Christopher Pollan v. Andrew Wartak

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2015-IA-01762-SCT

CHRISTOPHER POLLAN

v.

ANDREW WARTAK, M.D., INDIVIDUALLY 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 DAVIS,
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 WHEELER
COURT FROM WHICH 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. WHEELER
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 12/07/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. Christopher Pollan filed a medical negligence action against Dr. Andrew Wartak,

North Mississippi Medical Center-West Point; Angie Turnage, LPN; Chase Larmour, RN;

and Ashley Thomas, LPN, claiming that the defendants’ medical negligence caused the death

of his mother, Shirley Pollan. The trial court granted partial summary judgment to the

defendants, finding that Pollan’s survival claims were barred by the statute of limitations.

Finding no error, we affirm the trial court’s judgment.

FACTS

¶2. On October 8, 2008, fifty-five-year-old Shirley Pollan (“Shirley”) was taken to the

emergency department at North Mississippi Medical Center-West Point (“NMMC-West

Point”) with complaints of dizziness, vomiting, and an inability to stand. Blood tests

revealed that her blood sodium level was a critically low 97 mEq/L.1 Intravenous fluids were

administered to correct her sodium levels, and she was admitted to the intensive care unit to

the service of Dr. Andrew Wartak. During her time in intensive care, Shirley continued to

receive IV fluids to normalize her blood sodium levels. According to the existing guidelines

at the time, blood sodium levels should not be increased by more than ten to twelve points

in the first twenty-four hours and eighteen points in the first forty-eight hours. Shirley’s

medical records show that her sodium levels were increased by nineteen points in the first

fifteen hours and twenty-one points in approximately thirty-one hours.

¶3. On October 11, 2008, at Pollan’s request, Shirley was transferred to NMMC-Tupelo,

where she remained until October 14, 2008. Her diagnosis upon discharge was “severe

1
A normal blood sodium level is between 136 and 145 mEq/L.

2
hyponatremia secondary to syndrome of inappropriate antidiuretic hormone with mental

status changes.”2 It was noted in her discharge record that “she might be suffering from

central pontine myelinolysis,” or CPM, a brain cell dysfunction caused by the destruction of

the myelin sheath covering the nerve cells in the pons, in the middle of the brain. CPM can

be caused by a rapid rise in the body’s sodium levels.

¶4. Shirley was incapable of returning to work after her discharge from NMMC-Tupelo,

and over the next two years she was treated for numerous behavioral and neurological issues.

On August 9, 2010, Shirley visited her primary care physician, Dr. Clifton Story, at the

Longest Student Healthcare Center in Starkville. Dr. Story’s record of this visit provides,

in pertinent part:

To summarize, she had been well prior to October 2008, working as a
teller at the bank where she worked many years. She had gotten acutely ill,
went to the ER and was found to be hyponatremic. During the hospitalization
her sodium was corrected quickly. She deteriorated in the hospital, apparently
becoming nearly comatose and was transferred to Tupelo at the insistence of
her son.

She did improve subsequently but has never returned to her normal state
of being and is now disabled due to the mental deficits and inability to perform
the task required of her to work at the bank. Her only medical diagnosis really
has been SIADH and polydipsia and some psychosis initially following the
hospitalization. I think it is reasonable to get a second opinion as to SIADH
may have been the initial cause of the hyponatremia. However, I think the
sodium was corrected quickly and she may have developed [CPM] which may
have led to her chronic disability that she is now managing.

2
Hyponatremia is defined as low sodium concentration in the blood. It can be caused
by Syndrome of Inappropriate Diuretic Hormone Secretion (SAIDH), which occurs when
the pituitary gland releases excessive antidiuretic hormone. SAIDH increases the amount of
water in a person’s blood while decreasing plasma sodium levels.

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Dr. Story’s records also indicate that Shirley was “able to articulate well with normal/speech

language” during the visit and “[had] appropriate memory for current and past events.” Dr.

Story referred Shirley to Feiyu Chen, M.D., a neurologist at the Semmes Murphey Clinic in

Memphis.

