                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1999-CA-01635-SCT
JAY JONATHAN BAILEY
v.
OSSAMA AL-MEFTY, M.D.

DATE OF JUDGMENT:                                  09/13/1999
TRIAL JUDGE:                                       HON. SWAN YERGER
COURT FROM WHICH APPEALED:                         HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                           ALAN D. LANCASTER
                                                   LEONARD BENJAMINE COBB
ATTORNEYS FOR APPELLEE:                            MARTIN R. JELLIFFE
                                                   GEORGE QUINN EVANS
                                                   CAROLYN ALLEEN MCLAIN
NATURE OF THE CASE:                                CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                       REVERSED AND REMANDED - 09/13/2001
MOTION FOR REHEARING FILED:                        10/12/2001; denied 2/21/2002
MANDATE ISSUED:                                    2/28/2002

      BEFORE BANKS, P.J., MILLS AND DIAZ, JJ.

      DIAZ, JUSTICE, FOR THE COURT:

¶1. On December 31, 1996, Jay Jonathan Bailey (Bailey) filed suit in the First Judicial District of Hinds
County Circuit Court against Dr. Ossama Al-Mefty (Al-Mefty) seeking damages for injuries allegedly
stemming from an operation performed on July 26, 1990, at the University of Mississippi Medical Center
(UMC). Bailey asserts that the surgery was negligently performed due to Al-Mefty's failure to employ the
proper medical knowledge and skill in his diagnosis, treatment and care of Bailey.

¶2. On June 8, 1999, Al-Mefty moved for summary judgment on the basis that he qualified as an employee
with individual immunity under the Mississippi Tort Claims Act (MTCA) and that Bailey failed to comply
with numerous filing provisions of the MTCA, Miss. Code Ann. §§ 11-46-1 to-23 (Supp.2001). More
importantly, Al-Mefty asserted that Bailey had not filed his claim within the applicable statute of limitations.
Bailey filed a response denying that the MTCA applied to his claims since they arose out of an incident
occurring before the law's passage. Al-Mefty replied still asserting the applicability of the MTCA and his
contention that Bailey's claims were time barred. Bailey then moved for leave to amend the complaint which
prompted an objection from Al-Mefty. Bailey filed a subsequent response to the objection by Al-Mefty.
Finally, on September 14, 1999, the trial court granted Al-Mefty's motion for summary judgment and, at the
same time, denied Bailey's motion for leave to amend the complaint. From that ruling, Bailey filed a timely
appeal alleging that the trial court erred by (1) applying the terms and provisions of the MTCA to the
present situation and (2) denying the motion for leave to amend the complaint to include claims of fraudulent
concealment and fraudulent misrepresentation.
                                                      FACTS

¶3. Since this matter concerns the propriety of summary judgment and statutory interpretation, the truly
relevant facts are those detailing the procedural posture, as previously described. However, a brief
description of the factual situation giving rise to this suit may be helpful, if only for clarity of circumstance.

¶4. Bailey first began seeing Al-Mefty in June 1990, seeking relief from persistent headaches, dizziness, and
vertigo that had previously been unresponsive to medical treatment. At the time in question, Al-Mefty was a
neurosurgeon and instructor at UMC in Jackson, Mississippi. In examining Bailey, MRI scans showed an
abnormality in his right petrous apex which would require surgery, specifically a right temporal craniotomy
and resection of the cholesteatoma. As such, Bailey was admitted to UMC for treatment on July 24, 1990.
After being informed of possible risks, Bailey consented to the procedure, and Al-Mefty, assisted by Dr.
Lynn Rogers, performed the surgery on July 26, 1990. Following the operation, Al-Mefty communicated to
Bailey's parents that the procedure had gone well and the cholesteatoma had been successfully removed.
Bailey was finally discharged on August 2, 1990.

¶5. Through September of 1990, Bailey continued to see Al-Mefty for follow-up treatment. During this
time, Bailey complained that his symptoms had not abated and was informed by Al-Mefty that these were
merely side-effects of the operation and that it could take up to five years for Bailey to "get back to
normal." In March 1991, Al-Mefty moved his practice to Arkansas, and Bailey came under the care of Dr.
Lon Alexander as well as several other neurologists, psychologists, and psychiatrists.

¶6. For the next few years, Bailey continued to experience symptoms similar to those suffered prior to the
operation . Then, on December 10, 1994, he suffered a severe attack of vertigo and was taken to UMC.
There he was examined by Dr. Anand and MRIs were taken. These MRIs were interpreted as showing
post-surgical change in the right petrous apex or possibly petrous apicitis and cholesterol granuloma
formation, but Dr. Anand suggested getting a second opinion. It was at this time that Bailey came under the
care of Dr. John Shea, III and Dr. Jon Robertson, both of Memphis, Tennessee. During a consultation on
April 5, 1995, Bailey contends he was informed that the cholesterol granuloma had not been removed
during his previous surgery and had in fact increased in size.

