IN THE SUPREME COURT OF MISSISSIPPI

NO. 1999-CA-00257-SCT

JOHN E. RAWSON AND THE NEWBORN GROUP, P.A.

v.

PATRICIA JONES, INDIVIDUALLY, AND AS MOTHER AND NEXT FRIEND OF

TIMOTHY SPANN, DECEASED, AND ON BEHALF OF ALL WRONGFUL DEATH

BENEFICIARIES OF TIMOTHY SPANN

DATE OF JUDGMENT: 10/13/1998

TRIAL JUDGE: HON. JAMES E. GRAVES, JR.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: GEORGE QUINN EVANS

CAROLYN ALLEEN McLAIN

ATTORNEYS FOR APPELLEES: CHRISTOPHER P. WILLIAMS

G. JOSEPH DIAZ, JR.

DENNIS C. SWEET, III

KENNETH S. WOMACK

JOHN D. GIDDENS

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION: REVERSED AND RENDERED - 06/28/2001

MOTION FOR REHEARING FILED: 7/12/2001; denied 5/23/2002

MANDATE ISSUED: 5/30/2002

BEFORE PITTMAN, C.J., MILLS AND COBB, JJ.

MILLS, JUSTICE, FOR THE COURT:

¶1. Patricia Jones filed this medical malpractice wrongful death action against Dr. John E. Rawson and The

Newborn Group, P.A. and obtained a jury verdict of $1 million against them. Aggrieved, Dr. Rawson and

The Newborn Group appeal from the judgment based on that verdict after a set off. Jones cross-appeals

the trial court's allowance of a set off based upon a settlement between Jones and a co-defendant. Finding

that the cause of action against Dr. Rawson and The Newborn Group, P.A., was barred by the statute of

limitations, we reverse and render.

I. FACTS AND PROCEEDINGS BELOW

¶2. Patricia Jones gave birth to Timothy Spann on April 7, 1994. Timothy died the following day on April

8, 1994. On April 8, 1996, Jones filed a complaint in Hinds County Circuit Court against Methodist

Hospital, Jackson-Hinds Birth Center, Dr. Carl Reddix, and John Does 1-10 alleging medical negligence in

the death of her son. She filed an amended complaint three days later. The amended complaint named the

same parties as defendants. Subsequently, Dr. Reddix was dismissed with prejudice by agreed order on

March 17, 1997. On January 14, 1997, Jones moved to add Dr. John Rawson as a defendant. On May
22, 1997, Jones filed a motion to amend her complaint to add The Newborn Group, P.A. as a defendant.

Jackson-Hinds Birth Center moved for summary judgment and was voluntarily dismissed by Jones. On July

8, 1997, the circuit court granted Jones' motions to add Dr. Rawson and The Newborn Group as

defendants. Methodist Hospital and Jones settled prior to trial.

¶3. Dr. Rawson and The Newborn Group were added as John Doe defendants pursuant to M.R.C.P. 9(h).

They moved for summary judgment claiming they had not been sued until three years after the child's death,

and consequently, one year after the applicable two-year statute of limitations had run. See Miss. Code

Ann. § 15-1-36 (Supp. 1997). This motion was denied. Dr. Rawson and The Newborn Group were the

only remaining defendants at the time of trial. The jury returned a verdict in favor of Jones for $1 million.

The court below allowed defendants a $400,000 set off for the amount of settlement paid to Jones by

Methodist Medical Center, and a judgment was entered in favor of Jones for $600,000. Aggrieved, Dr.

Rawson and The Newborn Group now appeal. Additionally, Jones has filed a cross-appeal alleging the

allowance of the $400,000 set-off was improper.

II. STANDARD OF REVIEW

¶4. The critical and dispositive issue in this case is whether the court below erred in denying the defendants'

motion for summary judgment. Motions for summary judgment are properly granted when there is no

genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See

M.R.C.P. 56; Owen v. Pringle, 621 So. 2d 668 (Miss. 1993); Skelton v. Twin County Rural Elec.

Ass'n, 611 So. 2d 931 (Miss. 1992). This Court reviews a motion for summary judgment under a de novo

standard, and a motion for summary judgment is granted only when the trial court finds that the plaintiff

would be unable to prove any facts to support his claim. Robinson v. Singing River Hosp. Sys., 732 So.

2d 204, 207 (Miss. 1999) (citing Delahoussaye v. Mary Mahoney's, Inc., 696 So. 2d 689, 690 (Miss.

1997)). On appeal, the trial court's decision is reversed only if it appears that triable issues of fact remain

when the facts are viewed in the light most favorable to the nonmoving party. Robinson, 732 So.2d at 207

(citing Box v. State Farm Mut. Auto. Ins. Co., 692 So. 2d 54, 56 (Miss. 1997)).

