JACKSON, Miss. (Legal Newsline) – Three Mississippi Supreme Court justices objected to the high court's recent change of mind about whether to hear an appeal of a medical malpractice case against University of Mississippi Medical Center over the 2010 stabbing death of a 19-year-old man.

Justice James W. Kitchens said in his statement that he would have heard the case and would have reversed a Mississippi Court of Appeals ruling against plaintiffs in the case because UMMC waived the affirmative defense of statute of limitations. The medical center lost that defense "by unjustifiedly waiting 241 days (i.e., eight months and seven days) to file its motion for summary judgment on that ground," Kitchens said in his statement.

Mississippi Supreme Court Justice James W. Kitchens
Mississippi Supreme Court Justice James W. Kitchens

The complaint, filed by the deceased's mother, Kim Hampton, also had been timely filed under Mississippi law, according to Kitchens' statement. 

"Accordingly, I respectfully object to the order dismissing Hampton's petition for writ of certiorari after grant," Kitchens said in his statement.

Kitchens, re-elected in 2016 to a second eight-year term on the Mississippi Supreme Court for District 1, provided the statement with concurrence from Justice Leslie D. King. Chief Justice William L. Waller Jr. joined in part with Justice Kitchens and King.

The objecting justices were out-numbered by justices Michael K. Randolph, Josiah D. Coleman, James D. Maxwell II, Dawn H. Beam and Robert "Bobby" P. Chamberlin, who voted to reverse the high court's grant in May of Hampton's petition to hear her appeal.

Justice David Ishee, appointed to the Mississippi Supreme Court in August, did not participate in the court's change of mind.

"Upon further consideration, the court finds that there is no need for further review and that the writ of certiorari should be dismissed," the majority of justices said in their own brief statement released Oct. 12 and signed by Coleman.

On Nov. 2, the high court issued a mandate to the Mississippi Court of Appeals that its previous ruling reversing a circuit court award to Hampton should be carried out.

Kimrick Smith, 19, died Nov. 8, 2010, after he was stabbed in the chest little more than a week earlier, according to information in Kitchen's statement and a supplemental brief filed in the case in June. Smith had been stabbed and airlifted to UMMC for emergency medical care the previous Oct. 30, 2010. He was admitted to UMMC, treated and then released the following Nov. 3.

An autopsy ruled the cause of death to be a small wound to Smith's heart that had gone undetected, according to Kitchen's statement and the brief.

In November 2011, Smith's mother hand delivered a notice of claim letter to the medical center. The following February, the medical center replied with a denial of claim letter. Hampton filed suit pro se against the medical center in May 2012 on behalf of Smith’s wrongful death beneficiaries.

After a bench trial in November 2013, the Circuit Court of the First Judicial District of Hinds County awarded a $500,000 judgment to Hampton, finding that the medical center breached the applicable standard of care, leading to Smith's death.  

The medical center appealed and in July 2014, the Mississippi Court of Appeals reversed the circuit court ruling, finding that Hampton filed suit outside the applicable statute of limitations.

Hampton had argued that UMMC waived any statute of limitations defense when it waited from the time she filed her complaint until May 28, 2013, to file its motion for summary judgment based on the statute of limitations defense. UMMC has countered that the almost year-long delay resulted from not having the information required until Hampton disclosed it during her deposition May 1, 2013.

This past March, Hampton petitioned the Mississippi Supreme Court for writ of certiorari, which the high court granted about two months later.

In June, UMMC filed briefs with the high court again raising the statute of limitations issue and asking that the appeals court decision be affirmed. Both briefs reject Hampton's argument UMMC knew about Smith's autopsy, which allegedly set the date for when the medical center should have known about the supposed negligence in Smith's death. 

The medical center "did not cite to the record for these assertions because nothing in the record supports these allegations," one brief said.

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