IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-IA-01762-SCT CHRISTOPHER POLLAN

v. ANDREW WARTAK, M.D., INDIV I DUALLY AND d/b/a INTERNAL MEDICAL ASSOCIATES; CLAY COUNTY MEDICAL CORPORATION d/b/a NORTH MISSISSIPPI MEDICAL CENTER-WEST POINT; ANGIE TURNAGE, C.L.P.N.; WILLIAM C. LARMOUR, R.N.; AND ASHLEY THOMAS DAV

IS, R.N.

DATE OF JUDGMENT: 11/03/2015 TRIAL JUDGE: HON. JAMES T. KITCHENS, JR. TRIAL COURT ATTORNEYS: ALAN D. LANCASTER JOHN M. MONTGOMERY DAVID UPCHURCH JOHN W HEELER COURT FROM W HICH APPEALED: CLAY COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: DOLTON W . McALPIN ALAN D. LANCASTER JOHN M. MONTGOMERY JOHN STUART MOORE ATTORNEYS FOR APPELLEE: JOHN MARK McINTOSH DAVID W

. UPCHURCH JOHN G. W HEELER NATURE OF THE CASE: CIVIL - W RONGFUL DEATH DISPOSITION: AFFIRMED - 12/07/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. WALLER, CHIEF JUSTICE, FOR THE COURT:¶1. Christopher Pollan f iled a m edical neglig e n c e a c t i o n a gainst D r. Andrew W artak, North Mississippi Medical Center-W est Point; Angie Turnage, LPN; Chase Larm our, RN; and Ashley Thom as, LPN, c laim ing that t he def endants’ m edical negligence caused the death of his m other, Shirley Pollan. The trial court granted p artial sum m a ry ju d g me n t t o the def endants, f inding that Pollan ’ s survival claim s were barred by the statute of lim itations. Finding no error, we af

f irm the trial court’s judgm ent.

FACTS ¶2. On October 8 , 2008, f if ty

- f ive

- y e a r - old Shirley Pollan ( “Shirley ” ) was taken to the

em ergency d epartm ent at North Missis sippi Medical Center-W e st Point ( “NMMC-W est Point”) with com

plaints o f dizziness, vom iting, and a n i n a b i l ity to stand. Blood tests revealed that her blood sodium level was a critically low 9 7 m Eq/L. 1 Intravenous f luids were adm inistered to correct her sodium levels, and she was adm itted to t he intensive care unit to the service o f

Dr. Andrew W a rtak. During her tim e in intensive care, Shirley continued to receive IV f

luids to norm alize her blood sodium levels. According to the existing g uidelines

at the tim e, blood sodium levels should not be increased by m ore than ten to twelve points in t he f irst twenty

- f

our hours and eighteen points in the f i rst f orty -eight hours. Shirle y ’s

m edic a l r e c o rds show that her sodium levels were increased by n ineteen points in the f irst
f if teen hours and twenty -one points in approxim ately thirty -one hours. ¶3. On October 11, 2 0 08, at Pollan’s request, Shirley w as transf e rred to NMMC-Tupelo, where she rem ained until October 14, 2008. Her diagnosis upon disc h a r g e was “severe

1 A n o rm al b lo o d so d iu m lev el is b e tw een 1 3 6 an d 1 4 5 m E q /L

.

2hy

ponatrem ia secondary to sy ndrom e of inappropriate antidiuretic horm one w i th m ental

status changes.” 2 It was noted in her discharge record that “ she m i g h t b e suf f ering f rom central pontine m y elinoly sis,” or CPM, a brain cell dy s f u nction caused by the destruction of the m y elin sheath covering the n erve cells in t he pons, in the m iddle of the brain. CPM can be caused by

a rapid rise in the body ’s sodium levels. ¶4. Shirley was i ncapable o f returning to work a f ter her discharge f

rom N MMC-Tupelo, and over the next two y e ars she was treated f or n um erous behavioral and neurological issues.
On August 9, 20 1 0 , S h irley v isited her prim ary care phy sician, Dr. Clif ton Story , at the Longest Student Healthcare Center in Starkville. Dr. Story ’s record of this visit provides, in pertinent part:

To sum m arize, s he had been well prior to October 2008, working as a teller at t he b a n k w h e r e she worked m a ny y ears. She had gotten a cutely ill, went to the ER and was f

o u nd t o be hy

p onatrem ic. During the h ospitalization her sodium was corrected q uickly

. She deteriorated in the hospital, apparently becom ing n early c om atose and was t ransf erred to Tupelo at the insistence of her son. Sh e d id im

prove subsequently b ut has never returned to h er n orm al state of being a nd is now d i sabled due to the m e ntal def icits and inability to perf

orm the task required o f her to work a t t he bank. Her only m edical d iagnosis really has been SIADH and poly dipsia and som e psy c h o sis initially f ollowing the hospitalization. I think it i s r e a s o nable to get a second opinion as to SIADH m ay h ave been the initial cause of the hy ponatrem i a. However, I think the sodium was corrected quickly and she m ay h ave developed [ C PM] which m ay have led to her chronic disability that she is now m anaging.

