IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-CA-01726-SCT

MICHAEL K. HENDERSON

v.

UN-NAMED EMERGENCY ROOM, MADISON COUNTY MEDICAL CENTER, UNNAMED EMERGENCY ROOM PHYSICIAN AND UN-NAMED EMERGENCY ROOM

NURSE

DATE OF JUDGMENT: 07/23/1998

TRIAL JUDGE: HON. ROBERT LOUIS GOZA, JR.

COURT FROM WHICH

APPEALED:

MADISON COUNTY CIRCUIT COURT

ATTORNEYS FOR

APPELLANT:

ISSAC K. BYRD, JR.

PRECIOUS T. MARTIN

ATTORNEYS FOR

APPELLEES:

STEPHEN P. KRUGER

JAN F. GADOW

NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND

PROPERTY DAMAGE

DISPOSITION: AFFIRMED - 04/06/2000

MOTION FOR REHEARING

FILED:

MANDATE ISSUED: 4/27/2000

EN BANC.

COBB, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. Michael K. Henderson appeals to this Court from an adverse ruling of the Madison County Circuit

Court, which granted summary judgment in favor of the Madison County Medical Center (MCMC).

Henderson received emergency medical treatment at MCMC on June 1, 1994, and subsequently lost his

sight in one eye. On April 21, 1997, he filed suit for medical negligence against MCMC and several

unnamed defendants. Subsequent to filing, Henderson requested and was granted additional time to serve

the unnamed defendants and to amend his complaint.

¶2. MCMC answered and stated its affirmative defenses and subsequently filed a motion for summary

judgment asserting that Henderson failed to comply with the one-year statute of limitations and the 90 day
notice of claim provisions of the Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 et seq. (Supp.

1999). In support of the motion for summary judgment, an affidavit was filed by MCMC stating that it was

" . . . a community hospital and a governmental subdivision"; that "[p]rior to the filing of the present lawsuit,

[it] never received written notice of the claim"; and that "[It] did not have notice of the claim until the day

Henderson served the complaint on MCMC."

¶3. After hearing argument and considering the documents before it, the circuit court granted summary

judgment in favor of MCMC finding that the court lacked jurisdiction to hear the matter and that the matter

was time-barred. The order directed entry of final judgment as to MCMC, pursuant to M.R.C.P. Rule 54

(b) and dismissed with prejudice Henderson's claim against MCMC. Aggrieved by the trial court's decision,

Henderson timely filed his notice of appeal with this Court.

¶4. We find no error in the trial court's judgment, and we therefore affirm.

STATEMENT OF THE FACTS

¶5. On June 1, 1994, Michael K. Henderson arrived at the MCMC emergency room complaining of a cut

to his lip and of seeing dots in his right eye. Dr. Al-Farawati sutured the laceration to the lip and noted that

Henderson had sustained a left conjunctival hemorrhage and right eye hematoma. Henderson was told to

put ice over the hematoma and was discharged. Almost a year later, on April 11, 1995, Henderson lost the

vison in his right eye and was diagnosed by the Ophthalmology Clinic at University Medical Center with a

detached retina.

¶6. On April 21, 1997, two years after he lost his vision and almost three years after treatment at MCMC,

Henderson filed suit against MCMC and several unnamed defendants, seeking compensatory and punitive

damages for negligence in the diagnosing and treatment of his eye injury.

ISSUE ON APPEAL

I. THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO MADISON

COUNTY MEDICAL CENTER; THE HOLDING OF LUMPKIN SHOULD ONLY APPLY

PROSPECTIVELY.

STANDARD OF REVIEW

¶7. The standard for reviewing the granting or denying of summary judgment is the same standard as is

employed by a trial court under Miss. R. Civ. P. 56(c). This Court conducts de novo review of orders

granting or denying summary judgment and examines all the evidentiary matters before it---admissions in

pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light

most favorable to the party against whom the motion has been made. If, in this view, there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment

should be entered in his favor. In addition, the burden of demonstrating that no genuine issue of fact exists is

on the moving party. That is, the non-movant would be given the benefit of the doubt. McCullough v.

Cook, 679 So. 2d 627, 630 (Miss.1996).

¶8. This Court will not reverse the lower court's decision unless it appears that triable issues of fact remain

when the facts are viewed in the light most favorable to the nonmoving party. Robinson v. Singing River

Hosp. Sys., 732 So. 2d 204, 207 (Miss. 1999). The summary judgment motion is the only pretrial motion
which allows the Court to "go behind the pleadings" and consider evidence such as admissions, answers to

interrogatories, depositions, and affidavits. Lattimore v. City of Laurel, 735 So.2d 400, 402 (Miss.

1999). If this examination indicates there is no genuine issue of material fact, the moving party is entitled to a

judgment as a matter of law. Id. (citing Newell v. Hinton, 556 So.2d 1037, 1041-42 (Miss.1990)).

