IN THE SUPREME COURT OF MISSISSIPPI NO. 2013-IA-00384-SCT HOWARD R. HOLADAY , JR., M.D.

v. KY LE MOORE AND MARLA MOORE

DATE OF JUDGMENT: 02/11/2013 TRIAL JUDGE: HON. JEFF W EILL, SR. TRIAL COURT ATTORNEYS: STEPHEN P. KRUGER THURMAN LAVELLE BOYKIN, III CRYMES MORGAN PITTMAN JOSEPH E. ROBERTS, JR. COURT FROM W HICH APPEALED: CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY ATTORNEYS FOR APPELLANT: STEPHEN P. KRUGER THURMAN LAVELLE BOYKIN, III ATTORNEYS FOR APPELLEES: CRYMES MORGAN PITTMAN JOSEPH E. ROBERTS, JR. NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: AFFIRMED - 04/30/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. KITCHENS, JUSTICE, FOR THE COURT: ¶1. Ky le and Marla Moore ti me l y f iled a m edical m alpractice s uit against St. Dom inic Hospital, J ackson Neurosurgery Clinic, and several phy sicians, claim ing that the phy sicians and hospital had been negligent in treating Ky le i n May 2004. In March 2011, the Moores

a d ded Dr. Howard Holaday as a def endant. D r. Holaday m oved f or sum m ary j u d g me n t , asserting that t he two-y ear statute of lim itations h ad expired. The trial c ourt denied sum m aryjudgm ent, and Dr. H oladay petitioned this Court f or an interlocutory a

p peal. The issue now bef ore this Court is whether the discovery rule tolled the statute of l i mi t ations against Dr. Holaday

. W e hold that whether the discovery rule tolls the s tatute o f lim itations requires a determ i n a t i o n b y the t rier of f act—here, the jury

—regarding the “date t he alleged act,

om ission or n e g l ect shall or with reasonable diligence m ight h ave been f irst discovered.” Miss. Code Ann. § 15-1-36(2) (Rev

. 2 0 1 2 )

. The trial c ourt, theref ore, properly denied

sum m ary judgm ent to Dr. Holaday

.

Facts and Procedural History ¶2. Ky le Moore went to the em ergency room (ER) at St. Dom inic Hospital on the m orning of May 2 3, 2004, with pain i n his lower back. The ER doctor, D r. Jef f Hubacek, diagnosed the pain Moore was e xperiencing as l u m bar strain and discharged h im around noon. Ky le returned t o the ER a t 10:00 o’clock that evening com plaining of b ack pain and leg weakness.
Dr. Marshall Stout was the ER doctor f or that shif

t. R ather than consulting the orthopaedist

on call f or the ER , Dr. Stout decided to c o nsult Dr. Greg W ood, a n orthopaedic surgeon, because Ky le had an appointm ent schedule d w i t h D r . W ood a f ew d ay s later f

or the sam e problem

. However, Dr. Holaday , a neurosurgeon, was taking Dr. W ood’s calls that night. Dr. Stout spoke with D r. Holaday a nd m ade a note t hat Dr. Holaday w ould com e to the ER to see Ky le. Dr. Holaday d id n o t appear at the E R, and he m aintains t hat h e never agreed to do so because he was out of

town. Dr. Stout m a de two notes about consulting with Dr. Holaday , then ordered an MRI under Dr. Holaday ’s nam e.

2¶3. The M RI was perf orm e d a t m idnight, and the results show e d a n e pidural abscess.
Because Dr. Holaday ’s nam e was on the MRI report as the ordering phy sician, the r adiologist contacted him with the results. Dr. Holaday say s that, when he was told about the epidural

a bscess, he recom m e nded t hat K y le Moore be transf

e rred to University of M ississ i p p i Medical Center. Dr. Holaday testif ied t h a t , a f

ter he received the MRI results, he had no f urther involvem ent with Ky le Moore’s treatm ent. Dr. Stout’s shif t ended shortly af

ter he had ordered the MRI, and Dr. Karl Hatten replaced h im in th e ER. Dr. H atten received Ky le’s
MRI r esults and c ontacted the neurosurgeon on call f o r the ER , D r. Adam Lewis with Jackson N eurosurgery Clinic. However, Dr. J acob Mathis was taking Dr. Lewis’s calls that night. Dr. Mathis adm itted Moore to the hospital around 3:00 o ’clock a .m . on May 24. Ky le
Moore needed surgery , but Dr. Mathis def erred the surgery

to Dr. Lewis, who operated on the epidural abscess at 9:15 o’clock that m orning. The Moores contend that surgery should have b een done sooner and that the delay in treatm ent resulted i n n eurological injury to Ky le. ¶4. In considering Dr. Holaday ’s m otion f o r summa r y j u d g me n t o n t h e s t a t u t e of
lim itations issue, the trial court had bef ore it the af

f idavit o f D r. W

. Ly

nn Stringer. Dr. Stringer wrote that the Moores’ attorney s had asked h im “to review the m edical r ecords and render an opinion as to whether there was a deviation f rom the standard of care with regard

to t he neurosurgical t reatm ent received by Ky le Moore.” Dr. Stringer report e d that, “af ter speaking with Howard Holaday , M.D., I determ ined that Dr. H oladay was not negligent and had not deviated f

rom the standard of c are.” A lso bef ore the trial court was an af f idavit of Cry m es M. Pittm an, one of t he attorney s of record f or the Moores. Pittm an wrote that “Dr.