2 H y p o n atrem ia is d ef

in ed as lo w so d iu m co n cen tratio n in th e b lo o d

. I t can b e cau sed b y S y n d ro m e o f

In ap p ro p riate D iu retic H o rm o n e S ecretio n (S A ID H ) , w h ich o ccu rs w h en th e p itu itary g lan d releases ex cessiv e an tid iu retic h o rm o n e. S A ID H in creases th e am o u n t o f w a ter in a p erso n ’ s b lo o d w h ile d ecreasin g p lasm a so d iu m lev e ls. 3Dr. Story ’s r ecords also indicate that Shirley w as “able t o articulate well with norm al/speech

language” during the visit and “[ had] appropriate m em ory f or current and past events.” Dr. Story ref erred Shirley to Feiy

u Chen, M.D., a neurologist at the Sem m es Murphey Clinic in
Mem phis. ¶5. On August 2 4, 2010, prior to Shirley ’s visit a t the Sem m es Murphey Clinic, a patient prof ile w as f illed out either by S hirley or s om eone on her b e h alf

. T he patient prof

ile describes Shirley ’s “chief com plaint” as f

ollows: Fatigue and d e l irium initially 1 0/08/08 and discovered had suf f ered f rom a critical sodium and potassium drop that led t o a com a at the North MS Health ( C l a y County Medical Center), W est Point, MS 10/08/08. Transf erred to critical care unit North MS Health Tupelo, MS. Fam ily told best case scenario she was not expected to leave the hospital because of in such severe condition upon arrival f

rom the W est Point hospital a n d that t he b est case scenario w ould probably be a v egetative state the rest of her lif e if s h e were to be able to leave the hospital. Indicated t hat they appeared m i sdiagnosed, brain f looded with IV (liquids) too quickly a nd then rem oved too q uickly based on the saf

e levels, it was too rapid of adm inistration try ing to increase the levels. Behavioral issues resulted and she was nowhere close to perf orm ing a norm al l if

e com pared to tim e prior to this disabling condition.
S h irley was seen by D r. Chen on the f ollowing day

. Dr. Chen’s report f r om this visi t indicates that h e initially was suspicious of CPM, but Shirley was “doing f ine right now f

rom a neurological standpoint.” Dr. Chen ultim ately d id not think that Shirley had CPM. ¶6. Shirley ’s health continued to decline until she ultim ately passed away on January 18,
2011. An autopsy was p erf orm ed on January 24, 2011, but the autopsy r eport was not issued until July 11, 2011. The r eport l i s t s Shirley ”s c ause of death as “ [ C PM] f ollowing rapid sodium correction.”

4¶7. Pollan f iled a w rongf

ul death suit against the def endants on January 1 0, 2 013, in the Clay County Circuit Court. The c om p laint a lleged that the def endants negligently f

ailed to render p roper m edical treatm e nt to Shirley specif ically concerning h er blood sodium levels, which caused her to d evelop CPM. Pollan’s claim s f o r dam ages were s eparated into wrongf ul death claim s, survival claim s, and estate c laim s . E ach of the def endants f iled an

answer to the com

plaint in March 2013, and each d ef endant r aised the statute of lim itations as a def ense. ¶8. On March 6, 2 0 15, a f ter discovery had concluded, Dr. Wa r t a k f i led a M otion f

or Partial Sum m ary Judgm e nt, which the other def endants joined. The d ef

endants argued that the s tatute of l i m itations f or Pollan’s survival c laim s b egan to r un, at the earliest on October 14, 2008, when Shirley

was discharged f

rom NMM-Tupelo. Alternatively , the def endants alleged that, at the latest, the s t atute of lim itations b egan to run on Novem ber 17, 2 008, when Shirley visited her p rim ary p hy s ician an d a t t ributed her neurological p roblem s to her adm ission to NMMC-W e st Point. Because Pollan’s com plaint w as f

iled m o re than two y ears af ter either of those dates, the def endants claim ed that Pollan’s survival claim s were tim ebarred. In response, Pollan asserted that the statute of lim itations began t o run no earlier than July 1 1 , 2 0 1 1 , when Shirley ’s autopsy report conf irm ed that her cause of death was CPM. ¶9. On Novem

ber 3, 2015, the trial court issued an order granting the def endants’ m o tion
f or partial sum m ary j udgm ent. The trial c ourt determ i ned that the statute of lim itations f or Pollan’s s urvival claim s had b e gun to run on August 24, 2010, when Shirley ’s patient prof ile

