Mississippi Medical Malpractice Summary

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Mississippi passed a tort reform act in 2002 with several provisions specific to medical malpractice. Most of these apply to lawsuits filed on or after January 1, 2003. In addition to matters discussed below, including a cap on non-economic damages, the act provides that a medical malpractice action may only be brought in the county in which the alleged act or omission occurred. Miss. Code Ann. § 11-11-3(3) (Westlaw 2007).

Statutes of Limitations

A medical malpractice action must be brought within two years after the alleged act, omission, or neglect is discovered or with reasonable diligence might have been discovered. Miss. Code Ann. § 15-1-36(1) (Westlaw 2007). This includes death claims, under a 2006 decision that overruled prior law and held that the statute of limitations for wrongful death is the same as that for the act that led to the death. Jenkins v. Pensacola Health Trust, 933 So. 2d 923 (Miss. 2006). A claim accruing on or after July 1, 1998, must also be brought within seven years after the alleged act, omission, or neglect occurred. This statute of repose is tolled until discovery for claims arising out of foreign objects left in the body and claims that have been fraudulently concealed. § 15-1-36(2).

Special provisions extend the time for an action on behalf of a minor or mentally disabled person, based on the injured person’s status on the date the cause of action is discovered or with reasonable diligence might have been discovered. For a minor six years of age or less with a parent or guardian, an action may be brought within two years of the minor’s death or sixth birthday, whichever is earlier. For a mentally disabled person, an action may be brought within two years of death or removal of the disability, whichever is earlier. § 15-1-36(3) to (8).

Effective January 1, 2003, a medical malpractice action cannot be filed until 60 days after giving the defendant written notice. If the statute of limitations would expire, it is extended to 60 days from notice. § 15-1-36(14).

Contributory or Comparative Negligence

Mississippi is a pure comparative negligence state. A claimant’s contributory negligence does not bar recovery, but damages are reduced in proportion to the amount of negligence attributable to the claimant. Miss. Code Ann. § 11-7-15 (Westlaw 2007).

Joint and Several Liability

In a civil action based on fault, including one for medical malpractice, each tortfeasor is liable only for damages allocated to him in direct proportion to his percentage of fault. Miss. Code Ann. § 85-5-7 (Westlaw 2007). Fault must be assigned to absent tortfeasors who contributed to the injury (such as persons who have settled or were not sued) and those with immunity. Id.; Blailock v. Hubbs, 919 So. 2d 126 (Miss. 2005). This rule does not apply to acts committed with specific wrongful intent or as part of a common plan to commit a tortious act. § 85-5-7(1) and (4).

The law changed twice within a short period of time. In cases filed before January 1, 2003, liability was joint and several, but only to the extent necessary for the claimant to recover 50 percent of his damages. Between January 1, 2003, and September 1, 2004, there was no joint liability for non-economic damages. Only those defendants determined to have 30 percent or more of total fault could be found jointly liable at all, and then only to the extent necessary for the claimant to recover 50 percent of his economic damages. See notes to § 85-5-7 for prior versions.

Contribution

Before the elimination of joint and several liability (see Joint and Several Liability), joint tortfeasors were afforded a right of contribution, with the amount of each tortfeasor’s liability in contribution determined by the tortfeasors’ relative degrees of fault. A right of contribution still exists for those whose liability is joint and several because they took part in a common plan to commit a tortious act. Miss. Code Ann. § 85-5-7(4) (Westlaw 2007) (see notes for prior versions).

Vicarious Liability

Mississippi recognizes that hospitals are not generally liable for the negligent acts of physicians who are independent contractors. Hardy v. Brantley, 471 So. 2d 358 (Miss. 1985). However, where a hospital holds itself out as providing a given service, and a patient engages the services of the hospital without regard to the identity of a particular physician and relies upon the hospital to deliver the desired health care and treatment, the hospital is vicariously liable for the negligent acts of the physician. Id. at 371. Anesthesiologists, radiologists, and emergency physicians are especially likely to meet this test. Gatlin v. Methodist Medical Center, 772 So. 2d 1023, 1028 (Miss. 2000). A hospital found vicariously liable for a physician’s negligence is entitled to indemnity from that physician. Id.

Expert Testimony

In general, expert medical testimony is necessary to prove medical negligence, unless “a layman can observe and understand the negligence as a matter of common sense and practical experience.” Gatlin v. Methodist Medical Center, 772 So. 2d 1023, 1026 (Miss. 2000); Coleman v. Rice, 706 So. 2d 696, 698 (Miss. 1997). Reversing prior law, the Mississippi Supreme Court held in 2005 that expert testimony is necessary to prove lack of informed consent, in order to establish the material risks and available alternatives that should have been disclosed. Whittington v. Mason, 905 So. 2d 1261 (Miss. 2005). To qualify as an expert, a physician need only be licensed in Mississippi or some other state. Miss. Code Ann. § 11-1-61 (Westlaw 2007).

In cases filed on or after January 1, 2003, a plaintiff in a medical malpractice action must file with the complaint a certificate executed by his attorney declaring that the attorney has consulted with at least one qualified and knowledgeable expert and concluded that there is a reasonable basis for the action (or that he has made three good-faith attempts and none of the experts contacted would agree to the consultation). This requirement does not apply to a pro se plaintiff or one who plans to rely solely on the doctrines of res ipsa loquitur or informed consent, and may be postponed if time to file is running out or the defendants have failed to produce requested medical records. Miss. Code Ann. § 11-1-58 (Westlaw 2007).

