author: PETTIGREW, J. DOWNING, J.,

text:
    Pamela ROGERS v. Jimmy GRAVES Jr. and Allstate Insurance Company.
    No. 2006 CA 0648.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 21, 2007.
    Rehearing Denied March 28, 2007.
    Writ Denied June 22, 2007.

      Christopher D. Shows, Baton Rouge, for Plaintiff-Appellant Pamela Rogers.
    David C. Forrester, Mark G. Murphey, Baton Rouge, for Defendants-Appellees Jimmy Graves, Jr. and Allstate Insurance Company.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   PETTIGREW, J.

pin this case, plaintiff challenges the trial court’s judgment granting defendant insurance company a credit for a property damage payment previously made to plaintiff. Defendants answered the appeal. For the reasons that follow, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

On November 8, 2001, plaintiff, Pamela Rogers, suffered personal injuries and sustained property damages as a result of an automobile accident on Greenwell Springs Road near its intersection with Joor Road in Baton Rouge, Louisiana. Ms. Rogers was traveling eastbound in the left turning lane of Greenwell Springs Road, preparing to turn onto Joor Road. At the same time, defendant, Jimmy Graves, was exiting a parking lot on the south side of Greenwell Springs Road near its intersection with Joor Road. As Mr. Graves was attempting to cross the eastbound left turn lane of Greenwell Springs Road, in order to turn left and proceed westbound on Greenwell Springs Road, he struck the right front corner of Ms. Rogers’ vehicle.

As a result of the accident, Ms. Rogers filed suit against Mr. Graves and his liability insurer, Alstate Insurance Company (hereinafter collectively referred to as defendants). The matter proceeded to a bench trial, following which the trial court rendered judgment in favor of Ms. Rogers and against Alstate, awarding $282.00 in special damages, $2,500.00 in general damages, $6,891.89 in property damage, and $1,534.80 for the diminished value of her vehicle, for a total award of $11,208.19, less a credit for $6,891.89 previously paid by Alstate to Ms. Rogers in its capacity as Ms. Rogers’ collision coverage carrier. Mr. Graves was dismissed from the matter with prejudice. The trial court signed a judgment in accordance with these findings on October 27, 2005.

It is from this judgment that Ms. Rogers appealed, assigning error to the trial court’s action of allowing Alstate a credit for the property damage payment that had previously been made to Ms. Rogers under her own collision insurance policy. Allstate hand Mr. Graves answered the appeal, raising issues regarding the allocation of fault and the amount of damages.

APPLICATION OF COLLATERAL SOURCE RULE

On appeal, Ms. Rogers argues the trial court violated the collateral source rule by allowing Alstate a credit for the property damage payment ($6,891.89) made by her own collision coverage carrier, which also happened to be Alstate. Noting that this property damage payment was made through insurance that she had procured and paid for herself, Ms. Rogers maintains that “[allowing such a credit was in derogation of the collateral source rule and actually expropriated to the defendants the proceeds of insurance coverage for which [she] had paid the premiums.” In response, defendants assert the trial court correctly held the collateral source rule does not mandate double liability to the tortfeasor’s insurer where the injured party and the tortfeasor share the same insurer. Defendants contend Allstate was legally and conventionally subro-gated to Ms. Rogers after Allstate paid her collision damages. Defendants continue in brief, arguing as follows:

Normally, Allstate would have intervened to recover its payments, if Ms. Rogers prevailed on liability. But, Allstate did not intervene in this suit, because it would have been suing itself. Instead, Allstate asserted the affirmative defense of a credit and/or offset in its Answer as the liability insurer of Mr. Graves. That is in accord with the doctrine of confusion expressed in Louisiana Civil Code Article 1903.

Following a thorough review of the record and applicable law, we agree with Ms. Rogers’ argument and find that the trial court committed legal error in not applying the collateral source rule.

The collateral source rule is of common law origin yet it is well-established in the jurisprudence of this state. Louisiana Dep’t of Transp. and Dev. v. Kansas City Southern Ry. Co., 2002-2349, p. 6 (La.5/20/03), 846 So.2d 734, 739. Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be diminished, because of benefits received by the plaintiff from sources | independent of the tortfeasor’s procuration or contribution. Sutton v. Lambert, 94-2301, p. 14 (La.App. 1 Cir. 6/23/95), 657 So.2d 697, 706, writ denied, 95-1859 (La.11/3/95), 661 So.2d 1384.

According to Restatement (Second) of Torts § 920A (1979):

(1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability.
[2] Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.