5at the Sem m es Murphey Clinic identif ied her treatm ent at N MMC-W est Point as the cause of her neurological def

iciencies: While it appears t hat Ms. Pollan did n ot know that she suf f e r ed spe c i f

i c a l l y f rom [ CPM], this patient p rof ile clearly shows that on August 24, 2010 she (1) knew that she was suf

f ering f rom a neurological def

i ciency ; and (2) s he at least suspected that this def iciency w as the result of the procedure perf orm ed at North Mississippi Medical Center – W est Point. Because Pollan’s com

plaint was not f

iled w ithin two y ears of that date, the trial court held that Pollan’s survival claim s were tim e-barred. ¶10. This Court granted Pollan’s petition f o r interlocutory a

ppeal on M ay 1 1, 2016. On appeal, Pollan r aises three issues. First, h e c l aim s that th e t r ial court erred in f ailing to consider his argum ent that the def endants waived t heir s tatute-of -lim itations def

e n s e . Second, h e contends that the trial court m isapplied t he discovery rule by f inding t hat the

statute o f lim itations began to r un when Shirley suspected t hat her neurological def iciencies were the result of

her treatm ent at NMMC-W est Point. And f inally , he argues that the date

on w h i c h Shirley discovered her injury is a genuine issue of m aterial f a ct that precludes

sum m ary judgm ent. Because t he second and t hird i ssues are so closely r e lated, we have

com bined them

in our discussion below.

STANDARD OF REVIEW ¶11. The standard of review f o r the w aiver o f an af

f irm ative def

ense is abuse of d iscretion. Kinsey v. Pangborn Corp. , 78 So. 3d 301, 306 (Miss. 2011). Under this def erential standard,

we m ust af f irm the trial court’s ruling unless there is a f irm and def

inite conviction that the

6trial court com m itted clear error. Ashm ore v . Mississippi A u th. on Educ. T elevision , 148 So. 3d 977, 982 (Miss. 2014). ¶12. The s tandard of review f or a t rial court’s grant o f summa r y j u d g me n t i s de novo.
Webb v. Braswell , 9 3 0 So. 2d 387, 395 ( Miss. 2 006). Sum m ary j udgm ent is p roper “if the pleadings, depositions, answers to interrogatories and adm i ssions o n f ile, together with the af f idav i t s , if any , show that there is no genuine i ssue of m a terial f act and t hat the m oving party i s entitled to a judgm e nt a s a m atter of law.” Mi s s. R

. Civ. P. 56(c). The r eviewing

court m ust view the evidence in the light m ost f avorable to the nonm ovant, and t he m oving party bears the burden of showing the a bsence of a genuine issue o f m aterial f a ct. Duckworth
v. Warren , 10 So. 3d 433, 436 (Miss. 2009). The running of the statute of

lim itations is an issue appropriate f

o r resolution via s u mma r y judgm ent if there exists no g enuine issue of

m aterial f a ct concerning whether the statute has run. MS C om p Choice, S

IF v . Clark, Scott
& Streetm an , 981 So. 2d 955, 962 (Miss. 2008).
DISCUSSION
I. Whether the trial court erred in ruling that the defendants h ad not w aived the statute-of-lim itations defense. ¶13. On appeal, Pollan appears to present two dif f erent argum e nts concerning the d ef endants’ alleged waiver of their statute-of

- lim itations d ef

ense. First, f

rom a p rocedural standpoint, P ollan alleges that the trial court erred in f a iling to consider his waiver a rgum ent. Next, turning to the m erits of the issue, Pollan argues that the def e ndants’ unjustif

ied delay in pursuing t heir statute-of -lim itations def

ense, coupled with their active participation in the litigation process, served as a waiver of that def ense.

7¶14. W e f ind both a rgum ents to be without m erit. W hile we c a nnot say t hat its a n a ly sis

was detailed, the trial court did not ignore Pollan’s waiver argum ent. The transcript of the

sum m ary -judgm ent hearing ref lects that the trial court considered and rejected the a rgum ent, f inding t hat it was in the parties’ interest to engage in discovery in order to develop the issue.
W e do not f

ind that the tri a l c o u r t a bused its d iscretion by f ailing t o specif

i cally m ention Pollan’s waiver argum e nt i n its o rder granting partial sum m ary judgm ent to the d ef endants.
In response to the d e f

endants’ m otion f

or partial sum m ary judgm ent, Pollan claim ed that the def endants had unreasonably delay ed t h e i r pursuit of the statute-of -lim itations def

ense by actively participating in the litigation f or m ore than two y ears af

t er f iling their answers to the

com plaint. During that tim e, P ollan alleged that the def endants engaged in e xtens i v e discovery unrelated to the statute-of -lim itations issue. A ccordingly , Pollan argued that the def endants had w aived their statute-of -lim itations def

ense. At the hearing on the def endants’

m otion f or partial sum m ary judgm ent, Pollan attem pted to argue the issue of waiver, but the trial court rejected his argum ent, reasoning:
I’ve been o n the bench 1 3 y ears now g oing on. I don’t think I ’ve r outinely dism i ssed t hings upon t he f iling of a l awsuit. I think m y history has been to let things develop and then -- y ou know, out of f a i rness to both sides.
So I will tell y ou of

f the bat, I’m not inclined to say t h a t I’m not going t o let som ebody claim t he statute of lim itations w hen I think it’s t o e very body ’s benef it to b e able to engage in som e discovery and try to f igure out what really happened. So, I’m not inclined to d o that. Because then if I send that m essage then, e very tim e y a’ll f

ile a lawsuit, they ’re going to rush right in a nd say , Judge, statute of lim itations, let’s dism iss this thing. T hen I’m having to try and g uess totally blind.