¶5. On August 24, 2010, prior to Shirley’s visit at the Semmes Murphey Clinic, a patient

profile was filled out either by Shirley or someone on her behalf. The patient profile

describes Shirley’s “chief complaint” as follows:

Fatigue and delirium initially 10/08/08 and discovered had suffered from a
critical sodium and potassium drop that led to a coma at the North MS Health
(Clay County Medical Center), West Point, MS 10/08/08. Transferred to
critical care unit North MS Health Tupelo, MS. Family told best case scenario
she was not expected to leave the hospital because of in such severe condition
upon arrival from the West Point hospital and that the best case scenario would
probably be a vegetative state the rest of her life if she were to be able to leave
the hospital. Indicated that they appeared misdiagnosed, brain flooded with IV
(liquids) too quickly and then removed too quickly based on the safe levels, it
was too rapid of administration trying to increase the levels. Behavioral issues
resulted and she was nowhere close to performing a normal life compared to
time prior to this disabling condition.

Shirley was seen by Dr. Chen on the following day. Dr. Chen’s report from this visit

indicates that he initially was suspicious of CPM, but Shirley was “doing fine right now from

a neurological standpoint.” Dr. Chen ultimately did not think that Shirley had CPM.

¶6. Shirley’s health continued to decline until she ultimately passed away on January 18,

2011. An autopsy was performed on January 24, 2011, but the autopsy report was not issued

until July 11, 2011. The report lists Shirley”s cause of death as “[CPM] following rapid

sodium correction.”

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¶7. Pollan filed a wrongful death suit against the defendants on January 10, 2013, in the

Clay County Circuit Court. The complaint alleged that the defendants negligently failed to

render proper medical treatment to Shirley specifically concerning her blood sodium levels,

which caused her to develop CPM. Pollan’s claims for damages were separated into

wrongful death claims, survival claims, and estate claims. Each of the defendants filed an

answer to the complaint in March 2013, and each defendant raised the statute of limitations

as a defense.

¶8. On March 6, 2015, after discovery had concluded, Dr. Wartak filed a Motion for

Partial Summary Judgment, which the other defendants joined. The defendants argued that

the statute of limitations for Pollan’s survival claims began to run, at the earliest on October

14, 2008, when Shirley was discharged from NMM-Tupelo. Alternatively, the defendants

alleged that, at the latest, the statute of limitations began to run on November 17, 2008, when

Shirley visited her primary physician and attributed her neurological problems to her

admission to NMMC-West Point. Because Pollan’s complaint was filed more than two years

after either of those dates, the defendants claimed that Pollan’s survival claims were time-

barred. In response, Pollan asserted that the statute of limitations began to run no earlier than

July 11, 2011, when Shirley’s autopsy report confirmed that her cause of death was CPM.

¶9. On November 3, 2015, the trial court issued an order granting the defendants’ motion

for partial summary judgment. The trial court determined that the statute of limitations for

Pollan’s survival claims had begun to run on August 24, 2010, when Shirley’s patient profile

5
at the Semmes Murphey Clinic identified her treatment at NMMC-West Point as the cause

of her neurological deficiencies:

While it appears that Ms. Pollan did not know that she suffered specifically
from[CPM], this patient profile clearly shows that on August 24, 2010 she (1)
knew that she was suffering from a neurological deficiency; and (2) she at
least suspected that this deficiency was the result of the procedure performed
at North Mississippi Medical Center – West Point.

Because Pollan’s complaint was not filed within two years of that date, the trial court held

that Pollan’s survival claims were time-barred.

¶10. This Court granted Pollan’s petition for interlocutory appeal on May 11, 2016. On

appeal, Pollan raises three issues. First, he claims that the trial court erred in failing to

consider his argument that the defendants waived their statute-of-limitations defense.

Second, he contends that the trial court misapplied the discovery rule by finding that the

statute of limitations began to run when Shirley suspected that her neurological deficiencies

were the result of her treatment at NMMC-West Point. And finally, he argues that the date

on which Shirley discovered her injury is a genuine issue of material fact that precludes

summary judgment. Because the second and third issues are so closely related, we have

combined them in our discussion below.

