IN THE SUPREME COURT OF MISSISSIPPI HOWARD R. HOLADAY, JR., M.D. CASE NO IA KYLE MOORE AND MARLA MOORE

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1 E-Filed Document Jul :38: IA SCT Pages: 53 IN THE SUPREME COURT OF MISSISSIPPI HOWARD R. HOLADAY, JR., M.D. VS. KYLE MOORE AND MARLA MOORE APPELLANT CASE NO IA APPELLEES APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS, MISSISSIPPI BRIEF OF APPELLEES *ORAL ARGUMENT REQUESTED* JOSEPH E. ROBERTS, JR. (MSB #5587) jer@pgrwlaw.com CRYMES M. PITTMAN (MSB #99225) cmp@pgrwlaw.com PITTMAN, GERMANY, ROBERTS & WELSH, L.L.P. POST OFFICE BOX JACKSON, MISSISSIPPI TELEPHONE: (601) FACSIMILE: (601) COUNSEL FOR THE APPELLEES

2 IN THE SUPREME COURT OF MISSISSIPPI HOWARD R. HOLADAY, JR., M.D. VS. KYLE MOORE AND MARLA MOORE APPELLANT CASE NO IA APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. Howard R. Holaday, Jr., M.D. - Appellant Kyle Moore and Marla Moore - Appellees St. Dominic - Jackson Memorial Hospital - Defendant in Circuit Court case Lawrence J. Hubacek, M.D. - Defendant in Circuit Court case Adam I. Lewis, M.D. - Defendant in Circuit Court case Jacob L. Mathis, M.D. - Defendant in Circuit Court case Jackson Neurosurgery Clinic, PLLC - Defendant in Circuit Court case Stephen P. Kruger, Esquire T.L. Smith Boykin, III, Esquire Page Kruger & Holland Post Office Box 1163 Jackson, MS Attorneys for Appellant

3 Joseph E. Roberts, Jr., Esquire Crymes M. Pittman, Esquire Pittman, Germany, Roberts & Welsh, L.L.P. Post Office Box Jackson, MS Attorneys for Appellees John E. Wade, Jr., Esquire Lane W. Staines, Esquire Tammye C. Brown, Esquire Brunini, Grantham, Grower & Hewes, PLLC Post Office Drawer 119 Jackson, MS Attorneys for St. Dominic-Jackson Memorial Hospital Whitman B. Johnson, III, Esquire Katrina S. Brown, Esquire Currie Johnson Griffin & Myers, P.A. Post Office Box 750 Jackson, MS Attorneys for Adam I. Lewis, M.D., Jacob L. Mathis, M.D., and Jackson Neurosurgery Clinic, PLLC Rex M. Shannon, III, Esquire Eugene R. Naylor, Esquire Wise Carter Child & Caraway Post Office Box 651 Jackson, MS Attorneys for Lawrence J. Hubacek, M.D. Honorable Jeff Weill, Sr. - Hinds County Circuit Court Judge This the 9th day of July, /s/ Crymes M. Pittman CRYMES M. PITTMAN ii

4 TABLE OF CONTENTS PAGE Certificate of Interested Persons Table of Contents i iii Table of Authorities v Statement Regarding Oral Argument Statement of the Issues Statement of the Case I. Nature of the Case II. Facts of the Case III. Course of Proceedings and Disposition of the Court Below Summary of the Argument Argument I. The Circuit Court did not err in denying Holaday s Motion for Summary Judgment - Statute of Limitations because there are genuine issues of material fact, and the discovery rule applies to toll the statute of limitations A. Summary Judgment is inappropriate because there are genuine issues of material fact B. The Circuit Court correctly applied the discovery rule to toll the statute of limitations and to permit the Moores to add Holaday as a defendant iii

5 1. The Moores were reasonably diligent in their efforts to determine the cause of Kyle Moore s injury so as to comply with the statute of limitations without invoking the discovery rule a. Though exercising reasonable diligence, the Moores could not have identified Holaday s involvement during their pre-suit investigation because Holaday expressly denied that he was involved in Kyle Moore s treatment b. Despite exercising reasonable diligence, the Moores could not have known the nature and extent of Holaday s involvement until Dr. Hatten s and Dr. Stout s conflicting deposition testimony The discovery rule applies because the Moores discovered the possible connection (causative relationship) between Holaday and Kyle Moore s injury during Dr. Hatten s and Dr. Stout s depositions The conflicting testimony creates a genuine issue as to whether Holaday misled the Moores regarding his involvement in Kyle Moore s treatment, making summary judgment inappropriate a. Fraudulent concealmen b. Because of the misleading statements, the Moores were statutorily prohibited from commencing an action against Holaday until Dr. Stout s deposition, which provided an actionable injury II. Because the discovery rule applies, the Moores amended their complaint to add Holaday as a new defendant within the statute of limitations, so application of Miss. R. Civ. P. 15(c) is unnecessary Conclusion Certificate of Service iv

6 TABLE OF AUTHORITIES CASES CITED: PAGE Blessitt v. King s Daughters Hospital of Yazoo County, Inc., 18 So.3d 878 (Miss. Ct. App. 2008) Brown v. Credit Center, Inc., 444 So.2d 358 (Miss. 1983) Chantey Music Pub g, Inc. v. Malaco, Inc., 915 So.2d 1052 (Miss. 2005) D.P. Holmes Trucking, LLC v. Butler, 94 So.3d 248 (Miss. 2012) , 43 Hosp. MD, LLC v. Larry, 2012-IA SCT, 2014 WL (Miss. May 22, 2014) , 18, 19, 22, 24, 30, 31, 33, 34, 38 Huss v. Gayden, 991 So.2d 162 (Miss. 2008) , 18, 19, 20, 21, 22, 30, 31, 33, 37, 38 Johnson v. Pace, 122 So.3d 66 (Miss. 2013) Joiner v. Phillips, 953 So.2d 1123 (Miss. Ct. App. 2006) , 19, 20, 23, 25, 34, 36, 43 McKinley v. Lamar Bank, 919 So.2d 918 (Miss. 2005) Neglen v. Breazeale, 945 So.2d 988 (Miss. 2006) Nygaard v. Getty Oil Co., 918 So.2d 1237 (Miss. 2005) , 34, 36 Parker v. Miss. Game & Fish Comm n, 555 So.2d 625 (Miss. 1989) v

