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Blailock v. Hubbs5/26/2005
suit largely on the fact that Dr. Sisam's note "Called to see pt at 13:35" contradicted another hospital record stating that he was notified at 1:18 p.m.
. The mere existence of a time discrepancy in the medical charts is not enough, in and of itself, to put the Blailocks on notice that they had a claim against Southwest. This is especially true in light of the tenuous position in which MTCA plaintiffs find themselves. Under the MTCA, plaintiffs such as the Blailocks are faced with losing their claim if they fail to file a notice of claim within one year; however, they also face the possibility of being assessed with attorney's fees and costs under the Litigation Accountability Act of 1988, Miss. Code Ann. §§ 11-55-1 to -15 (Rev. 2002), if they bring suit without a sufficient factual basis. See Barnes, 733 So. 2d at 202.
. On the one hand, plaintiffs are criticized and may be sanctioned if they rush to file suit against all who may be responsible, and on the other, they are subject to have their claims dismissed if they are careful and deliberate in determining against whom a suit should be filed. The decision reached by the majority today penalizes the Blailocks for their decision to file suit against Southwest only after they had a sufficient factual basis to support their claims. I cannot support such a decision.
. Since I would find that the plaintiffs timely filed their notice of claim against Southwest, I would conclude that they had viable claims on May 15, 2000, the applicable date for the minor savings clause. As such, I would also find that the statute of limitations had not run on their claims on this date, and that Tayler Blailock should be given the benefit of the minors savings clause of Miss. Code Ann. § 11-46-11(4). Thus, I would reverse the judgment dismissing Southwest and remand this case for trial of the plaintiffs' claims against Southwest.
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