STANDARD OF REVIEW

¶11. The standard of review for the waiver of an affirmative defense is abuse of discretion.

Kinsey v. Pangborn Corp., 78 So. 3d 301, 306 (Miss. 2011). Under this deferential standard,

we must affirm the trial court’s ruling unless there is a firm and definite conviction that the

6
trial court committed clear error. Ashmore v. Mississippi Auth. on Educ. Television, 148 So.

3d 977, 982 (Miss. 2014).

¶12. The standard of review for a trial court’s grant of summary judgment is de novo.

Webb v. Braswell, 930 So. 2d 387, 395 (Miss. 2006). Summary judgment is proper “if the

pleadings, depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material fact and that the moving

party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). The reviewing

court must view the evidence in the light most favorable to the nonmovant, and the moving

party bears the burden of showing the absence of a genuine issue of material fact. Duckworth

v. Warren, 10 So. 3d 433, 436 (Miss. 2009). The running of the statute of limitations is an

issue appropriate for resolution via summary judgment if there exists no genuine issue of

material fact concerning whether the statute has run. MS Comp Choice, SIF v. Clark, Scott

& Streetman, 981 So. 2d 955, 962 (Miss. 2008).

DISCUSSION

I. Whether the trial court erred in ruling that the defendants had not
waived the statute-of-limitations defense.

¶13. On appeal, Pollan appears to present two different arguments concerning the

defendants’ alleged waiver of their statute-of-limitations defense. First, from a procedural

standpoint, Pollan alleges that the trial court erred in failing to consider his waiver argument.

Next, turning to the merits of the issue, Pollan argues that the defendants’ unjustified delay

in pursuing their statute-of-limitations defense, coupled with their active participation in the

litigation process, served as a waiver of that defense.

7
¶14. We find both arguments to be without merit. While we cannot say that its analysis

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

summary-judgment hearing reflects that the trial court considered and rejected the argument,

finding that it was in the parties’ interest to engage in discovery in order to develop the issue.

We do not find that the trial court abused its discretion by failing to specifically mention

Pollan’s waiver argument in its order granting partial summary judgment to the defendants.

In response to the defendants’ motion for partial summary judgment, Pollan claimed that the

defendants had unreasonably delayed their pursuit of the statute-of-limitations defense by

actively participating in the litigation for more than two years after filing their answers to the

complaint. During that time, Pollan alleged that the defendants engaged in extensive

discovery unrelated to the statute-of-limitations issue. Accordingly, Pollan argued that the

defendants had waived their statute-of-limitations defense. At the hearing on the defendants’

motion for partial summary judgment, Pollan attempted to argue the issue of waiver, but the

trial court rejected his argument, reasoning:

I’ve been on the bench 13 years now going on. I don’t think I’ve routinely
dismissed things upon the filing of a lawsuit. I think my history has been to let
things develop and then -- you know, out of fairness to both sides.

So I will tell you off the bat, I’m not inclined to say that I’m not going to let
somebody claim the statute of limitations when I think it’s to everybody’s
benefit to be able to engage in some discovery and try to figure out what really
happened.

So, I’m not inclined to do that. Because then if I send that message then, every
time ya’ll file a lawsuit, they’re going to rush right in and say, Judge, statute
of limitations, let’s dismiss this thing. Then I’m having to try and guess totally
blind.

8
 And I don’t think that that’s a good thing. So, I would move along from that
argument. Because that one is not going to carry the day with me. Maybe with
the Supreme Court, but we (sic) me, not so much.”

Pollan responded, “Your honor, it’s totally in the Court’s discretion of that . . . . And the

Supreme Court is not going to overrule that decision. I feel very confident about that.”

¶15. As for the substance of Pollan’s claim, the instant case is a factually complex medical

malpractice action involving multiple defendants and raising several categories of claims,

which required factual development beyond the initial pleadings. This Court previously has

found that a defendant did not waive its statute-of-limitations defense by engaging in

discovery to develop that defense. See Empire Abrasive Equip. Corp. v. Morgan, 87 So. 3d

455, 461 (Miss. 2012) (while defendants participated in litigation for more than two years

before moving for summary judgment on statute-of-limitations grounds, this Court held that

“discovery [was] necessary for the defendants to determine the nature of their defense.”).