7 Powe v. Byrd, 892 So.2d 223 (Miss. 2004) , 18, 21 Rainey v. Grand Casinos, Inc., 47 So.3d 1199 (Miss. 2010) Rawson v. Jones, 816 So.2d 367 (Miss. 2001) , 38, 39 Satchfield v. R. R. Morrison & Son, Inc., 872 So.2d 661 (Miss. 2004) Sarris v. Smith, 782 So.2d 721 (Miss. 2001) , 18, 21, 22, 37 Smith v. Sanders, 485 So.2d 1051 (Miss. 1986) , 14, 15, 16, 18, 19, 21, 30, 31, 33 Stringer v. Trapp, 30 So.3d 339 (Miss. 2010) , 17, 18, 19, 30, 31, 33 Sutherland v. Estate of Ritter, 959 So.2d 1004 (Miss. 2007) , 15, 22, 23, 29 Womble v. Singing River Hosp., 618 So.2d 1252 (Miss. 1993) , 19, 20, 25 STATUTES Miss. Code Ann , 31, 35, 37, 38, 39 Miss. Code Ann , 12, 20, 22, 23, 24, 30, 34, 36, 37, 43 RULES: Miss. R. Civ. P , 13,41, 42, 43, 44 Miss. R. Civ. P vi

8 STATEMENT REGARDING ORAL ARGUMENT Plaintiffs-Appellees request oral argument pursuant to Miss. R. App. P. 34(a). This case meets the standards in Rule 34(a) for oral argument, in that as described in the accompanying brief, the decisional process would be significantly aided by oral argument. Oral argument will assist the Court with any questions regarding the clearly conflicting evidence which contributed to the lower court s application of the discovery rule and denial of summary judgment. STATEMENT OF THE ISSUES I. Whether the discovery rule applies when the defendant physician asserts no role in the treatment of the patient, but the patient learns later through conflicting testimony that the defendant physician was involved in the treatment of the patient? II. Whether the relation back doctrine of Miss. Rule Civ. P. 15(c) is implicated when the discovery rule applies to toll the statute of limitations? -1-

9 STATEMENT OF THE CASE I. Nature of the Case Following the denial of his second Motion for Summary Judgment, Appellant Dr. Howard R. Holaday, Jr. ( Holaday ) appeals the Circuit Court s ruling on two grounds. 1 First, Holaday argues that the Circuit Court erred in applying the discovery rule to toll the statute of limitations so as to allow the Moores to name Holaday as an additional defendant. Holaday alleges that the Moores knew or should have known the full extent of Holaday s involvement in Kyle Moore s care when they filed their original complaint, despite Holaday s express denial of involvement, barring the application of the discovery rule. Second, Holaday alleges that because the discovery rule should not apply, the Circuit Court erred in allowing the Moores to amend their complaint to name Holaday as a defendant per the relation back doctrine. Based on these allegations, Holaday argues that the statute of limitations has expired and therefore, he cannot be held liable. Holaday makes this argument even though he has repeatedly denied any involvement in Kyle s care and 1 Holaday s first Motion for Summary Judgment claimed that there [was] no genuine issue of material fact relating to [his] conformity with the appropriate medical standard of care under the circumstances presented by this case; or that he violated the appropriate medical standard of care. [R. at , R.E. at ]. The Circuit Court denied Holaday s motion. [R. at , R.E. at ] Additionally, this Court denied Holaday s first Petition for Interlocutory Appeal of that Order denying Summary Judgment. [R. at 15; R.E. at 15]. -2-

10 treatment. It was not until the depositions of the ER physicians, Dr. Stout and Dr. Hatten, that the Moores learned of Holaday s potential involvement in Kyle s case. Kyle and Marla Moore do not dispute that Holaday alleges he played no part in Moore s treatment; however, subsequent conflicting testimony by other deposed physicians involved in Moore s treatment and care revealed that Holaday potentially misled the Moores as to his role in Kyle s medical care. Acting on the conflicting deposition testimony, the Moores amended their complaint to include Holaday as a defendant. Holaday filed a Motion for Summary Judgment alleging that the statute of limitations has expired. The Circuit Court applied the discovery rule and denied summary judgment. The Circuit Court reasoned that there was conflicting testimony regarding Holaday s involvement which precludes summary judgment. In the second basis for his appeal, Holaday briefly argues that the relation back doctrine should not apply. However, the relation back doctrine was not properly before the lower court. In fact, neither the Circuit Court nor the Moores have ever asserted the application of Miss. R. Civ. P. 15(c). Regardless, this appeal is not based on the relation back doctrine because the discovery rule serves to toll the statute of limitations. -3-

11 II. Facts of the Case On May 21, 2004, Kyle Moore presented to St. Dominic/Jackson Memorial Hospital s Emergency Room with lower back pain, was given medicine, and was discharged the same day. [R. at 20; R.E. at 44]. 2 Kyle continued to experience severe lower back pain which prompted his return to St. Dominic s Emergency Room on May 23, 2004, and was again discharged that same morning. [R. at 39; R.E. at 19]. Later that evening, Kyle s legs became progressively weak and numbed, rendering him unable to walk, and necessitating his return to St. Dominic s Emergency Room for the third time on the evening of May 23, [R. at 49; R.E. at 29; R. at 55; R.E. at 35]. On the third visit, Dr. Hatten and Dr. Stout, the emergency room physicians who treated Kyle, made a brief note on Kyle s chart indicating that Dr. Howard Holaday was consulted, and that something relating to Kyle was discussed with Holaday, but the extent or contents of this discussion is unknown from the emergency room record. [R. at 49, 51; R.E. at 29, 31]. The emergency room physician noted that Holaday will see [the] patient in: ED. [R. at 51; R.E. at 31]. While not entirely clear from the record, either Dr. Stout or Holaday ordered an MRI at 10:20 that evening. [R. at 56; R.E. at 36; R. at 426; R.E. at 71]. It is undisputed that only Dr. Stout and Dr. 2 The R.E. citations herein refer to the Appellees Record Excerpts. -4-

