MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Judiciary, Division A
By: Senator(s) Fillingane
AN ACT TO AMEND SECTIONS 11-46-11 AND 15-1-36, MISSISSIPPI CODE OF 1972, TO CLARIFY THE SUBSTANTIVE NATURE OF THE NOTICE REQUIREMENTS FOR A PERSON MAKING A CLAIM UNDER THE TORT CLAIMS ACT OR FOR A PERSON PURSUING A MEDICAL MALPRACTICE CLAIM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-46-11, Mississippi Code of 1972, is amended as follows:
11-46-11. (1) After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed only after strictly complying with the following mandatory requirements, upon which the waiver of immunity provided by Section 11-46-5(1) and the jurisdiction of the circuit courts of this state to preside over the subject matter of any claim brought pursuant to this chapter are both contingent:
(a) * * * In order to have standing to institute suit, ninety (90) days before commencing an action as contemplated under this chapter, the claimant shall file a notice of claim with the chief executive officer of the governmental entity. Service of notice of claim may also be had in the following manner: If the governmental entity is a county, then upon the chancery clerk of the county sued; if the governmental entity is a municipality, then upon the city clerk. If the governmental entity to be sued is a state entity as defined in Section 11-46-1(j), service of notice of claim shall be had only upon that entity's chief executive officer. If the governmental entity is participating in a plan administered by the board pursuant to Section 11-46-7(3), such chief executive officer shall notify the board of any claims filed within five (5) days after the receipt thereof.
(b) The provisions of this subsection (1) are jurisdictional in nature. Any action commenced without complete compliance with each and every one of the provisions of this section shall not be duly filed and shall not toll, arrest, alter or amend any applicable limitations period.
(2) Every notice of claim required by subsection (1) of this section shall be in writing, and shall be delivered in person or by registered or certified United States mail. 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.
(3) All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the * * * conduct on which the liability phase of the action is based without regard to the date on which the claim was first discoverable or discovered, except as otherwise provided in Section 15-1-36, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety (90) days from the date the chief executive officer or other statutorily designated official of the state agency * * * or municipality, county or other political subdivision receives the notice of claim, during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim. After the tolling period has expired, the claimant shall then have an additional ninety-day filing period to commence any action against the governmental entity served with proper claim notice. The ninety-day filing period shall run concurrently with the one (1) year limitations period provided in this section, as tolled by the receipt of a notice of claim. The filing period shall only extend the time in which suit may be commended beyond the one (1) year limitations period, as tolled by the receipt of a notice of claim, by the number of unexpired days remaining of the ninety-day filing period as of the date the one (1) year limitations period expires. However, should the governmental entity deny any such claim, then the ninety-day tolling period shall end, and the additional ninety-day filing period during which the claimant may commence an action shall begin to run upon the claimant's receipt of notice of denial of claim from the governmental entity. All notices of denial of claim shall be served by governmental entities upon claimants by certified mail, return receipt requested, only. For purposes of determining the running of limitations periods under this chapter, service of any notice of claim or notice of denial of claim shall be effective upon delivery by the methods statutorily designated in this chapter. The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.
(4) From and after April 1, 1993, if 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. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.
(5) The defenses and notice provisions contained in this chapter shall be substantive rights that may be asserted at any time before final judgment is entered in the trial court.
SECTION 2. Section 15-1-36, Mississippi Code of 1972, is amended as follows:
15-1-36. (1) For any claim accruing on or before June 30, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor 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.
(2) For any claim accruing on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor 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, and, except as described in paragraphs (a) and (b) of this subsection, in no event more than seven (7) years after the alleged act, omission or neglect occurred:
(a) If a foreign object introduced during a surgical or medical procedure has been left in a patient's body, the cause of action shall be deemed to have first accrued at, and not before, the time at which the foreign object is, or with reasonable diligence should have been, first known or discovered to be in the patient's body.
(b) If the cause of action shall have been fraudulently concealed from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence should have been, first known or discovered.
(3) Except as otherwise provided in subsection (4) of this section, if at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be six (6) years of age or younger, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his sixth birthday, or shall have died, whichever shall have first occurred.
(4) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitation begin to run prior to such minor's sixth birthday unless such minor shall have died.
(5) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be under the disability of unsoundness of mind, then such person or the person claiming through him may, notwithstanding that the period of time hereinbefore limited shall have expired, commence action on such claim at any time within two (2) years next after the time at which the person to whom the right shall have first accrued shall have ceased to be under the disability, or shall have died, whichever shall have first occurred.
(6) When any person who shall be under the disabilities mentioned in subsections (3), (4) and (5) of this section at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed by reason of the disability of such person to commence action on the claim of such person beyond the period prescribed under Section 15-1-55, Mississippi Code of 1972.
(7) For the purposes of subsection (3) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after a person has reached his sixth birthday.
(8) For the purposes of subsection (4) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after a person has reached his sixth birthday or from and after such person shall have a parent or legal guardian, whichever occurs later, unless such disability is otherwise removed by law.
(9) The limitation established by this section as to a licensed physician, osteopath, dentist, hospital or nurse shall apply only to actions the cause of which accrued on or after July 1, 1976.
(10) The limitation established by this section as to pharmacists shall apply only to actions the cause of which accrued on or after July 1, 1978.
(11) The limitation established by this section as to podiatrists shall apply only to actions the cause of which accrued on or after July 1, 1979.
(12) The limitation established by this section as to optometrists and chiropractors shall apply only to actions the cause of which accrued on or after July 1, 1983.
(13) The limitation established by this section as to actions commenced on behalf of minors shall apply only to actions the cause of which accrued on or after July 1, 1989.
(14) The limitation established by this section as to institutions for the aged or infirm shall apply only to actions the cause of which occurred on or after January 1, 2003.
(15) No action based upon the health care provider's professional negligence may be commenced unless a certification of consultation, if required under Section 11-5-58, accompanies the complaint and the defendant has received at least sixty (60) days' prior written notice of the intention to sue; no person shall otherwise have standing to sue and any action commenced without compliance with this notice requirement shall not be allowed by the court to proceed. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim, including the acts at issue, the type of loss sustained, and the specific nature of the injuries suffered. If * * * notice is provided, the applicable statute of limitations * * * shall be extended sixty (60) days * * *. The provisions of this section are jurisdictional in nature. Any action commenced without complete compliance with each and every one of the provisions of this section shall not be duly filed and shall not toll, arrest, alter or amend any applicable limitations period.
(16) The defenses and notice provisions contained in this section shall be substantive rights that may be asserted at any time before final judgment is entered in the trial court.
SECTION 3. This act shall take effect and be in force from and after its passage, and shall apply to all pending actions in which judgment has not been entered on the effective date of the act and to all actions filed on or after the effective date of the act.