Mississippi Medical Malpractice Laws

Medical malpractice claims can be incredibly complex. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering. This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Mississippi; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Mississippi. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Mississippi

In Mississippi, a medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Mississippi places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Mississippi allows the defense of pure comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. Mississippi, like many states, limits the monetary amount of damages that may be awarded to a plaintiff in a medical malpractice case.

How long do I have to file a medical malpractice case in Mississippi?

The first step in bringing a claim for medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Mississippi mandates that an action for personal injury must be filed within two years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the time period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no recourse. The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

It is important to note that Mississippi law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” However, at no time may a claim be filed beyond the seven-year mark from the time the act that gave rise to your injury was committed.

In Mississippi Medical Malpractice Cases, who is Responsible?

In Mississippi, you may bring a medical malpractice lawsuit for an injury you suffered against a licensed healthcare provider based upon their negligence, misconduct, errors or omissions, or breach of contract in the rendering of healthcare, medical services, nursing services or other health-related services.

Those that can be held responsible due to being included in the definition of a “healthcare provider” include: All licensed physicians, osteopaths, dentists, hospitals, institutions for the aged, nurses, pharmacists, podiatrists, optometrists or chiropractors.

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove:

• The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.
• Such failure was a proximate cause of the injury.

What if I am partially to blame? Can I Still Recover Money for Mississippi Medical Malpractice?

Mississippi, along with 12 other states (Alaska, Arizona, California, Florida, Kentucky, Louisiana, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington) recognizes the doctrine of pure comparative fault. [2]

Under the doctrine of pure comparative fault, any award of damages you are awarded from a court are reduced in proportion to your contribution to your own injury. This doctrine is extremely friendly to you in that you are able to recover for damages even if you are found to have been 99% at fault for your injury.

For example, imagine if a patient went to see a doctor about pain in their shoulder. During the evaluation, the doctor asks the patient if they drink alcohol and the patient lies and says that they do not. Based on that information, the doctor prescribed painkillers that are not safe to take in combination with alcohol. The patient later takes the medication while drinking alcohol and suffers severe health consequences. If the patient were to bring a medical malpractice lawsuit against the doctor for improperly prescribing medication that led to their injury, it is likely that a court would find the patient partially responsible and any award of damages would be reduced in proportion to the level of fault calculated by the court as per the doctrine of pure comparative fault.

An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. As a result, the majority of states have adopted a modified system which allows for only a partial apportionment of fault. Usually, the percentage of fault is either capped at 51% or 50%. If the plaintiff contributed to their injury in a way that surpassed the allowed threshold, they will be barred from recovering for their injury.

Are there medical malpractice recovery caps in Mississippi?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two main types of damage awards you may receive:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – actual damages and general damages.

Actual damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

General damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than compensate the plaintiff. In Mississippi, punitive damages may be awarded by the court only when you prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud. [3]

The law in Mississippi mandates that the amount of non-economic (general) damages be limited to $500,000 in a medical malpractice action. [4] If a court elects to award punitive damages, that award will be limited to two percent (2%) of the defendant’s net worth for a defendant with a net worth of Fifty Million Dollars ($ 50,000,000.00) or less. [5]

Expert witness reporting and testimony

The testimony given by an expert witness is invaluable to you if you are bringing a claim of medical malpractice. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred.

Over time, the state of Mississippi has seen numerous medical malpractice claims be filed against healthcare professionals despite the fact that the claims were frivolous and lacked merit. Those cases tied up the court system and caused many sound physicians to lose their practices due to insurance increases. To help remedy this problem, Mississippi has since implemented a requirement that you file, with your original Complaint, a certificate stating that your attorney has reviewed the facts of the case and has consulted with at least one expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who is qualified to give expert testimony as to standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of your action from a qualified healthcare professional who feels your claim has merit and deserves to be heard in court. [6]

The law in Mississippi considers the expert to be qualified if they are licensed to practice medicine within the United States. [7]

Are some parties immune from medical negligence cases?

The Mississippi Tort Claims Act governs cases brought against governmental entities or their employees. [8] The Act considers a governmental entity to be the State of Mississippi as well as its municipalities and counties. An example of an employee of a governmental entity would be a physician that is employed by a State-owned hospital.

To bring an action against a governmental entity or an employee of a governmental entity, you must do so within one year of the date that the alleged medical malpractice took place. Damages in a case that is brought against a governmental entity are limited to $500,000. [9]

Settling medical malpractice cases in Mississippi

The law in Mississippi does not require mandatory arbitration, mediation, or the submission of your medical malpractice case to a screening panel as a form of alternative dispute resolution prior to the claim reaching the trial stage of litigation.

Litigating medical negligence cases in Mississippi

A claim for medical malpractice in Mississippi is initiated by preparing a Complaint and Summons that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the complaint and will also list the affirmative defenses that will be used.

Initiating the Case

The law in Mississippi requires you to first provide all named defendants with written notice of your intent to begin a medical malpractice action. [10] The notice must include the basis of your medical malpractice claim and the type of loss sustained, including the specifics of the nature of the injuries that you suffered as a result. You must provide the notice to the defendants 60 days prior to filing your lawsuit.

