E-Filed Document May :15: IA SCT Pages: 24 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.

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1 E-Filed Document May :15: IA SCT Pages: 24 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO IA HOWARD R. HOLADAY, JR., M.D. APPELLANT V. KYLE MOORE and MARLA MOORE APPELLEES BRIEF OF HOWARD R. HOLADAY, JR., M.D., Appellant ORAL ARGUMENT NOT REQUESTED APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI Stephen P. Kruger, MSB #4266 T. L. Smith Boykin, III, MSB # PAGE, KRUGER & HOLLAND, P.A. 10 Canebrake Blvd., Ste. 200 Post Office Box 1163 Jackson, Mississippi (601) (telephone) (601) (facsimile) HOWARD R. HOLADAY, JR., M.D, Appellant

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO IA HOWARD R. HOLADAY, JR., M.D. APPELLANT V. KYLE MOORE and MARLA MOORE APPELLEES CERTIFICATE OF INTERESTED PERSONS In order that the Justices of the Supreme Court may evaluate possible disqualification or recusal, the undersigned counsel of record certifies that the following persons have an interest in the outcome of this case: a. Kyle Moore, Appellee; b. Marla Moore, Appellee; c. Joseph E. Roberts, Sr., Esq., Counsel for Appellees; d. Crymes M. Pittman, Esq., Counsel for Appellees; e. Howard R. Holaday, Jr., M.D., Appellant; f. Stephen P. Kruger, Esq., Counsel for Appellant; g. T. L. Smith Boykin, III, Esq., Counsel for Appellant; h. Adam I. Lewis, M.D., Defendant; i. Jacob L. Mathis, M.D., Defendant; j. Jackson Neurosurgery Clinic, PLLC, Defendant; k. Whitman B. Johnson, III, Esq., Counsel for Lewis/Mathis/JNC; l. Katrina S. Brown, Esq., Counsel for Lewis/Mathis/JNC; m. Lawrence J. Hubacek, M.D., Defendant; ii

3 n. Eugene R. Naylor, Esq., Counsel for Hubacek; o. Rex M. Shannon, Esq., Counsel for Hubacek; p. St. Dominic/Jackson Memorial Hospital, Defendant; q. John E. Wade, Esq., Counsel for St. Dominic; r. Honorable Jeff Weill, Sr., Hinds County Circuit Court Judge. This, the 7th day of May, /s/ Stephen P. Kruger STEPHEN P. KRUGER T. L. SMITH BOYKIN, III iii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... ii TABLE OF CONTENTS... iv TABLE OF AUTHORITIES... v STATEMENT REGARDING ORAL ARGUMENT... vi STATEMENT OF THE ISSUES... vi STATEMENT OF THE CASE... 1 [1] STATEMENT OF CASE HISTORY AND FACTS... 1 [2] SUMMARY TIMELINE OF BACKGROUND EVENTS SUMMARY OF THE ARGUMENT ARGUMENT [1] SINCE DR. HOLADAY S PURPORTED ROLE IN MR. MOORE S CARE WAS KNOWN TO THE MOORES AND NOTED IN MEDICAL RECORDS, THE DISCOVERY RULE DID NOT TOLL THE LIMITATIONS PERIOD FOR THE CLAIM AGAINST DR. HOLADAY [A] The Moores have never asserted that Dr. Holaday was negligent or that he caused Mr. Moore s injury; consequently, this is not one of those rare cases in which the discovery rule might apply [B] Even if this were a case in which the discovery rule might be available, the Moores failed to show any discovery which might trigger its application [2] MISS. R. CIV. P. 15 DOES NOT ALLOW THE CLAIM AS TO DR. HOLADAY TO RELATE BACK TO THE ORIGINAL COMPLAINT; AND, REGARDLESS, IT IS TIME- BARRED CONCLUSION iv

