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Monday, July 22, 2019

Mississippi Supreme Court affirms wrongful death suit is time-barred

By John Sammon | Dec 22, 2017

JACKSON, Miss. (Legal Newsline) – The Mississippi Supreme Court affirmed a judgment of a circuit court in finding that a man’s lawsuit against doctors alleging negligence in the wrongful death of his mother was barred by a statute of limitations.

The high court upheld the decision of the Clay County Circuit Court on Nov. 3. The circuit court had granted the defendants’ motion for a partial summary judgment on the survival claim brought by Christopher Pollan.

According to the opinion, on Oct. 8, 2008, Shirley Pollan, 55, "was taken to the emergency center at the North Mississippi Medical Center-West Point with complaints of dizziness, vomiting and inability to stand." Her blood sodium level was determined to be low and IV fluids were administered.

"According to existing guidelines at the time, blood sodium levels should not be increased by more than 10 to 12 points in the first 24 hours and 18 points in the first 48 hours," the opinion states. Medical records showed the woman’s blood sodium was increased 19 points in the first 15 hours and 21 points in 31 hours.

"On Oct. 11, 2008, at Pollan's request, Shirley was transferred to NMMC-Tupelo where she remained until Oct. 14. Her diagnosis upon discharge was 'severe hyponatremia,'" and the records indicated she "'might be suffering from central pontine myelinolysis (CPM),'" a condition in which nerve cells in the brain are damaged caused by a rapid rise in sodium levels," the opinion states.

Pollan passed away on Jan. 18, 2011. An autopsy revealed that she had died from CPM, rapid sodium correction.

Her son Christopher Pollan filed a wrongful death suit on Jan. 10, 2013, in the Clay County Circuit Court against Dr. Andrew Wartak and Internal Medical Associates, Clay County Medical Corp., North Mississippi Medical Center-West Point, Angie Turnage C.L.P.N., William C. Larmour R.N. and Ashley Thomas Davis R.N.

The suit was separated into wrongful death, survival and estate claims.

The defendants filed an answer to the complaints in March 2013 and raised the statute of limitations as a defense.

In March 2015 Wartak filed for partial summary judgement which the other defendants joined. The defendants alleged that the statute of limitations began in November 2008 when Shirley Pollan visited a primary care doctor and attributed her neurological problems to her stay at NMMC-West Point.

Because Christopher Pollan’s complaint was filed more than two years after that date, the defendants claimed the complaint was time-barred.

The trial court granted a partial summary judgment, determining that the statute of limitations had begun on Aug. 24, 2010, when a patient profile at Semmes Murphey Clinic identified the treatment at NMMC-West Point as the cause of the neurological problems.

Because the suit was not filed within two years of 2010, the court said it was time-barred. Christopher Pollan appealed.

He contended that the trial court erred when it failed to consider his argument that the defendants had waived their statute-of-limitations defense and was wrong in setting the statute of limitations' start date in 2010.

The high court said the trial court had not abused its discretion when it failed to find that the defendants had waived their statute-of-limitations defense. 

The high court also said Shirley Pollan was aware of cognitive difficulties as early as 2008 after treatment and that she was aware of the injury in 2010 was “indisputable.” Because the suit was filed more than two years after August 2010 it was time-barred.  

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