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In Mississippi, a civil action begins by filing a complaint with the clerk of the court. A complaint should include:

• The proper name of every plaintiff and of every defendant. If a defendant’s name is unknown, a complaint may identify the defendant by a fictitious name, and the complaint may be amended when the defendant’s true name becomes known. This paragraph also applies to defendants in a third-party complaint.
• In lawsuits to recover on an assigned debt, the identity of the original owner of the debt.
• A statement that the court has legal authority over the subject matter of the claim and over the defendant; and a statement that the Justice Court precinct where the lawsuit is filed is the proper location.
• A short and clear statement of the factual basis of each claim. Each claim must show that the party has a right to relief from the court.
• A demand that the court award money or another type of remedy allowed by law. If the requested remedy is an amount of money, and the amount can be calculated with certainty, the complaint must state the amount. If the amount of money cannot be calculated with certainty, a specific amount does not need to be stated, but the complaint must generally describe the damages and it must state that the amount requested does not exceed the jurisdictional limit of the court.

A civil summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit. Upon receipt, the defendants have 30 days to file an Answer which admits and/or denies statements made in the complaint. [11]

Preparing for Litigation

After the disclosures have been made and the complaint, summons, and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

Litigation can be long, arduous and expensive. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation. However, unlike many other states, the law in Mississippi does not require the use of alternative dispute resolution prior to a lawsuit reaching trial. If both sides wish to utilize alternative dispute resolution methods to attempt a settlement, the law in Mississippi considers such a choice to be the right of an individual and will allow the parties to do so.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Mississippi: a judge or a jury. There are six people on the jury.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration via two permissible peremptory challenges. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Mississippi, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of Mississippi
• at least 21 years of age; and
• of sound mind

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The Court of Appeals differs from the lower court in that it does not hear testimony from witnesses and does not determine facts. Instead, during an appeal, the court decides whether the trial Court made an error of law or made a factual determination unsupported by any evidence which led to the rendering of the verdict.

To appeal the decision of a lower court, you must file a Notice of Appeal in the superior court that issued the judgment no later than thirty (30) days from the date of the original judgment. [12]

How to find the best Mississippi Medical Malpractice Lawyer for your case

Initiating any legal proceeding can be daunting and overwhelming, especially if it is being brought against a high-powered doctor or hospital. It is likely that you would rather focus on healing your injury and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. After all, why should you be forced to go out-of-pocket for an injury that was caused by someone else? In order to increase your chances of success in your medical malpractice case, it is very important to find competent and highly skilled legal representation.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your timetable, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from Mississippi

These cases represent awards to plaintiffs in medical malpractice cases in Mississippi. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Taylor v. Delta Regional Medical Center

The plaintiff, James Taylor, woke up feeling lightheaded at home after feeling sick the day before. Mr. Taylor’s wife called her son to drive the plaintiff to the hospital emergency room. Once admitted, the plaintiff complained of dizziness, lightheadedness, and right-sided weakness. The emergency room physician took the plaintiff’s medical history, performed a physical examination, and ordered an EKG and a CT scan.

The physician stated that the cause of the symptoms could have been caused by vertigo and prescribed medication. The plaintiff was then discharged approximately two hours after his arrival at the hospital.

Once home, the plaintiff continued to suffer from his symptoms over the course of several hours, leading to slurred speech and inability to walk independently. His wife drove him to another hospital where he was unable to walk. The physicians at the second hospital conducted a full carotid work-up, diagnosed a stroke, and admitted Mr. Taylor into the hospital for supportive care, treatment, and therapy. Mr. Taylor now suffers permanent debilitating conditions and has been unable to return to work.

The plaintiff alleged at trial that the first hospital’s physicians and staff negligently breached the applicable standard of medical care in rendering treatment. The plaintiff claimed that the negligent medical care proximately caused him to suffer damages and permanent debilitating conditions resulting from a massive stroke suffered after his discharge from the first hospital. It was also alleged that had a proper diagnosis been made, he would not have suffered his current debilitation and partial paralysis in his right hand, right arm, right leg, and right foot.

The judge found that the first emergency room physician breached the applicable standard of care by failing to admit Mr. Taylor to the hospital, failing to provide him with supportive care treatment, and failing to monitor him for a progressive worsening of his symptoms. An award of $390,000 was rendered.

The case was later appealed and the verdict was affirmed.

Glover v. MBMC

A 15-year-old boy was admitted and treated at an emergency room for a rash. The treating physician prescribed medication that caused second-degree chemical burns and permanent scarring all over the boy’s body.

A lawsuit was brought against the treating physician as well as the pharmacy that dispensed the medication. The pharmacy settled out of court.

At trial, it was uncovered that the prescribed medication was supposed to only be applied by a doctor. The physician admitted that he breached the standard of care by failing to inform plaintiff and his mother about the dangers of the medication as well as how to safely apply it.

A jury found the physician to be 75% liable for the boy’s injuries and awarded $1.5 million in economic damages and $2 million in non-economic damages.

Footnotes

 [1] Miss. Code Ann. § 15-1-36(1)

[2] Miss. Code Ann. § 11-7-15

[3] Miss. Code § 11-1-65

[4] Miss. Code Ann. § 11-1-60

[5] Miss. Code Ann. § 11-1-65

[6] Miss. Code Ann. § 11-1-58

[7] Miss. Code Ann. § 11-1-61

[8] Miss. Code Ann. § 11-46-7

[9] Miss. Code Ann. § 11-46-11

[10] Miss. Code Section 15-1-36(15)

[11] Miss. R. Civ. Pro. Rule 12(a)

[12] Miss. R. APP. P. 4(a)