5 TABLE OF AUTHORITIES CASES D.P. Holmes Trucking, LLC v. Butler, 94 So. 3d 248 (Miss. 2012) Huss v. Gayden, 991 So. 2d 162 (Miss. 2008)... 12, 13 In re Knutson, 237 B.R. 886 (Bankr. N.D. Miss. 1999)... 14, 15 Joiner v. Phillips, 953 So. 2d 1123 (Miss. Ct. App. 2006)... 11, 12, 13, 14, 16 Rainey v. Grand Casinos, Inc., 47 So. 3d 1199 (Miss. Ct. App. 2010) Rawson v. Jones, 816 So. 2d 367 (Miss. 2001)... 11, 12, 16 Stringer v. Trapp, 30 So. 3d 339 (Miss. 2010)... 13, 14, 15 Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997 (Miss. 2004) Womble v. Singing River Hospital, 618 So. 2d 1252 (Miss. 1993)... 11, 12, 13, 14 STATUTES Miss. Code Ann , 6, 12, 16 RULES Miss. R. App. P vi Miss. R. Civ. P vi, 9, 15, 16 Miss. R. Civ. P v

6 STATEMENT REGARDING ORAL ARGUMENT Dr. Holaday submits [1] the facts and arguments are adequately presented in this brief and the appellate record and [2] the decisional processes of this Court would not be significantly aided by oral argument. Dr. Holaday, therefore, does not request oral argument in this matter. See Miss. R. App. P. 34 (a)(3). STATEMENT OF THE ISSUES A. Whether a plaintiff can avoid the expiration of the statute of limitations via the discovery rule in a medical negligence actions (for a non-latent injury) when a defendant physician s alleged role in the subject care is known to the plaintiff and noted in available medical records. B. Whether Miss. R. Civ. P. 15 allows a plaintiff to circumvent the expiration of the statute of limitations via an amended complaint when a defendant physician was not named in the original complaint or substituted for an original party. vi

7 STATEMENT OF THE CASE Kyle and Marla Moores medical negligence claims arise from alleged delays in diagnosing/treating Mr. Moore s epidural abscess during separate presentations to St. Dominic/Jackson Memorial Hospital in In 2006, the Moores filed suit against St. Dominic, Dr. Jeff Hubacek, Dr. Adam Lewis, Dr. Jacob Mathis and Jackson Neurosurgery Clinic, PLLC. In 2011, the Moores added Dr. Howard Holaday as a Defendant (while making no allegation against him) after Dr. Hubacek sought to raise a new defense based on Dr. Holaday s disputed role in Mr. Moore s care. However, by this time, the limitations period had expired on any claim against Dr. Holaday. Still, the Circuit Court denied Dr. Holaday s Motion for Summary Judgment Statute of Limitations, incorrectly applying the discovery rule to toll the limitations period. Respectfully, the error in the Circuit Court s decision arises from its failure to appreciate the following undisputed facts: Mr. Moore s Medical Care at St. Dominic On the morning of May 23, 2004, Mr. Moore presented to St. Dominic s ER with complaints of low back pain which Dr. Hubacek (an ER physician) diagnosed as a lumbar strain. 1 Though discharged around noon, Mr. Moore returned to St. Dominic s ER later that evening with complaints of back pain and progressive leg weakness. 2 On this second presentation, Mr. Moore was treated by Dr. Hubacek s partners, Dr. Marshall Stout and Dr. Karl Hatten (ER physicians). 3 Mr. Moore had previously been scheduled for an initial appointment with Dr. Greg Wood (an 1 See R. at

8 orthopedic surgeon) in a few days to evaluate his back. 4 For the record, Mr. Moore was not one of Dr. Wood s existing patients; and Dr. Wood has denied that any doctor-patient relationship existed between him and Mr. Moore because he had yet to see Mr. Moore as a patient. 5 For whatever reason, though, Dr. Stout chose not to contact the orthopedist on call for St. Dominic s ER; and, instead, he attempted to consult Dr. Wood. 6 Even though Dr. Holaday is a neurosurgeon, he was taking Dr. Wood s orthopedic calls that evening and he answered Dr. Stout s page. 7 Dr. Stout documented his discussion with Dr. Holaday, erroneously indicating that Dr. Holaday had agreed to come to the ER to see Mr. Moore: 8 Dr. Stout separately documented his contact with Dr. Holaday on another page: 9 4 See R. at and See R. at and See R. at See R. at See R. at

