Author Archives: Bill Kellum

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§ 97-9-125. Tampering with physical evidence provides:

(1) A person commits the crime of tampering with physical evidence if, believing that an official proceeding is pending or may be instituted, and acting without legal right or authority, he:

(a) Intentionally destroys, mutilates, conceals, removes or alters physical evidence with intent to impair its use, verity or availability in the pending or prospective official proceeding;
(b) Knowingly makes, presents or offers any false physical evidence with intent that it be introduced in the pending or prospective official proceeding; or
(c) Intentionally prevents the production of physical evidence by an act of force, intimidation or deception against any person.
(2) Tampering with physical evidence is a Class 2 felony.

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Before initiating medical malpractice litigation, the attorney should give the treating physician’s insurance carrier an opportunity to settle.  The attorney will prepare what is commonly referred to as a demand package (also referred to as a settlement package, demand, or demand letter).

The demand package consists of a written brief that includes (i) a concise statement of when and how the malpractice occurred; (ii) a thorough explanation of the theory of how the other party was negligent (specifically addressing any weaknesses); and (iii) a summary of damages (e.g. related injuries, prior related medical bills associated with those injuries, pain and suffering, cost estimate of necessary and related future medical care); and (iv) the settlement amount demanded.

Attached to the demand packet, the following exhibits should be included:

(a) medical reports; (b)  photos of disfigurement; (c) photos of the client (before the injury, during treatment, and after treatment has completed); (d) medical records (including doctor’s notes and diagnostic imaging results); (e) witness statements; (f) pay stubs / income tax returns, if making a lost-wages claim; and (g) the appropriate jury instructions (that would apply if a lawsuit were to be filed).

A well prepared demand packet brief will also cite case law and their application to the facts

 

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In Mississippi, at any time after a judgment is entered, the person awarded a judgment (judgment creditor) is entitled to a court order requiring the debtor to appear and answer questions, under oath about matters that would help the judgment creditor to collect. These questions might relate to what type of property they own, where that property is located, whether or not the debtor has a job, etc.

Mississippi Code Annotated § 13-1-261, provides authority for such a procedure:

(1) To aid in the satisfaction of a judgment of more than One Hundred Dollars ($ 100.00), the judgment creditor may examine the judgment debtor, his books, papers or documents, upon any matter relating to his property as provided in Sections 13-1-261 through 13-1-271 ; except that no single judgment creditor may cause a judgment debtor to submit to examination under this section more than once in a period of six (6) months.

(2) In addition to the method of examination prescribed in subsection (1), the judgment creditor may, in the alternative, utilize the discovery procedures set forth in the Mississippi Rules of Civil Procedure for the purpose of examining the judgment debtor.

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Mississippi Code Ann 97-3-82

(1) For the purposes of this section the following words and phrases shall have the meanings ascribed herein, unless the context clearly indicates otherwise:

(a) “Obtain” means: (i) in relation to property, to bring about a transfer or purported transfer of a legal interest in, or physical possession of, the property, whether to the obtainer or another; or (ii) in relation to labor or service, or any reward, favor, or advantage of any kind, to secure performance thereof; or attempt to do (i) or (ii).
(b) “Property” means anything of value, including, but not limited to, real estate, tangible and intangible personal property, contract rights, choses-in-action, reputation of a person and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power.
(c) “Property of another” includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.
(d) “Public official” means any person elected or appointed to any office, position or employment whereby the person is paid a fee or salary by the State of Mississippi or any political subdivision thereof or any agency or subdivision of the government of the United States, regardless of the source or sources of the funds for the payment.
(2) A person is guilty of extortion if he purposely obtains or attempts to obtain property of another or any reward, favor, or advantage of any kind by threatening to inflict bodily injury on any person or by committing or threatening to commit any other criminal offense, violation of civil statute, or the public or private revelation of information not previously in the public domain for the purpose of humiliating or embarrassing the other person, without regard to whether the revelation otherwise constitutes a violation of a specific statute.
(3)
(a) Except as provided in paragraph (d) of this subsection, any person, whether a public official or not, who commits the offense of extortion of property or things of value of another under the value of Five Hundred Dollars ($ 500.00) shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail not to exceed six (6) months.
(b) Except as provided in paragraph (d) of this subsection, any person, whether a public official or not, who commits the offense of extortion of property or things of value of another of the value of Five Hundred Dollars ($ 500.00) or more shall be guilty of a felony and, upon conviction thereof, shall be punished by commitment to the custody of the Department of Corrections for a term not to exceed fifteen (15) years.
(c) Except as provided in paragraph (d) of this subsection, any person, whether a public official or not, who commits the offense of extortion in order to obtain any intangible reward, favor or advantage to which no monetary value is normally given shall be guilty of a felony and, upon conviction thereof, shall be punished by commitment to the custody of the Department of Corrections for a term not to exceed fifteen (15) years.
(d) Any public official acting in his official capacity or under color of his office who commits the offense of extortion in order to obtain any intangible reward, favor or advantage to which no monetary value is normally given, or who commits the offense of extortion of tangible property, regardless of the value of the property, shall be guilty of a felony and, upon conviction thereof, shall be punished by commitment to the custody of the Department of Corrections for a term not less than two (2) nor more than twenty (20) years.years.  

 

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 The use of expert medical testimony is necessary to prove medical negligence.  However some case law stands for the proposition that expert testimony is necessary unless “a layman can observe and understand the negligence as a matter of common sense and practical experience.” Gatlin v. Methodist Medical Center, 772 So. 2d 1023, 1026 (Miss. 2000); Coleman v. Rice, 706 So. 2d 696, 698 (Miss. 1997). The Mississippi Supreme Court held in 2005 that expert testimony is necessary to prove lack of informed consent, in order to establish the material risks and available alternatives that should have been disclosed. Whittington v. Mason, 905 So. 2d 1261 (Miss. 2005). To qualify as an expert witness, a physician must be licensed in Mississippi or some other state. Miss. Code Ann. § 11-1-61.

A plaintiff in a medical malpractice action must file with the complaint a certificate executed by his attorney declaring that the attorney has consulted with at least one qualified and knowledgeable expert and concluded that there is a reasonable basis for the action or that three good-faith attempts were made to contact an experts and none would agree to a consultation. 

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§ 97-3-7. Simple assault; aggravated assault; simple domestic violence; aggravated domestic violence

 (4) A person is guilty of aggravated domestic violence who commits aggravated assault as described in subsection (2) of this section against a current or former spouse or a child of that person, a person living as a spouse or who formerly lived as a spouse with the defendant, other persons related by consanguinity or affinity who reside with or formerly resided with the defendant or a child of that person, a person who has a current or former dating relationship with the defendant, or a person with whom the defendant has had a biological or legally adopted child and, upon conviction, the defendant shall be punished as provided under subsection (2) of this section; however, upon a third or subsequent offense of aggravateddomestic violence, whether against the same or another victim and within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment of not less than five (5) nor more than twenty (20) years. In sentencing, the court shall consider as an aggravating factor whether the crime was committed in the physical presence or hearing of a child under sixteen (16) years of age who was, at the time of the offense, living within either the residence of the victim, the residence of the perpetrator, or the residence where the offense occurred. Reasonable discipline of a child, such as spanking, is not an offense under this subsection (4).

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The Mississippi Code provides for the non-adjudication of first offense DUI as follows:

(c) Nonadjudication may be initiated upon the filing of a petition for nonadjudication or at any stage of the proceedings before conviction in the discretion of the court; the court may withhold adjudication of guilt, defer sentencing, and enter an order imposing requirements on the offender.
(i) The court shall order the person to:
1. Pay the nonadjudication fee imposed under Section 63-11-31;
2. Pay all fines, penalties and assessments that would have been imposed for conviction;
3. Attend and complete an alcohol safety education program as provided in Section 63-11-32;
4. Install an ignition interlock device on every motor vehicle driven by the person, obtain an interlock restricted license, and maintain that license for one hundred twenty (120) days; failure to obtain an interlock restricted license will result in a ninety-day driver’s license suspension pursuant to Section 63-11-31; and
5. Obtain from the interlock vendor proof that the person has not had violations of an ignition interlock device.
(ii) Other conditions to be imposed by the court may include, but are not limited to, alcohol or drug screening, or both, proof that the person has not committed any other traffic violations while under court supervision, proof of immobilization or impoundment of vehicles owned by the offender if required, and attendance at a victim-impact panel.
(d) The court may enter an order of nonadjudication only if the court finds, after a hearing, that the offender has successfully completed all conditions imposed by law and the court.
(e) The clerk shall forward a record of every nonadjudicated case to the Department of Public Safety which shall maintain a confidential registry of all cases that are nonadjudicated as provided in this subsection (14). Judges and prosecutors involved in the trial of implied consent violations shall have access to the confidential registry for the purpose of determining whether a person has previously been the subject of a nonadjudicated case and is therefore ineligible for another nonadjudication. The Driver Services Bureau of the department shall have access to the confidential registry for the purpose of determining whether a person is eligible for a form of license not restricted to operating a vehicle equipped with an ignition interlock device.

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Capital murder is defined in Mississippi Code Ann 97-3-19  is defined as the killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

(a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman. For purposes of this paragraph, the term “peace officer” means any state or federal law enforcement officer, including, but not limited to, a federal park ranger, the sheriff of or police officer of a city or town, a conservation officer, a parole officer, a judge, senior status judge, special judge, district attorney, legal assistant to a district attorney, county prosecuting attorney or any other court official, an agent of the Alcoholic Beverage Control Division of the Department of Revenue, an agent of the Bureau of Narcotics, personnel of the Mississippi Highway Patrol, and the employees of the Department of Corrections who are designated as peace officers by the Commissioner of Corrections pursuant to Section 47-5-54 , and the superintendent and his deputies, guards, officers and other employees of the Mississippi State Penitentiary;
(b) Murder which is perpetrated by a person who is under sentence of life imprisonment;
(c) Murder which is perpetrated by use or detonation of a bomb or explosive device;
(d) Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals;
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies;
(f) When done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39 , or in any attempt to commit such felony;
(g) Murder which is perpetrated on educational property as defined in Section 97-37-17 ;
(h) Murder which is perpetrated by the killing of any elected official of a county, municipal, state or federal government with knowledge that the victim was such public official.

Many capital murder cases involve the crimes noted in paragraph (e) above.  If you committed murder during the course of any of those crimes, you may be charged with capital murder.  In other words, if a person kills another during the course of a house burglary, (even without the intent to kill), capital murder charges will be filed.  In Mississippi courts, those found guilty of capital murder may be sentenced to the death penalty, life imprisonment without parole, or to life imprisonment with the opportunity for parole. 

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The minimum capital/surplus requirements for a surety company can be found in Miss. Code Ann. 83-19-31.  The company must maintain the minimum at all times in order to continue to be licensed:

Single Line – Capital $400K; Surplus $600K

Multi Line –  Capital $600K; Surplus $900K

The entire statute reads as follows:

Miss. Code Ann. 83-19-31

(1) No corporation so formed shall transact any other business than that specified in its charter and articles of association. Companies so formed must meet the following capital and surplus requirements:

(a) Single-line companies so formed to write a classification listed in paragraphs (a) through (n) in Section 27-15-83, the minimum capital requirement shall be Four Hundred Thousand Dollars ($ 400,000.00) and the surplus shall be a minimum of Six Hundred Thousand Dollars ($ 600,000.00).

(b) Multi-line companies so formed to write a combination of the classifications listed in paragraphs (a) through (n) in Section 27-15-83, the minimum capital requirement shall be Six Hundred Thousand Dollars ($ 600,000.00) and the surplus shall be a minimum of Nine Hundred Thousand Dollars ($ 900,000.00).

(c) Companies so formed for the purpose of transacting the business of life insurance on the industrial plan may organize with a minimum capital of One Hundred Thousand Dollars ($ 100,000.00) and a minimum surplus of Fifty Thousand Dollars ($ 50,000.00).

