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Cannon v. Mid-South X-Ray Co.2/23/1999
aintiff must know before the statute of limitations for a latent disease begins to run. The majority holds that the plaintiff had to know of her illness and its cause. In my view, the supreme court has specifically rejected that interpretation of this statute. All that is necessary is the plaintiff know of her illness. Since I believe that we are failing to apply controlling supreme court precedent, I Dissent.
. The parties and the majority agree that it is the general statute of limitations that applies in this litigation. It states that the cause of action for "latent injury or disease" accrues when "the plaintiff has discovered, or by reasonable diligence should have discovered, the injury." Miss. Code Ann. § 15-1-49(2). To distinguish that standard from the one that the majority uses, I find it useful first to discuss a different statute of limitations to which the majority's analysis would apply. That statute is for medical malpractice claims and requires knowledge of an injury and also its cause. Miss. Code Ann. § 15-1-36. That statute does not apply here. My point is that the supreme court's interpretation of the irrelevant statute should not be imported to the separate relevant one.
. The medical malpractice statute originally stated that a claim in tort could not be brought against a physician "for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered." Miss. Code Ann. §15-1-36 (Supp. 1986). Now the statute establishes in most circumstances a maximum period of seven years after the alleged negligence occurred, regardless of the date of discovery. Miss. Code Ann. § 15-1-36 (2) (Supp. 1998).
. The supreme court analyzed the statute this way:
"There may be rare cases where the patient is aware of his injury prior to the two years immediately preceding the filing of his claim, but does not discover and could not have discovered with reasonable diligence the act or omission which caused the injury. In such cases, the action does not accrue until the latter discovery is made. See United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (interpreted the statute of limitations under the Federal Tort Claims Act; the focus is not upon when the plaintiff actually discovered that legally he had a cause of action; instead, it is upon when he discovered, or should have discovered, that he had an injury and the cause of such injury; these discoveries give him sufficient knowledge to inquire as to whether he has a cause of action)[second citation omitted]." Smith v. Sanders, 485 So. 2d 1051, 1052-1053 (Miss. 1986).
. The language chosen by the legislature for the medical malpractice statute is key to its meaning: the time to file suit does n
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