Thus, a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor, and if the plaintiff was himself responsible for the benefit, as by maintaining his own insurance or by making advantageous employment arrangements, the law allows him to keep it for himself. See Restatement (Second) of Torts § 920A comment b.

At the close of the evidence in the instant case, the trial court rendered judgment from the bench in favor of Ms. Rogers. After the court itemized the damages to be awarded to Ms. Rogers, a question arose as to the property damage payment that had previously been made to Ms. Rogers by Allstate in its capacity as her insurer. This colloquy followed:

MR. FORRESTER: Your honor, the plaintiff did testify that she had been paid for her property damage though. That testimony is undisputed. Allstate paid for her property damage.
MR. SHOWS: Her own insurer paid for her property damages and elected not to subrogate. Under collateral source, that’s a collectible element of her damages.
MR. FORRESTER: Your honor, both insureds were Allstate. Allstate is not going to sue itself to get its money back. So that’s the theory of confusion. You cannot sue yourself to get your money back.
Therefore, the collateral source rule does not apply in this case. And this plaintiff would be recovering twice from the same party and that is clearly not within the law, your honor.
MR. SHOWS: Your honor, Mr. Graves is the at-fault party. It is Mr. Graves that we seek to have cast in judgment, just as in any other collision. If her carrier pays her damages, they have a right of subrogation. If they elect not to exercise it, she still has that loss and under collateral source, she still has the right to recover those damages.
| sThat’s collateral source. It’s a classic collateral source. The fact that, one, Allstate preferred and Allstate assigned, that they didn’t handle this matter as independently and as conflict free as they should have does not mean they are absolved of the effects of the collateral source rule, and we are content to have that judgment against Mr. Graves because it is Mr. Graves’ negligence that brought us here today and for which we sued.
THE COURT: Well, the court is going to render judgment as it outlined, but the court will give Allstate a credit for what it has paid.
MR. SHOWS: Your honor, are they going — I understand that they are entitled to a credit where they waived her $500.00 deductible. But if the court is saying that her own carrier pays her own damages and surcharges her for those damages and she is not then able to recover those back, then the collateral source rule is out the window.
THE COURT: Well, the court might be in error but you will have to ask the first circuit to reverse the court because the court believes it made a legal, wise, and just decision in giving this judgment.
MR. SHOWS: If this had been two different insurers—
THE COURT: Mr. Shows, I am not prepared to debate the issue. The court has rendered judgment in your favor, like it or not. The court believes that it — in the interest of justice and fair place that they should get a credit for what was paid.
Now the judgment is against the defendant and Allstate. If they’ve paid, they should get a credit and the court is going to allow them to have that credit.
MR. SHOWS: But that is just it. Mr. Graves’ carrier has not paid. That is what brought us here. This lady, her own insurance paid—
THE COURT: Well, the judgment is going to be against Mr. Graves and his creditor—
MR. SHOWS: And his creditor?
THE COURT: I’m sorry, and his insurance carrier.
MR. SHOWS: But Mr. Graves is not cast in judgment for the property damage?
THE COURT: Mr, Graves is cast in judgment, counselor. He is cast in judgment, but the insurance carrier is going to get a credit.[]
MR. SHOWS: Thank you, your hon- or.

| (The only evidence in the record concerning the $6,891.89 property damage payment made to Ms. Rogers by Allstate is the testimony by Ms. Rogers that this payment was made under her own policy of insurance and not by Allstate in its capacity as Mr. Graves’ insurer. The insurance policy between Allstate and Ms. Rogers was not introduced into evidence, nor was there an intervention by Allstate in the suit filed by Ms. Rogers. Moreover, although defendants argue that Allstate was legally subrogated to Ms. Rogers after paying her collision damages (which would have precluded the application of the collateral source rule — See Sutton v. Lambert, 94-2301, p. 15 (La.App. 1 Cir. 6/23/95), 657 So.2d 697, 706, writ denied, 95-1859 (La.11/3/95), 661 So.2d 1384), we note there is no evidence in the record that Allstate, in its capacity as Ms. Rogers’ collision carrier, had any right of subrogation in this case. Accordingly, we find the trial court erred in not applying the collateral source rule. Allstate is not entitled to a credit for the property damage payment made to Ms. Rogers under her collision policy. Thus, we reverse that portion of the judgment that awarded Allstate a credit of $6,891.89.