12 at 38-42]. No claim was made against Holaday as there was no evidence that he was involved in the treatment of Kyle and thus, no basis for a claim. Hatten provided treatment to Kyle during the evening of May 23, During the course of Kyle s treatment, Dr. Stout s shift ended, and Dr. Hatten assumed Kyle s care. [R. at ; R.E. at 67-68]. The MRI report confirmed Kyle s diagnosis of a posterior epidural abscess at the T9-T10 level. [R. at 56; R.E. at 36; R. at 57; R.E. 37]. Kyle s emergency department records indicate that only Dr. Stout and Dr. Hatten were Kyle s emergency room doctors. [R. at 55; R.E. at 35]. Approximately nine hours after the abscess was discovered, surgery was performed on Kyle to evacuate the epidural abscess. [R. at 57; R.E. at 37]. Kyle s ability to walk and other bodily functions remain severely impaired today as a result of the failure to timely diagnose and remove the epidural abscess. The Moores retained counsel who, before filing a claim, retained Dr. Lynn Stringer, a neurosurgeon, as an expert. [R. at 456; R.E. at 39]. Dr. Stringer spoke with Holaday regarding his involvement in Kyle Moore s treatment, but Holaday disputed the accuracy of Kyle Moore s medical records. [R. at ; R.E. at 41-42]. Holaday asserted to Dr. Stringer that he was not on call, was out of town at the time, and never undertook the care and treatment of Kyle. [R. at ; R.E. -5-

13 The Moores Discovery On July 19, 2006, Kyle Moore and his wife, Marla Moore, timely filed their original complaint alleging negligence resulting in Kyle s severe and permanent injuries. [R. at 19-23; R.E. at 43-47]. The Moores sought Holaday s deposition to solidify the timeline and events regarding Kyle s treatment. Several attempts were made to contact Dr. Holaday to arrange a deposition, including serving him with a subpoena, and his deposition was finally secured through his counsel. On February 19, 2010, Holaday s testimony, under oath, mirrored his statements given during the Moores pre-suit investigation regarding his lack of involvement in Kyle s treatment. [R. at ; R.E. at 59-64]. That is, Holaday maintained that he was out of town when the emergency room physician contacted him, that he was not on call (though he did receive a call regarding Kyle Moore), that he did not agree to come see Kyle, that he never undertook, nor did he agree to undertake, the care and treatment of Kyle, and that, in fact, he has never met nor examined Kyle Moore. [R. at ; R.E. at 5-64]. Additionally, Holaday testified that the notations on Kyle Moore s records regarding his involvement were erroneous. [R. at 409; R.E. at 64]. On July 6, 2010, Dr. Stout and Dr. Hatten, the emergency room physicians, were deposed. [R. at 420; R.E. at 65; R. at 344; R.E. at 78]. Notably, Dr. Stout -6-

14 testified that his partners at Allied Emergency Services included Dr. Hatten and Dr. Hubacek. [R. at 421; R.E. at 66]. Dr. Stout testified that due to Kyle Moore s worsening condition, he contacted whom he believed to be the on call specialist, and that call was sent to Holaday. [R. at ; R.E. at 73-74]. Dr. Stout believed Kyle Moore s condition was beyond [his] scope of ability to care for Kyle. [R. at ; R.E. at 73-74]. Additionally, Dr. Stout testified that Holaday indicated to Dr. Stout that he would come to St. Dominic s to care for Kyle Moore. [R. at ; R.E. at 71-73]. Dr. Stout testified that Holaday requested Dr. Stout to call him back with Kyle Moore s MRI results. [R. at ; R.E. at 71-77]. Furthermore, Dr. Stout testified that he discussed the impression of the posterior epidural abscess found on the MRI with Holaday, as Dr. Stout believed that Holaday was the proper person to be made aware of such a condition. [R. at 438; R.E. at 76]. Dr. Stout testified that he disagreed with the lack of involvement that Holaday had professed during his deposition. [R. at 439; R.E. at 77]. In addition to Dr. Stout s testimony, Dr. Hatten testified that he was told Holaday was involved in Kyle Moore s treatment and care. [R. at 348; R.E. at 79]. Dr. Hatten also testified that he believed that Holaday was coming to treat Kyle Moore. [R. at 348; R.E. at 79]. Of course, all of this testimony is in direct contradiction to Holaday s sworn deposition testimony and the statements he made -7-

15 during the Moores pre-suit investigation. On August 4, 2010, shortly after the depositions of Dr. Stout and Dr. Hatten, counsel for Dr. Hubacek, another Defendant, solicited an Agreed Order granting Dr. Hubacek leave to amend his answer asserting a superseding cause defense. [R. at ; R.E. at 80-81]. Dr. Hubacek filed the Motion asserting that as a result of the deposition testimony on July 6, 2010, there were acts/omissions of a third party (Holaday) not addressed in the Moores Complaint. [R. at 35-38; R.E. at 82-85]. He asked that the Circuit Court grant him leave to file an Amended Answer and Defenses. [R. at 37; R.E. at 84]. Because Dr. Hubacek asserted that the deposition testimony was the first time Dr. Hubacek became aware of Holaday s involvement, [R. at 35-36; R.E. at 82-83] the Moores responded to Dr. Hubacek s Motion asserting that because Dr. Stout and Dr. Hubacek were partners, and they could speak at any time about Kyle s care, there was no revelation as to Dr. Stout s testimony laying blame on Holaday. [R. at 131, ; R.E. at 86, 93-84]. Therefore, the Moores asserted that Dr. Hubacek s Motion was untimely. [R. at 131, 139; R.E. at 86, 94]. Dr. Hubacek subsequently withdrew his Motion on October 11, [R. at ; R.E. at ]. -8-

