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Johnson v. Blackwood7/19/2005
Sherman's guardian between 1991 and 1998 to procure an expert opinion regarding the alleged medical negligence claim. We fail to discern how this inaction can be properly described as "due diligence."
. Sherman, citing Sarris v. Smith, 782 So. 2d 721 (Miss. 2001), also argues that the failure of the Bolivar Medical Center to produce his medical records operated to toll the statute of limitations. The fallacy in this argument is that Dr. Cullen's opinion was not based on records that were later discovered. Bolivar Medical Center tendered all the records it had or could obtain and advised Sherman that some records could not be produced because of a microfilming error. Bolivar Medical Center was never able to produce those records, yet Dr. Cullen was able to give an opinion without the benefit of the records. If Dr. Cullen could give a favorable opinion in 2003, we see no reason why he could not have done the same in 1992 or 1993.
. Finally, Sherman contends that the defendants fraudulently concealed his medical negligence claim. However, the record reveals and the defendants properly advance that Sherman failed to raise this argument at the trial level. As a result, he is procedurally barred from now raising the issue for the first time on appeal. See Crowe v. Smith, 603 So. 2d 301, 305 (Miss. 1992).
. Nevertheless, despite Sherman's failure to raise this issue at the trial level, we still find that his argument lacks merit for two reasons. First, Sherman failed to show some act or conduct of an affirmative nature by the defendants that prevented the discovery of his claim, and second, he failed to show that he had exercised due diligence in discovering the claim. See Robinson v. Cobb, 763 So. 2d 883, 887 ( ) (Miss. 2000). Accordingly, we find that the trial judge did not err in concluding that Sherman's suit was barred by the applicable two-year statute of limitations.
. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, AND ISHEE, JJ., CONCUR.
BARNES, J. NOT PARTICIPATING.
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