ALLOCATION OF FAULT

In answering Ms. Rogers’ appeal, defendants contend the trial court’s allocation of 100 percent of the fault to Mr. Graves was manifestly erroneous. Describing Ms. Rogers’ driving as “fairly reckless” and “too fast for the congested conditions,” defendants maintain that she should be assessed at least 75 percent of the fault for causing the accident. We find no merit to this argument.

It is well settled that the allocation of fault is a factual matter within the sound discretion of the trier of fact and will not be disturbed on appeal in the absence of manifest error. Birdsall v. Regional Electric & Construction, Inc., 97-0712, p. 4 (La.App. 1 Cir. 4/8/98), 710 So.2d 1164, 1168. If an appellate court finds a clearly wrong apportionment of fault, it should adjust the award, but then only to the extent of lowering or raising it to the highest or lowest point respectively that is reasonably within the trial court’s discretion. Clement v. Frey, 95-1119, 95-1163, pp. 7-8 (La.1/16/96), |7666 So.2d 607, 611. However, when there is evidence before the trial court that, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb this finding absent manifest error. Adams v. Parish of East Baton Rouge, 2000-0424, p. 23 (La.App. 1 Cir. 11/14/01), 804 So.2d 679, 698, writ denied, 2002-0448 (La.4/19/02), 813 So.2d 1090. The manifest error standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

After hearing from four witnesses who testified about the accident in question, the trial court made the following findings concerning the allocation of fault:

The court finds that an accident occurred in the turning lane on the favored street, the result of a collision between a left-hand driver [sic] exiting a private drive, having been aided and abetted by persons or a person not a party hereto.
The court is of the opinion that petitioner had the right-of-way, and as such was entitled to proceed. Therefore, the court is going to grant judgment as prayed for.

The trial court was presented with two versions of how the accident occurred. Having thoroughly reviewed the testimony concerning the accident, and mindful of the great deference we must afford the trier of fact, we cannot say the trial court’s assessment of fault was error. Considering the record in its entirety, we are satisfied that it reasonably supports the court’s conclusion that Mr. Graves was 100 percent at fault in causing this accident.

CONCLUSION

For the above and foregoing reasons, we reverse that portion of the judgment that awarded Allstate a $6,891.89 credit for the property damage payment made to Ms. Rogers under her collision coverage. In all other respects, the judgment is affirmed. All Iscosts associated with this appeal are assessed against defendants, Allstate Insurance Company and Jimmy Graves.

REVERSED IN PART; AFFIRMED IN PART.

HUGHES, J., concurs.

DOWNING, J.,

concurs and assigns reasons.

|TI concur. The reasoning and result in the main opinion are correct. The result may have been different if subrogation had been properly pled and proven.

      . In brief to this court, Allstate and Mr. Graves indicated their intent to abandon the issue of quantum on appeal. Thus, there will be no discussion of same herein.

      . Although in the trial transcript the court clearly stated Mr. Graves would be cast in judgment, the October 27, 2005 judgment dismissed Mr. Graves from the matter with prejudice. When there is a conflict between the transcript and the judgment, the judgment prevails. See Spiers v. Roye, 2004-2189, p. 8 n. 5 (La.App. 1 Cir. 2/10/06), 927 So.2d 1158, 1163 n. 5 (set aside in part on other grounds on rehearing). Nonetheless, while we note this discrepancy in our review of the record, neither party has raised the issue as error on appeal. Thus, our discussion of same ends here.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    John P. STOSHAK v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2006 CA 0852.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 21, 2007.
    Yigal Bander, Baton Rouge, Counsel for Plaintiff/Appellant John P. Stoshak.

      Douglas K. Foster, Karen D. Murphy, Baton Rouge, Counsel for Defendant/Ap-pellee East Baton Rouge Parish School Board.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

| gThis appeal challenges a trial court’s ruling that a teacher, who was struck by a punch thrown by one of two fighting students while he attempted to break up their fight, was not the victim of an “assault or battery by any student or person” and thus was not entitled to the highest level of sick leave benefits provided for in La. R.S. 17:1201(C). We reverse.

BACKGROUND

On August 20, 2004, John Stoshak, a teacher at Istrouma High School in Baton Rouge, was injured when he attempted to break up a fight between two of his students. During the course of the students’ fistfight, one of the punches struck Mr. Stoshak in the back of the head, causing him to fall to the ground and lose consciousness.