8And I d on’t think that that’s a g ood thing. So, I would m ove along f rom t hat argum ent. Because that one is not g oing to carry t he day with m e . May be with the Suprem e Court, but we (sic) m e, not so m uch.” Pollan res p o n ded, “Your honor, i t’s totally in the Court’s discretion of that

. . . . And the Suprem e Court is not going to overrule that decision. I f eel very conf

ident about that.” ¶15. As f

or the substance o f Pollan’s claim , the instant c ase is a f actually com

p lex m edical

m alpractice action involving m u ltiple def

endants and raising se v e r a l c a tegories of claim s, which required f

actual developm e nt bey ond the initial pleadings. This Court previously has
f ound that a d ef

endant did not waive its statute-of

- lim itations def

ense by engaging in discovery to develop that def ense. See E

m pire Abrasive Equip. Corp. v. M organ , 87 So. 3d 455, 4 61 ( Miss. 201 2 ) ( w h i l e def endants participated in litigation f or m o re than two y ears bef ore m oving f

or sum m ary judgm ent on statute-of -lim i tations g rounds, this C ourt held that “discovery [ was] necessary f or the def endants to determ ine the n ature of thei r def ense.”). Here, the def

endants bore the burden of proving that t h e s t a t u t e of lim itations f o r Pollan’s survival c laim s had expired, and they relied d irectly on evidence obtained in discovery to support their argum ent. In addition, Pollan has f ailed to show how he was prejudiced by the def endants’ delay in pursuing their statute-of -lim itations def

ense. See MS Credit Ctr., Inc.

v. Horton , 926 So. 2d 167, 180 n.7 (Miss. 2006) (noting that prej u d i ce to the nonm oving party is a f

actor to be considered i n addressing w aiver). Accordingly , we hold that the trial

court did not abuse i ts discretion in f ailing to f

i nd that the def

end a n ts had waived their statute-of -lim itations def

ense.

9II. Whether the trial court erred in finding t hat the s t atute of lim itations f

or Pollan’s survival claim s began to run on August 24, 2010. ¶16. T he application of the statute of lim itations is a question of law. Stringer v. Trapp , 30 So. 3d 339, 341 (Miss. 2 010). “Occasionally the question of whether the suit is barred by the statute of lim itations is a question of f act f o r the jury ; however, as with other putative f act questions, the question m ay b e taken away f rom the jury i f reasonable m inds could not dif f er

as to the conclusion.” Sm ith v. Sanders , 485 S o. 2d 1051, 1053 (Miss. 1 983). The party asserting a statute-of

-lim itations has the burden of proving it. Id. ¶17. Mississippi law im p oses a two-y ear lim itations period on c laim s f or injuries or death caused by m edical negligence: [ N]o claim i n t o r t m ay b e brought against a l icensed phy sician, osteopath, dentist, h o spital, institution f or the aged or i nf

irm , nurse, pharm acist, podiatrist, o ptom etrist or chiropractor f or injuries or wrongf

ul death ar i s i n g o u t of the course of m edica l , s u r g ical or other prof essional services unless it is f iled within two ( 2) y ears f rom the date the alleged ac t , o mi s s i o n or n eglect shall or with reasonable diligence m ight have been f irst known or d iscovered. Miss. Code Ann. § 15-1-36(2) (Rev. 2012). The f ocus o f S e c tion 15-1-36(2) “is upon the

t i me t h a t the patient discovers, o r should have d iscovered by the exercise of reasonabl e diligence, that he probably has an actionable injury .” Sm it h v . S a n d ers , 4 85 So. 2d 1051, 1052 (Miss. 1986). Thus, the statute of lim i tations does not begin to run until the plaintif f “(1) has knowledge of the injury , (2) has knowledge o f the cause of the injury , and (3) knows the relationship between the practitioner and the injury .” Stringer v . Trapp , 30 So. 3d 339,
342 ( Miss. 2010) (citing Sanders , 485 So. 2d a t 1053). Apply ing this s tandard, this Court has f ocused on “when a plaintif f , exercising reasonable diligence, should h ave f irst

1 0discovered the negligence, rather than the injury .” Sutherland v. Estate of Ritter , 959 So. 2d 1004, 1008 (Miss. 2007). ¶18. In its order granting the def endants’ m otion f

o r pa r t ial sum m ary j udgm e n t, the trial

court f ound that t he statute of lim itations began to run on August 24, 2010, when Shirley ’s patient prof

i le at the Sem m es Murphy Clinic stated that her brain was f looded w ith IV f

luids during her adm ission at NMMC-W est Point and identif ied num erous behavioral i ssues that had resulted f

r om that treatm ent. W hile noting that Shirley apparently did not know that she suf f e red s pecif

ically f rom CPM, the trial court concluded that “ on August 2 4, 2 010, she (1) know she was suf

