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Wilner v. White12/13/2005
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED: 07/13/2004
MOTION FOR REHEARING FILED: 08/11/2004 GRANTED AND CASE REVERSED AND REMANDED: 12/13/2005
MODIFIED OPINION ON MOTION FOR REHEARING
EN BANC.
. Appellant's motion for rehearing is granted. The original opinion issued in this case is withdrawn, and this opinion is substituted in its place.
. A motion for summary judgment was filed by a defendant doctor and his clinic who had been added as parties by an amended complaint. The motion was granted on the basis that the amendment was made after the expiration of the period of limitations. The plaintiff appeals. We find that, based on the unique facts of this case, the amended complaint should be treated as an original complaint as to the added parties, and since the amended complaint was filed prior to the expiration of the statute of limitations, and a summons, along with the amended complaint, was served upon the added parties within the time period required by Mississippi Rules of Civil Procedure 4(h), the trial judge erred in granting summary judgment. Therefore, we reverse and remand.
FACTS
. Iris M. Wilner was admitted to Singing River Hospital for a diagnostic laparoscopy on January 27, 1997. Immediately after the procedure, she noticed pain, weakness, and numbness in her left leg. The condition continued and she was diagnosed with compression neuropathy. On February 12, 1998, Wilner filed suit naming as defendants Singing River Hospital System, a nurse, and John Does 1-4. Wilner took Dr. M. Neil White's deposition on August 12, 1998. Dr. White worked with Gulf Coast OB/GYN, P.A.
. On January 27, 1999, Wilner filed an amended complaint, without leave of court, naming four additional defendants. On that day, she also filed a motion for leave to amend. Among those who were newly named as defendants were Dr. White and Gulf Coast OB/GYN. Two other parties who were named in the new pleadings are not involved in this appeal. On April 22, 1999, White and Gulf Coast OB/GYN were served with a summons and the amended complaint. On July 13, 1999, Wilner filed a re-notice of hearing on her motion for leave to amend, advising that the motion would be called up for hearing on August 20, 1999. On November 29, 1999, the circuit court denied the motion and dismissed the amended complaint. In doing so, he found that Wilner's "amended complaint filed on the same date as the motion to amend on January 27, 1999, is ineffectual and is a nullity as there were never any proceedings before this court allowing the amended complaint." On appeal, we reversed and ordered that on remand the amendment be allowed. Wilner v. White, 788 So. 2d 822 (MisS.Ct. App. 2001). There is no evidence in the record that Wilner ever filed an amended complaint after remand. Apparently, all parties deemed the amended complaint filed on January 27, 1999, was sufficient. White and Gulf Coast OB/GYN answered the amended complaint on August 9, 2001, and participated in discovery prior to filing the motion for summary judgment on March 31, 2003. In their answer, White and Gulf Coast OB/GYN did not raise the issue of the amended complaint not relating back. On White and Gulf Coast OB/GYN's new motion for summary judgment, based on the applicable statute of limitations, was then granted. The circuit court found that the amended complaint did not relate back to the original complaint and granted the motion.
DISCUSSION
1. First Appeal
. The reach of this Court's decision in the first appeal is one of the central disputes now on the second appeal. The initial appeal was fro
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