3Stringer advised that Dr. Howard Holaday , a neurosurgeon who is m entioned in the m edical

records of Ky le Moore as having been contacted b y an em ergency room phy sician, was not negligent.” Pittm an continued, “Dr. Stringer f urther advised t hat Dr. Holaday was not on call and was o u t of town during t he tim e he was contacted regarding K y le’s condition.” Because of th e d iscussion between D r. Stringer and D r. H oladay , the Moores and their attorney s

con c l u d e d t h at no basis f o r a claim a gainst Dr. Holaday existed. W hile the Moores sent notice-of -claim letters to St. Dom i nic, Jackson Neurosurgery Clinic, a nd others, they did not

nam e Dr. Holaday

in the initial lawsuit. ¶5. Dr. Holaday was deposed o n February 19, 2010. His d eposition was consistent with the af f idavits of Dr. Stringer and Mr. Pittm a n. Dr. Holaday testif ied that he had d

riven f rom Jackson, Mississippi, to Carthage, Mississippi, on the af t ernoon of May 23, 200 4. He had planned to return to Jackson that evening, but was not on call at S t. Dom inic Hospital. Dr. Holaday t estif

ied that he did not treat Moore on May 23, 2004, and t hat he was never Moo r e ’ s t r e a t i ng neurosurgeon. He stated “I have a v ague recollection of getting a phone call or a page while I was in m y vehicle there around Carthage.” Dr. Holaday understood that “they were calling m e b e cause there w as no neurosurgeon on call f or the em e rgency room
at the tim e” and said that he had inf orm ed the em ergency r oom doctor that he was not on call.
Dr. Holaday could not r em em b er whether he had i nf

orm ed the e m ergency room d octor that he was out of town, but he d enied h aving said that he would com e to see the patient. Holaday

m entioned that he did h ave t w o c o n v ersations with treating phy sicians. W ith regard to the
f irst, he testif

ied “they were calling to get som e guidance a s to how to h andle a p atient like

4this” and that “I t hink I told them that this was a patie n t t h a t n eeded an em ergency MRI,

needed a dditional w orkup to try to determ ine a diagnosis, wasn’t som ething that could just be treated expe c t a

n t l y . ” A s e c o nd c onversation occurred between Dr. Hatten and D r. Holaday “and [ Dr. Hatten] understood that the patient’s MRI scan dem onstrated an epidural abscess.” According to Dr. Holaday , “I recom m ended that they transf er the p a tient to University .” According to Dr. Holaday , those c onversations constituted the extent of his participation in
Moore’s treatm ent. ¶6. On July 6, 2010, the Moores deposed Dr. Stout, an em ergency room phy sician who had treated Ky le Moore. Contrary to what Dr. Holaday

had testif ied, D r. Stout’s testim ony

was that Dr. Holaday was, in f act, on call that evening. Dr. S tout s aid that he had spoken to Dr. Holaday , who, instead of say ing that he was not on c all that evening, verif ied that he was. Dr. Stout said i n his deposition that Dr. Holaday had indicated that he was going to com e and

care f or Moore and that “he wanted m e [ Dr. Stout] to give him [ Moore] s o m e pain relief and get the M RI and have him called back with the results.” Dr. Stout said t hat, af ter ordering the MRI, he had “signed of

f and told Karl Hatten where we were, that the p atient was to go get his MRI and that Dr. Holaday was to be c alled back with the results . . . .” He testif ied that
Dr. Holaday never m enti o n ed that Moore o ught to be transf erred to University Medical
Center (UMC). Dr. Hatten, w ho had relieved Dr

. S t o u t o f M o ore’s c are on May 23, 2004, also was deposed on J uly 6, 2010. He testif ied that, because “I had a neurosurgeon com ing to see the patient,” it was not necessary to transf er Moore to UMC. 1

1 A cco rd in g t o D r. H atten , th e p o licy o f S t. D o m in ic allo w ed f o r tran sf e r o n ly if n eu ro lo g ical assi s t a n c e w as u n a v ailab le: “if [ n eu ro l o g ical assistan ce] w e r e to b eco m e 5¶7. Dr. Holaday f i led his f irst m otion f

or s um m ary judgm ent on the ground that there was

no evidence that he h ad violated the appropriate standard of m e d i cal care or that he had contributed in any way to Ky le’s alleged injuries. The trial court d enied sum m ary j udgm ent, holding that questions of f act existed. Dr. H oladay then m oved f o r sum m a ry j udgm ent on the ground that t h e s t a tute of l im itations had expired. The trial judge denied the m otion f or

sum m ary j udgm ent, h olding that the discovery rule applied, so the statute of lim itations had

not run or, in the alternative, that the claim wa s proper under Rule 15 of the Mississippi Rules of Civil Procedure to conf

orm the pleadings to the evidence.
Standard of Review ¶8. This C o u r t r e v i e w s the grant or denial of a m otion f o r sum m ary judgm ent de novo

. Hospital M

D, LLC v. Larry , 1 38 So. 3d 922, 925 (Miss. 2014). Sum m ary judgm ent should be granted i f no genuine issue of m aterial f act exists and the m ovi n g p a r t y i s entitled to judgm ent as a m atter of

law. Miss. R. Civ. P. 56(c).