Here, the defendants bore the burden of proving that the statute of limitations for Pollan’s

survival claims had expired, and they relied directly on evidence obtained in discovery to

support their argument. In addition, Pollan has failed to show how he was prejudiced by the

defendants’ delay in pursuing their statute-of-limitations defense. See MS Credit Ctr., Inc.

v. Horton, 926 So. 2d 167, 180 n.7 (Miss. 2006) (noting that prejudice to the nonmoving

party is a factor to be considered in addressing waiver). Accordingly, we hold that the trial

court did not abuse its discretion in failing to find that the defendants had waived their

statute-of-limitations defense.

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 II. Whether the trial court erred in finding that the statute of
limitations for Pollan’s survival claims began to run on August 24,
2010.

¶16. The application of the statute of limitations is a question of law. Stringer v. Trapp,

30 So. 3d 339, 341 (Miss. 2010). “Occasionally the question of whether the suit is barred by

the statute of limitations is a question of fact for the jury; however, as with other putative fact

questions, the question may be taken away from the jury if reasonable minds could not differ

as to the conclusion.” Smith v. Sanders, 485 So. 2d 1051, 1053 (Miss. 1983). The party

asserting a statute-of-limitations has the burden of proving it. Id.

¶17. Mississippi law imposes a two-year limitations period on claims for injuries or death

caused by medical negligence:

[N]o claim in tort may be brought against a licensed physician, osteopath,
dentist, hospital, institution for the aged or infirm, nurse, pharmacist,
podiatrist, optometrist or chiropractor for injuries or wrongful death arising out
of the course of medical, surgical or other professional services unless it is
filed within two (2) years from the date the alleged act, omission or neglect
shall or with reasonable diligence might have been first known or discovered.

Miss. Code Ann. § 15-1-36(2) (Rev. 2012). The focus of Section 15-1-36(2) “is upon the

time that the patient discovers, or should have discovered by the exercise of reasonable

diligence, that he probably has an actionable injury.” Smith v. Sanders, 485 So. 2d 1051,

1052 (Miss. 1986). Thus, the statute of limitations does not begin to run until the plaintiff

“(1) has knowledge of the injury, (2) has knowledge of 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 at 1053). Applying this standard, this Court

has focused on “when a plaintiff, exercising reasonable diligence, should have first

10
discovered the negligence, rather than the injury.” Sutherland v. Estate of Ritter, 959 So. 2d

1004, 1008 (Miss. 2007).

¶18. In its order granting the defendants’ motion for partial summary judgment, the trial

court found that the statute of limitations began to run on August 24, 2010, when Shirley’s

patient profile at the Semmes Murphy Clinic stated that her brain was flooded with IV fluids

during her admission at NMMC-West Point and identified numerous behavioral issues that

had resulted from that treatment. While noting that Shirley apparently did not know that she

suffered specifically from CPM, the trial court concluded that “on August 24, 2010, she (1)

know she was suffering from a neurological deficiency; and (2) she at least suspected that

this deficiency was the result of the procedure performed at [NMMC-West Point].” On

appeal, Pollan argues that the trial court misapplied the discovery rule in Section 15-1-36

because discovery of Shirley’s injury required a medical diagnosis of CPM, “not merely a

suspicion as to the condition or its causation.” Because Shirley was not diagnosed with CPM

until after her death, Pollan argues that the trial court erred in concluding that the statute of

limitations began to run prior to her death.

¶19. Pollan’s contention that a specific medical diagnosis is required for the statute of

limitations to commence in a medical negligence case is not supported by this Court’s

precedent. “[A]lthough a hidden or unseen injury might very well serve to trigger the

discovery rule and toll the statute of limitations, it is not because the injury itself is hidden

or unknown, but rather because the negligence which caused the injury is unknown.”