f erin g f rom a neurological d ef

iciency ; and (2) she at least suspected that

t h i s d e f iciency was the result of the p rocedure perf orm ed at [ NMMC-W est Point].” O n appeal, Pollan argues that the trial court m isapplied the discovery r ule in S ection 15-1-36 because discovery of Shirley ’s injury required a m edical diagnosis of C P M , “ n ot m erely a suspicion as to the condition or its c ausation.” Because Shirley w as not d iagnosed with CPM until a f ter her death, Pollan argues that the trial court erred in concluding that the statute of lim itations began to run prior to her death. ¶19. Pollan’s contention t h a t a s p e c i f i c m edical diagnosis is required f or the statute of lim itations t o com m ence in a m edical n eglige n c e c a s e is not supported by this Court’s
p r e c e d ent. “[ A]lthough a hidden or unseen injury m ight very w ell serve to trigger the discovery rule and toll the statute of l im itations, it is not because the injury itself is hidden

or unknown, but r a t her because the negligence which caused the injury i s unknown.”
Sutherland , 959 So. 2d at 1008. In Sutherland , the plaintif f b rought suit a g ainst the

1 1def

endant f or negligently p rescribing the drug Zy prexa, which caused the plaintif f to suf f er f rom t ardive dy skinesia (“TDS”). Id. at 1006. T he t rial court granted the def endant’s m otion
f or sum m ary j udgm ent, f

inding that the plaintif

f had st o p ped taking Zy

prexa a lm ost three
y ears bef ore f iling his com

plaint. Id. On a

ppeal, the plaintif

f argued that the discovery rule contained in Section 15-1-36 tolled the statute o f l im itations unti l h e was diagnosed with
TDS. Id. at 1008. This Court rejected the plaintif f ’s ar g u me n t , f

inding that the plaintif

f ’s
“own suspicions a nd actions thereon” were suf f icient to show that h e had k nowledge of the def endant’s alleged negligence prior to being diagnosed with TDS. Id. at 1009. The record indicated t hat the p laintif

f knew shortly af

ter his treatm ent by the def endant that Zy

prexa was causing u ndesired s ide-ef f ects, and he even checked him self in to the hospital because, by his own adm ission, “[ t]he Zy prexa was destroy ing m y lif e[

. ]” Id. Accordingly , this Court f ound that the plaintif

f “knew who, when, how, a nd by what he had b een injured soon af ter receiving treatm ent and the Z y prexa prescription f

rom [ the def

endant] a nd certainly no later than the date of

his discharge f

rom St. Dom inic.” Id. ¶20. This Court’s holding in Sutherland m akes clear that the discovery rule in Section 15- 1-36(2) f ocuses not on t he date of a specif ic diagnosis, but rather the date on which the plaintif f knew or s hould have k

nown she was injured and t hat def endant’s negligent conduct caused the injury

. See also Jackson Clinic for W om en, P.A. v. Henley , 965 So. 2d 643, 650 (Miss. 2 007) (“[ T]he plaintif f ’s own suspicions regarding possible negligent c o nduct starts the clock running.”). In a sim ilar context, this Court has rejected a rule t hat would toll the

statute of lim itations in m edical negligence cases pending the p laintif f ’s review o f m edical

1 2records. Sarris v. Sm i th , 782 So. 2d 721, 725 (Miss. 2001). “[ A plaintif f ] m ight gain actual knowledge o f negligent c onduct through personal observation or other m eans; such plaintif f s

are not e ntitled t o wait until they h ave m e dical records b ef ore t he statute begins to run.” Id. Accordingly , “the statute [ of lim itations] should begin to run when the plaintif f should have reasonably k

nown of some neglig e n t c o n d u c t , even i f the p laintif

f does n ot know with absolute certainty that the conduct was legally negligent.” Id. (em phasis added). Here, the date of Shirley ’s diagnosis of CPM is not relevant to the running of the statute of lim itations if she previously knew or should have known that the def endants’ negligent c onduct caused her injury

. Accordingly , we f ind that the trial court did not m isapply Section 15-1-36(2). ¶21. Pollan cites Schiro v. Am e rican Tobacco Co. , 611 So. 2d 962 (Miss. 1992), to support the proposition that a diagnosis is necessary f or a plaintif

f to have suf

f i cient knowledge of his or h er injury to bring suit. But Schiro is legally distinguishable f rom the instant case. In Schiro , the plaintif

f sued the def

endant tobacco co m

pany f or n egligence to recover f or injuries she sustained as a result of cigarette sm o king. I d. at 962. The sole issue in Schiro

was whether the statute o f lim itations began to run when the p l a i n t i f f w a s d iagnosed with

cancer, or several y ears e arlier, when the plaintif f began experiencing health problem s that

s h e b e l i e v e d were attributed to sm oking. I d. at 963. But unlike the instant case, th e applicable statute of lim i tations in Schi r o w a s S ection 1 5-1-49, which f o cuses solely on discovery of the injury

. Id. at 965 (quoting Miss. Code Ann. § 15-1-49). “[ C]om paring the discovery rules in the m e dical-m alpractice statute and the ‘catch-all’ s t a t u t e, we have one which f ocuses on discovery of the date of t he wrongf ul conduct, and a nother w hich f ocuses

1 3on the date of discovery of the injury or disease.” Caves v. Y arbrough , 991 S o. 2d 142, 155 (Miss. 2 008). Accordingly , this Court in Schiro c orrectly f ocused on the date on w hich the plaintif f k new of her i njury