¶7. On April 12, 1995, Dr. Shea, assisted by Dr. Robertson, operated on Bailey to drain the cholestrol
granuloma. Dr. Shea and Dr. Robertson, using a significantly different procedure than that utilized by Al-
Mefty, found and drained a cholesterol granuloma from the right petrous apex. According to Bailey, their
findings confirm that Al-Mefty had neither removed nor drained the cholesterol granuloma as originally
thought.

                                                  DISCUSSION

¶8. When reviewing the granting of summary judgment, we apply the de novo standard of review.
McCullough v. Cook, 679 So.2d 627, 630 (Miss. 1996). Thus, we sit in the same position as did the trial
court. In addition, statutory interpretation is a question of law, and we also review questions of law de
novo. Donald v. Amoco Prod. Co., 735 So. 2d 161, 165 (Miss. 1999). As such, we are not required to
defer to the trial court's judgment or ruling. Therefore, in order to affirm the granting of summary judgment,
we must decide that "there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law." Miss. R. Civ. P. 56(c).
      I. WHETHER THE TRIAL COURT ERRED BY APPLYING THE TERMS AND
      PROVISIONS OF THE MISSISSIPPI TORT CLAIMS ACT.

¶9. In essence, the case at bar concerns a difference in opinion over statutory application. On one hand,
Bailey asserts that Miss. Code Ann. § 15-1-36 (Supp. 2001) is the controlling statutory scheme since the
alleged malpractice occurred on July 26, 1990. Because the MTCA's effective date was not until April 1,
1993, Bailey argues that it cannot apply to an action based in fact upon events occurring long before that
date, no matter when the injury was discovered. The contention is that the statute in effect at the time of the
injury is determinative rather than the statute in effect at the time of discovery. In Kilgore v. Barnes, 508
So. 2d 1042, 1044-45 (Miss. 1987), we held that "we may not give retroactive effect to newly enacted
statutes of limitations shortening the period within which a claim arising prior to enactment must be brought."
Bailey argues that the same reasoning precludes the application of the MTCA to the present case and
demands the general medical malpractice statute be utilized. In pertinent part, Miss. Code Ann. § 15-1-36
states,

      except as otherwise provided in this section, no claim in tort may be brought against a licensed
      physician . . . for injuries or wrongful death arising out of the course of medical, surgical or other
      professional services unless it is filed within two (2) years from the date the alleged act, omission or
      neglect shall or with reasonable diligence might have been first known or discovered.

Since it is uncontested that Bailey could not have known of the alleged malpractice until April 5, 1995, he
had until April 5, 1997, to file suit. As the complaint was filed on December 31, 1996, Bailey, therefore,
was well within the prescribed statutory two-year limit.

¶10. At the same time, Al-Mefty contends that the MTCA and specifically Miss. Code Ann. § 11-46-11
(Supp. 2001), the statute of limitations therein, govern the present situation because Bailey's claims did not
accrue until April 5, 1995, the date upon which he actually discovered the alleged malpractice. Since the
MTCA became effective April 1, 1993, Al-Mefty asserts that Bailey's complaint was filed well into the
authoritative reign of the MTCA and is subject to its provisions, including the one-year statute of limitations
as defined in Miss. Code Ann. § 11-46-11. As authority for this position, Al-Mefty cites language
contained in Jones v. Baptist Mem'l Hosp.-Golden Triangle, Inc., in which he believes this Court
emphasized the date of accrual for statute of limitation purposes; "the intent of this Court is clear. If the
statutory language mandates that the statute is to apply from and after passage, it is not to be applied to
causes of action which accrued prior to passage of the statute." Jones v. Baptist Mem'l Hosp.-Golden
Triangle, Inc., 735 So. 2d 993, 998 (Miss. 1999). Al-Mefty infers from this passage that causes of
action which accrue after the MTCA's passage are subject to its provisions, and Bailey's claims accrued
over two years after the passage of the MTCA. If Al-Mefty's interpretation is correct and the date of
accrual determines which statutory scheme is controlling, then Bailey's claims would be time barred under
the one year limit imposed by the MTCA. However, Al-Mefty draws conclusions not fully supported by the
language of the Jones opinion. In addition, the MTCA's language dictates otherwise.

¶11. Since this case pivots on statutory interpretation, we are compelled to first examine the language of the
statute in question.

      The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole
      and from the language used therein. Where the statute is plain and unambiguous there is no room for
      construction, but where it is ambiguous the court, in determining the legislative intent, may look not
      only to the language used but also to its historical background, its subject matter, and the purposes
      and objects to be accomplished.