9 In fact, Dr. Stout ordered MRIs under Dr. Holaday s name, leading the radiologist to contact Dr. Holaday with the results: 10 However, Dr. Holaday who was out of town at the time of Dr. Stout s page denies committing to present to the ER that evening or otherwise assuming control of Mr. Moore s care. 11 Dr. Holaday maintains [1] he repeatedly advised that he was not the neurosurgeon on call for St. Dominic s ER that evening and [2] when the epidural abscess was reported to him, he suggested Mr. Moore be transferred to University of Mississippi Medical Center. 12 Regardless of Dr. Holaday s posture in these events, his absence had nothing to do with Mr. Moore s medical course. It is undisputed that there could be no definitive treatment prescribed for Mr. Moore until the results of his MRI were determined. 13 This is important to understand, as Dr. Stout s shift ended soon after he ordered the MRI at which time he was replaced in the ER by Dr. Hatten. 14 It was Dr. Hatten who first received the MRI results in the ER; and by the time he 9 See R. at See R. at See R. at See R. at See R. at

10 received those results, Dr. Hatten knew that Dr. Holaday was not coming to the hospital leading Dr. Hatten to contact the neurosurgeon on call for the ER. 15 Dr. Hatten attempted to contact Dr. Lewis (the neurosurgeon on call for the ER), but Dr. Mathis was taking Dr. Lewis s calls that evening and responded to the page. 16 Dr. Mathis assumed care of Mr. Moore in the early morning of May 24, However, he deferred performance of surgery on the epidural abscess to Dr. Lewis. 18 Dr. Lewis performed the surgery at approximately 9:15 that morning. 19 The Moores claim the surgery should have been performed much sooner (either by Dr. Mathis or Dr. Lewis or upon timely transfer to another facility). 20 They claim this alleged delay in treatment caused neurological injury to Mr. Moore and caused the Moores to suffer related damages. 21 The Moores Investigation and Filing of Suit The Moores began collecting medical records in investigation of a possible lawsuit as early as June 18, Their investigation continued with additional record collection on May 13, One year later, on May 19, 2006, Mr. Moore (himself an attorney) personally issued notice-of-claim letters to St. Dominic, Dr. Hubacek, Dr. Lewis, Dr. Mathis and Jackson Neurosurgery Clinic but not to Dr. Holaday. 24 The letters notified those Defendants of the claim that Mr. Moore was 15 See R. at , 413 and See R. at , 413 and See R. at See R. at and See R. at See R. at (records produced by the Moores). 23 See R. at 474 (record produced by the Moores). 24 See R. at

11 injured as a result of the alleged failure to timely discover, diagnose and/or treat his epidural abscess. 25 By May 24, 2006, the statutory limitations period expired as to any claim against Dr. Holaday. 26 The Moores soon retained counsel who, in turn, retained expert Dr. Lynn Stringer (a neurosurgeon) to investigate the Moores claims. 27 Dr. Stringer s investigation began with a review of medical records. 28 The Moores counsel and Dr. Stringer observed the record notations of Dr. Holaday s purported involvement in Mr. Moore s care. 29 Thus, Dr. Stringer reached out to Dr. Holaday and the two discussed the case. 30 At that time, Dr. Holaday disputed the accuracy of Dr. Stout s notations regarding Dr. Holaday s role in Mr. Moore s care and advised he was not the neurosurgeon on call for St. Dominic s ER when Dr. Stout contacted him. 31 After further discussion, Dr. Stringer found there was no reasonable basis to bring a claim against Dr. Holaday and the Moores counsel concurred. 32 On July 19, 2006 (two months after the limitations period expired on any claim against Dr. Holaday), the Moores filed their original Complaint in the Circuit Court of Hinds County against St. Dominic, Dr. Hubacek, Dr. Lewis, Dr. Mathis and Jackson Neurosurgery Clinic. 33 In the original Complaint, the Moores claimed [1] Dr. Hubacek failed to timely diagnose/treat the abscess during Mr. Moore s first See Miss. Code Ann See R. at See R. at Only a few days remained before the limitations period expired on the claims against St. Dominic, Dr. Hubacek, Dr. Lewis, Dr. Mathis and Jackson Neurosurgery Clinic. See Miss. Code Ann

