                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2006-CA-01857-SCT

IRENE CAVES, STATUTORY REPRESENTATIVE
OF THE WRONGFUL DEATH BENEFICIARIES
OF JIMMY CAVES

v.

BENJAMIN YARBROUGH, M.D., AND
FRANKLIN COUNTY MEMORIAL HOSPITAL

                             ON MOTION FOR REHEARING

DATE OF JUDGMENT:                            10/13/2006
TRIAL JUDGE:                                 HON. FORREST A. JOHNSON, JR.
COURT FROM WHICH APPEALED:                   FRANKLIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      JOEL W. HOWELL, III
ATTORNEYS FOR APPELLEES:                     JAMES SCOTT ROGERS
                                             WADE G. MANOR
                                             LANE B. REED
NATURE OF THE CASE:                          CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                 REVERSED AND REMANDED - 09/25/2008
MOTION FOR REHEARING FILED:                  12/06/2007
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    The appellant’s motion for rehearing is granted. The previous opinions are withdrawn

and these opinions are substituted therefor.

¶2.    This is a medical-negligence lawsuit filed pursuant to the Mississippi Tort Claims Act

(“MTCA”),1 which requires that suits be filed within one year “next after the date of the




       1
           Miss. Code Ann. §§ 11-46-1to 11-46-23 (Rev. 2002).
tortious, wrongful or otherwise actionable conduct on which the liability phase of the action

is based.” The question presented is whether the plaintiff’s claims are time-barred.

¶3.    We hold today that: (1) the statute of limitations for claims filed under the MTCA

begins to run when all of the elements of a tort exist, that is, when some damage to the

plaintiff proximately results from the defendant’s negligence; and (2) the doctrine of stare

decisis requires us to recognize a discovery rule for MTCA claims, that is, that the statute of

limitations shall not begin to run until the plaintiff knows – or by exercise of reasonable

diligence, should know – that a cause of action exists. We reverse the trial court’s grant of

summary judgment and remand for a hearing on this question of whether, within a year of

providing notice to the defendants, the claimants knew or, by exercise of reasonable

diligence, should have known of both Mr. Caves’s injury and the alleged tortious act or

omission which proximately caused it.

                    BACKGROUND FACTS AND PROCEEDINGS

¶4.    On April 15, 2000, 51-year-old Jimmy Caves began experiencing abdominal pain.

The next day, Caves’s condition worsened, and he suffered episodes of vomiting and

diarrhea. He was admitted to the emergency room at Franklin County Memorial Hospital

(the “Hospital”), where he was evaluated by Dr. Benjamin Yarborough, who, after

administering intravenous fluids and medication, ordered lab work and an abdominal x-ray.

¶5.    Mr. Caves’s condition continued to deteriorate and, in the early morning hours of

April 17, Dr. Yarbrough ordered more lab work and another abdominal x-ray. After

consulting another physician over the phone, Dr. Yarbrough decided to transfer Mr. Caves,

                                              2
but, before he could do so, Mr. Caves’s heart stopped. He was resuscitated, only to have his

heart stop again a little more than an hour later. He was pronounced dead at 3:35 a.m.

¶6.    Mr. Caves’s wife, Irene,2 was present at the hospital when he was admitted, and she

remained there until his death. In an effort to learn the cause of her husband’s death, Mrs.

Caves agreed to an autopsy, which was performed that night. The next day, the coroner

informed Mrs. Caves that the cause of death was a “septic colon,” which was later recorded

as the cause of death on Mr. Caves’s death certificate.

¶7.    On April 21, 2000, Mrs. Caves requested and obtained the medical records pertaining

to her husband’s death. According to her testimony, when she attempted to obtain a copy of

the autopsy report from the pathologist’s office, Mrs. Caves was told there would be a delay

due to the death of the doctor who had performed the autopsy. She continued to request the

report on a weekly basis until September 2000, when she moved out of state and turned the

pursuit of the autopsy report over to her son, Kevin, who continued to request the report.

Although the autopsy report was completed on September 28, 2000, Mrs. Caves asserts that

she did not receive it until March of 2001.

¶8.    Prior to receiving the autopsy report, Mrs. Caves contacted an attorney, because she

suspected wrongdoing on the part of the Hospital and Dr. Yarbrough. Based on the

information available at the time (which did not include the autopsy report), the attorney

declined to take Mrs. Caves’s case. She then contacted another attorney, who took her case


       2
         At the time of her husband’s death, Mrs. Caves had been a licensed practical nurse for
almost twelve years.

                                              3
and retained Dr. Gary Pfortmiller, a full-time emergency-room physician, to review the case.

After reviewing the medical records and the autopsy report,3 Dr. Pfortmiller provided an

affidavit dated April 11, 2001, which stated that Mr. Caves’s death was “caused by or

contributed to by care far below the minimal standard.”

¶9.     On February 13, 2002, Mrs. Caves provided the Hospital notice of a claim under the

MTCA. On April 12, 2002, Mrs. Caves followed up the notice with a lawsuit against the

Hospital and Dr. Yarbrough.4 The Defendants responded with an answer and a motion for

summary judgment, asserting that Mrs. Caves’s claims were time-barred because she failed

to bring them within the MTCA’s one-year statute of limitations. Mrs. Caves responded by

arguing that she had provided notice and had filed her claim within one year of her discovery

of her claim.5




        3
         The autopsy report stated: “Based on the findings of this case, I believe the cause of death
in this patient is sepsis secondary to bowel perforation, apparently secondary to an infarcted colon.
There are also findings of bronchopneumonia and acute splenitis, all of which would be consistent
with systemic sepsis.”
        4
         Dr. Yarborough appears to have been sued in his individual capacity; he was not included
in the notice to the Hospital, and we find no evidence in the record that he received a separate notice.
We are not told whether Dr. Yarborough has claimed the immunity granted by Section 11-46-7(2),
nor do the parties raise or discuss Mrs. Caves’s failure to provide any notice to Dr. Yarbrough as an
independent basis for his dismissal. We shall therefore not address it.
        5
        For certain causes of action, the statute of limitations does not begin to run until the claimant
discovers, or reasonably should discover, the injury, negligence, or some other feature of the claim.
See e.g. Miss. Code Ann. §§ 15-1-36 (Rev. 2002) (requires discovery of the act, omission or
neglect); 15-1-49(2) (requires discovery of the injury). This requirement of a discovery is
commonly known as a “discovery rule.” The MTCA includes no discovery rule within its language.

                                                   4
¶10.   The trial court granted summary judgment, holding that the discovery rule did not

apply because Mr. Caves’s injuries were not latent.6 Mrs. Caves timely appealed. While

both parties raised and briefed the issue of whether a discovery rule should be applied to the

facts of this case, neither party addressed the general application by this Court of a discovery

rule to the MTCA.

¶11.   We handed down our original decision, holding that – because the MTCA has within

its provisions no discovery rule – Mrs. Caves’s claims were time-barred, and any prior

judicial findings of such a rule for claims under the MTCA were erroneous and overruled.

Mrs. Caves filed a motion for rehearing, arguing primarily that this Court – having

previously recognized a discovery rule for claims under the MTCA – should continue to

apply a discovery rule on the basis of stare decisis.