Damage Caps

Mississippi has a cap of $500,000 on non-economic damages in medical malpractice cases. Miss. Code Ann. § 11-1-60 (Westlaw 2007). The Mississippi Supreme Court has never ruled on the constitutionality of this section. There is uncertainty over the effective date of the cap. Most of the 2002 tort reform act applies to actions filed on or after January 1, 2003, but the section establishing the cap says that it applies to actions filed on or after passage of the bill, which was approved October 8, 2002. Id. The limited authority available, none of it officially reported, supports the earlier effective date. Buchanon v. Mariner Health Care Management Co., No. Civ.A. 303CV302WS, 2006 WL 1195579 (S.D. Miss. April 28, 2006); Bowen v. South Coast Family Physicians, PLLC, No. C102-00508(1), 2006 WL 2945591 (Miss. Cir. May 26, 2006). The original definition of non-economic damages excluded damages for “disfigurement,” but an amendment applicable to actions filed on or after September 1, 2004, eliminates this exception. The amendment also clarifies that the cap applies to an entire claim, not separately for each defendant. § 11-1-60. In cases filed on or after September 1, 2004, punitive damages are limited to two percent of net worth. (There is a schedule of lower limits for defendants worth more than $50 million.) Miss. Code Ann. § 11-1-65 (Westlaw 2007).

Statutory Cap on Attorneys’ Fees

Mississippi does not place a cap on the amount attorneys can collect in fees, nor does it require that contingent fee arrangements be approved by the court.

Periodic Payments

Mississippi does not mandate the use of periodic payments.

Collateral Source Rule

Mississippi follows the collateral source rule. A defendant tortfeasor is not entitled to have damages reduced by reason of amounts that plaintiff receives from independent sources like insurance, workers’ compensation, or Medicaid. Walmart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002); Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611 (Miss. 2001) (a medical malpractice case). Moreover, both those decisions upheld verdicts in trials in which plaintiffs were allowed to prove medical damages by introducing the full face amount of the bills issued by health care providers, even though these exceeded the amounts Medicaid and Medicare actually paid, and plaintiffs were not responsible for the excess.

Pre-Judgment Interest

A statute gives Mississippi judges discretion to assess pre-judgment interest. Both the rate and the date interest begins to accrue are left to the judge, except that the starting date cannot be earlier than the date of filing. Miss. Code Ann. § 75-17-7 (Westlaw 2007). However, the Supreme Court has held that no award of pre-judgment interest is allowed if the amount owed is unliquidated prior to judgment, which should always be true in medical malpractice cases. Coho Resources, Inc. v. McCarthy, 829 So. 2d 1 (Miss. 2002) (a personal injury case); Warwick v. Matheney, 603 So. 2d 330 (Miss. 1992).

Patient Compensation Funds and Physician Insurance

Mississippi does not have a patient compensation fund. It has a state-run primary medical professional liability program called the Medical Malpractice Insurance Availability Plan. Miss. Code Ann. § 83-48-5 (Westlaw 2007). This was established in 2003 as a “temporary market of last resort.” Medical Malpractice Availability Act § 2, 2003 Miss. Laws ch. 560.

Immunities

Any claim for damages for the acts or omissions of a governmental entity or its employees must be brought pursuant to the Mississippi Tort Claim Act (“MTCA”). Miss. Code Ann. § 11-46-7 (Westlaw 2007); City of Jackson v. Sutton, 797 So. 2d 977 (Miss. 2001). Governmental entities are the state and its political subdivisions, including counties and municipalities. The term “employees,” as used in the MTCA, includes physicians employed by the University of Mississippi Medical Center and certain physicians under contract to state health boards or local jails. Miss. Code Ann. § 11-46-1 (Westlaw 2007). Governmental entities are responsible for defending and indemnifying their employees against claims under the MTCA. § 11-46-7.

Notice of claim must be given under the MTCA within one year after the date of the actionable conduct. Miss. Code Ann. § 11-46-11 (Westlaw 2007). The Mississippi Supreme Court has adopted a discovery rule for the accrual of a cause of action, Barnes v. Singing River Hospital System, 733 So. 2d 199 (Miss. 1999), but it has been strict in requiring that a claimant exercise reasonable diligence in order to take advantage of it. Blailock v. Hubbs, 919 So. 2d 126, 131 (Miss. 2005). Total damages for all claims arising out of one occurrence are capped under Miss. Code Ann. § 11-46-15 (Westlaw 2007). Limits are $50,000 for claims accruing between July 1, 1993, and July 1, 1997; $250,000 for claims accruing between July 1, 1997, and July 1, 2001; and $500,000 for claims accruing thereafter. There is no liability under the MTCA for punitive damages or attorneys’ fees. Id. Governmental entities may purchase excess liability insurance for amounts above these limits, thereby waiving immunity to the extent of such excess liability coverage. Miss. Code Ann. § 11-46-17(4) (Westlaw 2007).

Arbitration

Mississippi does not require medical malpractice claims to be heard by an arbitration panel.

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Revision Date: February 6, 1998