Sutherland, 959 So. 2d at 1008. In Sutherland, the plaintiff brought suit against the

11
defendant for negligently prescribing the drug Zyprexa, which caused the plaintiff to suffer

from tardive dyskinesia (“TDS”). Id. at 1006. The trial court granted the defendant’s motion

for summary judgment, finding that the plaintiff had stopped taking Zyprexa almost three

years before filing his complaint. Id. On appeal, the plaintiff argued that the discovery rule

contained in Section 15-1-36 tolled the statute of limitations until he was diagnosed with

TDS. Id. at 1008. This Court rejected the plaintiff’s argument, finding that the plaintiff’s

“own suspicions and actions thereon” were sufficient to show that he had knowledge of the

defendant’s alleged negligence prior to being diagnosed with TDS. Id. at 1009. The record

indicated that the plaintiff knew shortly after his treatment by the defendant that Zyprexa was

causing undesired side-effects, and he even checked himself in to the hospital because, by

his own admission, “[t]he Zyprexa was destroying my life[.]” Id. Accordingly, this Court

found that the plaintiff “knew who, when, how, and by what he had been injured soon after

receiving treatment and the Zyprexa prescription from [the defendant] and certainly no later

than the date of his discharge from St. Dominic.” Id.

¶20. This Court’s holding in Sutherland makes clear that the discovery rule in Section 15-

1-36(2) focuses not on the date of a specific diagnosis, but rather the date on which the

plaintiff knew or should have known she was injured and that defendant’s negligent conduct

caused the injury. See also Jackson Clinic for Women, P.A. v. Henley, 965 So. 2d 643, 650

(Miss. 2007) (“[T]he plaintiff’s own suspicions regarding possible negligent conduct starts

the clock running.”). In a similar context, this Court has rejected a rule that would toll the

statute of limitations in medical negligence cases pending the plaintiff’s review of medical

12
records. Sarris v. Smith, 782 So. 2d 721, 725 (Miss. 2001). “[A plaintiff] might gain actual

knowledge of negligent conduct through personal observation or other means; such plaintiffs

are not entitled to wait until they have medical records before the statute begins to run.” Id.

Accordingly, “the statute [of limitations] should begin to run when the plaintiff should have

reasonably known of some negligent conduct, even if the plaintiff does not know with

absolute certainty that the conduct was legally negligent.” Id. (emphasis added). Here, the

date of Shirley’s diagnosis of CPM is not relevant to the running of the statute of limitations

if she previously knew or should have known that the defendants’ negligent conduct caused

her injury. Accordingly, we find that the trial court did not misapply Section 15-1-36(2).

¶21. Pollan cites Schiro v. American Tobacco Co., 611 So. 2d 962 (Miss. 1992), to support

the proposition that a diagnosis is necessary for a plaintiff to have sufficient knowledge of

his or her injury to bring suit. But Schiro is legally distinguishable from the instant case. In

Schiro, the plaintiff sued the defendant tobacco company for negligence to recover for

injuries she sustained as a result of cigarette smoking. Id. at 962. The sole issue in Schiro

was whether the statute of limitations began to run when the plaintiff was diagnosed with

cancer, or several years earlier, when the plaintiff began experiencing health problems that

she believed were attributed to smoking. Id. at 963. But unlike the instant case, the

applicable statute of limitations in Schiro was Section 15-1-49, which focuses solely on

discovery of the injury. Id. at 965 (quoting Miss. Code Ann. § 15-1-49). “[C]omparing the

discovery rules in the medical-malpractice statute and the ‘catch-all’ statute, we have one

which focuses on discovery of the date of the wrongful conduct, and another which focuses

13
on the date of discovery of the injury or disease.” Caves v. Yarbrough, 991 So. 2d 142, 155

(Miss. 2008). Accordingly, this Court in Schiro correctly focused on the date on which the

plaintiff knew of her injury. But here, the focus is on when Shirley knew of the defendants’

negligent act or omission that caused her injury.

¶22. Pollan also contends that the statute of limitations could not have begun to run during

Shirley’s lifetime because several physicians told Shirley that she did not have CPM.