12 May 23 presentation; [2] the results of his alleged errors were compounded by Drs. Mathis and Lewis s alleged failure to timely treat the later-diagnosed abscess; and [3] St. Dominic s personnel and care providers contributed to these errors through inadequate staffing and emergency care. 34 To provide context for their claims, the Moores quote the very MRI report which purports to show that Dr. Holaday ordered the MRI and was advised of its results. 35 Activity Leading to the Moores Untimely Claim Against Dr. Holaday Around three and a half years later (February 19, 2010), the Moores deposed Dr. Holaday cross-examining him with the records indicating his purported involvement in Mr. Moore s care. 36 At his deposition, Dr. Holaday offered testimony consistent with his pre-suit discussion with Dr. Stringer, noting: [1] he was out of town at the time of Mr. Moore s second May 23 presentation to St. Dominic s ER; [2] he was not the neurosurgeon on call for St. Dominic s ER that evening and [3] despite Dr. Stout s medical record notations to the contrary, he never agreed to assume control over Mr. Moore s care. 37 Almost five months later (July 6, 2010), the Moores deposed Dr. Stout. 38 During that deposition, Dr. Stout acknowledged Dr. Holaday was not on call for St. Dominic s ER during Mr. Moore s ER presentations. 39 However, Dr. Stout stood by his record notations indicating Dr. Holaday agreed to present to St. Dominic s ER to undertake Mr. Moore s care See R. at See R. at See R. at See R. at See R. at

13 On or about August 4, 2010, Dr. Hubacek s counsel talked with the Moores counsel regarding possible amendments to Dr. Hubacek s Answer. 41 Specifically, Dr. Hubacek wished to add a superseding and intervening cause defense based upon the purportedly new revelation(s) from Dr. Stout. 42 On August 24, 1010, Dr. Hubacek formally moved to amend his Answer, claiming Dr. Stout s testimony provided grounds for the assertion of a new defense. 43 The Moores September 29, 2010 response to Dr. Hubacek s motion is very revealing. 44 Through several pages of argument, they asserted that Dr. Hubacek s attempt to add a new defense was untimely because Dr. Stout s deposition did not reveal any information which could not have been gleaned: [1] from earlier investigative efforts or [2] from a simple review of Dr. Stout s ER record notations concerning Dr. Holaday s purported involvement. 45 This is a position they would later abandon when seeking to use the discovery rule to avoid the statute of limitations. On October 11, 2010, Dr. Hubacek withdrew his motion, claiming (upon review of his own Answer) the superseding and intervening cause defense was covered by an originally pled affirmative defense. 46 A few months later, on March 10, 2011, the Moores issued a notice-of-claim letter to Dr. Holaday. 47 In the letter, the Moores did not allege that Dr. Holaday committed any negligent 41 See R. at See R. at See R. at See R. at See R. at