¶12.   Without dissent, we granted the motion for rehearing to examine the question. We

ordered the parties (and invited amici) to submit supplemental briefs addressing, among

others, the stare decisis question, and we took the rare step of setting oral argument on the

motion for rehearing.

¶13.   Now, after careful review of the record, the excellent briefs submitted by the parties

and amici, and the excellent arguments presented by counsel, we are persuaded that, although

the MTCA includes no discovery rule, we are nevertheless bound by the doctrine of stare




       6
         The trial judge, having no statutory language for guidance, apparently believed that, under
the judicially-created discovery rule applicable to the MTCA (discussed later), the statute of
limitations began to run upon discovery of the injury, rather than the negligence.

                                                 5
decisis to apply a discovery rule to cases filed pursuant to the MTCA. We therefore

withdraw our original opinion and substitute this opinion as the opinion of the Court.

                                        ANALYSIS

¶14.   A trial court “shall” grant summary judgment where “the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Miss. R. Civ. P. 56(c).

¶15.   When reviewing an appeal of a trial court’s grant of summary judgment, we apply “a

de novo standard of review.” Moss v. Batesville Casket Co., 935 So. 2d 393, 398 (Miss.

2006). Furthermore, “the application of a statute of limitations is a question of law,” which

we review de novo. Sarris v. Smith, 782 So. 2d 721, 723 (Miss. 2001).

¶16.   The facts necessary to our disposition of this case are essentially undisputed. Instead,

we are presented with significant unsettled legal issues related to application of the MTCA’s

statute of limitations. We must consider when, under the MTCA, the limitation period begins

to run, whether it is subject to a discovery rule and, if so, what must be discovered to begin

the limitation period. Upon settling these questions, we must then determine whether, under

the facts of this case, the trial court’s grant of summary judgment must be reversed.

                                           I.
                    When did the statute of limitations begin to run?

¶17.   Because this is a wrongful-death case filed pursuant to the MTCA, we shall analyze

the statute of limitations that applies to both MTCA and wrongful-death cases.


                                              6
       The statute of limitations in MTCA cases.

¶18.   There is no dispute that, because both defendants fall within the definition of a

political subdivision of the state, this case is governed by the provisions of the MTCA. Thus,

we begin our analysis by setting forth the relevant statutory language:

              (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, and not after . . . .

               (4) [I]f any person entitled to bring any action under this chapter shall,
       at the time at which the cause of action accrued, be under the disability of
       infancy or unsoundness of mind, he may bring the action within the time
       allowed in this section after his disability shall be removed. . . .

Miss. Code Ann. § 11-46-11 (Rev. 2002).

¶19.   The statute’s language describes the beginning of the limitation period as the “date

of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the

action is based.” Id. The three terms, “tortious, wrongful, and otherwise actionable” are

particularly troublesome because they are not synonymous.

¶20.   Focusing only on the date of the “wrongful” conduct leads to the inescapable

conclusion that the limitation period begins on the date of the acts which led to the lawsuit.

Thus, we would look only to the date of Dr. Yarbrough’s alleged negligent act, ignoring for

purposes of the analysis the date of any resulting injuries or damages. But both Mrs. Caves

and amici have argued that we must also consider the meaning of “tortious” and “actionable.”

¶21.   A tort is a “civil wrong, other than breach of contract, for which a remedy may be

obtained, usually in the form of damages.” Black’s Law Dictionary, 1247 (8 th ed. 2004).

                                               7
In order to mature into a tort, the negligent act must proximately produce recoverable

damages. Methodist Hosp. of Miss. Annual Conference v. Gammel, 172 So. 2d 762 (Miss.

1965). Thus, focusing on “tortious” and “actionable” requires that we look past the date of

the wrongful conduct to the earliest date all of the necessary elements of a tort claim were

present, remembering that damages may not manifest until long after the wrongful conduct.

For instance, a doctor might apply thirty stitches where thirty-five are called for under the

appropriate standard of care. Thus, the doctor’s conduct would be “wrongful” in that it fell

short of the appropriate standard of care. But absent any damage or harm proximately caused

by the breach, there is no tort and the breach is not “actionable.”

¶22.   Because the three terms listed in the statute are ambiguous, we must look for clues to

the intended meaning and most reasonable application. We are assisted in our effort by the

language included in the statute’s next subsection, which specifically references “the time

at which the cause of action accrued.” Miss. Code Ann. § 11-46-11(4) (Rev. 2002).

Although this subsection has no direct application to today’s case, it is helpful in illuminating

the intent of the statute in its entirety. Subsection four’s employment of the “cause of action

accrued” language is more consistent with an interpretation of subsection three, which holds

that the limitation period begins on the earliest date all of the elements of a tort are present.

We therefore hold that, in applying the statutory language of the MTCA, the statute of

limitations for claims thereunder begins to run when all the elements of a tort, or cause of

action, are present.




                                               8
¶23.   In applying this interpretation to today’s case, and (for summary judgment purposes)

giving the plaintiff the benefit of every reasonable doubt, we note that all of the elements of

all claims were present, at least by April 17, 2000, when Mr. Caves died.7 Since notice was

not provided until February 13, 2002, the suit was time-barred, unless application of a

discovery rule delayed the beginning of the running of the limitations period until at least

February 13, 2001.

       The statute of limitations in wrongful-death cases.

¶24.   We previously addressed the statute of limitations in wrongful-death cases in Jenkins

v. Pensacola Health Trust, 933 So. 2d 923 (Miss. 2006) wherein we stated:

       Recognizing that, in Thiroux, we should have specifically overruled Gentry,
       we do so now, and hold that the statute of limitations on bringing a wrongful
       death claim is subject to, and limited by, the statute of limitations associated
       with the claims of specific wrongful acts which allegedly led to the wrongful
       death.

Id. at 926. It has been argued that our holding in Jenkins produced unfair results because

(according to the argument), a wrongful-death claim may expire before death occurs. This

argument is incorrect, and reveals a failure to review and absorb the specific provisions of

the wrongful death statute.

¶25.   The wrongful-death statute – as it relates to death caused by a negligent act – states

in very specific and understandable terms:




       7
       All of the elements of some of the claims may have been present sooner, depending upon
when the claimants first suffered recoverable damage from the alleged negligence of Dr. Yarbrough.

                                                9
       Whenever the death of any person or of any unborn quick child shall be caused
       by any . . . negligent act or omission, . . . as would, if death had not ensued,
       have entitled the party injured or damaged thereby to maintain an action
       and recover damages in respect thereof, . . . and such deceased person shall
       have left [wrongful death beneficiaries] . . . , the [defendant] . . . that would
       have been liable if death had not ensued . . . shall be liable for damages,
       notwithstanding the death . . . .

Miss. Code Ann. § 11-7-13 (Rev. 2004). Thus, the survival claims described in the

wrongful-death statute are, by specific statutory language, limited to damages which the

deceased person could have pursued “if death had not ensued.” In other words, when a

tortfeasor negligently injures someone and a claim arises, the injured party generally has

three years to bring a claim. Miss. Code. Ann. § 15-1-49 (Rev. 2003). And if the injured

party subsequently dies, the wrongful-death beneficiaries simply step into the shoes of the

deceased person and may – assuming the deceased person brought no claim prior to death

– bring claims the deceased person could have brought “if death had not ensued.” The

injured person (who later died), the statutory beneficiaries, or a combination of the two, have

had the entire limitation period to bring the suit, and the claim (made by the statutory

beneficiaries) is no more than the same claim the injured party could have brought “if death

had not ensued.” Stated another way, if a person who is injured through the negligence of

a tortfeasor fails to file suit within the three-year statute of limitations, the right to bring the

claim expires; and it does not quicken simply because the injured person later dies.

