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Bailey v. Al-Mefty9/13/2001
DATE OF JUDGMENT: 09/13/1999
TRIAL JUDGE: HON. SWAN YERGER
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND REMANDED - 09/13/2001
. On December 31, 1996, Jay Jonathan Bailey (Bailey) filed suit in the First Judicial District of Hinds County Circuit Court against Dr. Ossama Al-Mefty (Al-Mefty) seeking damages for injuries allegedly stemming from an operation performed on July 26, 1990, at the University of Mississippi Medical Center (UMC). Bailey asserts that the surgery was negligently performed due to Al-Mefty's failure to employ the proper medical knowledge and skill in his diagnosis, treatment and care of Bailey.
. On June 8, 1999, Al-Mefty moved for summary judgment on the basis that he qualified as an employee with individual immunity under the Mississippi Tort Claims Act (MTCA) and that Bailey failed to comply with numerous filing provisions of the MTCA, Miss. Code Ann. ยงยง 11-46-1 to-23 (Supp.2001). More importantly, Al-Mefty asserted that Bailey had not filed his claim within the applicable statute of limitations. Bailey filed a response denying that the MTCA applied to his claims since they arose out of an incident occurring before the law's passage. Al-Mefty replied still asserting the applicability of the MTCA and his contention that Bailey's claims were time barred. Bailey then moved for leave to amend the complaint which prompted an objection from Al-Mefty. Bailey filed a subsequent response to the objection by Al-Mefty. Finally, on September 14, 1999, the trial court granted Al-Mefty's motion for summary judgment and, at the same time, denied Bailey's motion for leave to amend the complaint. From that ruling, Bailey filed a timely appeal alleging that the trial court erred by (1) applying the terms and provisions of the MTCA to the present situation and (2) denying the motion for leave to amend the complaint to include claims of fraudulent concealment and fraudulent misrepresentation.
FACTS
. Since this matter concerns the propriety of summary judgment and statutory interpretation, the truly relevant facts are those detailing the procedural posture, as previously described. However, a brief description of the factual situation giving rise to this suit may be helpful, if only for clarity of circumstance.
. Bailey first began seeing Al-Mefty in June 1990, seeking relief from persistent headaches, dizziness, and vertigo that had previously been unresponsive to medical treatment. At the time in question, Al-Mefty was a neurosurgeon and instructor at UMC in Jackson, Mississippi. In examining Bailey, MRI scans showed an abnormality in his right petrous apex which would require surgery, specifically a right temporal craniotomy and resection of the cholesteatoma. As such, Bailey was admitted to UMC for treatment on July 24, 1990. After being informed of possible risks, Bailey consented to the procedure, and Al-Mefty, assisted by Dr. Lynn Rogers, performed the surgery on July 26, 1990. Following the operation, Al-Mefty communicated to Bailey's parents that the procedure had gone well and the cholesteatoma had been successfully removed. Bailey was finally discharged on August 2, 1990.
. Through September of 1990, Bailey continued to see Al-Mefty for follow-up treatment. During this time, Bailey complained that his symptoms had not abated and was informed by Al-Mefty that these were merely side-effects of the operation and that it could take up to five years for Bailey to "get back to normal." In March 1991, Al-Mefty moved his practice to Arkansas, and Bailey came under the care of Dr. Lon Alexa
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