Statutes of Limitations

A medical malpractice action must be brought within two years after the alleged act, omission, or neglect is discovered or with reasonable diligence might have been discovered. Miss. Code Ann. § 15-1-36 (Supp. 2002). In the case of death caused by medical malpractice, it is the heir's date of discovery that controls, and this can be no earlier than the date of death. Gentry v. Wallace, 606 So. 2d 1117 (Miss. 1992). A claim accruing on or after July 1, 1998, must also be brought within seven years after the alleged act, omission, or neglect occurred. This statute of repose is tolled until discovery for claims arising out of foreign objects left in the body and claims that have been fraudulently concealed. § 15-1-36.

Special provisions extend the time for an action on behalf of a minor or mentally disabled person, based on the injured person's status on the date the cause of action is discovered or with reasonable diligence might have been discovered. For a minor six years of age or less, an action may be brought within two years of the minor's death or sixth birthday, whichever is earlier. For a minor with no parent or guardian, an action may be brought within two years of the minor's death, the appointment of a guardian, or the age of majority, whichever is earlier (except that the appointment of a guardian will not be deemed to occur until the minor's sixth birthday). For a mentally disabled person, an action may be brought within two years of death or removal of the disability, whichever is earlier. Id.

Contributory or Comparative Negligence

Mississippi is a pure comparative negligence state. A claimant's contributory negligence does not bar recovery, but damages are reduced by the jury in proportion to the amount of negligence attributable to the claimant. Miss. Code Ann. § 11-7-15 (1972).

Joint and Several Liability

In actions involving joint tortfeasors, the trier of fact must assign a percentage of fault for each party alleged to be at fault. Miss. Code Ann. § 85-5-7 (1999). The Mississippi Supreme Court has determined that the term "party" as used in the statute refers to any participant in the occurrence giving rise to the lawsuit, including those who have settled or were never sued. Estate of Hunter v. General Motors Corp., 729 So. 2d 1264 (Miss. 1999). It subsequently held, however, that immune entities should not be included in the apportionment of liability. Accu-Fab & Construction, Inc. v. Ladner, 778 So. 2d 766 (Miss. 2001). Within this system of apportionment, § 85-5-7 imposes joint and several liability on joint tortfeasors only to the extent necessary for the claimant to recover 50 percent of his damages. Otherwise liability is several only, except when the tortfeasors act in accordance with a common plan. Id.

Contribution

Joint tortfeasors are afforded a right to contribution, with the amount of each tortfeasor's liability in contribution determined by the tortfeasors' relative degrees of fault. Miss. Code Ann. § 85-5-7 (1999). This only applies, however, in the case of a joint judgment, not in cases where liability is several only. Estate of Hunter v. General Motors Corp., 729 So. 2d 1264 (Miss. 1999).

Vicarious Liability

Mississippi recognizes that hospitals are not generally liable for the negligent acts of physicians who are independent contractors. Hardy v. Brantley, 471 So. 2d 358 (Miss. 1985). However, where a hospital holds itself out as providing a given service, and a patient engages the services of the hospital without regard to the identity of a particular physician and relies upon the hospital to deliver the desired health care and treatment, the hospital is vicariously liable for the negligent acts of the physician. Id. A recent decision applying Hardy notes that anesthesiologists, radiologists, and emergency physicians are especially likely to fall within this standard. Gatlin v. Methodist Medical Center, 772 So. 2d 1023 (Miss. 2000). A hospital found vicariously liable for a physician's negligence is entitled to indemnity from that physician. Id.

Expert Testimony

In general, expert medical testimony is necessary to prove medical negligence, unless "a layman can observe and understand the negligence as a matter of common sense and practical experience." Gatlin v. Methodist Medical Center, 772 So. 2d 1023, 1026 (Miss. 2000); Coleman v. Rice, 706 So. 2d 696, 698 (Miss. 1997). Medical expert testimony is not needed to prove a lack of informed consent. Phillips v. Hull, 516 So. 2d 488 (Miss. 1987). To qualify as an expert, a physician need only be licensed in Mississippi or some other state. Miss. Code Ann. § 11-1-61 (2002).

Damage Caps

Mississippi does not place a cap on the damages a claimant can collect in a medical malpractice case.

Statutory Cap on Attorneys' Fees

Mississippi does not place a cap on the amount attorneys can collect in fees, nor does it require that contingent fee arrangements be approved by the court.

Periodic Payments

Mississippi does not mandate the use of periodic payments.

Collateral Source Rule

Mississippi follows the collateral source rule. A defendant tortfeasor is not entitled to have damages reduced by reason of amounts that plaintiff receives from independent sources like insurance, workers' compensation, or Medicaid. Walmart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002); Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611 (Miss. 2001) (a medical malpractice case). Moreover, both those decisions upheld verdicts in trials in which plaintiffs were allowed to prove medical damages by introducing the full face amount of the bills issued by health care providers, even though these exceeded the amounts Medicaid and Medicare actually paid, and plaintiffs were not responsible for the excess.

Pre-Judgment Interest

A statute gives Mississippi judges discretion to assess pre-judgment interest. Both the rate and the date interest begins to accrue are left to the judge, except that the starting date cannot be earlier than the date of filing. Miss. Code Ann. § 75-17-7 (2000). However, the Supreme Court has held that no award of pre-judgment interest is allowed if the principal amount has not been fixed prior to judgment. Warwick v. Matheney, 603 So. 2d 330 (Miss. 1992). This should prevent pre-judgment interest in medical malpractice and other personal injury cases.

Patient Compensation Funds and Physician Insurance

Mississippi does not have a patient compensation fund or a general program of state-sponsored liability insurance for physicians.

Immunities

Any claim for damages for the acts or omissions of a governmental entity or its employees must be brought pursuant to the Mississippi Tort Claim Act ("MTCA"). Miss. Code Ann. § 11-46-7 (2002); City of Jackson v. Sutton, 797 So. 2d 977 (Miss. 2001). Governmental entities are the state and its political subdivisions, including municipal corporations. The term "employees," as used in the act, includes certain physicians under contract to state health boards or local jails. Miss. Code Ann. § 11-46-1 (2002). Governmental entities are responsible for defending and indemnifying their employees against claims under the MTCA. Miss. Code Ann. § 11-46-7 (2002).

For acts or omissions on or after April 1, 1993, proceedings under the MTCA must be commenced within one year after the date of the actionable conduct. Miss. Code Ann. § 11-46-11 (2002); Bailey v. Al-Mefty, 807 So. 2d 1203 (Miss. 2001) If the patient could not within a year have discovered with reasonable diligence the act or omission that caused the injury, the action does not accrue until discovery. Barnes v. Singing River Hospital System, 733 So. 2d 199 (Miss. 1999). Total damages for all claims arising out of one occurrence are capped under Miss. Code Ann. § 11-46-15 (2002). Limits are $50,000 for claims accruing between July 1, 1993, and July 1, 1997; $250,000 for claims accruing between July 1, 1997, and July 1, 2001; and $500,000 for claims accruing thereafter. There is no liability under the MTCA for punitive damages or attorneys' fees. Id. Governmental entities may purchase excess liability insurance for amounts above these limits, thereby waiving immunity to the extent of such excess liability coverage. Miss. Code Ann. § 11-46-17(4) (2002).

Arbitration

Mississippi does not require medical malpractice claims to be heard by an arbitration panel.