16 III. Course of Proceedings and Disposition of the Court Below After the deposition testimonies of Dr. Stout and Dr. Hatten, the Moores issued a notice letter to Holaday pursuant to Miss. Code Ann (15). 3 [R. at ; R.E. at ]. Dr. Stout s and Dr. Hatten s depositions, as well as Dr. Hubacek s attempt to amend his answer and assert an intervening/superseding cause defense, led the Moores to discover Holaday s potential involvement which was not revealed during the initial investigation and during Holaday s deposition. [R. at ; R.E. at ]. As a result of the deposition testimony of Dr. Stout and Dr. Hatten, the Moores filed a Motion for and were granted leave to file the First Amended Complaint. [R. at 178; R.E. at 101]. On May 13, 2011, only ten months after the Moores discovered Holaday s involvement, and before the expiration of the seven year statute of repose, the Moores filed their First Amended Complaint naming Holaday as a Defendant. [R. at ; R.E. at ]. In response, Holaday filed a Motion for Summary Judgment claiming that the Moores had not established the applicable standard of care by expert proof. [R. at ; R.E. at 3 The Notice Letter is incorrectly dated March 10, The contents of the letter cite details of the deposition testimony of Dr. Stout and Dr. Hatten, as well as the exchange between Dr. Hubacek s counsel and the Moore s counsel. All of these events occurred on or after July, Additionally, in Holaday s Motion for Summary Judgment Statute of Limitations, Holaday acknowledges that he was notified on March 10,

17 112-14]. Holaday also argued that there was no genuine issue as to any material fact relating to his negligence. [R. at ; R.E. at ]. The Moores responded, moving for partial summary judgment dismissing the superseding/intervening cause and contributory negligence defenses asserted by Dr. Hubacek relating to the conduct of Holaday. [R. at 265; R.E. at 118]. The Circuit Court denied both Holaday s Motion for Summary Judgment and the Moores Motion for Partial Summary Judgment. [R. at 450; R.E. at 112]. On November 13, 2012, this Court denied Holaday s Petition for Interlocutory Appeal from the denial of that Motion for Summary Judgment. [R. at 15; R.E. at 15]. On October 4, 2012, Holaday submitted a second Motion for Summary Judgment, this time arguing that the Statue of Limitations had expired. [R. at 381; R.E. at 125]. The Moores argued that, based on the conflicting testimony, the discovery rule applied to toll the statute of limitations against Holaday. [R. at ; R.E. at ]. The Circuit Court denied Holaday s Motion for Summary Judgment based on the evidence indicating that Holaday was actively involved in Kyle Moore s care, and ruling that a genuine issue of material fact existed as to when the Moores discovered Holaday s involvement. [R. at ; R.E. at ; R. at ; R.E. at ]. This Court granted Holaday s second request for Interlocutory Appeal, the matter presently before the Court. -10-

18 SUMMARY OF THE ARGUMENT The Circuit Court correctly applied the discovery rule and denied Holaday s Motion for Summary Judgment Statute of Limitations, holding that a genuine issue of fact exists which precludes summary judgment. The discovery rule tolls the statute of limitations until the plaintiff (1) has knowledge of the injury, (2) has knowledge of the cause of the injury, and (3) knows the relationship between the practitioner and the injury. Stringer v. Trapp, 30 So. 3d 339, 342 (Miss. 2010) (citing Smith v. Sanders, 485 So.2d 1051, 1053 (Miss. 1986); Powe v. Byrd, 892 So.2d 223, 227 (Miss. 2004) (citing Sarris v. Smith, 782 So.2d 721, 723 (Miss. 2001). The first prong is not in dispute. However, there is a genuine issue as to the relationship to and causal connection between Holaday and Kyle s injury necessitating the application of the discovery rule. Of course, Holaday claims that prongs two and three are satisfied solely by the meager entries by someone other than Holaday in two of Kyle s medical records. Holaday s position is ironic because he vehemently denies providing care and treatment to Kyle on May 23-24, [R. at ; R.E. at 59-64]. In fact, while Kyle Moore s medical records note Holaday s name, they provide no guidance whatsoever as to the role Holaday played. [R. at 49, 51; R.E. at 29, 31]. Further, Holaday denied any involvement in Kyle s care during the pretrial -11-

19 investigation. [R. at ; R.E. at 41-42; R. at ; R.E. at 38-40]. He also denied any involvement under oath in his deposition testimony. [R. at ; R.E. at 59-64]. It is undisputed that Holaday never came to St. Dominic s to care for and treat Kyle, nor did he personally make any entries in Kyle s medical records. Consequently, the Moores did not discover Holaday s relationship or causal connection to Kyle s injuries until the depositions of Dr. Hatten and Dr. Stout (the ER physicians) on July 6, Sutherland v. Estate of Ritter, 959 So.2d 1004, 1008 (Miss. 2007) (finding that to trigger the discovery rule and toll the statute of limitations, it is not because the injury itself is hidden or unknown, but rather because the negligence which caused the injury is unknown ); [R. at ; R.E. at ]. The Moores named Holaday as a Defendant on May 13, 2011, only ten months after the Moores discovered Holaday s involvement, and after providing the required Notice of Claim and obtaining the requisite leave of court. [R. at ; R.E. at ]. Thus, because the Moores named Holaday within two (2) years from when Holaday s involvement was first discovered, and within seven (7) years from the potentially negligent act, the Circuit Court did not err in applying the discovery rule to toll the statute of limitations. Miss. Code Ann (2). Finally, because the Moores added Holaday within the statute of limitations -12-