Specifically, Pollan relies on Shirley’s chart from the Semmes Murphey Clinic, which

indicates that Dr. Chen did not believe that Shirley had CPM. Pollan cites several cases in

which this Court has found that a physician’s advice to the plaintiff served to toll the statute

of limitations. See Neglen v. Breazeale, 945 So. 2d 988, 990 (Miss. 2006); Parham v.

Moore, 552 So. 2d 121, 122 (Miss. 1989); Pittman v. Hodges, 462 So. 2d 330, 332 (Miss.

1984). But in those cases, the defendants’ own assurances to the plaintiffs had caused the

plaintiffs to delay the investigation of their claims. See, e.g., Pittman, 462 So. 2d at 333

(“Hodges was entitled to rely upon Dr. Pittman’s statements that the numbness would

temporarily last from two to six weeks or even longer, and only thereafter could Hodges then

by the exercise of reasonable diligence have known or discovered that his numbness was

permanent . . . .”). Pollan does not allege that any of the defendants in this case provided

Shirley with any information that would have caused her to delay the investigation of her

claim.

¶23. In addition, while Dr. Chen expressed his belief that Shirley did not suffer specifically

from CPM, the record reflects that Shirley did not simply rest in reliance on that opinion.

14
Shirley’s patient chart from an October 19, 2010, visit to Baptist Memorial Hospital-Golden

Triangle provides, “The son reports to me that based on his research, the serum sodium was

corrected very rapidly resulting in what was ultimately diagnosed as [CPM] . . . . Her mental

status apparently never quite returned to baseline.” Similarly, Shirley’s record from a visit

with Gentiva Home Health on October 22, 2010, states, “the [patient] reports [history] of

severe sodium depletion in 2008 that was possibly misdiagnosed [and treatment] that caused

deep brain damage based upon report from family members . . . .” Each of these records

illustrates Shirley’s belief that her neurological deficiencies were caused by the defendants’

negligent medical treatment at NMMC-West Point. And even if we found that the statute of

limitations began to run on October 22, 2010, rather than August 24, 2010, Pollan’s survival

claims still would be time-barred.

¶24. Finally, Pollan argues that summary judgment was improper in this case because a

genuine issue of material fact exists concerning the date on which the statute of limitations

began to run. In support of this argument, Pollan points to the fact that he and the defendants

identified two different dates on which the statute of limitations could have commenced, and

the trial court selected a third date not argued by either of the parties. Based on this

discrepancy, Pollan asserts that a factual dispute clearly exists and that his survival claims

should have been submitted to the jury.

¶25. We find that Pollan’s argument is without merit, as reasonable minds could not differ

as to when Shirley knew of her injury, the cause of the injury, and the relationship between

the defendants and the injury. See Sanders, 485 So. 2d at 1053. As previously discussed,

15
Shirley plainly was aware of her cognitive deficiences beginning as early as her discharge

from NMMC-Tupelo in October 2008. Thus, despite Pollan’s arguments regarding Shirley’s

diagnosis of CPM, it is indisputable that Shirley was aware of her injury by August 24, 2010,

the date selected by the trial date. We also agree with the trial court’s determination that, on

August 24, 2010 – the date on which Shirley’s patient profile at the Semmes Murphey Clinic

was completed – Shirley knew or at least suspected that her cognitive deficiencies were the

result of her blood sodium levels being corrected too quickly during her admission to

NMMC-West Point. Applying our holdings in Sutherland and Henley, these suspicions,

coupled with the numerous other references in Shirley’s medical records to rapid sodium

correction and CPM, were sufficient to commence the running of the statute of limitations

for Pollan’s survival claims. And because Pollan’s complaint was filed more than two years

after August 24, 2010, the trial court correctly concluded that Pollan’s survival claims were

time-barred. Accordingly, we hold that the trial court did not err in granting the defendant’s

motion for partial summary judgment as to Pollan’s survival claims.

CONCLUSION

¶26. For the foregoing reasons, we affirm the judgment of the Clay County Circuit Court.

¶27. AFFIRMED.

RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ.,
CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY KITCHENS, P.J., AND ISHEE, J.