¶9. While the motion for summary judgment is designed to expose "sham" claims and defenses, it should not

be used to circumvent a trial on the merits where there are genuine issues of material fact. M.R.C.P. 56

cmt.; Lattimore at 401. The party opposing the motion must be diligent and may not rest upon allegations

or denials in the pleadings but must by allegations or denials set forth specific facts showing that there are

indeed genuine issues for trial. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss. 1997).

In other words, "when a motion for summary judgment is filed, the nonmoving party 'must rebut by

producing significant probative evidence showing that there are indeed genuine issues for trial.'" Foster v.

Noel, 715 So.2d 174, 180 (Miss. 1998).

ANALYSIS

¶10. Henderson admits, and there is no dispute about, all dates mentioned in the statement of facts, supra.

He asserts that City of Jackson v. Lumpkin, 697 So. 2d 1179 (Miss. 1997), cited by MCMC, was

decided after the alleged negligence which was the basis for his suit and that Lumpkin should apply

prospectively only, so as not to bar his claim. In Lumpkin, this Court held that the statutory notice

requirements under §11-46-11 must be strictly followed, finding that notice to the City's claims department,

rather than the City's chief executive officer denied the circuit court of jurisdiction over the claim. Lumpkin,

697 So.2d at 1181. Lumpkin has since been overruled to the extent that we have adopted the substantial

compliance standard with regard to notice. See Carr v. Town of Shubuta, 733 So.2d 261 (Miss. 1999).

¶11. The trial court granted summary judgment in favor of MCMC based on Henderson's failure to comply

with the Mississippi Tort Claims Act's one year statute of limitations and its 90 day notice of claim

requirement. Henderson states that before the ruling in Lumpkin, "an injured person could rely upon the

two-year statute of limitations to bring a medical negligence claim, pursuant to Miss. Code Ann. §15-1-

36." He further argues that before the ruling in Lumpkin, the intent of Miss. Code Ann. §11-46-1, et seq.,

was unclear and that Lumpkin should, therefore, not be applied retroactively. Henderson's reliance on

Lumpkin is misplaced.

¶12. MCMC is a political subdivision as defined in Miss. Code Ann. §11-46-1(i), and all tort claims

against MCMC which arose after 1993 are governed exclusively by the Mississippi Tort Claims Act. In

determining the time frame in which actions alleging tortious, wrongful or otherwise actionable conduct

against MCMC must be brought, Miss. Code Ann. §11-46-11(3), which states that it applies to all actions

against governmental entities under the Mississippi Tort Claims Act, regardless of any other statutes of

limitations that would otherwise apply, is the correct statute to apply.

¶13. Miss. Code Ann. § 11-46-11, as it existed from its enactment in 1993 until amended March 25,

1999, and thus applies to Henderson's claim, reads in pertinent part:

(1) After all procedures within a governmental entity have been exhausted, any person having a claim

for injury arising under the provisions of this chapter against a governmental entity or its employee

shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days

prior to maintaining an action thereon, such person shall file a notice of claim with the chief
executive officer of the governmental entity and, if the governmental entity is participating in a

plan administered by the board pursuant to Section 11-46-7(3), such chief executive officer shall

notify the board of any claims filed within five (5) days after the receipt thereof.

(2) The notice of claim required by subsection (1) of this section shall be in writing, delivered in

person or by registered or certified United States mail. Every notice of claim shall contain a short and

plain statement of the facts upon which the claim is based, including the circumstances which brought

about the injury, the extent of the injury, the time and place the injury occurred, the names of all

persons known to be involved, the amount of money damages sought and the residence of the person

making the claim at the time of the injury and at the time of filing the notice.

(3) All actions brought under the provisions of this chapter shall be commenced within one

(1) year next after the date of the tortious, wrongful or otherwise actionable conduct on

which the liability phase of the action is based, and not after; provided, however, that the

filing of a notice of claim as required by subsection (1) of this section shall serve to toll the

statute of limitations for a period of ninety-five (95) days. The limitations period provided

herein shall control and shall be exclusive in all actions subject to and brought under the

provisions of this chapter, notwithstanding the nature of the claim, the label or other

characterization the claimant may use to describe it, or the provisions of any other statute of

limitations which would otherwise govern the type of claim or legal theory if it were not

subject to or brought under the provisions of this chapter.

(emphasis added).

¶14. In Barnes, this Court addressed a similar issue when Barnes argued that medical malpractice actions

against hospitals should be governed by the two-year statute of limitations under §15-1-36(1). This Court

found §11-46-11(3) controlling.

