Walker v. Whitfield Nursing Center, Inc.

Summary

The Mississippi Supreme Court affirmed summary judgment for Whitfield Nursing Center in a medical-malpractice action arising from a nursing-home resident's fall and subsequent death. The court held that the plaintiff failed to comply with Mississippi Code section 11-1-58 by not filing an attorney's certificate of expert consultation, or timely providing substitute expert information, with the complaint. The court also concluded that the statutory noncompliance left the plaintiff unable to state or prove the medical-malpractice claim.

Holdings

1. A plaintiff bringing a professional-negligence action in which expert testimony is required must strictly comply with section 11-1-58 by filing the attorney's certificate of expert consultation with the complaint, subject to the statute's limited timing provisions. Walker's later-filed affidavits did not satisfy that requirement.
2. Section 11-1-58(7) permits expert information to be furnished in lieu of the attorney certificate, but it does not eliminate or extend the timing requirement imposed by section 11-1-58(1).
3. Failure to comply with section 11-1-58's mandatory prerequisites leaves the plaintiff unable to state or prove the professional-negligence claim, and the complaint must be dismissed.
4. The court did not reach the merits of Walker's waiver argument because Walker failed to raise the issue in her response to the summary-judgment motion, and the trial court did not address it.

Questions Presented

1. Whether Walker complied with Mississippi Code section 11-1-58(1) by filing the required attorney certificate of expert consultation with the complaint or within the statutory period.
2. Whether Mississippi Code section 11-1-58(7) permitted Walker to substitute expert information for the certificate after the statutory deadline.
3. Whether Whitfield waived the statutory defense by failing to expressly assert noncompliance with section 11-1-58 in its answer.

Disposition

affirmed