Mr. Stoshak’s employer, the East Baton Rouge Parish School Board (Board), placed Mr. Stoshak on leave without reduction in pay for a period of one year following the incident in accordance with La. R.S. 17:1201(C)(l)(b)(i). When it became clear that the Board would not pay benefits for more than a year after the incident, Mr. Stoshak filed this lawsuit against the Board, seeking a declaration of his right and status to benefits under La. R.S. 17:1201(C). Mr. Stoshak urged that because he was injured as a result of an “assault or battery by any student or person,” he was entitled to leave without reduction in pay for the duration of his disability in accordance with La. R.S. 17:1201(C)(l)(a).

Mr. Stoshak and the Board filed cross motions for summary judgment on the issue of the proper sick leave provision to be applied under the facts of this case. Louisiana Revised Statute 17:1201(0) provides two different sick leave pay provisions for public school teachers who sustain injuries on the job, depending on the cause of the injury. Louisiana Revised Statutes lsl7:1201(C)(l)(a), commonly referred to as the “assault pay” provision states, in pertinent part:

Any member of the teaching staff of the public schools who is injured or disabled while acting in his official capacity as a result of assault or battery by any student or person shall receive sick leave without reduction in pay and without reduction in accrued sick leave days while disabled as a result of such assault or battery.

Louisiana Revised Statutes 17:1201(C)(l)(b)(i), commonly referred to as the “physical contact” provision states, in pertinent part:

Any member of the teaching staff of the public schools who while acting in his official capacity is injured or disabled as a result of physical contact with a student while providing physical assistance to a student to prevent danger or risk of injury to the student shall receive sick leave for a period up to one calendar year without reduction in pay and without reduction in accrued sick leave days while injured or disabled as a result of rendering such assistance.

The parties’ motions for summary judgment required a determination of whether Mr. Stoshak’s injures fell under the “assault pay” provision, which would entitle Mr. Stoshak to leave without reduction in pay for the duration of his disability, or the “physical contact” provision, pursuant to which Mr. Stoshak’s entitlement to leave without reduction in pay would cease one year after the incident causing his injury, unless extended by the Board.

In support of their motions for summary judgment, the parties introduced Mr. Stos-hak’s affidavit and the transcript of a statement he made describing the incident to an insurance adjuster, the statements of Randy Orange and Wilbert Jordan, the students engaged in the fistfight, and the transcript of the students’ expulsion hearing. That evidence reveals that on the morning of August 20, 2004, Mr. Stoshak was teaching a group of pre-GED students when a fight erupted in his classroom between 17-year-old Jordan and 18-year-old Orange. Jordan was seated at a computer when 1 ¿Orange entered the classroom and punched him from behind. Jordan chased Orange into the hallway and the two began fighting. Mr. Stoshak attempted to break up the fight. During the course of the fight, a punch thrown by one of the boys hit Mr. Stoshak in the back of his head. Neither boy admitted to hitting Mr. Stos-hak. Mr. Stoshak stated that he did not believe either of the boys had punched him deliberately; rather, he got in the way of the fighting boys who, in his words, were “tearing] each other up.” Orange admitted that when Mr. Stoshak tried to break them up, they continued fighting. As a result of the incident, Orange was arrested and was expelled from the school.

The trial court granted the Board’s motion for summary judgment, concluding that Mr. Stoshak’s injuries fell under the “physical contact” provision of La. R.S. 17:1201, and dismissed Mr. Stoshak’s claim for continued benefits. This appeal, taken by Mr. Stoshak, followed.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Fagan v. LeBlanc, 2005-1845, p. 6 (La.App. 1 Cir. 2/10/06), 928 So.2d 576, 581. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to summary judgment as a matter of law. Id.

In this case, the material facts are undisputed. Mr. Stoshak attested that he was hit in the head by a punch that was delivered by one of two students engaged in a fistfight. The Board did not introduce any evidence to controvert Mr. Stoshak’s version of the incident. Moreover, while there is no evidence to suggest that the student intended to punch Mr. Stoshak, it is | .^undisputed that the student who struck Mr. Stoshak intended to strike the other student and was physically attempting to injure the other student.

Louisiana Revised Statutes 17:1201(C) was thoroughly analyzed in the case of Boseman v. Orleans Parish School Board, 98-1415 (La.App. 4 Cir. 1/6/99), 727 So.2d 1194, writ denied, 99-0390 (La.4/1/99), 742 So.2d 554. Therein, the court observed that the statute provides for three levels or classifications of protection to public school teachers, resulting in increased benefits depending on the type of conduct that causes the injury to the teacher. The first level of protection is a general one that provides weekly wage benefits for a teacher who is injured or disabled while acting in his official capacity. La. R.S. 17:1201(D). The second level of protection, the “physical contact” provision, is a general provision, which applies in addition to the weekly wage benefit, if the injury or disability that occurs while the teacher is acting in his official capacity is caused by any type of physical contact with a student, accidental or intentional. The highest level of protection afforded to teachers is contained in the “assault pay” provision, which gives the teacher additional compensation when the contact that causes the teacher’s injury is the result of an assault or battery. Boseman, 98-1415 at pp. 5-6, 727 So.2d at 1197.