Discussion ¶9. The d i s c o v e r y r u l e p r o v i des that the two-y ear statute o f lim itations f o r m edical

m alpractice claim s begins to run “ f rom the date the alleged act, om ission or neglect shall or with reasonable diligence m ight have been f irst known or discovered

. . . .” M iss. C ode Ann. § 15-1-36(2) (Rev. 2 012). W hile “[ t]he operative tim e is w h en the patient can reasonably be h e l d to have knowledge of the i njury itself, the cause of the injury, and the c a u s a t i v e relationship between the injury and the conduct of the medical practitioner ,” the discovery

u n av ailab le, th en y o u can in itiate a tran sf er.” 6rule applies only to t hose “rare cases w here t he patient is aware of his injury

. . . but does not

discover and could not have discovered with reasonable diligence the act or om i ssion which caused the injury .” Huss v. Gayden , 991 So. 2d 162, 165-66 (Miss. 2008) (quoting Sm ith v. Sanders , 485 So. 2d 1051, 1052-53 (Miss. 1986)) (em phasis in original). ¶10. This Court has held that “[ d]iscovery of a n injury ‘is an i ssue of f act to be decided by

a j u r y w h e n t h e r e is a genuine dispute.’” Phillips 6 6 Co. v. Lofton , 9 4 So. 3d 1051, 1059 (Miss. 2012) (quoting Weathers v. Metropolitan Life Ins. Co. , 14 So. 3d 688, 692 (Miss. 2009) (quoting Donald v. Am o co Prod. Co. , 735 So. 2d 161, 167 (Miss. 1 999))). “Issues of
f act suf f icient to require a denial of a m otion f or sum m ary judgm ent are obviously present where o ne party swears t o one version of the m atter in issue and the other party takes the opposite p osition.” Sutherland v. Esta t e o f R itter , 959 So. 2d 1004,1007 (Miss. 2007) (quoting Price v. Purdue Pharm . Co. , 920 S o. 2d 479, 483 (Miss. 2006) (citing Am . Legion Ladnier Post No. 42 v. Ocean Springs , 562 So. 2d 103, 106 (Miss. 1990))). ¶11. Dr. Holaday

takes the position that, because his nam e appeared on various pages of Ky le’s m edical records and because the Moores knew his identity , the discovery r ule did not operate to to l l t h e statute o f lim itations on their claim s against him

. But the record is clear that Dr. Holaday ’s f

ervent denial of his participation in the events g iving rise to the alleged injury led the Moores and their attorney to conclude that no basis f or a cl a i m against h im existed. This case is not a c ase like Sutherland v. E state of Ritter , in which this Court held that the discovery rule did not toll the statute of lim itations where “ S utherland knew who, when, how, and by w hat he had been injured s oon af ter receiving treatm ent” and having been

7prescribed m edication. Sutherland , 959 So. 2d at 1009. The Court i n that case also pointed

out that, “in the m e dical m alpractice c ontext, the discovery rule m a y apply in cases where the injury is n ot l atent at all, but where the negligence which caused the known injury is unknown .” Sutherland , 959 So. 2d at 1009-10 (em phasis added). ¶12. The present case is wholly d istinguishable f rom Sutherland , in which a patient knew of undesired s i de ef

f ects of the m edication prescribed b y his treating phy sician. Id. at 1009.
In this case, Moore was given to understand, f rom Dr. Holaday ’s own d i scussions with
M o o r e’s consultant, Dr. Stringer, that no legitim ate m edical negligence claim could b e brought against Dr. Holaday

. Bey ond a c k n owledging a lim ited consultation with Moore’s treating phy sicians and a recom m endation that an MRI be g iven, D r. Holaday had denied, both in conversations with Dr. Stringer and i n h i s d e p osition on February 19, 2010, involvem e nt i n M oore’s treatm ent. It was not until July 6, 2010, that the Moores purportedly becam e aware that Dr. Holaday ’s involvem ent in treatm ent m ay h ave been f a r greater than he initially had related to them

. Of course, this i s a jury question, as the trial court correctly
f ound. ¶13. This case is also unlike Wright v. Quesnel , 876 So. 2 d 362 (Miss. 2004), and Wayne Gen. Hosp. v. H

ayes , 868 So. 2d 997 (Miss. 2004). Those cases stand f or the proposition that the discovery rule does n ot operate to toll the statute of lim itations even when the plaintif f does “not know with certainty that th e c o n d u c t was n egligent as a m atter of l aw.” Wright , 876 So. 2d at 367 (quoting Hayes , 868 So. 2d at 1001). I n Wright , the plaintif f ’s child died
in her wom

b. W right , 87 6 S o . 2 d at 367. H er phy sician, t o whom the p laintif f had