14 acts/omissions. 48 Instead, the Moores noted they had no option but to join [Dr. Holaday] as a Defendant because Dr. Hubacek intends to present evidence at trial that [Dr. Holaday was] negligent. 49 Two months (and a day) later, the Circuit Court granted the Moores leave to file an Amended Complaint. 50 On May 13, 2011, the Moores filed their Amended Complaint, adding Dr. Holaday as a new Defendant because [Dr.] Hubacek has asserted that [Dr.] Holaday was negligent and deviated from the standard of care. 51 Since that time, no party has designated expert testimony critical of Dr. Holaday and, specifically, the Moores expert (via sworn affidavit) has reaffirmed that he has no criticism of Dr. Holaday as concerns the subject medical care provided to Mr. Moore. 52 The Circuit Court s Denial of Summary Judgment Because no party ever designated any expert testimony critical of Dr. Holaday, he filed a Motion for Summary Judgment. 53 The Circuit Court denied that motion and Dr. Holaday then moved for dismissal based on the expiration of the statute of limitations. 54 Ironically, in responding to Dr. Holaday s Motion for Summary Judgment Statute of Limitations, the Moores abandoned the positions they took in opposition to Dr. Hubacek s attempt to assert a new defense. Here, they argued nobody had reason to know of the causative relationship of Dr. Holaday to the care at issue or that Dr. Holaday was potentially negligent until Dr. Stout See R. at See R. at Dr. Holaday was not substituted for any original Defendant. 52 See R. at , and See R. at See R at

15 testified that Dr. Holaday agreed to undertake Mr. Moore s care. 55 Of course, the facts surrounding the Moore s pre-suit investigation and the progress of the Moores case contradict this position. Notwithstanding, the Circuit Court found that a factual issue existed as to whether Dr. Holaday agreed to treat Mr. Moore. The Circuit Court also accepted the Moores argument that they were unaware of Dr. Holaday s potential negligence until Dr. Stout s deposition overlooking medical record notations and the Moores confession that they considered adding Dr. Holaday as a Defendant in their original Complaint. 56 The Circuit Court alternatively found that Miss. R. Civ. P. 15 allowed the Moores to amend their Complaint so that it could conform to the evidence. 57 Respectfully, the Circuit Court erred as a matter of law; and this Court must reverse this error to reaffirm that the discovery rule does not relax plaintiffs responsibilities to timely identify all parties against whom they wish to bring suit. 55 See R. at See R. at and See R. at

16 SUMMARY TIMELINE OF BACKGROUND EVENTS MAY 23, 2004: JUNE 18, 2004: MAY 13, 2005: MAY 19, 2006: MAY 24, 2006: SUMMER, 2006: JULY 19, 2006: FEB. 19, 2010: JULY 6, 2010: AUG. 4, 2010: AUG. 24, 2010: SEP. 29, 2010: MAR. 10, 2011: MAY 10, 2011: MAY 13, 2011: APR. 13, 2012: Co-Defendants allegedly negligent medical care of Mr. Moore; the Moores are advised of Dr. Holaday s purported role in care. The Moores obtain medical records identifying Dr. Holaday. The Moores obtain medical records identifying Dr. Holaday. The Moores issue notice-of-claim letters to Co-Defendants. Limitations period expires on claims against Dr. Holaday. The Moores retain counsel; The Moores counsel retains a liability expert; The Moores liability expert consults Dr. Holaday in regard to medical record notations regarding his purported role in care. The Moores file medical negligence suit against Co-Defendants. The Moores depose Dr. Holaday. The Moores depose Dr. Stout. Dr. Hubacek s counsel engages the Moores counsel in talks concerning proposed amendment to answer to add new defense. Dr. Hubacek files motion for leave to amend answer. The Moores respond to the motion for leave to amend answer, noting that records detail Dr. Holaday s purported role in care. The Moores issue notice-of-claim letter to Dr. Holaday advising of Co-Defendants allegations against him. Court grants the Moores ore tenus motion for leave to file amended complaint without objection from Co-Defendants. The Moores file amended complaint naming Dr. Holaday without asserting an allegation of negligence against him. The Moores file affidavit from their liability expert confirming lack of criticism of Dr. Holaday. 10

