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Filing Suit Too Soon Dooms Wrongful-Death Case

A federal judge presiding over a Mississippi wrongful-death suit has dismissed the case because the plaintiff failed to wait 60 days after giving the nursing home defendant notice of her intention to sue before filing her complaint.

Chief U.S. District Judge Glen H. Davidson of the Northern District of Mississippi ruled that Juanita Arrington's failure to comply with the state's 60-day notice requirement doomed the otherwise timely lawsuit.

According to Judge Davidson's opinion, Arrington filed suit against Mariner Health Care Inc. and related companies in their capacities as owners and operators of the Bolivar Health & Rehabilitation Center.

Arrington, as the administratrix of the estate of Nancy Arrington, alleged that Nancy resided at Bolivar for about 10 days beginning May 28, 2004. During that residency, Nancy Arrington allegedly was subjected to negligence, gross negligence and wanton conduct that resulted in multiple pressure sores, weight loss, malnutrition, infection and, ultimately, death June 16, 2004.

Less than a month later, Juanita Arrington's counsel advised the Mariner defendants in writing July 8 of her intention to file suit against them. She then filed a complaint in Bolivar County Circuit Court Aug. 24.

The defendants removed the action to the U.S. District Court for the Northern District of Mississippi on diversity jurisdiction grounds. They then sought dismissal of the case pursuant to a Mississippi law that requires medical malpractice claimants to provide 60 days' written notice of an intention to sue to any potential health care provider.

In support of their dismissal motion, the defendants said Arrington violated the plain language of the statute by filing suit less than 60 days after she sent the July 8 letter.

Agreeing with that position, Judge Davidson dismissed the case, saying Arrington's case "may appropriately be dismissed for failing to comply or even substantially comply with the notice requirement."