8“com

plained of severe pain,” f

ailed to “order a ny t y

pe of treatm ent,” but r ecom m ended only bed r est. Id. at 364, 3 67. The Court held t hat s h e “ h ad enough inf orm ation at the tim e of death such that she knew or reasonably should h ave known t hat negligence had occurred.”
Id. (quoting Hayes , 868 So. 2 d at 1001). Likewise, in Hayes , the representative of a decedent brought suit on b ehalf of the d ecedent’s son af ter a n urse inf

orm ed her i n a “ chance m eeting” that negligence h a d occurred. Hayes , 868 So. 2d at 1001. Noting t hat “[ t]he record does not ref lect any t y

p e o f i n v e s tigation into [ decedent’s] t reatm ent prior to this c h ance m eeting, which occurred approxim ately two y ears af ter her death,” we f

ound that the p laintif

f s “had enough inf

orm a tion such that they k new or reasonably should have known that som e negligent conduct had occurred” b ecause “the d eath certif icate included sepsis as one of the causes of death.” Id. ¶14. Both Wright and Hayes a re distinguishable f rom the present case. H

ayes involved an individual who k

new the sy

m ptom s she w as e x periencing and was, under the circum stances,

on notice that the doctor m ay have been negligent in declining t o t reat her bey ond advising bed rest. I n H

a y e s , the plaintif

f had waited to f

ile suit until a third party suggested that negligence had occurred. Here, Dr. Holaday , unequivocally , both in conversations with Dr. Stringer and in an af

f idavit, strongly denied involvem ent i n Moore’s t reatm ent, though he said that he vaguely recalled recom m ending an MRI. It was o n this basis that Moore and his attorney decided that t here was no claim t o be m ade a g ainst Dr. Holaday

. Indeed, Dr. Holaday m a intains on appe a l that Moore’s m edical records were incorrect : “Dr. Stout docum ented his discussion with Dr. Holaday , erroneously indicating that Dr. Holaday

had

9agreed to com e to the ER to see M r. Moore.” He claim s that “Dr. S tout ordered MRIs under

Dr. Holaday ’s nam e , leading the radiologist t o contact Dr. Hola d a y w i t h the results.” He
“m aintains [ 1] he r epeatedly a d v i s e d t h a t he was not the neurosurgeon on call f or St.
D o mi nic’s ER that evening and [ 2] when the epidural abscess w as reported to him, h e suggested Mr. Moore be transf erred to University of

Mississippi Medical Center.” ¶15. Here, the depositions of Drs. Stout and Hatten created a genuine issue o f m aterial f act regarding the point at which the Moores had notice of potential claim s against Dr. Holaday

. The Moores m ay have b ecom e aware that Dr. Holaday ’s version o f events was contradicted

o n l y when Drs. Stout and Hatten were deposed on July 6, 2010. The Moores an d t h e i r attorney appear to have investigated diligently , going to the extraordinary l ength o f having their p r e-suit m edical consultant actually c onduct an investigation, concluding that, based on Dr. Holaday ’s representation s , n o v i a b l e m e d i c a l n e g ligence claim s against Dr. Holaday were present. It rem ains a question f o r the jury

whether the plaintif

f s had reason to know, based solely on the appearance of Dr. Holaday ’s n a me i n Ky le Moore’s m e d ical records, of potential m edical negligence claim s a gainst Dr. Holaday or whether those c l aim s rem ained concealed until Drs. Stout and Hatten were deposed on July 6, 2010. 2

2 In d e ed , h ad th e M o o r e s f iled su it ag ain st D r. H o lad ay p rio r to t h e d ep o sitio n s o f D r s. S t o u t an d H a tten , t h ey m ay h av e su b j ected th em selv es t o R

u le 1 1 san ctio n s u n d er o u r M ississip p i R u les o f C iv il P ro ced u re. I f a n y p a r t y f

i les a m o t io n o r p lead in g w h ich , in t h e o p in io n o f th e co u rt, is f riv o lo u s o r i s f

iled f o r th e p u rp o se o f h arassm en t o r d ely , th e co u rt m ay o rd er su ch a p arty , o r h is atto rn ey , o r b o th , t o p ay to th e o p p o sin g p arty o r p arties th e reaso n a

b le ex p en s es in cu rred b y su ch o th er p arties an d b y th eir atto rn ey s, in clu d in g reaso n ab le atto rn ey f ees.