20 period, the application of the relation back doctrine under Miss. R. Civ. P. 15(c) is not implicated here. The Moores have never argued that relation back is necessary, because the discovery rule serves to toll the statute of limitations. Further, Holaday only mentioned the relation back doctrine on rebuttal in support of his Motion for Summary Judgment, and application of the relation back doctrine was not considered by the lower court, so this issue cannot be brought on appeal. Holaday erroneously argues that the discovery rule is not applicable, the two year statute of limitations has expired, and that his addition as a defendant is offends Miss. R. Civ. P. 15. This argument allows Holaday to evade liability and to create an empty chair for the other defendants. Despite this argument, the Circuit Court properly recognized that the Moores did not become aware of the extent of Holaday s involvement until Dr. Hatten and Dr. Stout s depositions. Consequently, the Circuit Court correctly applied the discovery rule to toll the statute of limitations against Holaday and to allow the Moores to amend their Complaint to add Holaday as a defendant. [R. at 178; R.E. at 101; R. at ; R.E. at ; R. at ; R.E. at ]. -13-

21 ARGUMENT I. The Circuit Court did not err in denying Holaday s Motion for Summary Judgment Statute of Limitations because there are genuine issues of material fact, and the discovery rule applies to toll the statute of limitations. The Circuit Court properly denied Holaday s Motion for Summary Judgment Statute of Limitations because the Circuit Court recognized that there are genuine issues of material fact regarding when the Moores discovered Holaday s involvement and potential liability with regard to Kyle Moore s treatment. Accordingly, the Circuit Court correctly applied the discovery rule, tolling the statute of limitations until the Moores first discovered Holaday s involvement by means of deposition testimony, and holding that summary judgment was inappropriate. This Court should affirm the Circuit Court s sound ruling so as to permit a jury to determine the extent of Holaday s liability and to preclude an empty chair at trial. A. Summary Judgment is inappropriate because there are genuine issues of material fact. The Circuit Court properly applied the discovery rule and because there are genuine issues of material fact as to Holaday s involvement, found summary judgment based on an expiration of the statute of limitations inappropriate. Smith, 485 So.2d at Likewise, this Court should affirm the denial of Holaday s -14-

22 Motion for Summary Judgment. This Court, in reviewing de novo Holaday s appeal of the denial of summary judgment, must view the evidence in a light most favorable to the Moores, who oppose the motion. Hosp. MD, LLC v. Larry, IA SCT, 2014 WL , 8 (Miss. May 22, 2014) (citing Johnson v. Pace, 122 So. 3d 66, 68 (Miss. 2013)) (articulating standard of review for statute of limitations and noting that evidence in the motion is viewed in the light most favorable to the party opposing the motion ); Sutherland, 959 So.2d at 1007 (citing Satchfield v. R. R. Morrison & Son, Inc., 872 So.2d 661, 663 (Miss. 2004)) (noting evidence viewed in favor of nonmovant); Rawson v. Jones, 816 So.2d 367, (same); Smith, 485 So.2d at 1054 (quoting Brown v. Credit Center, Inc., 444 So.2d 358 (Miss. 1983)) (same). Additionally, summary judgment is only appropriate when the nonmovant cannot prove any facts showing a triable issue, and it is the movant s burden to prove no genuine issues of material fact. Miss. R. Civ. P. 56(c), Rawson, 816 So.2d at 369; Blessitt v. King s Daughters Hospital of Yazoo County, Inc., 18 So.3d 878, 881 (Miss. Ct. App. 2008) (indicating movant s burden). This Court should look at all evidentiary matters in the record to determine if there are genuine issues of material fact. Neglen v. Breazeale, 945 So.2d 988, 990 (Miss. 2006) (citing McKinley v. Lamar Bank, 919 So.2d 918, 926 (Miss. 2005)). -15-

23 Moreover, [in] Mississippi, when a valid factual dispute exists, the issue is settled by the finder of fact, a jury, and because there exists a dispute regarding when the Moores knew of Holaday s involvement in Kyle Moore s treatment, this matter cannot be settled as a matter of law. Huss v. Gayden, 991 So.2d 162, 166 (Miss. 2008). Whether to apply the discovery rule is often an issue that must be resolved by a finder of fact[,] not as a matter of law on summary judgment. Huss, 991 So.2d at 168. As the moving party, Holaday did not meet his heavy burden for summary judgment, as the record is void of any evidence establishing the absence of genuine issues of material fact. Smith, 485 So.2d at 1054 (ruling that [t]he material introduced in support of the motion for summary judgment does not show there was no genuine issue of fact as to when [Appellant] discovered, or should have discovered ). More specifically, Holaday failed to demonstrate the absence of genuine issues of material fact regarding when his involvement should have been discovered, as evidenced by the Circuit Court s application of the discovery rule. On appeal, Holaday argues that the Moores have always known the extent of Holaday s involvement. [Brief of Appellant at 15]. However, the Moores had no reason to believe that Holaday s version of events and testimony was -16-