III. DISCUSSION

¶5. Timothy Spann died on April 8, 1994. Jones's initial complaint was filed on April 8, 1996, exactly two

years to the day following Timothy's death. Her first amended complaint was filed three days later on April

11, 1996. However, Dr. Rawson and The Newborn Group (hereinafter "Defendants") were not made

defendants in this suit until Jones's second amended complaint was filed on July 10, 1997. Jones moved in

the court below to add defendants as fictitious parties pursuant to M.R.C.P. 9(h). She asserted that

although she knew Dr. Rawson had been Timothy's treating physician as early as the day of his death, she

did not know Dr. Rawson's negligence contributed to her son's death until January of 1997. In January of

1997 Jones consulted a medical expert who stated her opinion that Dr. Rawson's care of Timothy had been

negligent. Jones argued, and the court below agreed, that Jones lacked knowledge of sufficient facts to

impute negligence to Dr. Rawson until informed by the expert. Therefore, Jones argued that Dr. Rawson

and The Newborn Group were fictitious within the meaning of Rule 9(h). We disagree.

¶6. M.R.C.P. 9(h) reads as follows:

(h) Fictitious Parties. When a party is ignorant of the name of an opposing party and so alleges in

his pleading, the opposing party may be designated by any name, and when his true name is
discovered the process and all pleadings and proceedings in the action may be amended by

substituting the true name and giving proper notice to the opposing party.

¶7. The central inquiry in the case now before us is whether Jones was "ignorant" of the names of Dr.

Rawson and The Newborn Group within the meaning of Rule 9(h). We addressed this issue in Womble v.

Singing River Hosp., 618 So. 2d 1252 (Miss. 1993), where we stated:

It is a principle of general application, though, that ignorance of the opposing party for fictitious party

practice extends beyond mere lack of knowledge of the opposing party's name. Even if the plaintiff

knows the true name of the person, he is still ignorant of his name if he lacks knowledge of the

facts giving him a cause of action against that person.

Id. at 1267 (emphasis added). This language, however, does not give potential plaintiffs permission to sit on

their rights. We extrapolated on Womble in Doe v. Mississippi Blood Servs., Inc., 704 So. 2d 1016

(Miss. 1997), and held the relation back privilege afforded under Rule 9 requires a plaintiff to actually

exercise a reasonably diligent inquiry into the identities of the fictitious party. Id. at 1019. The purpose of

Rule 9(h) is to provide a mechanism to bring in known, but unidentified, responsible parties who may only

be ascertained through the use of judicial mechanisms such as discovery. Id.

¶8. In Doe, we cited with approval our Womble holding that due to the reasonable availability of numerous

medical records on file at the hospital "a reasonably diligent inquiry by the appellants into the history of the

deceased's medical treatment would have revealed to appellants the identities of the persons they sought to

identify categorically . . . ."Id. at 1018 (citing Womble, 618 So. 2d at 1267). Such is the case here.

¶9. Our analysis of facts and application of law in this case reveal the following critical points were before

the circuit court judge at the time the motion for summary judgment was heard:

(1) Jones knew that Dr. Rawson was her child's only treating physician as early as the day of his

death.

(2) Within one week of Timothy's death Jones hired an attorney with the intention of filing a lawsuit.

(3) Jones and her attorney attended a death conference where Dr. Rawson was present. The death

conference provided an opportunity to examine the autopsy reports and to discuss Timothy's cause of

death.

(4) Jones's deposition reveals that she discussed suing Dr. Rawson "a lot of times" with Timothy

Spann, Sr. and other family members as early as 1994 because "something should be done, because

we don't have our son and we were told that he was going to be okay."

(5) On April 8, 1996, the day the statute of limitations would have run, Jones filed her initial

complaint, which did not name Dr. Rawson.

(6) Jones filed her first amended complaint on April 11, 1996, again failing to name Dr. Rawson.

(7) Jones consulted with the expert witness who opined Dr. Rawson may have been negligent on

January 10, 1997.

(8) Jones moved the circuit court to add Dr. Rawson as a defendant on January 14, 1997.
(9) Jones moved the circuit court to add The Newborn Group on May 22, 1997.

¶10. Jones relies heavily on her lack of an expert witness to support her argument that she did not have the

facts necessary to file a lawsuit against Dr. Rawson. She claims she did consult with medical experts shortly

after Timothy's death, but was not able to obtain a medical opinion imputing negligence to Dr. Rawson until

January 1997. (We add that Jones's trial counsel and counselor on appeal were not her original lawyer.)