¶26.   But cases filed pursuant to our wrongful-death statute may involve more than one kind

of claim. For instance, in addition to claims the decedent could have brought “if death had




                                                10
not ensued,” 8 there may be individual claims of loss of consortium, society and

companionship, estate claims, and insurance subrogation claims. While it is true that the

wrongful-death statute requires that all such claims be brought in one suit, each claim is

subject to its own statute of limitations. The statute of limitations on estate claims does not

begin to run until all of the elements of an estate claim are present. The same is true for

claims of loss of society and companionship, which may very well not arise until death.

¶27.   One reason for the confusion over claims under our wrongful-death statute is that

much of the statute’s language does not relate to wrongful-death claims, but rather survival

claims.9 One who brings a claim under the wrongful-death statute to recover only damages

under circumstances which, “if death had not ensued, have entitled the party injured or

damaged thereby to maintain an action and recover damages in respect thereof,” is actually

bringing a survival claim, rather than a wrongful-death claim. A true wrongful-death claim

– which is allowed, but not specifically discussed in the language of the wrongful-death




       8
        These claims (which the decedent could have brought “if death had not ensued,” may be
recovered only by the wrongful-death beneficiaries, who share equally all such damages. Miss.
Code Ann. § 11-7-13 (Rev. 2004).
       9
        The survival action provided in the wrongful death statute is an extension of Mississippi’s
survival statute, which allows personal actions of a decedent to be pursued after his or her death. It
provides as follows:
       Executors, administrators, and temporary administrators may commence and
       prosecute any personal action whatever, at law or in equity, which the testator or
       intestate might have commenced and prosecuted. They shall also be liable to be sued
       in any court in any personal action which might have been maintained against the
       deceased.
Miss. Code Ann. § 91-7-233 (Rev. 2004).

                                                 11
statute – is one which is brought to recover damages (such as loss of consortium) one

person’s death causes to another.

¶28.   The Louisiana wrongful-death statute, Louisiana Revised Statute Section 9:5628

(2008), also provides for survival and wrongful-death claims. The Louisiana Supreme Court

addressed the confusion caused thereby as follows:

       Although both actions arise from a common tort, survival and wrongful death
       actions are separate and distinct. Guidry v. Theriot, 377 So. 2d 319 (La.
       1979). Each right arises at a different time and addresses itself to the recovery
       of damages for totally different injuries and losses. Id. The survival action
       comes into existence simultaneously with the existence of the tort and is
       transmitted to beneficiaries upon the victim's death and permits recovery only
       for the damages suffered by the victim from the time of injury to the moment
       of death.10 Id. It is in the nature of a succession right. Comment, Wrongful
       Death: Prescription? Peremption? Confusion! 39 La. L.Rev. 1239, 1249
       (1979). On the other hand, the wrongful death action does not arise until the
       victim dies and it compensates the beneficiaries for their own injuries which
       they suffer from the moment of the victim's death and thereafter. Guidry v.
       Theriot, supra. Wrongful death damages compensate beneficiaries for their
       own injuries. 39 La.L.Rev. 1239, supra at 1249.

Taylor v. Giddens, 618 So. 2d 834, 840 (La. 1993).

¶29.   To summarize, the Mississippi wrongful-death statute, despite the Legislature’s

assigned nomenclature, encompasses all claims – including survival claims which could have

been brought by the decedent, wrongful-death claims, estate claims, and other claims –

resulting from a tort which proximately caused a death. And where death is not an




       10
         The Mississippi wrongful-death statute does not limit recoverable damages to those
suffered prior to death. For instance, by using life expectancy data, the wrongful-death beneficiaries
may – in appropriate cases – recover the lost wages the decedent suffered both prior to, and after,
death.

                                                 12
immediate result of the tort, the limitation periods for the various kinds of claims may not

begin to run at the same time.

¶30.   In the case before us today, the wrongful-death claims of the wrongful-death

beneficiaries matured – and the statute of limitations on those claims began to run – on April

17, 2000; not because that is the day Mr. Caves died, but rather because that is the first day

(“if death had not ensued”) Mr. Caves could have brought a claim.11

¶31.   If there are other claims against Dr. Yarbrough and the Hospital (such as estate claims

and claims for loss of consortium) which may be subject to a different statute of limitations,

such claims are not before us. We now turn to the question of whether the claims of the

wrongful-death beneficiaries are subject to a discovery rule.

                                                  II.

                          Is the MTCA subject to a discovery rule?

¶32.   The MTCA includes within its provisions and language no discovery rule which tolls

or delays the beginning of the running of the statute of limitations until the claimant

discovers the injury or the claim. Because it is this Court’s duty to apply the law as written,

not as we think it should have been written, we concluded in our original opinion in this case

that the absence of any discovery rule within the provisions of the MTCA was binding on

this Court. On rehearing, both Mrs. Caves and amici forcefully argue that, even though the




       11
         This, of course, assumes that the running of the statute of limitations is not tolled pursuant
to an applicable discovery rule.

                                                  13
MTCA has no discovery provision, previous decisions of this Court have held otherwise,12

and the doctrine of stare decisis requires us to follow those prior decisions, whether or not

this Court now agrees with them.

¶33.   Black’s Law Dictionary defines stare decisis as the “doctrine of precedent, under

which it is necessary for a court to follow earlier judicial decisions when the same points

arise again in litigation.” Black’s Law Dictionary, 1173 (8 th ed. 2004). The doctrine’s

simple definition belies its inconsistent application in the various state and federal

jurisdictions. There are certainly instances where incorrect statutory interpretation should

be corrected. For instance, in Monell v. Department of Social Services., 436 U.S. 658, 695,

98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Court stated: “Nor is this a case where we

should ‘place on the shoulders of Congress the burden of the Court's own error.’” (quoting

Girouard v. United States, 328 U.S. 61, 70, 66 S. Ct. 826, 90 L Ed. 1084 (1946)).

Nevertheless, stare decisis is a recognized doctrine which is followed, to some degree, by

virtually every American appellate court.

       Stare decisis - United States Supreme Court precedent.

¶34.   Perhaps the most recognizable pronouncement regarding stare decisis was uttered by

Justice Louis Brandeis, who stated in dissent: “In most matters it is more important that the

applicable rule of law be settled than that it be settled right.” Burnet v. Coronado Oil & Gas


       12
         We note that, in his dissent to our previous opinion, Justice Graves correctly cited this
Court’s previous authority which formed the basis of Mrs. Caves’s and amici’s argument, and which
today leads us to the conclusion that, pursuant to the doctrine of stare decisis, we must continue to
apply a discovery rule to claims filed under the MTCA.

                                                 14
Co., 285 U.S. 393, 405, 52 S. Ct. 443, 76 L. Ed. 815 (1932) (Brandeis, J., dissenting).

Justice Brandeis’s view was doggedly followed in numerous cases decided by the United

States Supreme Court during the first half of the Twentieth Century. See e.g. James v.

