                    IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2005-CA-00012-SCT

LAVON KAY PITALO

v.

GPCH-GP, INC. d/b/a GARDEN PARK MEDICAL
CENTER, AND DR. RONALD GRAHAM


DATE OF JUDGMENT:                        10/25/2004
TRIAL JUDGE:                             HON. STEPHEN B. SIMPSON
COURT FROM WHICH APPEALED:               HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  DAVID C. MORRISON
ATTORNEYS FOR APPELLEES:                 WILLIAM E. WHITFIELD, III
                                         GEORGE F. BLOSS, III
                                         MARY MARGARET ALEXANDER
NATURE OF THE CASE:                      CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                             AFFIRMED - 05/04/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      WALLER, JUSTICE, FOR THE COURT:

¶1.   Lavon Kay Pitalo appeals from a judgment of dismissal of her medical negligence

complaint against Garden Park Memorial Center and Dr. Ronald Graham for failure to

comply with notice provisions provided by Miss. Code Ann. Section 15-1-36(15) (Rev.

2003). We affirm.

                      FACTS AND PROCEDURAL HISTORY

¶2.   Pitalo, a patient of Dr. Graham, was admitted to Garden Park on October 1, 2001, for

shoulder surgery. The procedure was uneventful, and she was discharged the following
morning. Pitalo alleged that within twenty-four hours of being released by Dr. Graham, she

was rushed to the emergency room at Ocean Springs Hospital where she was diagnosed and

treated for a collapsed lung. Pitalo’s condition required surgical insertion of a chest tube, and

she was re-hospitalized for almost a week.

¶3.      On September 25, 2003, Pitalo filed a lawsuit against Dr. Graham and Garden Park

alleging negligence in their ignoring her numerous complaints of chest pain and their failure

to examine her before releasing her from the hospital. Her amended complaint was filed on

June 2, 2004. Thereafter, Dr. Graham and Garden Park collectively renewed their previously

filed Motions to Dismiss based on the statute of limitations, notice of claim, and failure of

Pitalo to file the required certificate with her complaint pursuant to Miss. Code Ann. Sections

15-1-36 (Rev. 2003) and 11-1-58 (Rev. 2002). A Judgment of Dismissal was granted on

October 26, 2004, and following consideration of post-trial motions, a timely appeal was

filed.

                                          ANALYSIS

Whether it was Error for the Circuit Court to Dismiss Pitalo’s Cause of Action for
Failure to Comply with Miss. Code Ann. Section 15-1-36?

¶4.      On appeal, Pitalo argues it was error for the trial court to dismiss her cause of action

because she failed to send a letter to the defendant as provided in Miss. Code Ann. Section

15-1-36(15) (Rev. 2003). Miss. Code Ann. Section 15-1-36 was amended in the special

session of the Mississippi Legislature on tort reform in 2002. Section 15 was added and

became effective January 1, 2003. It requires that an action based on professional negligence

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of a health care provider may not begin unless the defendant has been given at least 60 days

prior written notice of the intention to begin the action.1

¶5.    When interpreting a statute that is not ambiguous, this Court will apply the plain

meaning of the statute. Claypool v. Mladineo, 724 So. 2d 373, 382 (Miss. 1998). In

construing a statute, the Court must seek the intention of the Legislature, and knowing it,

must adopt that interpretation which will meet the real meaning of the Legislature. Evans

v. Boyle Flying Service, Inc., 680 So. 2d 821, 825 (Miss. 1996). When drafting Miss. Code

Ann. Section 15-1-36(15), the Legislature did not incorporate any given exceptions to this

rule which would alleviate the prerequisite condition of prior written notice. Simply stated,

“shall” is mandatory, while “may” is discretionary. Franklin v. Franklin, 858 So. 2d 110,

114 (Miss. 2003). Pitalo’s failure to send notice of her intent to sue clearly violates the

mandatory instructions concerning notice in Miss. Code Ann. Section 12-1-36(15).




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        The statute specifically states:
       No action based upon the health care provider's professional negligence may
       be begun unless the defendant has been given at least sixty (60) days' prior
       written notice of the intention to begin the action. No particular form of notice
       is required, but it shall notify the defendant of the legal basis of the claim and
       the type of loss sustained, including with specificity the nature of the injuries
       suffered. If the notice is served within sixty (60) days prior to the expiration
       of the applicable statute of limitations, the time for the commencement of the
       action shall be extended sixty (60) days from the service of the notice for said
       health care providers and others. This subsection shall not be applicable with
       respect to any defendant whose name is unknown to the plaintiff at the time
       of filing the complaint and who is identified therein by a fictitious name.

Miss. Code Ann. § 15-1-36(15) (Rev. 2003).

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¶6.    Pitalo contends that even though she failed to provide notice of her intent to sue, the

circuit court’s dismissal of her action violates our holding in Jackson v. City of Wiggins, 760

So. 2d 694 (Miss. 2000). Pitalo’s claim is clearly distinguishable from Jackson as the

present case concerns medical negligence actions under Miss. Code Ann. Section 15-1-36

(Rev. 2003) - not the Mississippi Tort Claims Act, and Pitalo did not at any time attempt to

send a notice of intent to sue to Dr. Graham or Garden Park, as had been done in Jackson.

Pitalo’s arguments do not excuse the absence of notice of an intent to sue being sent to the

defendants in the present case.

                                      CONCLUSION

¶7.    Pitalo’s failure to send to defendants a notice of intent to sue is an inexcusable

deviation from the Legislature’s requirements for process and notice under Miss. Code Ann.

Section 15-1-36(15), and such failure warrants dismissal of her claim. Accordingly, we

affirm the judgment of the circuit court.

¶8.    AFFIRMED.

    SMITH, C.J., COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. EASLEY AND GRAVES, JJ., CONCUR IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




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