24 potentially false until the conflicting deposition testimonies of Dr. Hatten and Dr. Stout were given on July 6, The Moores adequately demonstrated to the Circuit Court that they were unaware of the extent of Holaday s involvement and potential negligence until the deposition testimonies of Dr. Hatten and Dr. Stout on July 6, The testimony of Dr. Hatten and Dr. Stout implicating Holaday was bolstered by Dr. Hubacek s Motion for Leave to Amend His Answers and Defenses filed on August 24, 2010, asserting that Holaday s acts/omissions constituted a superseding cause defense. The Circuit Court could not, as a matter of law, conclude that the Moores were aware of Holaday s involvement prior to the revelation of this evidence. Consequently, the Circuit Court properly denied Holaday s motion for summary judgment, viewing evidence in light of the Moores, and ultimately left the issue of the extent of Holaday s involvement and liability to the trier of fact, a jury. B. The Circuit Court correctly applied the discovery rule to toll the statute of limitations and to permit the Moores to add Holaday as a defendant. Holaday erroneously argues that the Circuit Court incorrectly applied the discovery rule so as to toll the statute of limitations. This Court has held that the discovery rule tolls the statute of limitations until the plaintiff (1) has knowledge of the injury, (2) has knowledge of the cause of the injury, and (3) knows the relationship between the practitioner and the injury. Stringer, 30 So.3d at

25 (citing Smith, 485 So.2d at 1053); Powe, 892 So.2d at 227 (citing Sarris, 782 So.2d at 723). Application of the discovery rule is analyzed on a case-by-case basis. Huss, 991 So.2d at 164; Smith, 485 So.2d at There is no rote formula used to apply the discovery rule. Huss, 991 So.2d at 166. In weighing whether to apply the discovery rule, courts look to ascertain if the plaintiff has been reasonably diligent. See, e.g., Stringer, 30 So.3d at 343 (noting diligence to seek records, and distinguishing the holding in Joiner v. Phillips, 953 So.2d 1123, 1127 (Miss. Ct. App. 2006)), Huss, 991 So.2d at 167 (noting that without reasonable diligence, the Court may reject the application of the discovery rule). The proper application of the discovery rule focuses on the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury. Huss, 991 So.2d at 166 (quoting Smith, 485 So.2d at ); Womble v. Singing River Hosp., 618 So.2d 1252, 1266 (Miss. 1993) (citing Smith, 485 So.2d at 1052)). Reasonable diligence often is evidenced by timely obtaining medical records and conducting some level of investigation. See, e.g., Stringer, 30 So.3d at 343 (finding that plaintiff was diligent in seeking her medical records), Hosp. MD, LLC, 2012-IA SCT, 2014 WL , 15 (Miss. May 22, 2014) (finding that lack of diligence to investigate this claim is obvious with nothing -18-

26 more than request[ing] her medical records ), Joiner, 953 So.2d at 1127 (finding that medical records clearly identify the new defendant, but plaintiff was not reasonably diligent because he failed to investigate defendant s role), Womble, 618 So.2d at 1266 (noting that where medical records clearly reflected treating physicians and reflected the extent of the... treatment[,]... reasonable diligence would have led [plaintiffs] to discern the extent of [the doctor s] involvement ). Furthermore, the inquiry requires the patient s knowledge of the causative relationship between the injury and the conduct of the medical practitioner, or, put another way, the relationship between the practitioner and the injury. Huss, 991 So.2d at 166 (quoting Smith, 485 So.2d at ); Hosp. MD, LLC, IA SCT, 2014 WL , 9 (Miss. May 22, 2014) (citing Stringer, 30 So. 3d at 342). The Moores used reasonable diligence in investigating Holaday s involvement prior to filing their original complaint. Specifically, Holaday was directly contacted and asked whether he provided any treatment or care to Kyle, which he expressly denied [R. at ; R.E. at 38-42]. Holaday further stated he was out of town and never agreed to see Kyle. [R. at ; R.E. at 38-42]. The Moores obtained additional information during discovery implicating a causative relationship between Holaday and Kyle s injury and triggering the discovery rule -19-

27 to toll the statute of limitations. Contrary to Dr. Holaday s assertions, the vague notations in Kyle Moore s medical records cannot be considered sufficient information on which to base a claim. Huss, 991 So.2d at 167. Nor were the notations referring to Holaday clearly reflected to indicate an actionable claim against Holaday. Womble, 681 So.2d at 1266 (noting that the medical records were unambiguous as to who treated the patient). This is especially true considering Holaday s express denial of any involvement in Kyle s care and treatment prior to the Moores filing suit. It is only when viewing the medical records in conjunction with the deposition testimonies of Dr. Hatten and Dr. Stout that it becomes clear that Holaday potentially misled the Moores to believe that he was uninvolved with Kyle Moore s treatment. If, as Holaday suggests on appeal, the Moores should have been aware of Holaday s involvement prior to filing suit, then Holaday fraudulently concealed his true involvement in Kyle Moore s treatment when speaking to Dr. Stringer before suit was filed and under oath in his deposition. Miss. Code Ann (2)(b); Joiner, 953 So.2d at 1127 (citing Nygaard v. Getty Oil Co., 918 So.2d 1237, 1242 (Miss. 2005)) ( Fraudulent concealment arises from affirmative acts that prevent discovery of a relevant fact despite the plaintiff s exercise of due diligence. ). -20-

28 The Moores case is rare, 4 in that the Moores knew of the injury before the two year statute of limitations had run, but despite reasonable diligence, could not have known or discovered until the depositions of Dr. Hatten and Dr. Stout that there existed a causative relationship between Kyle s injury and Holaday. Huss, 991 So.2d at 166 (quoting Smith, 485 So.2d at ) (reiterating that reasonable diligence is elemental to what was known or should have been discovered); Powe, 892 So.2d at 227 (citing Smith, 485 So.2d at 1052) (noting causative relationship ), Sarris, 782 So.2d at 723 (quoting Smith, 485 So.2d at 1052) (same). This is especially true considering Holaday s express denial that he provided care and treatment to Kyle. Dr. Hatten and Dr. Stout provided testimony that went well beyond the brief notations in the emergency room records. Because Holaday s involvement in Kyle s care and treatment is impossible to glean from the medical records and Holaday s express denial, the discovery rule applies to toll the statute of limitations under the circumstances. Huss, 991 So.2d at 166 (quoting Smith, 485 So. 2d at ). 4 But, the discovery rule does not only apply in rare cases as Holaday s brief suggests. [Brief of Appellant at12.] Holaday has taken the words of this Court s opinion in Huss out of context, and argues that the discovery rule only applies to those rare cases[.] However, in Huss, this Court gave several scenarios to illustrate the type of cases where the discovery rule may apply, and only one of those scenarios was rare. Huss, 991 So.2d at In sum, Huss clarified the application of the discovery rule with illustrative scenarios, but did not qualify the application to only rare instances. Id. -21-