United States, 366 U.S. 213, 230-35, 81 S. Ct. 1052, 6 L. Ed. 2d 246 (1961); Toolson v.

New York Yankees, Inc., 346 U.S. 356, 357, 74 S. Ct. 78, 98 L. Ed. 64 (1953) (per curiam)

(court viewed silence as legislative acquiescence to precedent). United States v. South

Buffalo Ry., 333 U.S. 771, 68 S. Ct. 868, 92 L. Ed. 1077 (1948); Cleveland v. United States,

329 U.S. 14, 18, 67 S. Ct. 13, 91 L. Ed. 12 (1946); (Black, J., concurring in part and

dissenting in part) (arguing in support of reaffirming Commissioner v. Wilcox, 327 U.S. 404,

66 S. Ct. 546, 90 L. Ed. 752 (1946), which held embezzled money was not taxable income,

since Congress chose not to enact contrary legislation in following fifteen years); Screws v.

United States, 325 U.S. 91, 109-13, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); Helvering v.

Griffiths, 318 U.S. 371, 63 S. Ct. 636, 87 L. Ed. 843 (1943).

¶35.   However, there are also numerous cases in which the Supreme Court in majority, and

certain justices in dissent, have refused to view silence alone as congressional approval of

the Court’s statutory interpretation. See e.g. Toucey v. New York Life Ins. Co., 314 U.S.

118, 140-41, 62 S. Ct. 139, 86 L. Ed. 100 (1941) (congressional silence should not be treated

as acceptance of ill-reasoned precedents); Boys Markets, Inc. v. Retail Clerk’s Union, 398

U.S. 235, 90 S. Ct. 1583, 26 L. Ed. 2d 199 (1970) (“Nor can we agree that conclusive weight

should be accorded to the failure of Congress to respond to Sinclair Refining Co. v.



                                             15
Atkinson, 370 U.S. 195, 82 S. Ct. 1328, 8 L. Ed. 2d 440 (1962) [a case wrongly decided] on

the theory that congressional silence should be interpreted as acceptance of the decision.”);

Monroe v. Pape, 365 U.S. 167, 202, 220-23, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961)

(Frankfurter, J., dissenting) (“The relevant demands of stare decisis do not preclude

considering for the first time thoroughly and in the light of the best available evidence of

congressional purpose, a statutory interpretation which started as an unexamined assumption

on the basis of inapplicable citations and has the claim of a dogma solely through

reiteration.”); Holder v. Hall, 512 U.S. 874, 944-45, 114 S. Ct. 2581, 129 L. Ed. 2d 687

(1994) (“But ‘we have never applied stare decisis mechanically to prohibit overruling our

earlier decisions determining the meaning of statutes.’”) (quoting Monell v. New York City

Dept. of Soc. Servs., 436 U.S. 658, 695, 98 S. Ct. 2018, 56 L. Ed. 2d 611(1978)).

       Stare Decisis – Mississippi Precedent.

¶36.   The doctrine of stare decisis is not new to this Court, which in 1914 held that “[a]

former decision of this court should not be departed from, unless the rule therein announced

is not only manifestly wrong, but mischievous.” Forest Prod. & Mfg. Co. v. Buckley, 107

Miss. 879, 899, 66 So. 279 (1914). Almost eighty years later, this Court stated:

       In stare decisis generally, we look for error, but, finding that, we look for more
       and we look largely in the area of public or widespread disadvantage.
       Ordinarily, we do not overrule erroneous precedent unless it is “pernicious,”
       Stone v. Reichman-Crosby Co., 43 So. 2d 184, 190 (Miss. 1949);
       “impractical,” Robinson v. State, 434 So. 2d 206, 210 (Miss. 1983) (Hawkins,
       J., concurring); or is “mischievous in its effect, and resulting in detriment to
       the public.” Childress v. State, 188 Miss. 573, 577, 195 So. 583, 584 (1940).


                                              16
       We look for “evils attendant upon a continuation of the old rule.” Tideway Oil
       Programs, Inc. v. Serio, 431 So. 2d 454, 467 (Miss. 1983).

State ex rel. Moore v. Molpus, 578 So. 2d 624, 635 (Miss. 1991).

¶37.   There is no shortage of cases in which this Court has followed the doctrine of stare

decisis. For instance, as recently as 2003, this Court stated:

       State ex rel. Moore v. Molpus, 578 So. 2d 624, 635 (Miss.1991), requires this
       Court to find that the law as it stands is pernicious, impractical, or mischievous
       in its effect and resulted in a detriment to the public in order to modify the
       law.13

Smith v. State, 839 So. 2d 489, 495 (Miss. 2003). See also Land Comm'r v. Hutton, 307 So.

2d 415, 421 (Miss. 1974) (“Unless mischievous, resulting in detriment to the public,

[precedent] will not be overruled although we are of the opinion that it was wrongfully

decided”); Crosby v. Alton Ochsner Med. Found., 276 So. 2d 661, 671 (Miss. 1973) (“a

decision of this Court is binding in its effect and unless mischievous resulting in detriment

to the public, it will not be overruled although wrongly decided”); Westmoreland v. State,

246 So. 2d 487, 497 (Miss. 1971) (“This Court follows the doctrine of stare decisis and

under this doctrine we follow our former decisions, unless such decisions are manifestly

wrong and mischievous in their results”); New York Life Ins. Co. v. Nessossis, 189 Miss.

414, 423 (Miss. 1940) (“[I]t is the settled rule that prior decisions will not be overruled unless

manifestly and undoubtedly wrong, and mischievous in operation and effect”); Childress v.


       13
         The defendant was arguing that the Court should modify the law. Smith, 839 So. 2d at 495.
The Court stated the requirement for overruling the existing law as promulgated in Molpus, and
found that the defendant had failed to show that the existing law met the Molpus test. Id.

                                               17
State, 188 Miss. 573, 577 (Miss. 1940) (“Unless mischievous in its effect, and resulting in

detriment to the public, a case will not be overruled although wrongly decided”).

¶38.   Thus, our precedent applying stare decisis may be summed up as follows: Even

though this Court’s previous interpretation of a statute was (in the current Court’s view)

erroneous, we must continue to apply the incorrect interpretation unless we consider it

“pernicious,” “impractical,” or “mischievous in . . . effect, and resulting in detriment to the

public.” Id.

¶39.   Unfortunately, having stated what must be found to prevent application of stare

decisis, this Court has offered no guidelines for finding or identifying these prerequisites

(pernicious, impractical, mischievous, etc.). A justice on this Court might reasonably

                                                           14
conclude that some of the definitions of mischievous            or pernicious 15 apply to all of this

Court’s prior opinions with which that justice disagrees.

