McLeod v. Millette

301 So.3d 568

Lula MCLEOD and John Eric McLeod

v.Terrence J. MILLETTE, M.D. and Singing River Health System

NO. 2019-CA-01001-SCT

Supreme Court of Mississippi.

July 2, 2020

Rehearing Denied September 17, 2020

ATTORNEY FOR APPELLANTS: WALTER C. MORRISON, IV, Ridgeland

ATTORNEYS FOR APPELLEES: BRETT K. WILLIAMS, A. KELLY SESSOMS, III, Pascagoula, JAMES E. LAMBERT, III, JASON R. SCHEIDERER

BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.

GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Lula McLeod and her husband, John McLeod, appeal the circuit court's dismissal of their medical-negligence case. Because the record reflects that the case was timely filed within the applicable statute of limitations, the circuit court's judgment should be reversed and remanded.

FACTS AND PROCEDURAL HISTORY

¶2. In 2010, Lula was diagnosed with multiple sclerosis by Dr. Terrence J. Millette, a board-certified neurologist. In October 2011, Dr. Millette became an employee of Singing River Health System, a community hospital in Jackson County. Over the next several years, Lula was treated by Dr. Millette for multiple sclerosis.

¶3. In May 2016, three medical doctors expressed in writing to Singing River their "concern regarding a pattern of diagnosis and/or treatment that may be inappropriate." The doctors, who were employees of Singing River, acknowledged that "approaches to diagnoses and treatment may differ between individuals or practices" but stated that their "concern [went] beyond diagnostic error or uncertainty that [they] fe[lt] would be expected in the routine practice of medicine/neurology." The doctors included a sampling of patient medical records for Singing River to review. The doctors emphasized that they were not accusing any individual of wrongdoing and were not requesting that any action be taken in response to their communication.

¶4. In November 2016, Singing River sent a letter to all of Dr. Millette's patients and advised that Dr. Millette "would no longer base his practice at Singing River." The letter, dated November 15, 2016, read as follows:

As a valued patient of Singing River Health System, your health and well-being - and that of all our patients - are our highest priority. As such, we want to share with you that Dr. Terry Millette will no longer be practicing at the Neurology Associates Clinic at Singing River Medical Park effective immediately.

We apologize for any concern that this development may cause you. Our commitment to you as our patient remains steadfast, and your continued care is important to us. For this reason, we want to share with you the circumstances surrounding Dr. Millette's departure and our plan for moving forward with our patients.

Consistent with best medical practice, Singing River has internal processes to review the quality of care that our patients receive. Recently, some questions were raised about how Dr. Millette diagnoses and treats patients with multiple sclerosis. As a result, we immediately began a review of Dr. Millette's medical activity. During the course of this ongoing review, the decision was made that Dr. Millette would no longer base his practice at Singing River.

We recognize that competent medical professionals often have differing opinions, especially when it involves complex neurological conditions. Given the questions that have been raised about Dr. Millette's medical practices, we would like to work with you to obtain a re-evaluation of your diagnosis and treatment plan with another doctor.

As a next step, we ask you or your caregiver to call us at .... You will be able to reach a dedicated team of Singing River employees at that number seven a days a week from 6:00 AM to 10:00 PM.

We are working closely with regional and national experts in neurology to assist you in the best manner possible during this transition to a new doctor. We are here to help you during every step of this process and, when you call, we can discuss your options for a re-evaluation of your care as well [as] any questions you may have.

Singing River is committed to providing you the highest-quality, most compassionate, comprehensive care possible, and we apologize again for the concern this situation may cause you. We look forward to speaking with you soon.

Singing River also released a statement to the media that was similar to the letter.

¶5. Singing River prepared an internal memorandum regarding "Inbound Calls from MS Patients" in order to assist Singing River's "Patient Hotline Staff" in its response to patient phone calls. The memo explained that the patients "will have recently received a letter ... informing them that Dr. Millette is no longer practicing at [Singing River]" and "may be experiencing a variety of emotions and will undoubtedly have many questions both about what happened to Dr. Millette and what this means for their health and ongoing treatment." The memo provided "a list of potential questions [the] patients may ask, as well as answers for these questions ...." The potential questions and recommended answers included the following:

Q: Should I keep taking the medications prescribed by Dr. Millette?

