A federal appeals panel is asking the Mississippi Supreme Court to clarify when the clock starts ticking on the filing of certain medical malpractice claims.
Specifically, a panel of the 5th U.S. Circuit Court of Appeals wants to know how Mississippi’s statute of limitations applies in circumstances “where the alleged negligence is either the administration of a drug by a physician or the physician’s failure to disclose about the risks of a drug, and experts disagree as to whether the drug caused the plaintiff’s injuries.”
The 5th Circuit question involves a case in which it already has ruled. In 2006, the 5th Circuit overturned a medical malpractice verdict for Barbara Huss, who had sued a Memphis, Tenn., clinic over medical treatment provided during her pregnancy. Huss lives in Mississippi and filed her lawsuit in U.S. District Court in Oxford.
Huss sued after a difficult pregnancy in 1998, from which she claimed to have experienced complications into 1999. Huss’ initial lawsuit was dismissed in 1999 and she refiled in 2000 against the clinic and Dr. John Gayden.
Huss contended she was prescribed a drug during her pregnancy that later lead to heart and lung problems. A federal jury in Mississippi awarded Huss $3.5 million in damages.
The defendants claimed Huss waited too late to file her lawsuit, citing Mississippi law that gave a plaintiff two years to file a lawsuit after a condition was diagnosed.
The 5th Circuit sided with the defendants and threw out the jury award. The court subsequently denied a motion to reconsider its decision.
However, a three-judge panel this week, in a 2-1 order written by Judge Priscilla R. Owen and joined in by Judge Harold R. DeMoss Jr. said they believed there was confusion in Mississippi law and court decisions on the statute of limitations. The third member of the panel, Judge Patrick E. Higginbotham, said he saw no reason to ask the Mississippi court for a clarification.
Owen said while some may consider the two-year statute of limitation clear, the majority of three-judge panel does not.
“The panel majority concluded that one who suffers an injury that is not latent is put on notice by that injury that there is a two year period in which to determine if there is a basis for alleging negligence when the course of treatment is known or readily accessible to the claimant and there has been no fraud or concealment by the treating physician on which the claimant reasonably relied.
“However, it is not clear that the panel’s understanding of Mississippi law is correct,” Owen said.
Higginbotham said Mississippi court decisions appear to address statute of limitations questions on a case-by-case basis.
“In some instances the negligence is quite obvious, in others not so. The error in the question the panel majority certifies is taking from the jury what is quintessentially a fact question _ what did the plaintiff know and when _ and presenting it to the Mississippi Supreme Court as a question a law,” he said.
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