¶40.   Worse still is the fact that this Court has never handed down an opinion which

reversed a prior statutory interpretation because it was found to be impractical or pernicious,

and has rarely found a prior interpretation to be mischievous.16                         Since the


       14
          Dictionary definitions of “mischievous,” including “playful,” and “troublesome.”
American Heritage Dictionary ® of the English Language (4 th Ed. 2004)
http://dictionary.reference.com/browse/mischievous (Aug 23, 2008)
       15
         Included in the dictionary definitions for “pernicious” is “that which annoys or gives
trouble and vexation, that which is offensive or noxious.” Webster’s Revised Unabridged
Dictionary http://dictionary.reference.com/browse/pernicious (August 23, 2008).
       16
          We must hark back to 1910, when this Court held that technical compliance with a land-
sale statute was insufficient, when accompanied by fraud; and that a previous case holding otherwise

                                                18
“pernicious/mischievous” test has virtually never been met, one would think this Court has

virtually never reversed a prior statutory interpretation. Not so. Without any finding of

“pernicious” or “mischievous,” this Court has not hesitated to reverse numerous prior cases

which wrongly interpreted a statutory provision. See e.g., Cash Distrib. Co. v. Neely, 947

So. 2d 286 (Miss. 2007) (overruled previous statutory interpretation of ADEA in Columbus

Paper & Chemical, Inc. v.Chamberlin, 687 So. 2d 1143 (Miss. 1996); C.L. Thornhill, et

al. v. System Fuels, Inc., et al., 523 So. 2d 983, 1011 (Miss. 1988) (Robertson, J.,

concurring) (“The history of our law is strewn with the carcasses of cases long defended in

the name of stare decisis ultimately reversed by the rule of reason.”). Harper v. Harper, 491

So. 2d 189, 202 (Miss. 1986) (overruled Brickell v. Lightcap 115 Miss. 417, 76 So. 489

(1917) and progeny that espoused a different statutory interpretation).

¶41.   Thus, the need for a clear, consistent rule is apparent. The bench and bar should not

be left to guess when, and upon what basis, this Court might decide to reverse prior

interpretations of statutes. Although we cannot agree with Justice Brandeis that “it is more

important that the applicable rule of law be settled than it be settled right,” we do think there

comes a point when the Legislature may incorporate an incorrect interpretation of a statute.

¶42.   While we do not agree that the Legislature’s mere silence is enough, we do agree with

the view offered by Justice Roberts in Helvering v. Hallock, 309 U.S. 106, 130-32, 60 S. Ct.


was “manifestly unsound and mischievous in its effect.” Wisconsin Lumber Co. v. State, 54 So.
247, 249 (Miss. 1910). The other instance appears in 1968, when this Court, overruling prior
precedents, held that the interpretation of the apportionment statute was “manifestly erroneous” and
“mischievous in operation.” Cockrell Banana Co. v. Harris, 212 So. 2d 581, 585 (Miss. 1968).

                                                19
444, 84 L. Ed. 604 (1940), that congressional re-enactment of a statute creates a presumption

of legislative approval of the Court's prior interpretations of that statute. This threshold test

for application of stare decisis has been followed in numerous cases. For instance, in

Lorillard, Div. of Loew’s Theatres, Inc. v. Pons, 434 U.S. 575, 580-81, 98 S. Ct. 866, 55 L.

Ed. 2d 40 (1978), Justice Marshall noted, “Congress is presumed to be aware of an

administrative or judicial interpretation of a statute and to adopt that interpretation when it

re-enacts a statute without change.”

¶43.   We agree with this reasoning,17 and hold that – in cases where this Court concludes

a statute was incorrectly interpreted in a previous case – we will nevertheless continue to

apply the previous interpretation, pursuant to the doctrine of stare decisis, upon finding the

Legislature amended or reenacted the statute without correcting the prior interpretation. In

our view, such action on the part of the Legislature amounts to incorporation of our previous

interpretation into the reenacted or amended statute. The Legislature is, of course, free to

preclude our incorrect interpretation by specific provision, failing which, we must conclude

that the legislative silence amounts to acquiescence. Stated another way, the incorrect

interpretation becomes a correct interpretation because of the Legislature’s tacit adoption of

the prior interpretation into the amended or reenacted statute. We must now determine


       17
          This reasoning is not perfect, as applied to Mississippi statutes. Unlike the United States
Supreme Court’s review of statutes enacted by the Congress, this Court – when reviewing its prior
statutory interpretation – has no legislative history for guidance on the question of whether, in re-
enacting a statute, the Legislature took into account our prior interpretation. See United States v.
Bd. of Comm’rs, 435 U.S. 110, 134-35, 98 S. Ct. 965, 55 L. Ed. 2d 148 (1978) (legislative history
of statutory reenactment showed Congress agreed with Court’s prior interpretation).

                                                 20
whether the doctrine of stare decisis, as defined today, applies to this Court’s previous

interpretations of the MTCA.

       Barnes v. Singing River Hospital.

¶44.   Nine years ago, without citation of any authority to do so, this Court “incorporated”

a discovery rule into the MTCA, stating simply that

       we choose to incorporate a discovery rule in actions brought under the
       [MTCA] involving latent injuries. Particularly considering the short, one-year
       statute of limitations period in § 11-46-11(3), we find that justice is best served
       by applying a discovery standard to such cases.

Barnes v. Singing River Hosp., 733 So. 2d 199, 205 (Miss. 1999).

¶45.   Following Barnes, this Court continued to apply its judicially-created discovery rule

to claims filed under the MTCA. See Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997,

1000–1001 (Miss. 2004) (“[t]he discovery rule applies to the one-year MTCA statute of

limitations”); Wright v. Quesnel, 876 So. 2d 362, 366 (Miss. 2004) (MTCA’s statute of

limitations is “subject to a discovery rule”); Moore v. Mem’l Hosp., 825 So. 2d 658, 667

(Miss. 2002) (“[w]e have held that the discovery rule applies to the MTCA’s statute of

limitations”); Henderson v. Un-Named Emergency Room, 758 So. 2d 422, 427 (Miss.

2000) (“this Court incorporated a discovery rule in actions brought under the Mississippi

Tort Claims Act”).

¶46.   Although the MTCA’s discovery rule was judicially created, Mrs. Caves argues in her

brief that, subsequent to this Court’s incorrect interpretation in Barnes, Section 11-46-11(3)


                                               21
       has been brought forward in legislation and re-enacted by the legislature at
       least three times. . . . In accord with familiar rules of construction, the
       legislature by re-enactment of a statute which has been construed by the
       highest court of the state, adopts the construction placed upon the statute by
       the Court.

¶47.   We agree, and hold today that by reenacting Section 11-46-11(3) without addressing

or countermanding this Court’s decision in Barnes, the Legislature acquiesced and tacitly

approved and incorporated into the statute a discovery rule as announced in Barnes.

Pursuant to the doctrine of stare decisis, we therefore shall continue to recognize a discovery

rule with respect to Section 11-46-11(3). Having held that a discovery rule applies to claims

under the MTCA, we must now proceed to discuss its effect on the case before us today.

                                              III.
                                 What must be discovered?

¶48.   Not all discovery rules are created equal. In analyzing what the plaintiff must

discover in order to trigger the running of the statute of limitations, we ordinarily are guided

by the wording of a statute’s discovery provision.

¶49.   For instance, in Powe v. Byrd, 892 So. 2d 223 (Miss. 2004), we applied a statutory

discovery rule which states that medical-malpractice claims must be filed "within two years

from the date the alleged act, omission or neglect shall or with reasonable diligence might

have been first known or discovered." Miss. Code Ann. § 15-1-36(1) (Rev. 2003) (emphasis

added). Pointing out that the plaintiff was aware of his injury as evinced by the two years




                                              22
of prior medical treatment, we specifically rejected the plaintiff’s claim that the statute of

limitations did not begin to run until he received an expert opinion. Id. at 227-28.

