16, 2002.

While at Baptist Memorial, Hunter was treated by Smith, a partner

with the practic e group. Hunter alleges that Smith committed

medical malpractice in treating him; as a result of Smith’s alleged

negligence, Hunter main tains that he had to undergo additional

surgery and spent a number of days in intensive care. Hunter now

claims to have limited movement and weakness in his right hand and

arm.

Hunter filed a complaint against Smith and the practice

group on April 15, 2004. Smith then moved for summary judgment on

the grounds that Hunter’s claim was time barred, and the district

court granted the motion. Hunter now brings this appeal, which may

be heard under 28 U.S.C. § 1291.

II. ISSUES ON APPEAL

Hunter raises three arguments as to why his complaint was

timely. First, he argues that the relevant statute of limitations

in this case, M ISS

. C ODE A NN

. § 15-1-36(2), is tolled for sixty days

by M ISS

. C ODE A NN

. § 15-1-36(15). This interpretation of § 15-1-

36(15) wou ld make Hunter’s claim timely. In the alternative,

Hunter argues that the district court erred in failing to apply the

discovery rule to his case, as he could not have reasonably known3

of Smith’s negligence until August 13, 2003, when he was able to

review his medical records. Hunter also claims that he pleaded a

breach of contract case against Smith, which carries a three-year

statute of limitations, thus preserving his claim.

III. DISCUSSION

This court reviews the district court’s grant of summary

judgment de novo, applying the same legal standards as the district

court. M ayo v. Hartford Life Ins. Co.

, 354 F.3d 400, 403 (5th Cir.

2004)(citing Morris v. Covan World Wide Moving, Inc.

, 144 F.3d 377,

380 (5th Cir. 1998)). Summary judgment is appropriate where there

is “no genuine issue as to any material fact and [] the movant is

entitled to judgment as a matter of law.” C opeland v. Wasserstein,

Perella & Co. , 278 F.3d 472, 477 (5th Cir. 2002).

In Mississippi, medical malpractice claims must be “filed

within two (2) ye ars of the date of the alleged act, omission or

neglect shall or with reasonable diligence might have been first

known or discovered.” M ISS

. C ODE A NN

. § 15-1-36(2). This means that,

absent tolling or application of the discovery rule, Hunter would

have had to file suit against Smith and his practice group by

February 16, 2004.

However, Mississippi also requires medical malpractice

plaintiffs to supply defendants with at least sixty days’ prior

written notice of their intention to sue. M I SS

. C ODE A NN

. § 15-1-

36(15). Smith and his practice group received written notice from

Hunter on February 2, 2004, fourteen days before the statute of1 Hunt er’s interpretation of § 15-1-36(15) is informed by reference to

M ISS

. C ODE A NN

. § 15-1-57, which states that “[w]hen any person shall be prohibited

by law

. . . from commencing or prosecuting any action or remedy, the time during

which such person shall be so prohibited

. . . shall not be computed as any part

of the period of time li mited by this chapter for the commencement of such

action.” Hunter argues that as there were sixty days where he could not legally

bring suit against Smith and the practice group, § 15-1-57 prevents those days

from counting against him for statute of limitations purposes.

4 limitations was set to expire on Hunter’s claim. The sixty-day

notice provision of § 15-1-36(15) is not waived in situations where

plaintiffs have fewer than sixty days to timely bring suit.

Instead, § 15-1-36(15) provides that:

If the notice is served within sixty (60) days prior to

the expiration of the applicable statute of limitations,

the time for the commencement of the action shall be

extended sixty (60) days from the service of the notice

for said health care providers and others.

This portion of § 15-1-36(15) is at the heart of the

case. Hunter argued that the effect of § 15-1-36(15) was to toll

the statute of limitations for sixty days, such that he would have

two years, plus sixty days, to bring his claim. 1 Appellees seized

upon language indicating that the sixty day “exten[sion]” was “from

the service of the notice” and argued that the statute of

limitations expired once the sixty day notice period had run. The

district court accepted the latter interpretation of § 15-1-36(15),

and concluded that Hunter needed to bring suit by Apr il 2, 2004,

sixty days after Appellees received notice from him.

At the time the district court considered this ca se,

there was no case law from the Supreme Court of Mississippi

interpreting the effect of § 15-1-36(15) upon the state’s two-year5

statute of limitations. The district court was thus forced to make

an “ Erie -guess” as to how the state court would interpret § 15-1-

36(15). M ayo

, 354 F.3d at 406. We review the district court's

Erie -guess de novo. Id. (citing Williamson v. Elf Aquitaine, Inc.

138 F.3d 546, 549 (5th Cir. 1998)).

This court no longer has to guess how Mississippi would

interpret § 15-1-36(15), as the Mississip pi Supreme Court very

recently held in Pope v. Brock

, 912 So. 2d 935, reh’g denied

, 2005

Miss. LEXIS 719 (Miss. Nov. 3, 2005) that § 15-1-36(15) tolls the

statute of limitations on medical malpractice cla ims for sixty

days. Thus , “[§ 15-1-36(15)] requires a sixty-day tolling of the

two-year statute of limitations.” Id . at 939.

Applying Pope to the facts of this case, it becomes

apparent that the district court erred in granting summary judgment

in favor of Appellees. Hunter alleges that Smith committed medical

malpractice in treating him on February 16, 2002. Under P ope

,

Hunter had two years and sixty days from February 16, 2002—or until

April 16, 2004— to bring his suit against Smith. As Hunter filed

suit on April 15, 2004, his suit was timely. Thus, the district

court erred in granting summary judgment to Appellees on the theory

that Hunter’s claim was time-barred.

CONCLUSION

The district court’s interpretation of M ISS

. C ODE A NN . §

15-1-36(15) is now foreclosed by Pope

. Therefore, the grant of6

summary judgment in favor of Appellees is REVERSED and the case is

REMANDED to the district court for further proceedings consistent

with this opinion.