29 The statute of limitations began to run when the Moores first discovered Holaday s true involvement in Kyle Moore s treatment and care by means of Dr. Hatten s and Dr. Stout s deposition testimony on July 6, In accordance with the statutory requirement, the Moores filed their amended complaint within two (2) years [of the injury]... and... in no event more than seven (7) years after they discovered the negligence that caused the injury. Miss. Code Ann (2); Hosp. MD, LLC, 2012-IA SCT, 2014 WL , 9 (Miss. May 22, 2014) (citing Sutherland, 959 So. 2d at 1008). The Moores timely filed an Amended Complaint, naming Holaday ten months after they discovered Holaday s involvement and less than seven years from the date of Kyle Moore s debilitating injuries. This was done after the required statutory notice of claim was given and leave of court was obtained. Given that the date of the depositions is when the statute of limitations began to run, because that is when the Moores had sufficient knowledge... of the existence of a viable claim[,] the record is clear that the Moore s timely filed an Amended Complaint naming Holaday. Huss, 991 So.2d at 166 (quoting Sarris, 782 So.2d at 725). As such, the Circuit Court properly applied the discovery rule and denied Holaday s Motion for Summary Judgment Statute of Limitations. -22-

30 1. The Moores were reasonably diligent in their efforts to determine the cause of Kyle Moore s injury so as to comply with the statute of limitations without invoking the discovery rule. The discovery rule for medical negligence mandates that the statute of limitations begins to run on the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered. Miss. Code Ann (2). To apply the discovery rule in medical malpractice cases, a court must determine when the plaintiff, exercising reasonable diligence, should have first discovered the negligence, rather than the injury. Sutherland, 959 So.2d at 1008; Joiner, 953 So.2d at In Joiner v. Phillips, the court noted that in order to be reasonably diligent, the plaintiff cannot merely request medical records, but must undertake some type of investigatory role to discern the involvement of the physicians notated in the medical records. Joiner, 953 So.2d at Here, the medical records do not indicate the extent of Holaday s involvement in Kyle s care. Therefore, the Moores contacted Holaday as part of their investigation. As such, the Moores were reasonably diligent in attempting to ascertain Holaday s involvement, but did not discover that Holaday was involved in Kyle Moore s treatment and care until Dr. Hatten and Dr. Stout proffered conflicting deposition testimony. Prior to that time, Holaday had denied -23-

31 involvement during the Moores investigation and while under oath in his deposition. It was not until Dr. Stout and Dr. Hatten directly contradicted Holaday s verison of events that the Moores could possibly have discovered Holaday s potential involvement. Even today, Holaday disputes that he undertook Kyle s care and treatment. Nevertheless, the Moores acted with reasonable diligence to ascertain the cause of Kyle s injury, and are entitled to the application of the discovery rule as the Circuit Court correctly concluded. Miss. Code. Ann a. Though exercising reasonable diligence, the Moores could not have identified Holaday s involvement during their pre-suit investigation because Holaday expressly denied that he was involved in Kyle Moore s treatment. The record clearly demonstrates that the Moores were reasonably diligent from their pre-suit investigation through the time they issued a notice letter to Holaday and subsequently filing their Amended Complaint. [R. at ; R.E. at ]. This Court has noted that simply requesting medical records does not SCT, 2014 WL , 15 (Miss. May 22, 2014). As such, the Moores did more than simply request records. That is, the Moores sought a medical expert, Dr. Stringer, to review to Kyle s records. Dr. Stringer also contacted Holaday directly who denied involvement in Kyle s care and treatment. Despite this, constitute diligence in investigating a claim. Hosp. MD, LLC, 2012-IA

32 Holaday argues that the Moores have always known of Holaday s disputed role from Kyle Moore s medical records. [Brief of Appellant at 14]. But, while Kyle Moore s medical records briefly notated Holaday, the extent of Holaday s involvement from the medical records alone is, at best, vague. In fact, this Court should not be persuaded by the magnification and cutting and pasting of the scribbled handwriting in the records. [Brief of Appellant at 2 and 3]. Such scribble hardly equates to Holaday s involvement being clearly reflected as required by this Court. Womble, 618 So.2d at Even though the notations are brief, Dr. Stringer spoke with Holaday regarding his potential involvement in Kyle Moore s treatment, further demonstrating the Moores diligence in their attempt to ascertain Holaday s involvement. See, e.g., Joiner, 953 So.2d at 1127 (criticizing the plaintiff for not timely requesting medical records and presuming that her medical expert would have gleaned the physician s role, which was obvious from the medical records). Holaday expressly disputed the accuracy of Kyle Moore s medical records and asserted both in his deposition and to Dr. Stringer that he was not on call and never undertook Kyle s care or treatment. [R. at ; R.E. at 59-63; R. at ; R.E. at 41-42]. Because the Moores had not yet deposed the other physicians involved in Kyle s care, the Moores had no reason to believe that Holaday had -25-