1 0¶16. W e concur in the judgm ent of the Circuit Court of the First Judicial District of Hinds

County , which correctly denied sum m ary judgm ent: “there is a genuine issue of m aterial f act regarding the treatm ent of Plaintif f Ky l e Moore o n May 2 3 , 2004. Specif ically , a genuine issue of m aterial f

act rem ains on the question of whether Dr. Holaday treated M r. Moore, or participated in his treatm ent. There is converse deposition t estim o ny f rom two phy s icians on this issue.” 3 The d i vergent d eposition t estim ony of the experts c r e a t e s a f a ctual question which m ust be resolved by

the jury

. ¶17. Further, Mississippi Code Section 15-1-67 provides that:
If a person liable to a ny personal action shall f r audulently conceal the cause of action f rom the k n owledge of the person entitled thereto, the cause o f action shall be deem ed to have f

irst accrued at, a nd not bef ore, the tim e at w hich such f raud b e, or with reasonable diligence, m ight have b een, f i r st known or discovered. Miss. C ode Ann. § 15-1-67 (Rev. 2012). This Court has held that “[ f ]raudulent concealm ent of a cause of action tolls i ts statute of lim itations” and “ [ t]he f raudulent concealm ent doctrine ‘applies t o any c ause of action.’” Robins o n v . C o b b , 763 So. 2d 8 83, 887 (Miss. 2000) (citations om itted). This Court h as laid out a two-part test f o r determ ining the existence of

a f raudulent concealm e nt claim , and has laid upon t he party claim ing f r audulent concealm ent

M iss. R

. C iv

. P

. 1 1 (b ). D r. H o lad ay ’s co n v ersatio n s w ith D r. S t rin g er a n d h is F eb ru ary 1 9 , 2 0 1 0 , d ep o sitio n t estim o n y t en d ed to reliev e h im o f p o ten t ial l iab ility , b ecau se h e asserted th at th o se reco rd s w ere erro n eo u s, a p o sitio n h e m ain tain s o n ap p eal.

3 F in d in g d isp o s i t i v e a n d c o rrect th e trial co u r t’s ru lin g th a t t h e d isco v ery ru le h ad to lled th e statu te o f lim itatio n s , b ecau se a g en u in e issu e o f m aterial f a ct ex isted reg ard i n g D r . H o lad ay ’s p articip atio n , w e d e clin e to ad d ress th e trial co u rt’s altern ativ e r u lin g th at o u r M ississip p i R u le o f C iv il P ro ced u re 1 5 (b ) allo w ed th e M o o r e s t o a d d D r. H o lad ay as an am en d m e n t to co n f

o r m to th e ev id en ce. 1 1t h e b u r d e n of showing that: “(1) s om e af f irm ative act or c o nduct was done and prevent e d discovery of a c l a i m, a n d [ that] (2) [

. . . ] due diligence was perf o rm ed on t heir part to discover it.” Channel v. Loyacono , 954 So. 2d 415, 423 (Miss. 2007) (quoting Stephens v. Equitable Life Assura n c e Soc’y of U.S. , 850 So. 2d 78, 84 (Miss. 2 003)). “Both are questions of f

act, n ot law, and should b e l e f t to a j ury f

or determ ination.” Whitaker v. Lim e co Corp. , 32 So. 3d 429, 436 (Miss. 2010) (citing Robinson , 763 So. 2d at 888-89). ¶18. If Drs. Stout and Hatten w ere telling the truth, t hen Dr. Holaday ’s s tatem ents deny ing involvem e nt m ay have b een untruthf ul. Again, this rem ains a question f or t he j ury . His denial of participation in Moore’s treatm ent and his assertion th a t M o o re’s m edical records were

erroneous could constitute “som e af f irm ative act or conduct [ which] w as done and prevented discovery of a claim .” Channel , 9 54 So. 2d at 423 (quoting Stephens , 850 So. 2d at 84). If
Dr. Holaday m isrepresented relevant f acts, he thereby af

f irm atively c o n c e a l e d his involvem e nt a nd gave rise to a bona fide belief in the Moores t h a t n o claim s against h im existed. W hether the M o o r e s a nd their attorney perf orm e d t he requisite due diligence by hiring a neurosurgeon, Dr. Stringer, to contact Dr. Holaday and to investigate the existence of a claim against him , constitutes a question f or the jury

. W

hitaker , 32 So. 3d at 436. The
Moores aver that Dr. Holaday ’s c o n v e rsation with Dr. Stringer f orm ed the basis f

or their initial determ i nation t h a t n o viable m edical negligence claim s could be m ade against Dr. Holaday

. If the jury were to d ecide t h u s l y , t hen the potential f or f r audulent concealm ent ought to have tolled t he statute of lim itations until J uly 6, 2010, wh e n t h e Moores learned that an issue of f

act existed regarding Dr. Holaday ’s involvem ent.

1 2Conclusion

¶19. Dism issing this case at the sum m ary judgm ent stage potentially allows Dr. Holaday

to d eny any i nvolvem e nt i n Moore’s care and then hide behind t he s tatute o f lim itations when the Moores discovered t hat he m ay h ave lied. A j ury ought to be permi t t e d t o a s s ess the credibility of D r. Holaday a nd Drs. Stout and Hatten f or the purpose of discerning the truth.
W h ether Dr. Holaday is ly ing is a g enuine issue of m aterial f act f or the jury to determ ine. W e theref ore af f irm t he judgm ent of the Circuit Co u r t o f t h e First Judicial District of Hinds County deny ing sum m a ry

judgm ent to Dr. Holaday

. ¶20. AFFIRMED. WALLER, C.J., DICKINSON, P.J., CHANDLER A ND KING, JJ., CONCUR. COLEMAN, J., DISS E N TS WITH SEPARATE W R ITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ. COLEMAN, JUSTICE, DISSENTING: ¶21. The trial judge denied Dr. Holaday ’s m otion f or sum m ary judgm ent o n the basis that the discovery rule applied or, in the alternative, because the Moores’ am ended com plaint was
proper under Mississippi Rule of Civil Procedure 15. In m y opinion, the Moores’ am ended

com plaint lacked viability under both the discovery rule and Rul e 15. Theref ore, respectf

ully , I dissent. A. Discovery Rule ¶22. The statute o f l i mi t a t i ons f or m edical m alpractice claim s i s two y ears. Miss. Code
Ann. § 1 5-1-36(2) (R e v . 2012). Under the “discovery rule,” the two-y ear statute of
lim itations begins t o run “f r om the date the all e g e d act, o m ission or n eglect shall or with

