Monthly Archives: November 2014

Governmental Immunity in Mississippi

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Any claim for damages for the acts or omissions of a governmental entity or its employees must be brought pursuant to the Mississippi Tort Claim Act (“MTCA”). Miss. Code Ann. § 11-46-7; City of Jackson v. Sutton, 797 So. 2d 977 (Miss. 2001). Governmental entities are the state and its political subdivisions, including counties and municipalities. The term “employees,” as used in the MTCA, includes physicians employed by the University of Mississippi Medical Center and certain physicians under contract to state health boards or local jails. Miss. Code Ann. § 11-46-1. Governmental entities are responsible for defending and indemnifying their employees against claims under the MTCA. § 11-46-7. Notice of claim must be given under the MTCA within one year after the date of the actionable conduct. Miss. Code Ann. § 11-46-11.

In the case of Barnes v. Singing River Hospital System, the Mississippi Supreme Court adopted a discovery rule for the accrual of a cause of action.  733 So. 2d 199 (Miss. 1999).  However, the Court requires that the claimant “exercise reasonable diligence” in order to take advantage of the rule. Blailock v. Hubbs, 919 So. 2d 126, 131 (Miss. 2005). Total damages for all claims arising out of one occurrence are capped under Miss. Code Ann. § 11-46-15. Limits are $50,000 for claims accruing between July 1, 1993, and July 1, 1997; $250,000 for claims accruing between July 1, 1997, and July 1, 2001; and $500,000 for claims accruing thereafter. There is no liability under the MTCA for punitive damages or attorneys’ fees. Id. Governmental entities may purchase excess liability insurance for amounts above these limits, thereby waiving immunity to the extent of such excess liability coverage. Miss. Code Ann. § 11-46-17(4).

Caps on Damages in Mississippi

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Damages in Mississippi have a cap of $500,000 on non-economic damages in medical malpractice cases. Miss. Code Ann. § 11-1-60. The Mississippi Supreme Court has yet to rule on the constitutionality of this statute. The effective date of the cap remains uncertain. Much of the 2002 tort reform act is applicable to actions filed on or after January 1, 2003, but the section establishing the cap indicates that it applies to actions filed on or after passage of the bill, which was approved October 8, 2002. Id. The limited authority available supports the earlier effective date. The cases of Buchanon v. Mariner Health Care Management Co., No. Civ.A. 303CV302WS, 2006 WL 1195579 (S.D. Miss. April 28, 2006); Bowen v. South Coast Family Physicians, PLLC, No. C102-00508(1), 2006 WL 2945591 (Miss. Cir. May 26, 2006) seem to support the proposition that actions filed on or before October 8, 2002 are applicable to caps.

Prior to the law change, the definition of non-economic damages excluded damages for “disfigurement,” but this exception was removed through an amendment applicable to actions filed on or after September 1, 2004. The amendment clarified that the cap applies to an entire claim, not separately for each defendant. § 11-1-60. Punitive damages are limited to two percent of net worth in cases filed on or after September 1, 2004, . (There is a schedule of lower limits for defendants worth more than $50 million.) Miss. Code Ann. § 11-1-65 

Contribution in Mississippi civil action

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 Before the elimination of joint and several liability, joint tortfeasors or wrongdoers were afforded a right of contribution, with the amount of each tortfeasor’s liability in contribution determined by the tortfeasors’ relative degrees of fault. A right of contribution still exists for those whose liability is joint and several because they took part in a common plan to commit a tortious act. Miss. Code Ann. § 85-5-7(4) 

Comparative Negligence in Mississippi

Joint and Several Liability in Mississippi

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In a joint and several liability Mississippi civil action action based on fault, including a medical malpractice action, each tortfeasor or wrongdoer is liable only for damages allocated to them in direct proportion to their percentage of fault. Miss. Code Ann. § 85-5-7 (Westlaw 2007). Fault must be assigned to absent tortfeasors who contributed to the injury (such as persons who have settled or were not sued) and those with immunity. Id.; Blailock v. Hubbs, 919 So. 2d 126 (Miss. 2005).  This rule does not apply to acts committed with specific wrongful intent or as part of a common plan to commit a tortious act. § 85-5-7(1) and (4).

Written Notice of Medical Malpractice Claim

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An action against a healthcare provider for professional negligence may not be instituted unless the plaintiff gives the defendant at least sixty (60) days written notice prior to filing suit. MISS. CODE ANN. § 15-1-36(15) (2012). The Mississippi Supreme Court requires strict compliance with this provision. Arceo v. Tolliver, 949 So. 2d 691, 695 (Miss. 2006). Dismissals for lack of notice are without prejudice. Williams v. Skelton, 6 So. 3d 428, 430 (Miss. 2009).

 

 

Vicarious Liability in Mississippi

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Hospitals are not typically liable for the negligent acts of independent contractor physicians in Mississippi. A hospital that holds itself out as providing a service, and where the patient engages the hospital’s service without regard to the physician’s identity, aligns the hospital for vicarious liability. A hospital held vicariously liable is entitled to indemnity from the negligent physician.