An industrial life insurer shall be limited to the following:

1. A life insurance policy, in the aggregate value of Five Thousand Dollars ($ 5,000.00) in death benefits, exclusive of multiple indemnity benefits.

2. A disability policy in the aggregate benefits of Sixty Dollars ($ 60.00) per week.

3. A policy providing benefits for dismembered and broken limbs and/or loss of eyesight in the aggregate of Five Thousand Dollars ($ 5,000.00) per policy year.

4. A policy which provides benefits for the payment for or furnishing of hospitalization, drugs, attending physicians and surgical costs in the aggregate of Three Thousand Five Hundred Dollars ($ 3,500.00) per policy year.

(d) All mutual and reciprocal companies shall possess at the time of initial license and maintain thereafter a surplus, after deductions for services, in an amount equal to the capital and surplus requirements of a stock company writing similar lines of insurance.

(e) If at any time the surplus of such domestic company or association shall be less than the minimum surplus noted above, such company or association shall be considered impaired; and it shall be the duty of the officers of such company or association to report any such impairment of surplus to the State Commissioner of Insurance in writing within ten (10) days after such impairment occurs. When any such impairment is reported, or if the Commissioner of Insurance should determine that the company is operating in an impaired condition, the commissioner may suspend the certificate of authority and license of such domestic insurance company or association to do business in this state until such company shall raise or increase its surplus to the minimum amount required herein.

(2) Any domestic company qualifying under the foregoing sections shall deposit with the State Treasurer fifty percent (50%) of its capital stock, either in cash or in such bonds or securities in which such company is authorized by law to invest its funds. Upon such deposit and evidence, by affidavit or otherwise, satisfactory to the Insurance Commissioner that the capital and surplus is all paid in and that the company is the actual and unqualified owner of the securities representing the paid-up capital and surplus, he shall issue to such company his certificate authorizing it to transact business in this state.

The provisions of this section as to the minimum requirements as to paid-up capital stock and cash surplus shall not become effective until January 1, 1988, concerning any domestic company which was authorized to do business and was writing business in this state on July 1, 1985.

Notwithstanding any other provision of law, the securities qualified for deposit under this section may be deposited with a clearing corporation or held in the Federal Reserve book-entry system. Securities deposited with a clearing corporation or held in the Federal Reserve book-entry system and used to meet the deposit requirements set forth in this section shall be under the control of the Insurance Commissioner and shall not be withdrawn by the insurance company without the approval of the Insurance Commissioner. Any insurance company holding securities in such manner shall provide to the Insurance Commissioner evidence issued by its custodian or member bank through which such insurance company has deposited such securities in a clearing corporation or through which such securities are held in the Federal Reserve book-entry system, respectively, in order to establish that the securities are actually recorded in an account in the name of the custodian or other direct participant or member bank, and that the records of the custodian, other participant or member bank reflect that such securities are held subject to the order of the Insurance Commissioner.

(3) No insurance company, including any mutual insurance company, organized under the laws of this state and transacting business in this state shall expose itself to loss on any one (1) risk or hazard to an amount exceeding ten percent (10%) of its paid-up capital and surplus unless the excess is reinsured in some other company duly authorized to transact similar business in this state or as otherwise provided in the insurance code. For purposes of this subsection, the terms “risk” and “hazard” apply to the subject matter of any one (1) insurance policy and not to any one (1) peril.

(4) The Commissioner of Insurance may require additional capital and surplus based on the type, nature or volume of business transacted.

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 In Mississippi, a defendant tortfeasor (or wrongdoer) can not have damages reduced by reason of amounts that plaintiff receives from independent sources like insurance, workers’ compensation, or Medicaid. Walmart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002); Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611 (Miss. 2001) (a medical malpractice case).  This in known as the collateral source rule.  Both those decisions upheld verdicts in trials in which plaintiffs were allowed to prove medical damages by introducing the full face amount of the bills issued by health care providers, even though these exceeded the amounts Medicaid and Medicare actually paid, and plaintiffs were not responsible for the excess.