. But here, the f ocus is on when Shirley knew o f t he def endants’ negligent act or om ission that caused her injury

. ¶22. Pollan also contends t hat the statute of lim itations could not h ave begun to run during Shirley ’s lif

etim e because s evera l p h y sicians told Shirley that she did not have CPM. Specif ically , Pollan relies on Shirley ’s chart f rom t he Sem m e s Murphey Clinic, which i n d i cates that Dr. Chen did n ot believe that Shirley had CPM. Pollan cites several cases in which this Court has f

ound that a p hy s ician’s advice to the plaintif f served t o toll the statute of lim i t a t i o n s . S

e e Neglen v. Breazeale , 945 So. 2d 988, 990 ( Miss. 2006); Parham v. Moore , 552 So. 2d 121, 122 (Miss. 1989); Pittm an v. Hodges , 462 So. 2d 330, 332 (Miss. 1984). But in those case s , the def endants’ own assurances to the p laintif f s had caused the plaintif f s to delay the investigation of their claim s. See, e .g., P ittm an , 462 So. 2d at 333 (“Hodges was ent i t l e d t o rely upon Dr. Pittm a n’s statem ents that the n um bness would

tem porarily last f

rom two to s ix w eeks or even longer, a nd only thereaf ter could Hodges then by the exercise of reasonable diligence have known or d iscovered that his num bness was
p erm a n ent

. . . .”). Pollan does not allege that any of the def endants in th i s c a s e p r o v i d e d Shirley with any inf

orm ation that would have c aused her to delay the investigation of her claim

. ¶23. In a ddition, while Dr. Chen expressed his b elief that Shirley did n ot suf f er specif ically
f rom CPM, the record ref

l ects that Shirley did n ot si mp l y r e s t i n reliance o n that opinion.

1 4Shirley ’s p atient chart f rom a n October 1 9, 2010, visit to Baptist Mem orial H ospital-Golden Triangle provides, “The son reports to m e that based on h is research, the serum sodium was corrected very rapidly resulting i n what was ultim ately diagnosed as [ CPM]

. . . . Her m ental

status apparently

never quite returned to baseline.” S im ilarly , Shirley ’s record f rom a visit with G entiva Hom e Health on October 22, 2010, s tates , “the [ p atient] r eports [ history ] of

severe sodium depletion in 2008 that was possibly m isdiagnosed [ and treatm ent] that caused deep brain dam age based upon report f rom f am ily m em

bers

. . . .” E ach of thes e r e c ords illustrates Shirley ’ s belief t hat her neurological d ef iciencies w ere caused b y t he def endants’ negligent m edical treatm ent at NMMC-W est Point. And even if we f ound that t he statute of lim itations began to run on October 22, 2010, rather than August 24, 2010, Pollan’s survival claim s still would be tim e-barred. ¶24. Finally , Pollan argues t hat sum m ary jud g me n t w a s i m p roper in t his case because a genuine issue of m aterial f act exists concerning the date on which t he statute of lim itations began to run. In support of this argum ent, Pollan p oints to the f act that he and the def

endants identif ied two dif

f erent dates on which the statute of l im itations could have c o m m enced, and the trial court s elected a third date not argued by either of the part i e s . B a s e d on this discrepancy , Pollan asserts that a f actua l d i spute clearly exists and that his survival claim s should have been subm itted to the jury

. ¶25. W e f

ind t hat Pollan’s argum ent is without m erit, as reasonable m inds could not dif f er

as to when Shirley knew of her i njury , the cause of the injury , and the r elationship between the def endants and the injury

. See Sanders , 485 So. 2d a t 1 053. As prev i o u s l y d i s c ussed,

1 5Shirley plainly was aware of her cognitive d e f i c i e n ces beginning as early as her discharge
f rom NMMC-Tupelo in October 2 008. Thus, despite Pollan’s argum e n ts regarding Shirley ’s diagnosis of CPM, i t i s indisputable that Shirley was aware of h er injury by August 24, 2010, the d ate selected by the trial d a te. W e also agree with the trial court’s determ ination that, on August 2 4, 2010 – the date on which Shirley ’s p atient p rof ile a t the Sem m es Murphey Clinic

was com pleted – Shirley knew or at least suspected that h er cognitive def iciencies were the result of her b lood sodium l evels b e ing corrected t oo quickly during her adm ission to NMMC-W est Point. Apply in g our holdings in S utherland and Henley , these suspicions, coupled with the num erous other ref erences in S h i rley ’s m edical records t o r apid sodium correction and CPM, were suf f icient to com m ence the running of the statute of lim itations
f or P ollan’s survival c laim s . And because Pollan’s com plaint was f

iled m o re than t wo y ears af ter A ugust 24, 2 010, the trial court correctly concluded that Pollan’s survival claim s were tim e-barred. Accordingly , we hold that the trial court did not err in granting the def endant’s

m otion f or partial sum m a ry

judgm ent as to Pollan’s survival claim s. CONCLUSION ¶26. For the f

oregoing reasons, we af

f irm the judgm ent of the Clay County Circuit Court. ¶27. AFFIRMED.
R A N D O L P H , P . J . , C O L E M A N , M A X W E L L , B E A M A N D C H A M B E R L I N , J J . , CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND ISHEE, J. KING, JUSTICE, DISSENTING:

1 6¶28. In wrongf ul-death a ctions s ounding in m edical negligence, t he statute of lim itations
f or survival claim s does not b e g i n t o r u n u ntil the patient reasonably can be held to have known of the causative relatio n s h ip between her injury and t he conduct of the m edical practitioner. Neglen v. Breazeale , 945 So. 2d 988, 990 (Miss. 2006) (citations om i tted). The autopsy report in this case def initively revealed f

or the f irst t i m e that the patient’s neurological injury had resulted f rom t he rapid correction of her sodium levels af ter a period of severe h y

ponatrem ia. N o d octor accurately had diagnosed the cause of the p atient’s injury during her lif

e tim e. In f

act, two m edical specialists stated that her injuries had not resulted
f r o m t h e t reatm ent of her hy ponatrem ia. Because no doctor accurately had diagnosed t h e

cause of Shirley Pollan’s (Shirley ) neurological def icits and because specialists in the f ield explicitly had denied a causative relationship between her m edical treatm ent and injuries, I dissent f rom the m a jority ’s f inding that Pollan’s survival claim s were barred by the statute of lim itations. ¶29. Pursuant to Mississippi Code Section 15-1-36(2), claim s f or survival are b a

r r e d u n l e s s brought within t w o y e a r s f rom the date the alleged act was o r w ith reasonable diligence should have been f

irst d iscovered. Miss. Code Ann. § 15-1-36(2) (Rev. 2012). T he “statute of lim itations b egins to run when the patient can reasonabl y be held to have knowledge of the injury itself

, the cause of t he injury , and the causative relationship between the injury and the conduct of the m edical practition e r . ” Neglen v . Breazeale , 945 So. 2d 988, 990 (Miss.
200 6 ) (citations om itted). So, until the plaintif f “ (1) has knowledge of the injury , (2) has knowledge of t he cause of the injury , and (3) knows the relationship between the practitioner

1 7and the injury ,” the discover y r u le is tolled. Stringer v . Trapp , 30 S o. 3d 339, 342 (Miss. 2010) (citation om itted). ¶30. H e r e , S h i r l e y ’ s f

a mi l y d i l igently attem

pted to d eterm ine the c a use of Shirley ’ s condition af

ter her bout with severe hy ponatremi a . S h i r l ey ’s f

am ily transf

erred her f

rom N M M C

- W e s t P o i n t t o N M M C -Tupelo, where her treating phy sicia n s a t N M M C

- T u

p e l o w e r e perplexed as to Shirley ’ s m ental status changes. Shirley ’s chart stated:
IMPRESSION: Mental status changes/neurologic c hanges. W orried about the possibility of f

luid shif ts within the brain with t hese low sodium s versus a cerebrovascular accident. Thus, the d octors were concerned that Shirley ’ s neurologic changes m ight ha v e r e sulted f rom

a cerebrovascular accident – a s troke. One of S hirley ’ s phy sicians ordered an MRI scan to

see any evidence of central pontine my e l i n o l y s is (CPM) in Shirley ’s b rain stem

. The MRI revealed no dem y elination in the brain stem

. O n October 12, 2008, Shirley ’s c hart s tated that
CPM cou l d h a v e a d e lay in showing up on an MRI and stated that another MRI should be taken in f orty -eight hours to a week. ¶31. Shirley returned to N MMC-Tupelo on October 1 9 a n d w as diagnosed with a behavior disorder. On October 21, Dr. Loden stated t hat he was “very perplexed as to whether this is organic f rom her recent sodium s wings or whether it m ay be a new p sy ch issue. She certainly has som e psy chotic ty

pe f eatures.” Shirley h ad a repeat M RI. The MRI again showed no sign of CPM. Shirley ’ s f

ollowing m edical visits included diagnoses of delirium , anxiety , and bipolar disorder. Thus, i n her barrage of doctors’ visits f ollowing her episode of severe

1 8hy

ponatrem ia, Shirley ’s healt h-care providers treated her f or b ipolar disorder and anxiety , not f or CPM. ¶32. Moreover, two of Shirley ’ s treating phy sicians had rule d o u t C P M as a cause. Dr. Feiy u Chen, a recom m ended phy sician specializin g in t he f i eld of neurology , s pecif

ically stated that he did not think Shirley had CPM. And Dr. John B rockington opined that, “[ t]he pons does not appear to be involved, but I d o t hink that the patient’s cognitive im pairm ent is directly due to the ef

f ects of the hy

ponatrem ia

. . . .” Dr. Brockington, another specialist in t he f ield, did not s tate that Shirley ’s m e ntal condition had been the r esult o f the treatment of her hy ponatrem ia, but instead attributed her condition to t he hy ponatrem ia itself