33 misled them as to the degree of his involvement in Kyle Moore s treatment or care. In fact, Holaday s sworn deposition testimony bolstered his previous assertion that he was not involved in Kyle s care. [R. at ; R.E. at 59-63]. Holaday alleges that the Moores have never asserted that he was negligent. [Brief of Appellant at 13]. This allegation completely ignores the Moores Amended Complaint, wherein the Moores state that [b]ased on the assertions of Defendant Hubacek that Holaday s action and inactions constitute negligence... and the testimony of Dr. Stout and Dr. Hatten, Holaday is made a Defendant. [R. at ; R.E. at ]. Therefore, the claim of negligence is asserted and Holaday s claim to the contrary is without merit. Even so, whether Holaday was negligent is irrelevant to this appeal. Holaday s appeal is based on the denial of summary judgment as it relates to the statute of limitations and the application of the discovery rule, and is not based on any determination of negligence. There is a genuine issue of material fact as to when the Moores discovered Holaday s potential negligence. Simply put, the medical records are not clear and do not provide enough information for the Moores to be aware of Holaday s involvement, much less to certify a claim under Miss. Code Ann Holaday himself denied, and continues to deny, any involvement. Only the depositions of Dr. Stout and Dr. Hatten create a basis for a -26-

34 claim against Holaday and trigger the running of the statute of limitations. Despite reasonable diligence, the Moores could not have known of Holaday s involvement until the deposition testimonies, and so the Circuit Court correctly applied the discovery rule. b. Despite exercising reasonable diligence, the Moores could not have known the nature and extent of Holaday s involvement until Dr. Hatten s and Dr. Stout s conflicting deposition testimony. The Moores were reasonably diligent in their attempt to ascertain all defendants at the time the Complaint was filed, but it was not until conflicting testimony arose that the Moores discovered Holaday s true involvement. Dr. Hatten and Dr. Stout were independently deposed on July 6, 2010, and their sworn testimony painted a much different picture than Holaday previously purported. Dr. Hatten s and Dr. Stout s testimony elaborated on the ambiguity in Kyle Moore s medical records. Even so, Holaday continues to argue that despite Dr. Stout s sworn testimony to the contrary, Dr. Stout s notations on the medical records were in error. [R. at 409; R.E. at 64]. In making this argument, Holaday argues on the one hand that the Moores should have known of his potential involvement based on the medical records, but on the other hand asserts that the records are incorrect and that Dr. Hatten and Dr. Stout are not telling the truth. Holaday cannot have it both ways. -27-

35 Dr. Hatten s and Dr. Stout s recollections in their depositions led the Moores to discover that Holaday was potentially not forthcoming with his involvement in Kyle s treatment. Prior to that time, the Moores had no legitimate reason to dispute Holaday s express assertions that he was not involved in Kyle s care, nor did they have sufficient information to certify in a complaint that Holaday was negligent. The discovery rule is applicable because the Moores, despite reasonable diligence, had no way to know of Holaday s causative relationship with Kyle Moore s debilitating injuries until the deposition testimonies of Dr. Hatten and Dr. Stout on July 6, Even today, Holaday s involvement in Kyle s care is strongly disputed by Holaday. Despite this dispute, Holaday argues that Dr. Stout s testimony should have no bearing on the case because it does not affect Dr. Stringer s opinion. This argument completely ignores Dr. Hubacek s assertion, made after Dr. Stout s deposition, that Holaday was negligent and this negligence was a superseding cause of Kyle s injuries. [Brief of Appellant at 12-14]. The issue on appeal is when the Moores knew of the existence of a viable claim against Holaday, which was after the depositions on July 6, The issue is not whether the Moores have offered expert testimony that Holaday was negligent. 5 5 This issue was argued in Holaday s first Motion for Summary Judgment which was denied. This Court denied the Interlocutory Appeal by Holaday of that Order. -28-

36 Holaday claims that his alleged failure to present to the emergency room is readily observable from the medical records. This is just not true. Holaday cannot and does not point to any notation in the medical records referencing Holaday s failure to present to the emergency room. Conversely, Holaday denied and continues to deny, any involvement, by way of action or inaction, in Kyle s care. It was not until Dr. Stout s testimony that the alleged failure to present was discovered. This testimony was the first time the Moores became aware of Holaday s potential attempt to mislead them regarding his involvement. In sum, the deposition testimony of Dr. Hatten and Dr. Stout, when contrasted with that of Holaday, creates a genuine issue of material fact rendering summary judgment inappropriate. The Circuit Court properly considered the evidence and applied the discovery rule to toll the statute of limitations. 2. The discovery rule applies because the Moores discovered the possible connection (causative relationship) between Holaday and Kyle Moore s injury during Dr. Hatten s and Dr. Stout s depositions. Despite reasonable diligence, the Moores did not discover a causative relationship between Kyle s injury and Holaday until the conflicting deposition testimonies. The discovery rule applies when the negligence which caused the injury is unknown. Sutherland, 959 So.2d Furthermore, the inquiry requires the patient s knowledge of the causative relationship between the injury -29-

37 and the conduct of the medical practitioner. Huss, 991 So.2d at 166 (quoting Smith, 485 So.2d at ); Hosp. MD, LLC, 2012-IA SCT, 2014 WL , 9 (Miss. May 22, 2014) (citing Stringer, 30 So. 3d at 342). The Moores did not know that Holaday was potentially at fault for Kyle s injuries. The record shows that Holaday maintained that he was not on call and never undertook Kyle Moore s treatment or care. [R. at ; R.E. at 59-63]. Furthermore, Holaday denied any involvement in Kyle s treatment or care, disputing the accuracy of the notations made on Kyle s medical records. [R. at ; R.E. at 59-63]. Therefore, neither the Moores nor the Moores expert, Dr. Stringer, had any reason or proof to doubt Holaday s version of events until the conflicting deposition testimonies of Dr. Hatten and Dr. Stout. Even still, Holaday appeals, arguing the Circuit Court s application of the discovery rule was improper because the statute of limitations had expired. The Moores named Holaday as a Defendant within two years of the Moores discovering evidence of his involvement in Kyle Moore s care and treatment, and within seven years of the incident that caused Kyle s injuries. Miss. Code Ann (2). Holaday argues that the Moores should have known or discovered the causative relationship of Holaday s involvement prior to Dr. Hatten and Dr. -30-