17 SUMMARY OF THE ARGUMENT The Circuit Court erred as a matter of law in denying the Motion for Summary Judgment Statute of Limitations. The Moores have known of Dr. Holaday s disputed role in Mr. Moore s care since May 23-24, 2004; and his medical records otherwise purport to demonstrate his role in Mr. Moore s care. The Moores counsel and expert recognized as much in their own pre-suit investigation; and when the Moores filed the original Complaint on July 19, 2006, it was after fully vetting a claim against Dr. Holaday. Since the Moores did not exchange or substitute parties in adding the claim against Dr. Holaday on May 13, 2011, that new claim did not relate back to the filing of the original Complaint; and, regardless, the limitations period had already expired by then (May 24, 2006). As explained below, this Court should reverse the Circuit Court s decision and dismiss Dr. Holaday from this action with prejudice. ARGUMENT Since there was no genuine issue of material fact as to the expiration of the statutory limitations period concerning any claim against Dr. Holaday, the Circuit Court should have granted summary judgment in his favor. 58 A de novo review 59 of the denial of the Motion for Summary Judgment Statute of Limitations will reveal the Circuit Court erred as a matter of law in: [1] tolling the two-year limitations 58 See Miss. R. Civ. P. 56; see also Rawson v. Jones, 816 So. 2d 367, (Miss. 2012); Womble v. Singing River Hospital, 618 So. 2d 1252, 1266 (Miss. 1993); Joiner v. Phillips, 953 So. 2d 1123, 1127 (Miss. Ct. App. 2006) (affirming summary judgments). 59 See Rawson, 816 So. 2d at ; Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997, 1000 (Miss. 2004) (de novo reviews of summary judgment statute of limitations rulings). 11

18 period 60 as to the claim against Dr. Holaday via the inapplicable discovery rule; and [2] relating the claim back to the untimely original Complaint. [1] SINCE DR. HOLADAY S DISPUTED ROLE IN MR. MOORE S CARE WAS KNOWN TO THE MOORES AND NOTED IN MEDICAL RECORDS, THE DISCOVERY RULE DID NOT TOLL THE LIMITATIONS PERIOD FOR THE CLAIM AGAINST DR. HOLADAY. The Circuit Court erred in applying the discovery rule to the claim against Dr. Holaday. As this Court noted in Huss v. Gayden, the discovery rule only applies to those rare cases where the patient is aware of his injury, but does not discover and could not have discovered with reasonable diligence the omission which caused the injury. 61 The Moores have never asserted that Dr. Holaday was negligent or that he caused Mr. Moore s injury; consequently, this is not one of those rare cases in which the discovery rule might apply. Further, even if this were a case in which the discovery rule might be available, the Moores failed to show any discovery which might trigger its application. [A] The Moores have never asserted that Dr. Holaday was negligent or that he caused Mr. Moore s injury; consequently, this is not one of those rare cases in which the discovery rule might apply. The notion that the Moores discovered information in Dr. Stout s deposition which set the stage for the application of the discovery rule is a fallacy. Dr. Stout s deposition had no impact on the Moores allegations or theory. Before the Moores filed the original Complaint, their expert (Dr. Stringer) concluded that Dr. Holaday did not breach any standard of care. Dr. Stout s deposition did not cause Dr. Stringer to reassess his opinion. In fact, after the Moores brought Dr. Holaday into 60 See Miss. Code Ann ; see also Womble, 618 So. 2d at ; Rawson, 816 So. 2d at ; Joiner, 953 So. 2d at The Moores did not issue a notice-of-claim letter to Dr. Holaday before the original two year limitations period expired. 61 Huss v. Gayden, 991 So. 2d 162, 166 (Miss. 2008) (emphasis added). 12