Yet, the preceding paragraph makes clear that Jones did have all of the facts she needed to institute legal

proceedings against Dr. Rawson shortly after the death of the baby. In Bean v. Broussard, 587 So. 2d

908 (Miss. 1991), we stated that a medical expert is not necessary merely to institute legal proceedings.

Bean began as a medical malpractice action and ended as an appeal of the imposition of Rule 11 sanctions

for filing a frivolous lawsuit. We reversed the imposition of the Rule 11 sanctions stating:

Unfortunately for [defendant in the original action], none of the cases cited states that a medical expert

is needed before filing. Indeed, no cases, rules, or statutes impose such a requirement. The cases

cited stand simply for the proposition that negligence in some cases cannot be established without

expert medical testimony; that the physician failed to use ordinary skill and care. Each of the cases

had proceeded far beyond the pre-filing stage and do not indicate whether a medical expert was

retained prior to filing. While it may be the better practice to retain an expert early on, one is not

required to do so.

Id. at 913. Thus, while Jones may have preferred to have a medical expert prior to filing a lawsuit against

Dr. Rawson, it was not necessary based on these particular facts. It is important to note at this juncture

there were only very minor changes made to the complaint after Jones consulted with her medical expert in

January 1997. The second amended complaint which added Dr. Rawson and The Newborn Group was

almost identical to the first amended complaint that was filed more than one year earlier. The supposed

fictitious party unknown to the plaintiffs was the only doctor known from day one. The alleged acts of

negligence were identical in the first amended complaint in April 1996 as in the July 1997 complaint adding

the defendants. Specifically, both complaints asserted breaches of the duty of care in proper assessment,

use and monitoring of oxygen saturations, observation of fluid intake and output, as well as additional

breaches of the duty of care in Timothy's treatment. The expert opinion added nothing new to her

complaint. She already knew, or with reasonable diligence should have known, the identity of the parties

who rendered medical services to her son. The only thing Jones lacked was the will to sue Dr. Rawson.

¶11. The purpose of statutory time limits in general, is to compel the exercise of a right of action within a

reasonable time. Mississippi Dep't of Pub. Safety v. Stringer, 748 So. 2d 662, 665 (Miss. 1999).

"These statutes are founded upon the general experience of society that valid claims will be promptly

pursued and not allowed to remain neglected." Id. The purpose of Rule 9(h) specifically, is to toll the statute

of limitations when, in good faith, the plaintiff is unable to identify unknown defendants. This shield protects

defendants and may be waived only by them.

IV. CONCLUSION

¶12. Dr. John E. Rawson and The Newborn Group, P.A. were not fictitious within the meaning of

M.R.C.P. 9(h), and the statute of limitations now bars the cause of action against them. Accordingly, the

judgment of the Hinds County Circuit Court is reversed, and judgment is rendered here finally dismissing

Patricia Jones's second amended complaint and this civil action with prejudice. Because this issue is
dispositive, we need not address the additional issues raised by defendants or Jones's cross-appeal.

¶13. REVERSED AND RENDERED.

PITTMAN, C.J., BANKS, P.J., SMITH, WALLER AND COBB, JJ., CONCUR. DIAZ, J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J. McRAE,

P.J., NOT PARTICIPATING.

DIAZ, JUSTICE, DISSENTING:

¶14. The Mississippi Rules of Civil Procedure "shall be construed to secure the just, speedy, and

inexpensive determination of every action." M.R.C.P. 1. Because I believe that the majority emphasizes an

expedient result, rather than a just result in the face of plain authoritative precedent, I respectfully dissent.

¶15. Jones's initial complaint was filed within the applicable two-year statute of limitations governing

medical malpractice cases. Barely nine months later, Jones followed the procedure delineated in M.R.C.P.

9(h) to substitute Dr. Rawson and the Newborn Group in place of fictitious John Does named in the original

complaint. The majority holds that Dr. Rawson and the Newborn Group are not "fictitious parties" within

the meaning of Rule 9(h) because Jones and similarly situated plaintiffs cannot sleep on their rights.

¶16. The majority's decision unjustly precludes Jones from recovery even though the original complaint was

filed within the statutory period. For this reason, particularly in actions for injury or death, we view statutes

of repose with disfavor and construe them to preserve a plaintiff's cause of action. Watters v. Stripling,

675 So.2d 1242, 1245 (Miss. 1996) (citing Gentry v. Wallace, 606 So.2d 1117, 1122 (Miss.1992)).

Additionally, it is important to note that motions for leave to amend are within the discretion of the trial

court, and absent an abuse of that discretion, this Court will not reverse. McCarty v. Kellum, 667 So.2d

1277, 1283 (Miss.1995); Frank v. Dore, 635 So.2d 1369, 1375 (Miss.1994); Bourn v. Tomlinson

Interest, Inc., 456 So.2d 747, 749 (Miss.1984). This is a decidedly different standard than the one the

majority employs. Although one of the issues on appeal was the trial court's decision to deny summary

judgment, a jury verdict was reached in this case. Thus, the applicable standard of review should be as

quoted above.