¶50.   A different discovery rule controls claims subject to our “catch-all” statute of

limitations, which incorporates language different from the discovery rule in Section 15-1-

36(1). Section 15-1-49(2) states:

       In actions for which no other period of limitation is prescribed and which
       involve latent injury or disease, the cause of action does not accrue until the
       plaintiff has discovered, or by reasonable diligence should have discovered,
       the injury.

Miss. Code Ann. §15-1-49(2) (Rev. 2003) (emphasis added).

¶51.   In Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704 (Miss. 1990), we held that the

discovery rule provided in Section 15-1-49(2) will be applied to products liability cases, and

that the cause of action accrues and the statute of limitations begins at the time the plaintiff

can reasonably be held to have knowledge of the injury or disease. Id. at 708-09.

¶52.   Thus, comparing the discovery rules in the medical-malpractice statute and the “catch-

all” statute, we have one which focuses on discovery of the date of the wrongful conduct, and

another which focuses on the date of discovery of the injury or disease. It is simple enough

to follow the dictates of these statutes, puzzling though their differences may be. The

difficulty arises in applying, as we must today, a judicially-created discovery rule for which

there is no statutory guidance.




                                              23
¶53.   We are left to rely on the language of Barnes which, as stated earlier, we view as

having been incorporated into the MTCA through reenactment. In creating the discovery

rule in Barnes, this Court held that:

       we find that justice is best served by applying a discovery standard to such
       cases. As we stated in Smith v. Sanders, 485 So. 2d 1051 (Miss. 1986):
               There may be rare cases where the patient is aware of his injury
               prior to the [expiration of the limitations period], but does not
               discover and could not have discovered with reasonable
               diligence the act or omission which caused the injury. In such
               cases, the action does not accrue until the latter discovery is
               made.
       Sanders, 485 So. 2d at 1052-53. Such is the case here.

Barnes, 485 So. 2d at 205-06. Thus, we hold today that the limitations period for MTCA

claims does not begin to run until all the elements of a tort exist, and the claimant knows or,

in the exercise of reasonable diligence, should know of both the injury and the act or

omission which caused it.18

                                        CONCLUSION

¶54.   We hold today that the MTCA’s one-year statute of limitations begins to run when the

claimant knows, or by exercise of reasonable diligence should know, of both the damage or

injury, and the act or omission which proximately caused it. We further hold that the finder

of fact (in this case, the trial judge) must decide when those requirements are satisfied.


       18
         We do not agree with the Graves separate opinion that – as a matter of law – the statute of
limitations did not begin to run until Mrs. Caves received the autopsy report. The question of when
Mrs. Caves knew or, by exercise of reasonable diligence, should have known of both the injury and
the alleged negligent act which caused it, is left to the trier of fact.

                                                24
¶55.   The trial judge granted summary judgment based on the fact that “the medical records

for the events in question were obtained shortly after the decedent’s death,” and because “the

actions of the decedent’s family clearly show[ed] knowledge of a potential claim well within

the year following the decedent’s death.” The trial court further specifically found that,

because there were no “latent injuries or actions,” the discovery rule had no application.

¶56.   The operative question, however, is whether statutory notice was provided within a

year next following the earliest date Mr. Caves (or his personal representative), by exercise

of reasonable diligence, should have known of the injury and the acts or omission which

caused them. Because the trial court did not precisely address this question, we reverse the

trial court’s grant of summary judgment and remand this case to the trial court for disposition

consistent with this opinion.

¶57.   REVERSED AND REMANDED.

     SMITH, C.J., WALLER, P.J., CARLSON, RANDOLPH AND LAMAR, JJ.,
CONCUR. EASLEY, J., CONCURS IN PART AND IN RESULT. DIAZ, P.J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY DIAZ, P.J.; EASLEY, J., JOINS IN
PART.
     DIAZ, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING
IN PART:

¶58.   Although I join fully in Justice Graves’ opinion, I write separately to endorse the

majority’s analysis regarding wrongful-death claims.




                                              25
¶59.   As the majority rightly notes, the Legislature has dealt a confusing hand to the courts

of this state by enacting a statute governing survival actions with an appearance more

befitting a wrongful-death statute. The distinction between the two actions is critical, and the

passage adopted from the Louisiana Supreme Court rightly addresses that distinction.

¶60.   Although the statute of limitations may begin to run prior to death on claims that

eventually become survival actions, the statute of limitations on a wrongful-death claim, by

its very nature, does not begin to run until the injured victim dies. No statute of limitations

begins to run until all the elements of a tort, or cause of actions, are present. “[D]eath is a

critical, and the final, element in the accrual of a wrongful death action . . . . Simply put, no

wrongful-death claim exists until the death occurs . . . .” McMillan v. Puckett, 678 So. 2d

652, 655 (Miss. 1996) (quoting with approval Gabriel v. Sch. Dist. No. 4, Libby, Montana,

264 Mont. 177, 179-80, 870 P.2d 1351, 1352 (1994)).

¶61.   Any other rule would require wrongful death beneficiaries to take action even before

they are wrongful death beneficiaries and drag their dying loved ones into court to squabble

with the trial judge over the inconvenience of the victim’s persistent pulse. Arguments in

favor of such an outcome call to mind the classic scene from “Monty Python and the Holy

Grail,” in which a pauper beseeches a traveling mortician to take away his dying relative.

       MORTICIAN: Bring out your dead!
       PEASANT: Here’s one.
       MORTICIAN: Nine pence.
       DYING MAN: I’m not dead!


                                               26
        MORTICIAN: What?
        PEASANT: Nothing! Here’s your nine pence.
        DYING MAN: I’m not dead!
        MORTICIAN: Here – he says he’s not dead!
        PEASANT: Yes, he is.
        DYING MAN: I’m not!
        MORTICIAN: He isn’t.
        PEASANT: Well, he will be very soon. He’s very ill.
        DYING MAN: I’m getting better!
        PEASANT: No, you’re not. You’ll be stone-dead in a moment.
        ....
        MORTICIAN: I can’t take him.
        DYING MAN: I feel fine!
        PEASANT: Oh, do us a favor.
        MORTICIAN: I can’t.
        PEASANT: Well, can you hang around a couple of minutes? He won’t be long.


Monty Python and the Holy Grail (Michael White Prod. 1975). Today’s decision rightly

leaves such absurd discussions to the work of British comedy troupes and not to the courts

of this state.

¶62.    The majority also notes correctly that a victim’s death does not necessarily wind the

clock of the applicable statute of limitations. Maj. Op. at ¶ 30, n.11. If death occurs before

the discovery (or time by which a diligent inquiry would have resulted in discovery) of the

injury which led to death, then the statute does not begin to run until that point in time. “The

operative time is when the plaintiff can reasonably be held to have knowledge of the injury

itself, the cause of the injury, and the causal relationship of the injury and the conduct of the


                                               27
[defendant].” Williams v. Kilgore, 618 So. 2d 51, 54 (Miss. 1992) (quoting Smith v.

Saunders, 485 So. 2d 1051, 1052 (Miss. 1986)).