19 this suit, Dr. Stringer reaffirmed his opinion in a sworn affidavit. As this Court noted in Huss, the discovery rule is reserved for cases in which a plaintiff could not timely discover that a defendant s breach of the standard of care caused his injury. 62 Here, the Moores own expert testified that Dr. Holaday did not breach the standard of care! 63 The discovery rule is of no moment because, even after the Moores (as they claim) heard Dr. Stout s testimony, they still never designated an expert to testify that Dr. Holaday was negligent or caused Mr. Moore s injuries. 64 That, in and of itself, illustrates why Dr. Stout s testimony had no bearing on the case. Consequently, the discovery rule is not available to the Moores. [B] Even if this were a case in which the discovery rule might be available, the Moores failed to show any discovery which might trigger its application. Because the only purported omission attributable to Dr. Holaday (not presenting to the ER) has been known to the Moores since May 23-24, 2004, there is no discovery which could support the application of the discovery rule. Again, the Moores do not criticize Dr. Holaday for not presenting to the ER and there is no expert designation or testimony which is critical of him. The Moores claim, though, they discovered a basis to join Dr. Holaday in this action during Dr. Stout s deposition. A simple review of the timeline in this matter shows there was no discovery during Dr. Stout s deposition which could trigger the discovery rule (assuming, for the sake of argument, it was available in this case). The Moores claim they had no reason to examine Dr. Holaday s purported 62 See Huss, 991 So. 2d at Again, there is no expert designation or testimony (on behalf of any party) which is critical of Dr. Holaday or which asserts that his acts had any causal impact in this matter. 64 See Womble, 618 So. 2d at , Stringer, 30 So. 3d at 342; Joiner, 953 So. 2d at

20 impact on Mr. Moore s care until Dr. Stout s July 6, 2010 deposition. Again, however, the Moores have known since May 23-24, 2004 that Dr. Holaday did not present to St. Dominic s that evening/morning. Mr. Moore s own medical records, possessed since June 18, 2004 and/or May 13, 2005, reveal as much. The Moores counsel and expert were so acutely aware of Dr. Holaday s involvement that they investigated his purported role in Mr. Moore s care before the Moores filed their original Complaint on July 19, During his February 19, 2010, the Moores cross-examined Dr. Holaday with Dr. Stout s record notations concerning his disputed role in Mr. Moore s care. At his own July 6, 2010 deposition, Dr. Stout simply stood by his previously observed record notations concerning Dr. Holaday s disputed role in Mr. Moore s care. Nothing was discovered. Because Dr. Holaday s alleged failure to present to St. Dominic s ER was known to the Moores and observable from a review of records, Dr. Stout s deposition did not provide a basis for the Moores to assert that their Amended Complaint timely joined Dr. Holaday in this action on May 13, Since there is no Mississippi authority which supports application of the discovery rule in this situation, the Moores directed the Circuit Court to a bankruptcy case (In re Knutson). However, that case concerned a latent injury (use of an improperly sized plate to heal a leg fracture) and is otherwise inapposite to this case where the alleged omission (failure to present to St. Dominic s ER ) is 65 See Womble, 618 So. 2d at , Joiner, 953 So. 2d at 1127; see also Stringer v. Trapp, 30 So. 3d 339, 342 (Miss. 2010) (accepting Joiner as applicable to situations in which physician s purported involvement in care is known). 14

21 known and observable upon a medical record review. 66 The fact of the matter is that the discovery rule cannot excuse the Moores from the untimely effort to join Dr. Holaday in this action almost 7 years after the treatment at issue. Ironically, the Moores agreed with Dr. Holaday s position when opposing Dr. Hubacek s August 24, 2010 motion to add a new superseding and intervening cause defense. They pointed out that there was no revelation in Dr. Stout s deposition which was not observable from a simple investigation or record review. Accordingly, they fought Dr. Hubacek s efforts to add a new defense as untimely. In their formal response to Dr. Hubacek s request to add the defense, the Moores argued [1] the May 19, 2006 notice-of claim letter prepared by Mr. Moore and Mr. Moore s medical records provided Dr. Hubacek with ample opportunity to investigate the claim; and, [2] accordingly, Dr. Hubacek had no good excuse for having waited over for years to ask [the Circuit] Court for leave to amend his answer. 67 When it comes to the tardy joinder of Dr. Holaday in this action, however, the Moores sing an altogether different tune. This Court should bind the Moore s to the position they took in opposition to Dr. Hubacek s motion and end this matter in Dr. Holaday s favor. [2] MISS. R. CIV. P. 15 DOES NOT ALLOW THE CLAIM AS TO DR. HOLADAY TO RELATE BACK TO THE ORIGINAL COMPLAINT; AND, REGARDLESS, IT IS TIME-BARRED. The Circuit Court s application of Miss. R. Civ. P. 15 to relate the claim as to Dr. Holaday back to the filing of the original Complaint was likewise in error. The Moores did not cite or raise that provision in responding to Dr. Holaday s Motion for 66 Compare In re Knutson, 237 B.R. 886, (Bankr. N.D. Miss. 1999) (analyzing the limitations period on a latent injury) with Stringer, 30 So. 3d at See R. at