. Shirley

was adm itted to Baptist shortly af ter he r visit with D r. Brockington. Her chart stated, “[ a]pparently m

ultiple scans w ere done and were reviewed by neurology and f elt as though the p a t i e n t had develop[ e d] perm anent cerebral dam age possibly related to her severe electroly te abnorm alities in October of 2008.” Agai n, her chart did not state that Shirley ’s neurological def

icits h a d been caused by the treatm ent of her hy ponatrem ia, but i nstead was “related to h er s evere elec t r o l y t e abnorm a lities.” Accordingly , I believe that Shirley was entitled to rely

on her phy sicians’ opinions that she did not have CPM. ¶33. “[ I]n Mississippi, when a valid f actual dispute exists, the i ssue is settled by the f inder of f act, a jury

. It is only when reasonable mi n d s c a n not d if f er that it becom es s ettled as a

m atter of law.” Huss , 991 So. 2d at 166; see also Holaday , 169 So. 3d at 850 (“This Court has held that ‘[ d]iscovery of an injury “is an issue o f f act t o be decided by a jury when there is a genuine dispute.””’). The statute of lim itations has been t olled in cases in which a patient

1 9develops serious c om plications a f

ter a m e dical procedure but has no reason to know that the doctor’s n egligence in perf orm ing the procedure c aused the com plications. Huss v. Gayden , 991 So. 2d 162, 166 ( Miss. 2008) (quoting S utherland v . Estate of Ritter , 959 So. 2d 1004,
1008 ( Miss. 2 007)). Ther e , this Court explained t hat a statute of lim itations also m ay be tolled upon reasonable reliance on a phy sician’s estim ate and/or opinion a s t o r e c o v ery or risk. Id. at 167. As t his Court h a s held, “a l ay person undergoing a surgical procedure trusts in and relies on the instructions, prof essional e x pertise a nd guidance of h is or her p hy sician.” Neglen , 9 45 So. 2d at 991 (“[ W ]e cannot conclude as a m atter of law that Lillian did not act diligently by t rusting the d octors’ opinions and waiting o v e r two y e ars bef o re requesting
Jam es’[ s] m edical records.”). ¶34. If even m edical doctors s p e c i a l i z i n g i n t h e p articular f ield could not determ ine whether Shirley ’ s neurological changes resulted f rom her severe hy

ponatrem ia or f

rom the results of her treatm ent of hy ponatrem ia or f

rom som e other cause, a j ury question exists as
to whether Shirley s hould have known of her neurological injuries and the correlation to the

treatm ent of her hy

ponatrem i a. Had Pollan f

i led a lawsuit bef

ore the a utopsy report revealed that Shirley ’ s cause of d eath was CPM, Shirley ’s own phy sicians’ opinions would have been that s h e d i d not have CPM. Based on the m edical opinions that S hirley had been provided

at that point, a jury question w ould have existed as to whether S hirley had b een i njured f rom her treatm ent at all, or if her neurological def icits had been the result of h er sodium depletion itself or f rom another unknown cause.

2 0¶35. Although the m ajority cites Sutherland , 959 So. 2d a t 1004, this case c l early can be

distinguished. There, the plaintif f h ad experienced negative side ef f ects af ter t aking Zy

prexa. Id. at 1005. Th e p laintif f adm ittedly knew that h is i njuries directly resulted f rom taking Zy prexa, but he did not know the specif ic m edical term inology f

o r his condition. Id. at 1007. The f acts showed that the plaintif f had k nown “who, when, how, and by what he had been injured soon af

ter receiving treatm ent. . . .” Id. However, this Court em p hasized that: [ I]n m edical negligence c ases, we m ust f ocus our inquiry o n when a plaintif f , exercising reasonable diligence, should have f i rst d iscovered the n egligence, rather t h a n t h e i n

j ury . . . . For instance, a patient who undergoes a m edical procedure m ay develop serious com plications which are c learly known. However, if t he patient has no r eason to know that the doctor’s negligence in perf o rm ing t he procedure caused the com plications, t he discovery r ule will apply , even though the injury itself is not latent at all. Id. at 1008. ¶36. Pollan signed a n af f idavit stating that Shirley ’s doctors never had advised Shirley that her post-October 8, 2008, conditions were the result o f h e r p a st m edical treatm ent. Pollan also swore t hat her doctors had not advised h im that s he had been suf f e ring f rom CPM due

to rapid sodium correction. Pollan has shown a g e n u i ne i ssue of m a terial f act a s to when Shirley or her f

am ily should have discovered “the injury itself , the cause o f the injury , and the causative relationship b e t w e en the injury and the conduct of the m edical practitioner.” Neglen , 9 4 5 So. 2d at 9 9 0. Af ter a m y riad o f phy sicians and appointm ents, no doctor def initively stated t hat Shirley had developed CPM. Because I b elieve that genuine issues of

m aterial f a ct rem ain on the q

u estion of whether Shirley should have known of the correlation

2 1b e t w e e n h er treatm ent on October 8, 2008, a nd her resulting injury , I would r everse t h e

decision of

the circuit court and rem and f or a trial on the m e rits. Theref ore, I dissent. KITCHENS, P.J., AND ISHEE J., JOIN THIS OPINION.

2 2