IN THE SUPREME COURT OF MISSISSIPPI
NO. 2007-CA-00316-SCT
LEANORA McCLAIN, INDIVIDUALLY AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF CARLTON McCLAIN,
DECEASED
v.
STEVEN G. CLARK, M.D., BENNIE B. WRIGHT,
M.D., TARENCE E. WADE, M.D., AND BOLIVAR
MEDICAL CENTER
DATE OF JUDGMENT: 02/16/2007
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CHARLES M. MERKEL, JR.
ALMA WALLS
ATTORNEYS FOR APPELLEES: JAMES LAWRENCE WILSON, IV
TOMMIE WILLIAMS
L. CARL HAGWOOD
JASON EDWARD DARE
ANASTASIA G. JONES
KIMBERLY NELSON HOWLAND
JAMES A. BECKER, JR.
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND REMANDED - 10/16/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE SMITH, C.J., EASLEY AND LAMAR, JJ.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. In this wrongful-death action, Plaintiff Leanora McClain appeals a judgment from
the Circuit Court of Bolivar County which granted Defendants’ motions to dismiss. This
Court considers on appeal whether McClain sufficiently complied with Mississippi Code
Annotated Section 11-1-58 (Rev. 2004).
FACTS AND PROCEDURAL HISTORY
¶2. On May 17, 2004, Carlton McClain died as a result of alleged negligent medical care
and treatment by Defendants Steven G. Clark, M.D.; Bennie B. Wright, M.D.; Tarence E.
Wade, M.D.; and Bolivar Medical Center. In January 2006, Plaintiff Lenora McClain
served Defendants with a notice of claim and certificate of review, pursuant to Mississippi
Code Annotated Sections 15-1-36(15) (Rev. 2003) and 11-1-58 (Rev. 2004). In April 2006,
McClain filed a wrongful-death complaint. Later that month, McClain filed an amended
complaint. Defendants each filed a motion to dismiss. The trial court found that McClain
had consulted with at least two medical experts prior to filing her complaint and provided
Defendants with copies of the experts’ opinions. However, the trial court dismissed the case.
The trial court concluded that, since no certificates accompanied the complaints, McClain
had failed to comply strictly with Mississippi Code Annotated Section 11-1-58(1) (Rev.
2004). The trial court dismissed McClain’s action with prejudice after concluding that the
statute of limitations had run. McClain appeals the dismissal.
DISCUSSION
¶3. This Court applies a de novo standard of review to all questions of law, including
motions to dismiss and summary judgments. City of Jackson v. Perry, 764 So. 2d 373, 375
(Miss. 2000). Application of the statute of limitations is also a question of law. Sarris v.
Smith, 782 So. 2d 721, 723 (Miss. 2001).
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Whether McClain Sufficiently Complied with Mississippi Code Annotated
Section 11-1-58.
¶4. The applicable law is found in Mississippi Code Annotated Section 11-1-58, which
provides:
(1) In any action against a licensed physician, health care provider or
health care practitioner for injuries or wrongful death arising out of the
course of medical, surgical or other professional services where expert
testimony is otherwise required by law, the complaint shall be
accompanied by a certificate executed by the attorney for the plaintiff
declaring that:
(a) The attorney has reviewed the facts of the case and has consulted
with at least one (1) expert qualified pursuant to the Mississippi
Rules of Civil Procedure and the Mississippi Rules of Evidence
who is qualified to give expert testimony as to standard of care
or negligence and who the attorney reasonably believes is
knowledgeable in the relevant issues involved in the particular
action, and that the attorney has concluded on the basis of such
review and consultation that there is a reasonable basis for the
commencement of such action; or
(b) The attorney was unable to obtain the consultation required
by paragraph (a) of this subsection because a limitation of time
established by Section 15-1-36 would bar the action and that the
consultation could not reasonably be obtained before such time
expired. A certificate executed pursuant to this paragraph (b)
shall be supplemented by a certificate of consultation pursuant
to paragraph (a) or (c) within sixty (60) days after service of the
complaint or the suit shall be dismissed; . . . .
...
(7) The plaintiff, in lieu of serving a certificate required by this section,
may provide the defendant or defendants with expert information in the
form required by the Mississippi Rules of Civil Procedure.
Miss. Code Ann. § 11-1-58 (Rev. 2004).
¶5. Defendants assert that the trial court’s order dismissing McClain’s action should be
affirmed because neither the complaint nor the amended complaint was accompanied by a
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certificate as required by Mississippi Code Annotated Section 11-1-58. Defendants assert
that precedent is clear that Section 11-1-58 requires strict compliance.
¶6. This Court previously had required strict compliance with Section 11-1-58 in that a
certificate of review must accompany the complaint. See, e.g., Caldwell v. N. Miss. Med.
Ctr., Inc., 956 So. 2d 888 (Miss. 2007). However, most recently, this Court has held that the
Mississippi Constitution dictates that the Legislature may not promulgate procedural statutes
which require dismissal of a complaint. Wimley v. Reid, No. 2007-CA-00593-SCT, slip op.
at 5-7 (Miss. Sept. 18, 2008). Accordingly, “a complaint otherwise properly filed, may not
be dismissed . . . simply because the plaintiff failed to attach a Certificate or Waiver,
pursuant to Section 11-1-58.” 1 Wimley, slip op. at 7.
¶7. The plaintiff must nevertheless comply with the pre-suit requirements of Section 11-1-
58, Wimley, slip op. at 8-9, and compliance is attested to by a certificate of review. Miss.
Code Ann. § 11-1-58 (Rev. 2004). We find that McClain, who served her certificate of
review in January 2006 before she filed suit in April 2006, satisfied the pre-suit requirements
of Section 11-1-58. In accordance with the intervening change in the law, the trial court
should not have dismissed McClain’s complaint.
¶8. Dismissal with prejudice might be in order as to Clark. Clark argued in his motion to
dismiss as well as on appeal that the applicable statute of limitations as to him was the one-
year period prescribed by the Mississippi Tort Claims Act in Mississippi Code Annotated
Section 11-46-11 (Rev. 2002). He argued that as of February 1, 2004, prior to the alleged
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Wimley, a decision issued after the briefing in this case, governs the case at bar. See
Cleveland v. Mann, 942 So. 2d 108, 113 (Miss. 2006) (“all judicial decisions apply retroactively
unless the Court has specifically stated the ruling is prospective”).
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negligence in this case, he became an employee of Delta Regional Medical Center, a
“political subdivision” under Section 11-46-1(i), and at all times when he treated McClain,
he was acting as an employee of Delta Regional Medical Center. Clark and the plaintiff
disputed this fact repeatedly in trial court. The trial court stated in its Order that because
McClain’s failure to attach a certificate of review/consultation was common to all defendants
and was fatal to her complaint, the trial court did not need to consider the issues in the motion
to dismiss filed separately on behalf of Clark. On remand, the trial court needs to determine
whether at the time of the alleged negligent conduct – from April 9, 2004, until May 17, 2004
– Clark was an employee of a state entity covered by the Mississippi Tort Claims Act. If so,
the trial court must further determine whether the statute of limitations has run as to Clark
as prescribed by Mississippi Code Annotated Section 11-46-11 (Rev. 2002).
CONCLUSION
¶9. For the reasons above, we reverse and remand for further proceedings consistent with
this opinion.
¶10. REVERSED AND REMANDED.
WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON, RANDOLPH AND
LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J.,
CONCURS IN PART AND IN RESULT.
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