22 Summary Judgment Statute of Limitations; but the Circuit Court found that Miss. R. Civ. P. 15 permitted the Moores to amend their Complaint (to add Dr. Holaday as a new party) to allow the pleadings to conform to the evidence. Since the Moores were simply adding Dr. Holaday as a new party to raise a new claim not changing a party to correct an already-pled claim, the claim against Dr. Holaday cannot relate back to the original Complaint. 68 Further, since a notice-ofclaim letter was not originally issued to Dr. Holaday, the limitations period expired as to any claim against him no later than May 24, 2006 two months before the filing of the original Complaint. 69 Thus, even if the claim against Dr. Holaday relates back to the Moore s original Complaint, the claim is time-barred. 70 CONCLUSION The Moores filed their original Complaint concerning a non-latent injury on July 19, At that time, the Moores had already vetted a potential action against Dr. Holaday (as to whom the limitations period expired no later than May 24, 2006) and decided not to include him as a Defendant. Dr. Stout s July 6, 2010 testimony merely confirmed what was already observed/observable and did not provide a basis for the Moores to escape the reach of the statute of limitations. When the Moores finally added Dr. Holaday as a party on May 13, 2011, the claim could not relate back to the original Complaint; and, even if it did, the claim was time barred. Accordingly, the Circuit Court erred as a matter of law in denying Dr. 68 See D.P. Holmes Trucking, LLC v. Butler, 94 So. 3d 248, 254 (Miss. 2012); Rainey v. Grand Casinos, Inc., 47 So. 3d 1199, (Miss. Ct. App. 2010); Miss. R. Civ. P.15(c). 69 See Rawson, 816 So. 2d at 369; Joiner, 953 So. 2d at 1127; Miss. Code Ann (2). 70 As to Dr. Holaday s Co-Defendants (to whom notice-of-claim letters were issued), the Complaint was filed with four or five days to spare before the tolled limitations period expired. See Miss. Code Ann

23 Holaday s Motion for Summary Judgment Statute of Limitations and Dr. Holaday asks this Court to reverse that error and dismiss him from this case with prejudice. Respectfully submitted, this 7th day of May, OF COUNSEL: Page Kruger & Holland, P.A. Post Office Box 1163 Jackson, Mississippi Phone: (601) Facsimile: (601) skruger@pagekruger.com sboykin@pagekruger.com HOWARD R. HOLADAY, JR., M.D, APPELLANT BY: /s/ Stephen P. Kruger STEPHEN P. KRUGER T. L. SMITH BOYKIN, III 17

24 CERTIFICATE OF SERVICE I, Stephen P. Kruger/T. L. Smith Boykin, III, do hereby certify that I have this day served via the Mississippi Supreme Court s ECF system, a true and correct copy of the above and foregoing document to: Joseph E. Roberts, Jr., Esq. Crymes M. Pittman, Esq. PITTMAN, GERMANY, ROBERTS & WELSH, LLP Post Office Box Jackson, MS Attorneys for Appellees Honorable Jeff Weill, Sr. HINDS CO. CIRCUIT COURT JUDGE Post Office Box Jackson, Mississippi Honorable Barbara Dunn HINDS COUNTY CIRCUIT CLERK Post Office Box 327 Jackson, Mississippi This the 7th day of May, BY: /s/ Stephen P. Kruger STEPHEN P. KRUGER T. L. SMITH BOYKIN, III 18