Category Archives: Medical Malpractice

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Personal injury cases can arise from a wide range of accidents and incidents in Jackson, Mississippi. Understanding the common types of personal injury cases is essential, as it helps individuals recognize when they may have a valid claim for compensation. In this article, we will explore some of the most prevalent types of personal injury cases in Jackson, MS.

1. Car Accidents: Car accidents are one of the most common causes of personal injury in Jackson. These accidents can result from various factors, including distracted driving, speeding, drunk driving, or reckless behavior. Victims of car accidents often pursue compensation for medical expenses, lost wages, property damage, and pain and suffering.

2. Slip and Fall Accidents: Slip and fall accidents can happen in public places, private residences, or commercial establishments due to hazardous conditions like wet floors, uneven surfaces, or inadequate lighting. Property owners or managers may be held responsible for injuries sustained on their premises.

3. Medical Malpractice: Medical malpractice occurs when a healthcare professional’s negligence leads to harm or injury to a patient. This can include misdiagnosis, surgical errors, medication mistakes, or inadequate care. Victims of medical malpractice may seek compensation for medical expenses, lost income, and pain and suffering.

4. Product Liability: Product liability cases involve injuries caused by defective or dangerous products. This can include faulty automobiles, defective pharmaceuticals, or poorly designed consumer goods. Manufacturers, distributors, and sellers may be held liable for injuries caused by their products.

5. Dog Bites: Dog bite incidents can result in severe injuries, both physical and emotional. Mississippi follows a strict liability rule, meaning that dog owners can be held responsible for injuries caused by their dogs, even if the dog had no prior history of aggression. Victims of dog bites can seek compensation for medical bills and pain and suffering.

6. Workplace Accidents: Workplace accidents can lead to injuries, illnesses, or even fatalities. Workers’ compensation laws in Mississippi provide benefits to employees injured on the job. In some cases, third-party liability claims may be pursued against parties other than the employer if their negligence contributed to the workplace injury.

7. Nursing Home Abuse: Cases of nursing home abuse and neglect can result in physical injuries, emotional trauma, or medical complications for elderly residents. Families of nursing home residents can file personal injury claims to seek justice and compensation for their loved ones.

8. Construction Accidents: Construction sites are inherently dangerous, and accidents can happen due to falls, equipment malfunctions, or unsafe conditions. Injured construction workers may be eligible for workers’ compensation benefits or pursue third-party liability claims.

Recognizing the common types of personal injury cases in Jackson, Mississippi, is vital for anyone who has suffered harm due to someone else’s negligence or wrongdoing. If you or a loved one has been injured in any of these situations, it’s essential to consult with an experienced personal injury attorney in Jackson, MS, who can assess your case and guide you through the legal process to seek the compensation you deserve.

Don’t hesitate to call us today at (601) 969-2709 to receive your free consultation. We will evaluate your case and determine the best course of action to help you recover from your injuries and get your life back on track. We understand how difficult it can be to deal with the aftermath of a personal injury in Mississippi, and we are here to help. Call us today to speak with Personal Injury Attorney Bill Kellum and take the first step towards justice.

Kellum Law Firm, P.C.
1438 North State St.
Jackson, MS 39202
(601) 969-2709
DIRECTIONS

Kellum Law Firm, P.C.
617 Market St.
Port Gibson, MS 39150
(601) 590-9000
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Mississippi’s statute of limitations for medical malpractice cases, codified in Mississippi Code section 15-1-36, specifies that the injured party must file their claim within two years of the date on which the health care provider committed the alleged malpractice, or on which with “reasonable diligence” the malpractice “might have been first known or discovered.”

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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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 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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 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. 

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Miss. Code Ann. § 75-17-7 gives judges in Mississippi discretion to assess pre-judgment interest. The judge has discretion to establish the rate and when the date interest begins to accrue.  However, the starting date cannot be earlier than the date of filing.  The Supreme Court has held that no award of pre-judgment interest is allowed if the amount owed is unliquidated prior to judgment, which should always be true in medical malpractice cases. Coho Resources, Inc. v. McCarthy, 829 So. 2d 1 (Miss. 2002) (a personal injury case); Warwick v. Matheney, 603 So. 2d 330 (Miss. 1992). 

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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).

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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 

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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)