Maggie Durr v. University Hospital
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-CA-00757-COA
DERRYELL DURR, A MINOR BY AND THROUGH HIS MOTHER AND
NEXT FRIEND, MAGGIE DURR
APPELLANT
v.
UNIVERSITY HOSPITAL AND ANY AND ALL PHYSICIANS OR OTHER
PERSONNEL TENDING THE BIRTH OF DERRYELL DURR ON JANUARY
28, 1985
APPELLEES
DATE OF JUDGMENT:
03/23/1999
TRIAL JUDGE:
HON. JAMES E. GRAVES JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
JOHN HUBERT ANDERSON
ATTORNEYS FOR APPELLEE:
JOSEPH L. MCCOY
ROXANNE PENTON CASE
NATURE OF THE CASE:
CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:
ORDER DISMISSING CLAIM WITH PREJUDICE
DISPOSITION:
AFFIRMED - 12/05/00
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
12/27/2000
BEFORE SOUTHWICK, P.J., IRVING, AND PAYNE, JJ.
IRVING, J., FOR THE COURT:
¶1. This appeal is from the dismissal of a complaint filed by Maggie Durr against the University of
Mississippi Medical Center (UMMC), a state university and hospital, alleging negligence during the birth of
her son, Derryell. The complaint was dismissed with prejudice by the Hinds County Circuit Court on the
ground that it was barred by the Mississippi Tort Claims Act and/or by the doctrine of sovereign immunity.
Feeling aggrieved, Durr filed this appeal. Her sole issue on appeal is: whether or not the State Tort Claims
Act is to be followed in claims accruing prior to its effective date. Finding no reversible error, we affirm the
trial judge's dismissal of Durr's complaint.
FACTS
¶2. On January 28, 1985, Maggie Durr gave birth to Derryell Durr at UMMC. On September 5, 1997,
Durr filed her complaint against UMMC. In the complaint, she alleged that UMMC's negligence during the
birth of her child resulted in the child suffering birth defects and other complications. UMMC filed an
answer in which it denied all liability and affirmatively asserted that the claim was barred because Durr failed
to abide by the notice provision of the Mississippi Tort Claims Act. UMMC also affirmatively asserted that
it was immune from liability pursuant to the doctrine of sovereign immunity.
Analysis of Issues Presented
The Applicability of the Tort Claims Act
¶3. Durr argues that her cause of action accrued in January 1985 and predates the Mississippi Tort Claims
Act which did not take effect until April 1993. Therefore, contends Durr, it was impossible and
unnecessary for her to comply with the notice provision of the Act. Durr contends that the date of the
alleged injury is the date of the claim and argues against the applicability of the Tort Claims Act. Her
argument is that her claim rightfully belongs in the group of cases which accrued during the time when
sovereign immunity was waived up to the amount of any insurance purchased by the State agency.
¶4. Durr admitted that she did not give or attempt to give any notice pursuant to the Tort Claims Act. The
trial judge ruled that the Tort Claims Act applied and that even if it did not, the claim was barred under the
doctrine of sovereign immunity.
¶5. Mississippi Code Annotated § 15-1-36(1) (Supp. 2000) provides a two year statute of limitation for
commencing medical malpractice actions. The two year period begins to run "from the date of the alleged
act, omission or neglect shall or with reasonable diligence might have been first known or discovered."
Therefore, Durr's action accrued when she first learned of or discovered her child's defects, notwithstanding
the fact that the action was not filed until some later date within the statute of limitations. Neither party
argues on appeal that Durr's action is time barred although that was one of the affirmative defenses raised
by the appellees in the trial court. Since neither party raises the time bar issue, we will not comment further
in that respect.
¶6. As stated, Durr argues that her cause of action accrued prior to the effective date of the Tort Claims
Act. We, however, are unable to tell from the record just when she knew or learned of the negligence
undergirding her claim. We assume, in light of her contention that her cause of action accrued prior to the
effective date of the Tort Claims Act, that she learned of the alleged defects at or about the time of the birth
of her child.
¶7. In Prince v. Louisville Municipal School District, 741 So. 2d 207, 210 (Miss. 1999), the Mississippi
Supreme Court stated:
In 1982, this Court abolished judicially created sovereign immunity in Pruett v. City of Rosedale,
421 So. 2d 1046 (Miss. 1982), holding that it was the legislature's duty to determine the extent of
sovereign immunity. The legislature responded by enacting Mississippi Code Annotated § 11-46-1 et
seq., which was a comprehensive tort claims act providing a limited waiver of sovereign immunity.
Hord v. City of Yazoo City, 702 So. 2d 121, 123 (Miss. 1997). However, Miss. Code Ann. § 1146-6 stated that the Act was not yet effective and that the common law that existed before Pruett
would govern until the act became effective. In 1992, in Presley v. Mississippi State Highway
Commission, 608 So. 2d 1288 (Miss. 1992), we held that Miss. Code Ann. § 11-46-6 was
unconstitutional because it sought to revive law by reference. Subsequently, we held that Presley was
to be applied prospectively only. Robinson v. Stewart, 655 So. 2d 866 (Miss. 1995). Jackson v.
Daley, 739 So. 2d 1031, 1040 (Miss. 1999). The case sub judice is a post-Pruett, pre-Presley
cause of action because it arose August 29, 1991. Therefore, according to Robinson, we must follow
§ 11- 46-6 which directs us to apply pre-Pruett common law. Jackson, 739 So. 2d at 1040.
For the District, the doctrine of sovereign immunity mandates a finding of non-liability. See Grossest
v. Newton Separate Mun. School Dist., 697 So. 2d 444, 445-46 (Miss. 1997) (finding school
district was protected by sovereign immunity for incident occurring in August 1993).
¶8. We accept Durr's assertion that her cause of action accrued prior to the enactment of the Tort Claims
Act. Therefore, according to Prince and the authorities cited therein, we follow Miss. Code Ann. § 11-466 which directs us to apply pre-Pruett common law. Accordingly, we hold that the doctrine of sovereign
immunity protects UMMC from the suit brought by Durr. The trial judge did not err in granting summary
judgment in UMMC's favor.
¶9. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DISMISSING THE
CLAIM WITH PREJUDICE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, MOORE, MYERS,
PAYNE, AND THOMAS, JJ., CONCUR.
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