KING, JUSTICE, DISSENTING:

16
¶28. In wrongful-death actions sounding in medical negligence, the statute of limitations

for survival claims does not begin to run until the patient reasonably can be held to have

known of the causative relationship between her injury and the conduct of the medical

practitioner. Neglen v. Breazeale, 945 So. 2d 988, 990 (Miss. 2006) (citations omitted). The

autopsy report in this case definitively revealed for the first time that the patient’s

neurological injury had resulted from the rapid correction of her sodium levels after a period

of severe hyponatremia. No doctor accurately had diagnosed the cause of the patient’s injury

during her lifetime. In fact, two medical specialists stated that her injuries had not resulted

from the treatment of her hyponatremia. Because no doctor accurately had diagnosed the

cause of Shirley Pollan’s (Shirley) neurological deficits and because specialists in the field

explicitly had denied a causative relationship between her medical treatment and injuries, I

dissent from the majority’s finding that Pollan’s survival claims were barred by the statute

of limitations.

¶29. Pursuant to Mississippi Code Section 15-1-36(2), claims for survival are barred unless

brought within two years from the date the alleged act was or with reasonable diligence

should have been first discovered. Miss. Code Ann. § 15-1-36(2) (Rev. 2012). The “statute

of limitations begins to run when the patient can reasonably be held to have knowledge of

the injury itself, the cause of the injury, and the causative relationship between the injury and

the conduct of the medical practitioner.” Neglen v. Breazeale, 945 So. 2d 988, 990 (Miss.

2006) (citations omitted). So, until the plaintiff “(1) has knowledge of the injury, (2) has

knowledge of the cause of the injury, and (3) knows the relationship between the practitioner

17
and the injury,” the discovery rule is tolled. Stringer v. Trapp, 30 So. 3d 339, 342 (Miss.

2010) (citation omitted).

¶30. Here, Shirley’s family diligently attempted to determine the cause of Shirley’s

condition after her bout with severe hyponatremia. Shirley’s family transferred her from

NMMC-West Point to NMMC-Tupelo, where her treating physicians at NMMC-Tupelo were

perplexed as to Shirley’s mental status changes. Shirley’s chart stated:

IMPRESSION: Mental status changes/neurologic changes. Worried about the
possibility of fluid shifts within the brain with these low sodiums versus a
cerebrovascular accident.

Thus, the doctors were concerned that Shirley’s neurologic changes might have resulted from

a cerebrovascular accident – a stroke. One of Shirley’s physicians ordered an MRI scan to

see any evidence of central pontine myelinolysis (CPM) in Shirley’s brain stem. The MRI

revealed no demyelination in the brain stem. On October 12, 2008, Shirley’s chart stated that

CPM could have a delay in showing up on an MRI and stated that another MRI should be

taken in forty-eight hours to a week.

¶31. Shirley returned to NMMC-Tupelo on October 19 and was diagnosed with a behavior

disorder. On October 21, Dr. Loden stated that he was “very perplexed as to whether this is

organic from her recent sodium swings or whether it may be a new psych issue. She certainly

has some psychotic type features.” Shirley had a repeat MRI. The MRI again showed no sign

of CPM. Shirley’s following medical visits included diagnoses of delirium, anxiety, and

bipolar disorder. Thus, in her barrage of doctors’ visits following her episode of severe

18
hyponatremia, Shirley’s health-care providers treated her for bipolar disorder and anxiety,

not for CPM.

¶32. Moreover, two of Shirley’s treating physicians had ruled out CPM as a cause. Dr.

Feiyu Chen, a recommended physician specializing in the field of neurology, specifically

stated that he did not think Shirley had CPM. And Dr. John Brockington opined that, “[t]he

pons does not appear to be involved, but I do think that the patient’s cognitive impairment

is directly due to the effects of the hyponatremia . . . .” Dr. Brockington, another specialist

in the field, did not state that Shirley’s mental condition had been the result of the treatment

of her hyponatremia, but instead attributed her condition to the hyponatremia itself. Shirley

was admitted to Baptist shortly after her visit with Dr. Brockington. Her chart stated,

“[a]pparently multiple scans were done and were reviewed by neurology and felt as though

the patient had develop[ed] permanent cerebral damage possibly related to her severe

electrolyte abnormalities in October of 2008.” Again, her chart did not state that Shirley’s

neurological deficits had been caused by the treatment of her hyponatremia, but instead was

“related to her severe electrolyte abnormalities.” Accordingly, I believe that Shirley was

entitled to rely on her physicians’ opinions that she did not have CPM.