¶17. The majority makes much of the fact that although Timothy Spann died on April 8, 1994, Dr. Rawson

and the Newborn Group were not made named parties to the litigation until July 10, 1997. A close

examination of this time span reveals that Jones actively pursued her claim and immediately upon

discovering a basis to sue Dr. Rawson, joined him as a defendant. Jones filed the complaint on April 8,

1996. It is well within the rights of an injured party file a complaint on the first day the statute begins to run

or the last. So long as the complaint is properly and timely filed, it should be accepted as such, and any

review should proceed from the time of the filing. As the majority notes, Jones filed an amended complaint

on April 11, 1996. Approximately nine months later, in January of 1997, Jones discovered through medical

expert deposition testimony related to other named defendants that Dr. Rawson and the Newborn Group

may have been liable for Timothy's death.

¶18. Only days later, on January 14, 1997, Jones moved the trial court to add Dr. Rawson as a defendant.

Through further discovery from Dr. Rawson, Jones discovered the Newborn Group's legal relationship to

Dr. Rawson and again moved the trial court to add them as named defendants. The trial court did not act

on these motions until approximately six months later, on July 8, 1997. Thus, the trial court's dilatory
conduct is responsible for as much, if not more, of a delay than counsel for Jones. It is unfair to accuse an

injured party of sleeping on her rights when the trial court had its finger on the snooze button.

¶19. The majority cites Womble v. Singing River Hosp., 618 So.2d 1252, 1268 (Miss.1993) where we

held that the statutory period of limitations should be tolled for a reasonable period of time to allow plaintiffs

to acquire and peruse the medical records that would provide a basis for any alleged negligence. As the

majority notes, Womble further held that even if the plaintiff knows the true name of the person, he is still

ignorant of his name if he lacks knowledge of facts that give him a cause of action against that person. Id. at

1267. This is precisely the situation we are presented with today. The majority argues that Jones was aware

that Dr. Rawson was Timothy's physician from day one. No one disputes this. However, under the language

of Womble, this is immaterial. The important fact is that even though Jones knew Dr. Rawson's name, she

had no knowledge of any facts that gave her a basis for a cause of action against him. Jones therefore

had no reason to join Dr. Rawson and the Newborn Group.

¶20. The majority offers Doe v. Mississippi Blood Servs., Inc., 704 So. 2d 1016 (Miss. 1997) as

evidence that a plaintiff who idly bides their time in pursuit of the true identities of fictitious parties will suffer

dire consequences for employing such a lackadaisical attitude in their search. The facts, and more

importantly the time frame, in Doe are easily distinguishable from the case at bar. In Doe, the Court held

that Rule 9(h) "is not designed to allow tardy plaintiffs to sleep on their rights for seven years, make one

phone call prior to the running of the statute, and then enjoy the benefits of the rule." Doe, 704 So. 2d at

1019 (emphasis added). Here, only a few days passed before Jones moved to add Dr. Rawson after

discovering a basis for a negligence claim against him.

¶21. The majority's use of Bean v. Broussard, 587 So. 2d 908 (Miss. 1991) is a red herring. The

underlying matter involved a medical malpractice action, but the appeal itself involved only Rule 11

considerations. This fact notwithstanding, the quoted passage in the majority opinion proves Jones's point.

Negligence in some cases cannot be established without expert medical testimony. Id. at 913. Jones did not

have a basis to accuse Dr. Rawson of negligent conduct until she deposed the other physician. See also

Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 205 (Miss. 1999) (holding that while the plaintiffs

may have been aware of child's injuries before statute of limitations expired, they could not have reasonably

known that hospital was responsible until a medical expert notified them of the basis for a claim against

hospital).

¶22. By holding as it does today, this Court affirmatively encourages the old "shotgun approach" to

litigation, where the injured party sues everyone in sight and some beyond to ensure that all are properly

named and joined before the statute of limitations runs on the claim. This type of practice is frowned upon

by the courts as counter productive to efficient use of the judicial system and was part of the impetus behind

developing rules of procedure. A return to this free-wheeling style of complaint practice will leave the

defense bar howling in protest and innocent citizens who were in the wrong place at the wrong time saddled

with the unenviable task of extracting themselves from baseless litigation.

EASLEY, J., JOINS THIS OPINION.