Tag Archives: mississippi

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In Mississippi, the statute of limitation deadline to sue an attorney for malpractice is three years.  Mississippi’s general three year statute of limitations deadline is applicable to legal malpractice cases. This imposes a three year deadline on suing the attorney from the date of the malpractice.  Mississippi courts recognize the discovery rule in malpractice cases.

In the case of Smith v. Sneed, the Mississippi Supreme Court held that “the statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer”. 638 So. 2d 1252 (Miss. 1994).

In the case of Channel v. Loyacono, the Mississippi Supreme Court held that “the discovery rule is to be applied when the ‘plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question’ or it may be applied ‘when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act” 954 So. 2d 415 (Miss. 2007).

In other words, a client who learns of the attorney’s malpractice should file suit within three yearsfrom the time of the discovery to preserve a claim.

 

 

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Miss Code Ann § 97-41-1 Provides:

Except as otherwise provided in Section 97-41-16 for a dog or cat, if any person shall intentionally or with criminal negligence override, overdrive, overload, torture, torment, unjustifiably injure, deprive of necessary sustenance, food, or drink; or cruelly beat or needlessly mutilate; or cause or procure to be overridden, overdriven, overloaded, tortured, unjustifiably injured, tormented, or deprived of necessary sustenance, food or drink; or to be cruelly beaten or needlessly mutilated or killed, any living creature, every such offender shall, for every offense, be guilty of a misdemeanor.

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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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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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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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 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) 

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§ 97-3-79. Robbery; use of deadly weapon

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.