¶33. “[I]n Mississippi, when a valid factual dispute exists, the issue is settled by the finder

of fact, a jury. It is only when reasonable minds cannot differ that it becomes settled as a

matter 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 of fact to be decided by a jury when there

is a genuine dispute.””’). The statute of limitations has been tolled in cases in which a patient

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develops serious complications after a medical procedure but has no reason to know that the

doctor’s negligence in performing the procedure caused the complications. Huss v. Gayden,

991 So. 2d 162, 166 (Miss. 2008) (quoting Sutherland v. Estate of Ritter, 959 So. 2d 1004,

1008 (Miss. 2007)). There, this Court explained that a statute of limitations also may be

tolled upon reasonable reliance on a physician’s estimate and/or opinion as to recovery or

risk. Id. at 167. As this Court has held, “a layperson undergoing a surgical procedure trusts

in and relies on the instructions, professional expertise and guidance of his or her physician.”

Neglen, 945 So. 2d at 991 (“[W]e cannot conclude as a matter of law that Lillian did not act

diligently by trusting the doctors’ opinions and waiting over two years before requesting

James’[s] medical records.”).

¶34. If even medical doctors specializing in the particular field could not determine

whether Shirley’s neurological changes resulted from her severe hyponatremia or from the

results of her treatment of hyponatremia or from some other cause, a jury question exists as

to whether Shirley should have known of her neurological injuries and the correlation to the

treatment of her hyponatremia. Had Pollan filed a lawsuit before the autopsy report revealed

that Shirley’s cause of death was CPM, Shirley’s own physicians’ opinions would have been

that she did not have CPM. Based on the medical opinions that Shirley had been provided

at that point, a jury question would have existed as to whether Shirley had been injured from

her treatment at all, or if her neurological deficits had been the result of her sodium depletion

itself or from another unknown cause.

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¶35. Although the majority cites Sutherland, 959 So. 2d at 1004, this case clearly can be

distinguished. There, the plaintiff had experienced negative side effects after taking Zyprexa.

Id. at 1005. The plaintiff admittedly knew that his injuries directly resulted from taking

Zyprexa, but he did not know the specific medical terminology for his condition. Id. at 1007.

The facts showed that the plaintiff had known “who, when, how, and by what he had been

injured soon after receiving treatment. . . .” Id. However, this Court emphasized that:

[I]n medical negligence cases, we must focus our inquiry on when a plaintiff,
exercising reasonable diligence, should have first discovered the negligence,
rather than the injury. . . . For instance, a patient who undergoes a medical
procedure may develop serious complications which are clearly known.
However, if the patient has no reason to know that the doctor’s negligence in
performing the procedure caused the complications, the discovery rule will
apply, even though the injury itself is not latent at all.

Id. at 1008.

¶36. Pollan signed an affidavit stating that Shirley’s doctors never had advised Shirley that

her post-October 8, 2008, conditions were the result of her past medical treatment. Pollan

also swore that her doctors had not advised him that she had been suffering from CPM due

to rapid sodium correction. Pollan has shown a genuine issue of material fact as to when

Shirley or her family should have discovered “the injury itself, the cause of the injury, and

the causative relationship between the injury and the conduct of the medical practitioner.”

Neglen, 945 So. 2d at 990. After a myriad of physicians and appointments, no doctor

definitively stated that Shirley had developed CPM. Because I believe that genuine issues of

material fact remain on the question of whether Shirley should have known of the correlation

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between her treatment on October 8, 2008, and her resulting injury, I would reverse the

decision of the circuit court and remand for a trial on the merits. Therefore, I dissent.

KITCHENS, P.J., AND ISHEE J., JOIN THIS OPINION.

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