         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2018-CA-00261-COA

ESTATE OF AMELIA BUTLER, BY AND                                              APPELLANTS
THROUGH THE ADMINISTRATOR,
JONATHAN BUTLER; JAMES BUTLER,
PERRY BUTLER, ANGELA JOHNSON,
JENNIFER BUTLER, JEREMIAH BUTLER AND
JAKESHA BUTLER, INDIVIDUALLY

v.

PHC-CLEVELAND INC. D/B/A BOLIVAR                                                 APPELLEE
MEDICAL CENTER

DATE OF JUDGMENT:                            12/05/2017
TRIAL JUDGE:                                 HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED:                   BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                     AZKI SHAH
ATTORNEYS FOR APPELLEE:                      KIMBERLY NELSON HOWLAND
                                             CHARLES EDWARD COWAN
NATURE OF THE CASE:                          CIVIL - WRONGFUL DEATH
DISPOSITION:                                 AFFIRMED - 06/18/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ.

       McCARTY, J., FOR THE COURT:

¶1.    Jonathan Butler initiated a lawsuit in the Bolivar County Circuit Court against PHC-

Cleveland Inc. d/b/a Bolivar Medical Center (“Bolivar”), alleging that his mother, Amelia

Butler, died as a result of Bolivar’s medical malpractice. Bolivar filed a motion for summary

judgment, asserting that Jonathan’s claims were barred by the statute of limitations. The

circuit court granted the motion and dismissed the case. Jonathan now appeals, alleging that

the circuit court erred in finding that the statute of limitations for his claims began to run on
the day Amelia passed away.1

¶2.    Because the two-year limitations period had run by the time Jonathan filed his

complaint, we affirm the dismissal of this claim via summary judgment. By holding that

Jonathan’s wrongful-death claim is barred by the statute of limitations, his other claims are

likewise barred. For that reason we will not address Jonathan’s claims for loss of consortium

and negligent infliction of emotional distress.

                       FACTS AND PROCEDURAL HISTORY

¶3.    Amelia Butler was a seventy-year-old, long-term care patient first admitted to Bolivar

following a stroke. Amelia passed away on January 7, 2013, after being moved several times

between Bolivar and a specialty hospital in Greenwood, Mississippi. When she was first

admitted to Bolivar, Amelia was unable to bear weight and remained mostly bed bound.

Bolivar’s records indicate that Amelia had no skin breakdown upon her arrival. However,

over the next seven months, she developed multiple stage III and stage IV decubitus ulcers.2

Amelia’s death certificate was issued on January 22, 2013. The certificate listed the

following as her cause of death: (1) cardiopulmonary arrest; (2) severe sepsis; and (3)

multiple decubitus ulcers.

¶4.    Amelia was posthumously transferred to Redmond Funeral Home. A funeral home



       1
       We recognize that the notice of appeal includes the phrase “et. al.,” [sic] and we use
the word “Jonathan” in this opinion for brevity.
       2
         Stage III decubitus ulcers extend into the tissue beneath the skin, forming a small
crater. Fat may show in the sore, but not muscle, tendon, or bone. At stage IV, the wound
is very deep, reaching into muscle and bone and causing extensive damage. Damage to
deeper tissues, tendons, and joints may occur.

                                              2
employee called her son, Jonathan, and told him that he needed to come immediately. There

Jonathan was shown the various wounds on his mother’s body. He took photographs of her

injuries. Afterward, Jonathan collected Amelia’s records from her medical providers to “get

answers” for his mother.

¶5.     Jonathan then proceeded to contact an attorney, who in turn enlisted a medical

expert’s help to determine Amelia’s cause of death. The medical expert provided a report

on June 1, 2015. The expert concluded Bolivar had breached the standard of care owed to

Amelia Butler. This breach was a contributing cause of Amelia’s death. A notice of intent

was provided to Bolivar on August 31, 2015, and the complaint was filed December 15,

2015.

¶6.     Bolivar sought dismissal, arguing that Jonathan knew of Amelia’s injuries and had

been put on notice of any potential negligence before Amelia’s passing. At the hearing, the

court found that Amelia’s wounds were not latent injuries, and so the statute of limitations

began to run on the date of her death. Jonathan now appeals the dismissal of his claims.

                               STANDARD OF REVIEW

¶7.     “A trial court’s grant of summary judgment is reviewed de novo.” Johnson v. Pace,

122 So. 3d 66, 68 (¶7) (Miss. 2013). “Furthermore, application of a statute of limitation is

a question of law to which a de novo standard also applies.” Sarris v. Smith, 782 So. 2d 721,

723 (¶6) (Miss. 2001).

                                      DISCUSSION

¶8.     Mississippi provides claimants two years to file a medical malpractice claim. Miss.