1 3reasonable diligence m ight have been f irst known or discovered,” but m edical m a lpractice claim s cannot be brought in any event “m ore than seven (7) y ears af ter the alleg e d act,

om ission o r neglect occurred.” Id. The discovery rule tolls the statute of l im itations f or (1) latent injuries or (2) nonlatent injuries where the negligence that caused the i njury is not known. See Huss v. Gayden , 991 S o. 2 d 162, 165-66 (¶ 5 ) (M i s s . 2008); Sutherland v. Estate of Ritter , 959 So. 2d 1004, 1008-09 (¶ 12) (Miss. 2007). ¶23. T h e e m

p h a s i s i s o n “ r e a s o n a

b l e d i l i gence” – w hen the plaintif f , “exercising reasonable diligence, should have f

irst discovered” the injury or the negligence. Huss , 991 So. 2d at 165 (¶ 5 ) (quoting Suther l

a n d , 959 So. 2d at 1008 (¶ 12)). The Court has held that, u nder the “discovery

rule,” the central inquiry is: the tim e that the patient discovers, o r s hould have discovered by the exercise of reasonable d iligence, that h e p r o b a b ly has an actionable injury

. The operative t im e is when the patient can reasonably be h eld to have k nowledge of t h e i n jury itself, t

he cause of the injury, a nd the c a usative relationship between the injury and the conduct of the medical practitioner. There m ay be rare cases where the patient is aware o f his injury p rior to the two y ears im m ediately preceding the f iling of his c laim , but does not discover and c ould not have discovered with reasonable d iligence the act or om ission w h i c h c a used the injury

. In such cases, the a c tion does not a ccrue unti l t h e latter discovery

is m ade.
Huss , 991 So. 2d at 165-66 (¶ 5) ( quoting Sm ith v . Sanders , 485 So. 2d 1051, 1052 (Miss. 1986)). The discovery rule will not be a pplied where the plaintif f has f ai l e d t o exercise reasonable diligence. Huss , 991 So. 2d at 167 (¶ 9) (citing Wright v . Quesnel , 876 So. 2d 362, 3 67 ( Miss. 2004); Wayne Gen. Hosp. v. Haye s , 8 6 8 S o . 2d 997, 1001 (Miss. 2004)). Further, “an individual m ay not take shelter in the ‘discovery rule’ when reasonable m inds

1 4could not dif f er that t he plaintif

f possessed sufficient information t o bring a c laim .” Huss , 991 So. 2d at 167 (¶ 9) (em p hasis added). ¶24. I n Sutherland v. Estate of Ritter , the plaintif f k new soon af

ter b eing p r e s c r i b e d a

m edication that it caused u ndesirable side ef f ects. Sutherland , 959 S o . 2 d a t 1009 (¶ 15).
Howev e r , h e c o n t inued taking the drug f or two y ears, until he checked him self into the hospital and stopped taking the m edication at another d octor’s direction. Id. at 1005-06 (¶ 2). Nearly three y ears later, he sent a notice-of -claim letter to the prescribing phy sician. Id.

at 1006 (¶ 5). The Court held that “Sutherland knew who, when, how, and by w hat he had been i njured” soon af

ter b eing prescribed the m edication. Id. at 1009 (¶ 15). He k new that the m edication was causing his p roblems and he knew which d octor had prescribed it; theref ore, the discovery rule did not toll the statute of lim itations, and it h ad expired by the tim e Sutherland f

i led suit. Id. at 1 010 (¶ 1 7). W hen the p laintif f has enough i nf

orm ation at the tim e of the injury t o k n o w that negligence o ccurred, even if he does “not know with certainty t hat the conduct was negligent as a m atter of law,” t he discovery rule will not toll the statute of l im itations. Wright , 876 So. 2 d at 3 67 (¶ 12); Hayes , 868 So. 2d at 1001 (¶ 17). ¶25. In t he cas e s u b j udice , not only is the injury not latent, but the alleged c a use of the injury and the identity of the individuals involved have been known since 2004. The Moores began collecting Ky l e’s me d i c a l records just day s af ter his surgery in May 2004, and Dr. Holaday ’s nam e was on several pages of the records. The m edical records, standing alone, put the Moores on notice that Dr. Holaday m a y have told Dr. Stout h e would report to the ER