The issue to be decided is not whether Mr. Stoshak’s injuries were caused by an assault or battery, as opposed to a physical contact, but whether his injuries were caused by a physical contact that was also an assault or battery. See Boseman, 98-1415 at p. 6, 727 So.2d at 1197. Mr. Stoshak contends the student who hit him committed an assault or battery as those terms are defined under Louisiana’s criminal and civil law, entitling him to benefits under the “assault pay” provision. The Board submits that the “assault pay” provision applies only when a teacher is the direct, targeted |Rvictim of an assault or battery by a student or other person, while the “physical contact” provision applies in all other circumstances where there is a mere physical contact with a student resulting in injury to the teacher. The Board contends that the “physical contact” provision applies in this case because it is undisputed that the student intended to cause harmful physical contact to the other student, but not to Mr. Stoshak.

We disagree with the Board’s narrow interpretation of La. R.S. 17:1201(C). It is well-settled that the starting point for the interpretation of any statute is the language of the statute itself. Fontenot v. Reddell Vidrine Water District, 2002-0439, p. 7 (La.1/14/03), 836 So.2d 14, 20. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law is applied as written, and no further interpretation may be made in search of legislative intent. La. Civ.Code art. 9. It is presumed that in enacting a law, the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes. Fontenot, 2002-0439 at pp. 13-14, 836 So.2d at 24.

The term “assault” is defined in the criminal law as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. R.S. 14:36. The term “battery” is defined in the criminal law as the “intentional use of force or violence upon the person of another.” La. R.S. 14:33. Under the tort law, a battery has been defined as a “harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact.” Caudle v. Betts, 512 So.2d 389, 391 (La.1987).

In defining what type of conduct constitutes a battery, our courts have employed the doctrine of transferred intent. Under this theory, if a person intended to inflict serious bodily injury while trying to hit another person, |7but missed and accidentally hit someone else instead, such intent is transferred to the actual victim. State v. Druilhet, 97-1717, p. 4 (La.App. 1 Cir. 6/29/98), 716 So.2d 422, 424; see also State v. P.M., 2000-1613, p. 3 (La.App. 3 Cir. 5/2/01), 786 So.2d 857, 859-60 (stating that while a conviction of second degree battery requires a finding of specific intent, the statute does not absolve from guilt an offender who unintentionally injures someone while specifically intending and physically attempting to injure another person).

We must presume that in enacting La. R.S. 17:1201(C), the legislature was cognizant of the fact that our courts have interpreted the term “battery” to encompass an unintentional injury of one person if the person inflicting the injury specifically intended to injure someone else. The legislature authorized the highest level of benefits to a teacher injured as a result of “assault or battery by any student or person.” There is no language in this provision requiring that the teacher be the intended victim of an assault or battery, and we decline to read such a requirement into the statute.

Accordingly, we construe the benefits provided for in the “assault pay” provision to apply whenever the teacher is the victim of a battery at the hands of a student. The benefits provided for under the “physical contact” provision apply to injuries a teacher sustains when coming to the aid of a student that result from physical contacts that do not rise to the level of an assault or battery. See e.g. Garnier v. Orleans Parish School Board, 2001-0860 (La.App. 4 Cir. 7/31/02), 824 So.2d 1222, writ denied, 2002-2290 (La.11/15/02), 829 So.2d 433 (holding that the “physical contact” provision applied to injuries sustained by a teacher who fell to the ground when a student she was attempting to restrain from harming another student jerked away from her).

| ¡Applying this construction of the statute, we hold that as a matter of law, Mr. Stoshak is entitled to benefits under the “assault pay” provision of La. R.S. 17:1201(C)(l)(a). It is undisputed that the student who hit Mr. Stoshak committed a battery because he intended the physical act of throwing the punch, and he intended to injure another person by throwing the punch. Under the doctrine of transferred intent, the student who hit Mr. Stoshak while attempting to hit the other student is deemed to have had the requisite intent to commit a battery on Mr. Stoshak. Therefore, because Mr. Stoshak’s injuries resulted from a battery by a student, the Board was obligated to provide him with leave without reduction in pay for the duration of his disability.