                                             3
Code Ann. § 15-1-36(2) (Rev. 2012). The two years commence and begin running on the

“date of the alleged act, omission, or neglect.” Id. Our Legislature saw fit to incorporate a

built-in discovery rule within the statute to protect claimants with latent injuries. Neglen v.

Breazeale, 945 So. 2d 988, 990 (¶9) (Miss. 2006). The discovery rule tolls the statute of

limitations period until a claimant, using reasonable diligence, could have first known of the

injury itself, the cause of the injury, and the causative relationship between the injury and the

conduct of the medical practitioner. Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 43

(¶27) (Miss. 2007). This rule redirects the focus from when the injury occurred to when the

negligence causing the injury was discovered. Waldrup v. Eads, 180 So. 3d 820, 826 (¶33)

(Miss. Ct. App. 2015).

¶9.    There is no precise formula to determine whether or not the discovery rule will toll

a statute of limitations. Huss v. Gayden, 991 So. 162, 166 (¶6) (Miss. 2008). Whether a

claimant has sufficient notice of a viable claim is to be determined on a case-by-case basis.

Sarris, 782 So. 2d at 725 (¶13). In cases where there is a strong dispute over the applicability

of the discovery rule, the issue should be determined by a jury. Miss. Valley Silica Co. Inc.

v. Barnett, 227 So. 3d 1102, 1119 (¶44) (Miss. Ct. App. 2016). Here, the circuit court held

Jonathan waited too long to file suit.

¶10.   The parties do not dispute that Jonathan filed suit more than two years after Amelia’s

death. However, Jonathan argues that Amelia’s cause of death, and consequently any

negligence, could not reasonably be discovered without an expert. In his view, this context

means the statute of limitations period was tolled during the time it took to procure an expert



                                               4
report. Yet the statute of limitations period does not automatically toll while awaiting an

expert opinion. Waldrup, 180 So. 3d at 827 (¶34). “The question of whether a statute of

limitations is tolled by the discovery rule turns on the factual determination of what the

plaintiff knew and when.” Raddin v. Manchester Educ. Found. Inc. 175 So. 3d 1243, 1249

(¶13) (Miss. 2015).

¶11.   Bolivar argues that due to the visible nature of Amelia’s injuries Jonathan was put on

notice of potential negligence before Amelia’s death, meaning that the statute of limitations

period had begun to run before Amelia’s death. Bolivar contends that the statute of

limitations period began on the day Amelia passed, or at the latest when the death certificate

was issued.

¶12.   Jonathan’s wrongful-death action did not begin to accrue before Amelia’s passing,

when the statute of limitations on a wrongful-death claim, by its very nature, cannot begin

to run until death. Saul ex rel. Heirs of Cook v. S. Cent. Reg’l Med. Ctr. Inc., 25 So. 3d 1037,

1040 n.4 (Miss. 2010). Additionally, while not every death certificate will initiate the

running of the statute of limitations, here the death certificate combined with other factors

established sufficient notice of a claim. The death certificate listed the decubitus ulcers as

one of Amelia’s causes of death. Jonathan conceded that he was aware of Amelia’s wounds

and that Bolivar was treating the wounds she had acquired there. He repeatedly asked

whether the wounds that had developed and/or progressed at Bolivar were healing. His

knowledge of his mother’s wounds put him on notice that something was amiss. This

knowledge, combined with the death certificate, served as a unique example of notice



                                               5
sufficient to trigger the statute of limitations period.

¶13.   Further, Jonathan did not obtain an expert opinion for more than two-and-a-half years

after Amelia passed away. This does not follow the “reasonable diligence” requirement set

out by the discovery rule.

¶14.   State law requires potential claimants to file “an accompanying certificate of

consultation with an expert or a certificate of counsel stating that a consultation has not been

obtained due to the running of the statute of limitations or an inability to secure consultation

with expert.” Gray v. Univ. of Miss. Sch. of Med., 996 So. 2d 75, 79 (¶13) (Miss. Ct. App.

2008); Miss. Code Ann. § 11-1-58 (Rev. 2014). In some cases an expert is necessary for a

potential plaintiff to become aware of a viable claim. In those cases the discovery rule will

toll the statute of limitations. See Sarris, 782 So. 2d at 725 (¶13). As a result, there is not

a bright line rule that a death certificate will begin running the statute of limitations in all

cases, and the death of a patient will not always automatically start the statute of limitations

period.

¶15.   In this case the circuit court found that all claims were time-barred and granted

Bolivar’s motion for summary judgment. Given the notice provided by the death certificate

and other surrounding factors, we cannot say this was incorrect as a matter of law.

                                       CONCLUSION

¶16.      We affirm the circuit court’s holding that Jonathan’s claims are time-barred by the

statute of limitations.

¶17.   AFFIRMED.



                                                6
    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND C. WILSON, JJ.,
CONCUR.




                             7