1 5to see Ky l e. Then, the Moores’ pre-suit in v e s t igation of the claim r evealed contradictory

inf orm ation, i.e. , Dr. Holaday ’s denial of treatm ent and denial that he was on call. ¶26. The M oores com

p lied with the pre-suit investigation requirem ent of Missi s s ippi Code Section 11-158(1)(a) and em ploy e d D r. Stringer to review Ky l e’s m edical records. 4 As part of Dr. Stringer’s pre-suit investigation, he spoke with D r. Holad a y . A report f rom Dr. Stringer i s not i n the record, but he could have spoken with any o r all of the doctors identif ied
in Ky le’s m edical records. Thus, any discrepancies in Dr. Holaday ’ s and Dr. Stout’s recollection of the events reasonably could have been discovered during t h e pre-suit investigation. Certainly , the discrepancy in D r. Holaday ’s own recollection and Dr. Stout’s notation in t he f

ile was known at that tim e . In f act, in opposing Dr. Hubacek’s m otion to

am end his answer regarding Dr. Holaday ’s i n v o l v e m e n t , t h e M o o r e s s p e c i fi c a l ly asserted that
Dr. Holaday’s involvement h a d been known from Kyle’s medical r ecords and that Dr. Stout’s deposition did not reveal any new information

. 5

4 M ississip p i C o d e S e ctio n 1 1 -1 -5 8 req u i res an atto rn ey f i lin g a m ed ical m a lp ractice su it to c o n s u l t w i t h a n ex p ert “q u alif ied to g iv e ex p ert testim o n y as to stan d ard o f care o r n eg lig en ce a n d w h o th e atto rn e y reaso n a b ly b eliev es is k n o w led g eab le in th e relev an t issu es in v o l v ed in th e p articu lar actio n . . . .” M i ss. C o d e A n n . § 1 1 -1 -5 8 (1 )(a) (R ev . 2 0 1 4 ).

5 F o llo w in g D r. S to u t ’s d ep o sitio n , D r. H u b acek attem p ted to am en d h i s a n sw er to assert a n ew d e f

en se related to D r. H o lad ay ’s alleg ed i n v o lv em en t

. T h e M o o re s o p p o s ed D r . H u b a cek ’s m o tio n to am e n d h is an sw er, cla im in g th a t it w a s u n tim e l y a n d th a t D r. S to u t ’s d ep o sitio n d i d n o t revea l a n y n ew in fo rm a tio n . D r. H u b acek w ith d rew h is req u est to am en d h is an sw er, b u t th e M o o res f iled an am en d ed co m

p l ain t n a m in g D r. H o lad ay as a d ef en d a n t

. T h e M o o res w r o te t h a t th ey h ad n o o p tio n b u t t o ad d D r. H o l ad ay , b ecau se D r. H u b a cek in ten d ed to p resen t ev id en ce at trial th at D r. H o lad a y w as n eg lig en t. D r . H o lad ay m o v ed f

o r su m m ary j u d g m en t o n th e g ro u n d th at th e r e w as n o ev id en ce th at h e h ad v io lated th e ap p ro p riate stan d a rd o f m ed ical care o r th at h e h ad co n trib u ted in an y w ay t o K y le’s alleg ed i n j u ries. T h e M o o res f

i led a m o tio n f

o r p artial su m m ary j u d g m en t o n th e s a m e g ro u n d

. T h e o th er d ef en d an ts o p p o sed th e m o t io n s, an d th e trial co u rt d en ied 1 6¶27. Contrary to the trial court’s f indings ( b u t c o n s i s t e n t w i t h t h e M o o r e s ’ e arlier representation), Dr. Stout’s deposition did not reveal any new inf orm ation. The i nstant case is not one of the “ rare cases” in which the patient “could n ot have discovered with r easonable diligence” Dr. Holaday ’s involvem ent – or the d i s c repancies regarding his alleged involvem e nt – s uch that t he d iscovery rule would have tolled the statute o f lim i tations. The pertinent question is n ot whether the Moores knew exactly which set of f acts – Dr. Holaday ’s representations to their e xpert o r the inf orm a tion c ontained in the m edical records – was true.
T h e pertinent question is whether the Moores had enough inf orm ation t o k

now they had a claim

. Huss , 991 So. 2d at 167 (¶ 9). ¶28. Wh i l e I a g r e e t h a t i t a p pears harsh to apply the statute of lim itations to bar th e Moores’ c laim s af

t er they m ade a good f

aith attem pt to accurately investigate their c laim s bef ore f iling s uit, m y un d e r s t a n d i n g o f the pertinent law will a llow m e to reach no other result. The c o n f

l icting f acts available to the Moores f rom the two sources – the m edical records and Dr. Holaday ’s interview with t h e i r e x pert – gave rise to a dispute of m aterial
f acts that in turn gave rise to a claim needing resolution through the litigation process. Harsh though it m ay be, in the instant case, the Moores c hose to believe o ne set of f acts o v e r t he other rather than vetting the dispute through the d iscovery p rocess and a f inder of f act at trial at their own peril.

su m m a ry j u d g m en t. D r . H o lad ay th en m o v ed f o r su m m ary j u d g m en t o n th e g ro u n d th at th e statu te o f lim itatio n s h a d ex p ired

