Jackson Medical Clinic for Women1/30/2003
DATE OF JUDGMENT: 7/19/1999
NATURE OF THE CASE: CIVIL/MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND REMANDED
EN BANC.
. On August 7, 1995, Grace Polles Moore and Robert Alan Moore (the Moores), individually, and as personal representatives and wrongful death beneficiaries of Robert Alan Moore, Jr., filed their complaint in the Circuit Court of Hinds County, First Judicial District. The Moores claimed medical negligence against the Jackson Clinic for Women, P.A., Dr. A. Mercer Lee, III, Dr. Darden H. North (collectively, Jackson Clinic), and Paracelsus Woman's Hospital (now the Woman's Hospital), alleging damages for the wrongful death of their stillborn child, and for personal injuries sustained by themselves. On November 14, 1995, Jackson Clinic filed a motion for summary judgment, claiming the Moores' action was barred by the two-year statute of limitations for medical negligence, Miss. Code Ann. ยง 15-1-36. The motion for summary judgment was denied. Jackson Clinic then filed a petition for interlocutory appeal with this Court concerning the statute of limitations issue, which we denied on May 22, 1996.
. On February 20, 1997, Jackson Clinic issued a subpoena duces tecum to Mrs. Moore's previous attorney, Michael Hartung, to produce all files, correspondence, documents, or other things related to the representation of the Moores in this matter. The Moores filed a motion to quash the subpoena duces tecum, which was granted by the circuit court by order on March 10, 1997. A motion to reconsider was then filed, which was similarly denied.
. On October 29, 1998, Jackson Clinic again filed a motion for summary judgment, along with a motion for disclosure of records and other relief, which was denied by the circuit court on July 19, 1999. On April 28, 2000, Jackson Clinic again petitioned this Court for an interlocutory appeal, this time on the issue of waiver of attorney- client privilege, which this Court granted by order on April 13, 2000. See M.R.A.P. 5. Jackson Clinic states its issue on interlocutory appeal as follows:
DOES THE PLAINTIFFS' VOLUNTARY USE OF ADVICE AND COMMUNICATIONS FROM THEIR FORMER ATTORNEY AS A BASIS TO AVOID DEFENDANTS' STATUTE OF LIMITATIONS DEFENSE WAIVE THE ATTORNEY-CLIENT PRIVILEGE SO AS TO ALLOW DEFENDANTS TO CONDUCT DISCOVERY REGARDING THE FORMER ATTORNEY'S FILE AND ADVICE?
. Concluding that Jackson Clinic's appeal is well taken, we reverse and remand.
FACTS
. On or about August 24, 1992, Grace Polles Moore, who was pregnant at the time, entered Woman's Hospital complaining of abdominal pain. Moore was under the care of Dr. Lee and Dr. North, physicians practicing with the Jackson Clinic for Women. It was determined that Moore was suffering from a twisted bowel, which required a cesarian section be performed, along with a resection of her small bowel; the baby was stillborn.
. Moore, herself a registered nurse, contacted attorney Michael Hartung in December of 1992, who in turn requested the medical records of her treatment in August from the two doctors, the clinic and the hospital. Hartung forwarded the records to an expert, Dr. Richard A. Nicholls, for review. Dr. Nicholls opined, in a letter dated April 5, 1993, that Jackson Clinic was not negligent and may have in fact saved her life:
Although Mrs. Polles [Moore] presented at multiple times with abdominal pain during her pregnancy, she had a history of multiple gastrointestinal problems and previous abdominal surgeries which alone could have accounted for her abdominal pain, manifesting the signs and symptoms that she presented with. Volvulus with gangrene of t
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