¶63.   Therefore, although I join Justice Graves’ opinion regarding the existence of genuine

issues of material fact in this case, I agree with the majority’s determination that claims for

wrongful death do not answer to any statute of limitations until, at the very earliest, the date

of death.

       GRAVES, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶64.   I agree with the majority that a discovery rule applies to claims under the Mississippi

Tort Claims Act (MTCA). I also agree with the majority that the limitations period for

MTCA claims does not begin to run until the claimant knows or, in the exercise of reasonable

diligence, should know of both the injury and the act or omission which caused it. However,

I disagree with the majority’s analysis regarding the wrongful-death statute and Jenkins v.

Pensacola Health Trust, 933 So. 2d 923 (Miss. 2006), as the majority acknowledges this is

an action pursuant to the MTCA. Further, I disagree with the majority’s vague instruction

that this matter is remanded “to the trial court for disposition consistent with this opinion.”

¶65.   There is no “genuine issue of material fact.” Miss. R. Civ. P. 56(c). As acknowledged

by the majority, Mrs. Caves diligently attempted to obtain the autopsy report, but did not

receive it until March of 2001. Mrs. Caves then obtained an expert affidavit on April 11,

2001. Mrs. Caves provided the hospital notice of a claim under the MTCA on February 13,




                                              28
2002, within one year of being provided the autopsy report. Therefore, statutory notice was

provided within one year.

¶66.    Assuming arguendo that there is a question of fact regarding the timeliness of the

statutory notice, that matter could be appropriately resolved at trial. In other words, if in fact

there is a question about whether statutory notice was provided within a year, then that is a

“genuine issue of material fact” sufficient to require denial of the motion for summary

judgment. Miss. R. Civ. P. 56(c). The instant case is before this Court on the granting of a

motion for summary judgment. The majority finds that a factual determination needs to be

made but fails to specifically remand this matter for a trial. Our system of jurisprudence

provides a vehicle which is appropriate for factual determinations. It is a trial. Even though

the majority now recognizes the application of a discovery rule, it remains unwilling to

specifically allow this matter to proceed to trial. Therefore, I concur in part and dissent in

part.

¶67.    Moreover, with the exception of the discussion of the statute-of-repose finding that

the majority does not now address, I stand by my previous dissent published on November

1, 2007, and quoted in its entirety herein below:

¶68.    The majority sua sponte finds that this Court has been unconstitutionally amending

and misapprehending the Mississippi Tort Claims Act (MTCA) for several years. It finds

further that a long line of precedent should be overruled. I disagree. Further, because the




                                               29
majority unconstitutionally amends the MTCA and erroneously finds no discovery rule

applicable to the MTCA, I respectfully dissent.

¶69.    This is not a case of first impression. Yet, for the first time, this Court now finds that

the MTCA is a statute of repose rather than a statute of limitations and offers up a quote from

Gaggini’s Mississippi Limitations of Actions to explain the distinction between the two.

However, the majority’s analysis is erroneous. The U.S. Supreme Court consistently has

found that “[s]tatutes of limitation are statutes of repose.” Edwards v. Kearzey, 96 U.S. 595,

603, 24 L. Ed. 793 (1878) (emphasis added). See also United States v. Kubrick, 444 U.S.

111, 117, 100 S.Ct. 352, 62 L. Ed. 2d 259 (1979) (statutes of limitations “are statutes of

repose. . . .”); and Lewis v. Marshall, 30 U.S. 470, 8 L. Ed. 195 (1831) (“Statutes of

limitations have been emphatically and justly denominated statutes of repose.”).

Nevertheless, various authorities have found distinctions.

¶70.    In comparing a statute of limitations with a statute of repose, Black’s Law Dictionary

says:

        While statutes of limitations are sometimes called “statutes of repose,” the
        former bars right of action unless it is filed within a specified period of time
        after injury occurs, while “statute of repose” terminates any right of action
        after a specific time has elapsed, regardless of whether there has as yet been
        an injury.

Black’s Law Dictionary 927 (6 th ed. 1990).

¶71.    There is no authority for the quantum leap the majority now makes. The majority is

unable to offer a single authority supporting the application of a statute of repose, as so

                                               30
defined, to the instant case. The Mississippi Legislature plainly and unambiguously entitled

the statute in question “Statute of limitations . . .” and repeatedly refers to it as such. Courts

consistently have applied this statute of limitations. Now the majority, in a contradictious

opinion, finds that this Court should violate, in its language, “our constitutional prohibition

from judicially amending statutes” by amending the statute to substitute the word “repose”

for “limitations.”

¶72.   Clearly, the MTCA contemplates the statute running from the time of discovery of the

injury. Further, discovery is crucial to the notice-of-claim requirement. Section 11-46-11(1)

of the MTCA states, in relevant part:

       [A]ny person having a claim for injury arising under the provisions of this
       chapter against a governmental entity or its employee shall proceed as he
       might in any action at law or in equity; provided, however, that ninety (90)
       days prior to maintaining an action thereon, such person shall file a notice of
       claim. . . .


Miss. Code Ann. § 11-46-11(1) (Rev. 2002). Further, the notice must contain the following:


       Every notice of claim shall contain a short and plain statement of the facts
       upon which the claim is based, including the circumstances which brought
       about the injury, the extent of the injury, the time and place the injury
       occurred, the names of all persons known to be involved, the amount of
       money damages sought and the residence of the person making the claim at
       the time of the injury and at the time of filing the notice.


Miss. Code Ann. § 11-46-11(2) (Rev. 2002) (emphasis added).




                                               31
¶73.   The majority concedes that this Court requires “strict compliance” with the notice

provisions of the MTCA. The MTCA requires, in clear and plain language, that discovery

of the injury triggers the running of the statute of limitations. Discovery of the injury is

necessary for compliance with the notice-of-claim provision. The autopsy report was

necessary to determine the cause of death and for Caves to be able to comply with the

requirements of the notice of claim. The majority concedes that Caves requested the autopsy

report on a weekly basis until she moved out of state and that her son then continued to

request the report. Hence, it is clear that, although the plaintiff was diligent in her pursuit of

the report, her persistent requests went unanswered. Due to a recalcitrant, uncooperative,

dilatory third party, the defendant is now rewarded by the majority.

¶74.   Moreover, the statute can be tolled pursuant to both the notice-of-claim provision and

the savings clause in favor of minors and those of unsound mind in subsection (4) of the

MTCA, which specifically says:

       [I]f any person entitled to bring any action under this chapter shall, at the time
       at which the cause of action accrued, be under the disability of infancy or
       unsoundness of mind, he may bring the action within the time allowed in this
       section after his disability shall be removed as provided by law.


Miss. Code Ann. § 11-46-11(4) (Rev. 2002) (emphasis added). This language in the MTCA

evinces the Legislature’s intention that the limitations period run from the time of accrual.

A distinction cannot be made between an adult plaintiff and a minor. The time for bringing

an action may be extended for a minor until after the disability is removed. However, the



                                               32
relevant starting point for both must be the “time at which the cause of action accrued.” To

determine otherwise is in violation of the Mississippi Constitution. See Miss. Const. art. 3

§§ 24, 25. And clearly the cause of action does not accrue until discovery of the injury.