The Barneses next encourage this Court to find that medical malpractice actions against hospitals

should be governed by Mississippi's two-year medical malpractice statute of limitations, § 15-1-36(1)

, instead of § 11-46-11(3), setting the statute of limitations for actions against state agencies at one

year. The language of § 11-46-11(3) defeats the Barneses' argument on this point. The limitations

period provided herein shall control and shall be exclusive in all actions subject to and brought under

the provisions of this chapter, notwithstanding the nature of the claim, the label or other

characterization the claimant may use to describe it, or the provisions of any other statute of limitations

which would otherwise govern the type of claim or legal theory if it were not subject to or brought

under the provisions of this chapter. Miss.Code Ann. § 11-46-11(3) (Supp.1998) (emphasis added).

The Mississippi Legislature has conclusively stated that the one-year statute of limitations set out in §

11-46-11(3) applies to all actions against governmental entities under the Mississippi Tort Claims

Act, regardless of any other statutes of limitations that would otherwise apply. We therefore find that

§ 11-46-11(3), and not § 15-1-36, applies in this case.

Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 202 (Miss. 1999). This Court has also addressed

this issue in Chamberlin where the following was argued:

The appellants argue that Miss.Code Ann. § 15-1-49, the general three-year statute of limitations,

applies to the case at bar. For the reasons before stated, this Court holds that § 11-46-3 sets forth
the intent of the Legislature that the State and its political subdivisions be immune from liability

beginning April 1, 1993. Therefore, since the event giving rise to this cause of action occurred April

25, 1993, clearly after the Act went into effect, § 11-46-3 and not § 15-1-49 governs the case now

before this Court.

Chamberlin v. City of Hernando, 716 So.2d 596, 600 (Miss. 1998).

¶15. The record reveals, and Henderson does not dispute, that MCMC is a community hospital and a

governmental subdivision of the State of Mississippi. The Mississippi Tort Claims Act provides the exclusive

civil remedy against a governmental entity or its employee for acts or omissions which give rise to a suit.

Miss. Code Ann. § 11-46-7(1)(Supp. 1999). The following facts were not disputed: (1) the initial treatment

occurred on June 1, 1994; (2) Henderson lost his vision on April 11, 1995; (3) further treatment, which

alleged that the lost vision was due to a detached retina resulting from the initial injury, occurred on April

21, 1995; and (4) Henderson filed his complaint on April 21, 1997. Henderson's argument that this Court's

decision in City of Jackson v. Lumpkin, 697 So. 2d 1179 (Miss. 1997), regarding the notice and one

year limitation period, is inapplicable. Henderson's argument that before the ruling in Lumpkin the intent of

Miss. Code Ann. § 11-46-1, et seq., was unclear and that an injured person could rely upon the two-year

statute of limitations provided in a negligence claim pursuant to Miss. Code Ann. §15-1-36, is also inapt.

The MTCA and the existing statute of limitations for MTCA were already established and in place before

the decision in Lumpkin. Barnes at 202. Our holding in Lumpkin did not change the fact that the statute

of limitations for claims under MTCA is one year.

¶16. The record reveals that the present appeal involves a simple case of non-compliance with the notice

requirements of Miss. Code Ann. § 11-46-11. For the reasons stated, this Court holds that § 11-46-1 et

seq., applies to the case at bar since the event giving rise to this cause of action occurred on June 1, 1994,

clearly after the Act went into effect. The lawsuit was not filed until April 21, 1997, well past the one year

statute of limitations requirement. Even using the date on which Henderson alleges that he found out what

caused the loss of vision, April 21, 1995, the one year requirement has not been met. In Barnes, this Court

incorporated a discovery rule in actions brought under the Mississippi Tort Claims Act involving latent

injuries and held that "considering the short, one- year statute of limitations period in § 11-46-11(3), we find

that justice is best served by applying a discovery standard to such cases." Barnes at 206. Thus, in cases

where "the patient is aware of his injury prior to the [expiration of the limitations period], but does not

discover and could not have discovered with reasonable diligence the act or omission which caused the

injury," . . . "the action does not accrue until the latter discovery is made." Id.

¶17. The MTCA requires that a plaintiff filing a claim against a governmental entity must file a notice of

claim with the chief executive officer of the governmental entity ninety days before filing the compliant. Miss.

Code Ann. § 11-46-11. There is no indication in the record that Henderson was misled as to when he

should file his claim. The action was not timely commenced; and therefore, the trial court did not err in

granting summary judgment to MCMC.

CONCLUSION

¶18. Henderson's complaint and action against MCMC are time barred by the MTCA statute of limitations.

Additionally, the trial court lacked jurisdiction because Henderson failed to comply with the notice

provisions of the MTCA. The Madison County Circuit Court's summary judgment in favor of MCMC is

affirmed.
¶19. AFFIRMED.

PRATHER, C.J., BANKS, P.J., SMITH, MILLS, WALLER AND DIAZ, JJ., CONCUR.

PITTMAN, P.J., CONCURS IN RESULT ONLY. McRAE, J., NOT PARTICIPATING.