Miss. SC tosses wrongful death lawsuit

Jessica M. Karmasek Apr. 4, 2012, 1:00pm


JACKSON, Miss. (Legal Newsline) - The Mississippi Supreme Court, in a ruling last month, agreed with a lower court, dismissing a wrongful death lawsuit against a doctor, nurse and a hospice facility.

The Lee County Circuit Court dismissed plaintiff Jimmy Steven Fowler Jr.'s lawsuit against defendants John Paul White, M.D., Marilyn Lehman, R.N., and The Sanctuary Hospice House Inc. for failure to timely serve presuit notice, as required by Mississippi Code.

The court also denied Fowler's motion for reconsideration.

In his appeal to the state's high court, Fowler argues that he presented evidence that raised a presumption of timely presuit notice; that the trial court erred by denying his motion for reconsideration; and that the defendants waived the affirmative defense of lack of presuit notice because they failed to timely pursue the defense while actively participating in the litigation.

Fowler, in his Aug. 4, 2009 complaint, explained that his father, Jimmy Sr., had congestive heart failure and chronic obstructive pulmonary disease, and was on multiple medications.

Four months prior to his death on Jan. 31, 2007, Jimmy Sr. was admitted as a resident to The Sanctuary Hospice House.

Jimmy Jr. alleged that the hospice facility committed medical negligence by discontinuing his father's medication and placing him on high doses of pain medication and sedatives, which proximately caused his death.

Jimmy Jr. also alleged that White and Lehman, the clinical coordinator for the facility, provided medically negligent care.

In addition, he alleged that Sanctuary, itself, had actively concealed its medical negligence and that he had not known about it until he was notified by the state Attorney General's Office's Medical Fraud Unit in August 2007.

Justice David A. Chandler, who authored the Court's March 29 opinion, said the trial court's finding that Fowler failed to present sufficient evidence to create a presumption of presuit notice was supported by "substantial evidence."

"The trial court was within its discretion in denying Fowler's Rule 59(e) motion for reconsideration. And Fowler's waiver argument is procedurally barred because he raises it for the first time on appeal," Chandler wrote.

"We have been consistent in holding that we need not consider matters raised for the first time on appeal, which practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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