“The operative time is when the patient can reasonably be held to have knowledge of the

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

conduct of the medical practitioner.” Smith v. Sanders, 485 So. 2d 1051, 1052 (Miss. 1986).

See also Moore v. Mem’l Hosp. of Gulfport, 825 So. 2d 658, 667 (Miss. 2002); Wayne

Gen’l Hosp. v. Hayes, 868 So. 2d 997, 1000-01 (Miss. 2004); Page v. Univ. of S. Miss., 878

So. 2d 1003, 1006 (Miss. 2004); and Wright v. Quesnel, 876 So. 2d 362, 366 (Miss. 2004).

¶75.   Further, statutes of repose are intended to be substantially longer than statutes of

limitation and are intended to place an outside limit on the applicability of the discovery rule

in medical malpractice cases. See Annotated Laws of Massachusetts, ALM GL ch. 260, §

4 (2007) (three-year statute of limitations and seven-year statute of repose); Official Code

of Georgia Annotated, O.C.G.A. § 9-3-71 (two-year statute of limitations and five-year

statute of repose); Musculoskeletal Institute v. Parham, 745 So. 2d 946, 951 (Fla. 1999)

(Florida Statute Section 95.11(4)(b) provides a two-year statute of limitations, four-year

statute of repose, and then seven-year statute of repose where fraud, concealment or

intentional misrepresentation of fact prevented discovery of the injury within the four-year

period); and Anderson v. Wagner, 79 Ill. 2d 295 (Ill. 1979) (two-year statute of limitations

and four-year statute of repose). The majority has failed to establish any basis for judicially



                                               33
amending the statute to impose a statute of repose which would be antithetical to the intended

effect of such a statute.

       Statutes of limitation are statutes of repose. They are necessary to the welfare
       of society. The lapse of time constantly carries with it the means of proof. The
       public as well as individuals are interested in the principle upon which they
       proceed. They do not impair the remedy, but only require its application cation
       [sic] within the time specified. If the period limited be unreasonably short, and
       designed to defeat the remedy upon pre-existing contracts, which was part of
       their obligation, we should pronounce the statute void.


Edwards v. Kearzey, 96 U.S. 595, 603, 24 L. Ed. 793 (1878).

¶76.   The majority quotes Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L. Ed. 2d 259 (1979),

regarding the waiver of immunity intended by Congress in construing the statute of

limitations. However, the majority fails to mention that the U.S. Supreme Court found in

Kubrick that a claim accrues when a plaintiff knows both the existence and the cause of the

injury. Id. Further, the Court said:

       We are unconvinced that for statute of limitations purposes a plaintiff’s
       ignorance of his legal rights and his ignorance of the fact of his injury or its
       cause should receive identical treatment. That he has been injured in fact may
       be unknown or unknowable until the injury manifests itself; and the facts about
       causation may be in the control of the putative defendant, unavailable to the
       plaintiff or at least very difficult to obtain.


Kubrick, 444 U.S. at 122, 100 S.Ct. at 359. The majority simply dismisses the above

language from Kubrick as a misrepresentation. However, the majority fails to recognize the

difference between knowing the existence and cause of an injury and knowing that the acts

inflicting the injury constituted medical malpractice.


                                              34
¶77.   Moreover, the U.S. Supreme Court has specifically recognized not only that a statute

can be tolled in certain instances even without a specific tolling provision, but also that a

discovery rule applies in certain cases.

       Holmberg thus stands for the proposition that equity tolls the statute of
       limitations in cases of fraud or concealment; it does not establish a general
       presumption applicable across all contexts. The only other cases in which we
       have recognized a prevailing discovery rule, moreover, were decided in two
       contexts, latent disease and medical malpractice, “where the cry for [such a]
       rule is loudest,” [citations omitted].


TRW Inc. v. Andrews, 534 U.S. 19, 27, 122 S.Ct. 441, 151 L. Ed. 2d 339 (2001) (referring

to Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L. Ed. 743 (1946), and quoting

Rotella v. Wood, 528 U.S. 549, 555, 120 S. Ct. 1075, 145 L. Ed. 2d 1047 (2000)).

¶78.   Furthermore, the U.S. Supreme Court has acknowledged the implication of a

discovery rule when a statute is silent on the issue. “Federal courts, to be sure, generally

apply a discovery accrual rule when a statute is silent on the issue, as civil RICO is here.”

Rotella, 528 U.S. at 555.19




       19
         The majority maintains that the citation of Rotella is misplaced and then quotes additional
language indicating, again, that the majority fails to recognize the distinction between existence and
cause of an injury and knowing that the acts producing the injury constituted negligence. Ironically,
the majority’s citation of Rotella is incomplete. The additional quote of Rotella offered by the
majority actually ends with the direct quote from Kubrick cited herein. Further, the Rotella Court
said: “Although we said that the potential malpractice plaintiff ‘need only ask’ if he has been
wronged by a doctor, considerable enquiry and investigation may be necessary before he can make
a responsible judgment about the actionability of the unsuccessful treatment he received.” Id. at
556.

                                                 35
¶79.   Additionally, the Supreme Court has found only that specific text addressing the

precise question can “evince Congress’ intent to preclude judicial implication of a discovery

rule.” TRW, 534 U.S. at 28. “Where Congress explicitly enumerates certain exceptions to

a general prohibition, additional exceptions are not to be implied, in the absence of evidence

of a contrary legislative intent.” Id. (quoting Andrus v. Glover Constr. Co., 446 U.S. 608,

616-617, 100 S. Ct. 1905, 64 L. Ed. 2d 548 (1980)).

¶80.   In TRW, the Court said: “The [Fair Credit Reporting Act] does not govern an area of

the law that cries out for application of a discovery rule, nor is the statute ‘silent on the issue’

of when the statute of limitations begins to run.” Id. at 28. In the instant case, this Court is

dealing with an area of the law “that cries out for application of a discovery rule” and the

MTCA statute is “silent on the issue.” 20

¶81.   The majority states that some may find its result “harsh.” It is not only harsh, but

unfair, unjust and unfounded. The Legislature found the MTCA necessary as a matter of

public policy. See Miss. Code Ann. § 11-46-3(1) (Rev. 2002). Public policy likewise

dictates that this Court not improperly amend, interpret or skew the statutory authority in

such a fashion that medical providers will have the ability to escape liability by withholding

information until after the expiration of an unreasonably short, limited period. Moreover, the

Mississippi Constitution ensures that a plaintiff will not be precluded from asserting a claim



       20
          Both the majority and concurring opinions acknowledge that the statute is silent on the
issue of a discovery rule, then find that such silence prohibits the application of a discovery rule.
However, as discussed herein, such a finding is incorrect.

                                                 36
by a statute of limitations before an injury is even discovered. See Miss. Const. art. 3 §§ 24,

25.

¶82.    In the instant case, the MTCA statute is clearly a statute of limitations and not a

statute of repose. This Court is dealing with an area of the law “that cries out for application

of a discovery rule.” Further, the MTCA statute requires the application of a discovery rule

pursuant to the plain language of the statute and longstanding precedent. The majority

acknowledges that the cases cited herein stand for the proposition that the statute of

limitations begins to run upon discovery of the injury. Accordingly, I respectfully dissent.

    DIAZ, P.J., JOINS THIS OPINION. EASLEY, J., JOINS THIS OPINION IN
PART.




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