. T h e o th er d ef en d a n ts d id n o t o p p o se su m m ary j u d g m en t o n t h at g ro u n d

. B u t t h e M o o res o p p o s ed su m m a ry ju d

g m en t, a rg u in g th a t t

h e sta tu te o

f lim ita tio n s h a d n o t exp ired , alth o u g h th ey m ad e th e o p p o site arg u m en t w h e n D r. H u b acek tried to b rin g D r. H o lad a y in to th e su it. 1 7B. Mississippi Rule of Civil Procedure 15

¶29. The trial judge wrote that, i n the alternative to t he discovery rule, adding Dr. Holaday

as a de f e n dant was proper under M ississippi Rule of Civil Procedure 15 as a n am endm ent
to conf orm to the e vidence. Adding a def endant is not an “am e ndm e nt to conf orm to the evidence” as allowed by Rule 15(b). The plain language of that rule ref

ers to am endm ents related to “issues” not raised in the pleadings that arose a n d were tried by consent of the parties at trial; it does n o t ref er to parties w h o were not nam ed in the pleadings. Miss. R. Civ. P. 1 5(b). See a lso Webb v. Braswell , 930 So. 2d 387, 394 (¶ 1 0 ) ( M i s s . 2 0 0 6 )

. Rule 15(b) is not applicable to Dr. Holaday being added as a def

endant. ¶30. W h ile Rule 1 5(b) does not apply t o am ending pleadings to add parties, the “relation back rule” o f Rule 15(c) does a pply t o n e w p a r t i es. T he judge seem ingly com b ined the
“am endm ent to conf

o rm to t he evidence” rule of s ubpart (b) and the “relation b ack” rule of subpart (c). However, neither subpart is applicable. Rule 15(c) provides: (c) Relation Back of Am endm ents. W h enever the claim o r def ense asserted in the am ended pleading arose out of the conduct, transaction, or occurrence set f o rth or attem

pted to be set f

orth in the original pleading, the am endm ent relates back to the d ate of the o riginal pleading. An am endm ent changing the party against whom a claim is asserted relates back if the f oregoing provision is satisf ied and, withi n t he period provided by Rule 4(h) f or service of the sum m ons and com

p laint, the party

to be brought in by am endm ent: (1) has received such notice of the institution of the action that the p arty will not be prejudiced in m aintaining the p arty ’s def ense on the m erits, and (2) knew or should have known t hat, but f o r a m istake c o n c e r n i n g the identity of the proper party , the action would have been brought against the party

. An am endm ent p ursuant to Rule 9(h) is n ot an am endm ent changing the party against whom a claim is as s e r t ed and such am e ndm e nt relates back to the date of

the original pleading.

1 8Miss. R. Civ. P

. 15(c). First, Rule 4(h) requires the plaintif f to serve a d ef

en d a n t w i t h t h e

sum m ons and com

plaint within 120 day s of f iling the com

plaint. T he Moores did not serve Dr. Holaday within 120 day s o f f i l i ng t he com

plaint. Second, there was no m istake in identity ; the M oores knew of Dr

. H o l aday ’s involvem ent and chose not to bring a claim against him

. ¶31. F i n a l l y , Rule 9(h) does not apply because it is applicable only i f t h e p l a i n t i f f “ i s ignorant of the nam e of an opposing party and so alleges in his p leading,” then later discovers

t h e p r o p e r p a r ty ’s nam e and substitutes t he c orrect n am e. Miss. R. Civ. P. 9 (h). Th e Moores’ original com

plaint name d “ J o h n Does 1-5” and p rovided that nam es would be substituted when t heir identities were known. However, t he am ended c om plaint still nam ed “John Does 1-5” and included the sam e statem e n t

. T h e Moores did not substitute Dr. Holaday ’s nam e f

or a “John Doe.” The addition of a new party i s “not a p roper substitution under Rule 9(h )

. ” M

i l l e r e x rel. Miller v

. Engelhard Corp. , 95 So. 3d 740, 743-44 (¶ 11) (Miss. Ct. App. 2012) (discussing Doe v. Miss. Blood Se r v s., Inc. , 704 So. 2d 1016, 1018 (Miss. 1997)). “ [ I]f one joins a new party without m eeting the requirem ents set f o r t h i n [ Rule] 9(h), the new p arty m ust be served p rior t o the running o f the s tatute of lim itations.”
Doe , 704 So. 2d at 1 0 18 (¶ 9). The Moores did n ot s erve Dr. Holaday bef ore the statute of
lim itations ran. The trial j udge erred in holding that the Moores’ am e nded c om plaint nam ing Dr. Holaday

was proper under Rule 15 as an “am endm ent to conf o rm to the evidence.” ¶32. The s t a t u t e o f l i mi t a t i o n s a s to Dr. H oladay ran on May 24, 2006, a nd had long expired by March 13, 2011, when the Moores f i led their am e n d e d c o mp l aint. Neither the

1 9discovery rule nor Rule 15 applies to give the M oores a n y r elief

. Theref ore, I would reverse the trial court’s denial of

Dr. Holaday ’s m otion f

or sum m a r

y judgm e nt. RANDOLPH, P.J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.

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