A: That is a question for one of our doctors. I will have a member of our clinic staff contact you later today to discuss your prescription and the plan for your ongoing treatment.

Q: Does this mean that I don't have MS?

A: Only a physician can make a determination about your health. We have a number of options for a new doctor, either here at our clinic or with other providers in the region. (SCHEDULE APPOINTMENT)

Q: What are the potential impacts if I have been misdiagnosed or mistreated?

A: Only a physician can make a determination about your health. We will help you with all of the arrangements for this re-evaluation. We have a number of options for a new doctor, either here at our clinic or with other providers in the region. (SCHEDULE APPOINTMENT)

Q: Do I need an attorney?

A: I am not in a position to offer that kind of advice as our first priority is your health and well being. We have a number of options for a new doctor, either here at out clinic or with other providers in the region. (SCHEDULE APPOINTMENT)

¶6. After she received the letter, Lula worked with Singing River to obtain a reevaluation. Lula was initially referred to Dr. Chelsea Grow, a neurologist in Gulfport. Lula met with Dr. Grow on two occasions beginning in January 2017, but Dr. Grow was unable to provide definitive answers regarding Lula's condition. As a result, Lula was referred to Dr. Christopher Karcher, a neurologist at Singing River.¹ Lula first met with Dr. Karcher on January 30, 2017. According to Lula, Dr. Karcher instructed her to stop taking her multiple sclerosis medications, and he recommended that she undergo lumbar puncture. Lula underwent lumbar puncture on March 28, 2017. On June 7, 2017, Lula met with Dr. Karcher, who advised that she did not have multiple sclerosis.

¶7. On January 30, 2018, Lula and John sent Dr. Millette and Singing River a presuit notice of claim as required by Mississippi Code Section 11-46-11(1) (Rev. 2019).² Then, on May 29, 2018, Lula and John filed a complaint against Dr. Millette and Singing River alleging medical negligence. Specifically, Lula and John alleged that Dr. Millette was negligent and breached the applicable standard of care "by misdiagnosing Lula ... with multiple sclerosis and administering treatment to her for many years." Lula sought damages for medical expenses, physical pain and suffering, mental anguish, and loss of enjoyment of life. John sought damages for loss of consortium. Lula and John later filed an amended complaint on September 12, 2018, and asserted claims of vicarious liability and independent negligence against Singing River.

¶8. Singing River filed a motion to dismiss Lula and John's complaint. In its motion, Singing River asserted that Lula knew of her potential claims against Singing River no later than November 2016 when she received the letter. Singing River argued that because Lula did not serve her notice of claim until January 2018, more than one year later, her claims were time barred by the applicable statute of limitations.

¶9. After a hearing, the circuit court granted Singing River's motion and dismissed Lula and John's complaint with prejudice. The circuit court found that the statute of limitations began to run on November 16, 2016, when Lula received Singing River's letter. As a result, the circuit court concluded that Lula and John were required to give notice of her claim on or before November 16, 2017. Because Lula and John failed to give timely notice, the circuit court found that the claims were barred by the one-year statute of limitations under Mississippi Code Section 11-46-11(3)(a) (Rev. 2019).

¶10. Lula and John timely appealed. On appeal, they argue the circuit court erroneously found that Lula's claims were barred by the statute of limitations.

¶11. By agreement, Lula and John's claims against Dr. Millette for any alleged personal liability before his employment with Singing River were dismissed with prejudice. Additionally, the parties stipulated that Dr. Millette was immune from personal liability for any acts or claims while employed by Singing River under Mississippi Code Section 11-46-7(2) (Rev. 2019) and that Dr. Millette was not a necessary party to the action on the remaining claims against Singing River and should therefore be dismissed without prejudice as to the those claims.

STANDARD OF REVIEW

¶12. "The ‘application of a statute of limitations is a question of law.’ " Wayne Gen. Hosp. v. Hayes , 868 So. 2d 997, 1000 (Miss. 2004) (quoting Sarris v. Smith , 782 So. 2d 721, 723 (Miss. 2001) ). "This Court applies [a] de novo standard of review when deciding issues of law." Id. (citing ABC Mfg. Corp. v. Doyle , 749 So. 2d 43, 45 (Miss. 1999) ).

DISCUSSION

¶13. The issue before this Court is whether the circuit court erroneously found that the one-year statute of limitations began to run on November 16, 2016, when Lula received...