Clark v. State ex rel. Miss. State Med. Ass'n, 381 So. 2d 1046, 1048 (Miss. 1980). As Bailey correctly
points out, the MTCA clearly states, "[a]ll actions brought under the provisions of this chapter shall be
commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable
conduct on which the liability phase of the action is based." Miss. Code Ann. § 11-46-11(3) (Supp.
2001) (emphasis added). Furthermore, under the limitations on liability section, the MTCA refers to "claims
or causes of action arising from acts or omissions occurring on or after . . ." various enumerated dates.
Miss. Code Ann. § 11-46-15(1) (Supp. 2001). The language contained within the statute clearly puts the
emphasis upon the date when the alleged tortious action occurred, rather than when it accrued. True,
Sweeny v. Preston, 642 So. 2d 332, 334 (Miss. 1994); Barnes v. Singing River Hosp., 733 So. 2d
199 (Miss. 1999); and Jones, 735 So. 2d at 998, do establish that the discovery rule is applicable to
medical malpractice cases. As such, statutes of limitations do not begin to run until the injury is discovered.
However, unlike Al-Mefty and the trial court, we do not believe these cases are instructive as to which
statute of limitations should be used. For this, we need look no further then the language of the MTCA,
which clearly states that it is to apply to actions occurring after April 1, 1993. In the present case, the
tortious act occurred in 1990, three years before the effective date of the MTCA. Since the MTCA
obviously does not apply to the present situation, the general medical malpractice statute, Miss. Code Ann.
§ 15-1-36 (Supp. 2001), must be controlling, leaving Bailey two years in which to file suit. Therefore, the
trial court erred in holding the MTCA applicable, and we reverse accordingly.

      II. WHETHER THE TRIAL COURT ERRED BY DENYING THE MOTION FOR
      LEAVE TO AMEND THE COMPLAINT TO INCLUDE CLAIMS FOR FRAUDULENT
      CONCEALMENT AND FRAUDULENT MISREPRESENTATION.

¶12. Bailey also contends that the trial court erred by denying his motion for leave to amend the complaint
to include claims for fraudulent concealment and fraudulent misrepresentation. Since we are reversing and
remanding this case, we need not address this assignment of error. Upon remand, the parties may wish to
file additional motions or pleadings, and we see no reason to hinder their ability to do so with a ruling on this
issue.

                                               CONCLUSION

¶13. The trial court erred in granting summary judgment based on the one-year statute of limitations under
Miss. Code Ann. § 11-46-11 (Supp. 2001). The MTCA is not applicable to claims arising from events
occurring before its passage, and a plain reading of the statute dictates such a holding. Accordingly, Bailey's
lawsuit was timely and deserves to be argued at trial. Therefore, we reverse the trial court's judgment and
its holding as to the application of the MTCA and remand for proceedings in harmony with this opinion.

¶14. REVERSED AND REMANDED

      PITTMAN, C.J., BANKS AND McRAE, P.JJ., MILLS, WALLER AND EASLEY, JJ.,
      CONCUR. SMITH J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
      COBB, J.

      SMITH, JUSTICE, DISSENTING:
¶15. The majority opines that, because Bailey's injury occurred before the Mississippi Tort Claims Act was
in effect, Miss. Code Ann. § 15-1-36 (2000) is applicable, and the two-year statute of limitation applies.
This rationale is based on the assumption that the statute in effect at the time of the injury is determinative
rather than the statute in effect at the time of discovery. As this Court has consistently held, discovery of an
injury in a medical malpractice case is determinative of when the statute of limitation begins to run. Bailey's
injury was discovered two years after the MTCA was in place, and therefore, the one year statute of
limitation applies.

¶16. The majority focuses on the following language from Miss. Code Ann. § 11-46-11(3):

      All actions brought under the provisions of this chapter shall be commenced within one (1) year next
      after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of
      the action is based . . ."

¶17. Based on this language, the majority concludes that "the language contained within the statute clearly
puts the emphasis upon the date when the alleged tortious action occurred, rather than when it accrued."
However, as the majority correctly points out later in the opinion, this Court has consistently applied the
discovery rule to Miss. Code Ann. § 11-46-11(3), which focuses on the date of discovery and not the date
of conduct. The majority correctly notes that Sweeney v. Preston, 642 So.2d 332, 334 (Miss. 1994),
Barnes v. Singing River Hosp., 733 So.2d 199 (Miss. 1999), and Jones v. Baptist Mem'l Hosp-
Golden Triangle, Inc., 735 So.2d 993, 998 (Miss. 1999) hold that the discovery rule is applicable to
medical malpractice cases. As such, statutes of limitation do not begin to run until the injury is discovered.
Consequently, after the majority correctly references this State's lengthy precedent, the majority then totally
ignores our precedents and states that these cases are not instructive to the case at bar. I vehemently
disagree. This is but an attempt to ignore and overrule precedent case law of this Court.

¶18. Bailey discovered his injury on April 5, 1995, two years after the MTCA was in place. Adhering to
Sweeney, Barnes, and Jones, and by applying the discovery rule to this case, Bailey had until April 5,
1996, to file his medical malpractice lawsuit. Unfortunately, Bailey did not file his lawsuit until December 31,
1996, which was over 8 months after the statute of limitations had run, and therefore, summary judgment
was appropriate.

¶19. I respectfully dissent.

      COBB, J., JOINS THIS OPINION.