CONCLUSION

For the foregoing reasons, we find that the trial court erred in granting the Board’s motion for summary judgment, and we reverse that ruling. We hereby grant summary judgment in favor of Mr. Stoshak, finding that his injuries fall under La. R.S. 17:1201(C)(l)(a). All costs of this appeal, in the amount of $504.17, are assessed to appellee, the East Baton Rouge Parish School Board.

REVERSED AND RENDERED.

PARRO, J., concurs.


text:
    STATE of Louisiana, Applicant, v. Jeremiah Ryan HASTINGS, Respondent.
    No. 42,624-KW.
    Court of Appeal of Louisiana, Second Circuit.
    June 14, 2007.
    Order Denying Rehearing Aug. 1, 2007.

      J. Schuyler Marvin, District Attorney, Robert Randall Smith, Assistant District Attorney, for Applicant.
    Whitley R. Graves, Benton, for Respondent.
    Before WILLIAMS, DREW and MOORE, JJ.
   |.WRIT GRANTED AND MADE PEREMPTORY.

The state seeks supervisory review of the district court’s ruling that granted the defendant’s motion in limine with respect to a chemical test for intoxication.

Officer Sims of the Haughton Police Department stopped Hastings for DWI. Hastings failed field sobriety tests and was taken to the station. There, Officer Gibson read him the standard form, “Rights Relating to the Chemical Test for Intoxication.” Gibson read Hastings all the substantive contents, but did not read aloud the signature line disclosing the names and employing agency of the officers involved in the stop, detention or arrest. Their signatures, however, and the name of the Haughton Police Department were handwritten on the bottom of the form which Hastings signed.

[gOn the basis of this omission, Hastings filed the instant motion in limine to prevent the state from referring to or mentioning any type of refusal or submission to the Intoxilyzer 5000 breath test. The applicable statute, La. R.S. 32:661 C(l), requires that the officer requesting the test “shall first read to the person” the contents of the standard form, which must contain six enumerated provisions. One of these provisions is the “name and employing agency of all law enforcement officers involved in the stop, detention, investigation, or arrest of the person.” R.S. 32:661 C(l)(e).

The district court granted the motion on the basis of State v. Alcazar, 2000-0536 (La.5/15/01), 784 So.2d 1276, which held that one of the enumerated provisions (the right of the arrested person to refuse the test) was mandatory and failure to advise the defendant of this right orally was reversible error.

While we agree that the statute is phrased in mandatory terms, we disagree that the instant de minimis omission mandates suppressing the evidence of the chemical test. Notably, the “name and employing agency” portion of the statute was not at issue in Alcazar, and not even cited in that opinion. By contrast, in the instant case, Hastings was driving in Haughton when he was stopped; he was taken to the Haughton Police Department for the breath test; and Officer Gibson read him every other portion of the standard form. Hastings signed right next to the officers’ names and employing agency. These circumstances implicitly prove that Hastings received all the pretesting advice required by R.S. 32:661 C(l). State v. Doucette, 2004-1539 (La.App. 3 Cir. 4/6/05), 899 So.2d 159, writ denied, 2005-1210 (La.12/16/05), 917 So.2d 1106. For these reasons, the district court was plainly wrong to grant the motion in limine.

We therefore grant the writ and make it peremptory. The motion in limine is denied and the case remanded for further proceedings.

ORDER

|! Defendant, Jeremiah Ryan Hastings, seeks rehearing of our peremptory writ grant that reversed a district court ruling which would have prevented the state from referring to or mentioning any type of refusal or submission to an Intoxilyzer 5000 breath test. In granting the state’s writ application, we concluded that the requirement of La. R.S. 32:661 C(l)(e) — that a law enforcement officer read to an arres-tee the name and employing agency of all law enforcement officers involved in the stop, detention, investigation or arrest— though phrased in mandatory terms, did not require suppression of the evidence because the reading of the information was omitted.

Defendant now asks us to reconsider that ruling. He further asserts that we mistakenly believed the signature of a third officer on the rights form to be the signature of the officer named in the testimony as being involved in the detention.

| «After reconsideration, we still find that even though the statute uses the mandatory “shall,” nothing else suggests that the legislature intended suppression of the evidence as a consequence of this deficiency. The key question for judicial consideration is whether suppression would help deter police misconduct, a key rationale for implementing the state exclusionary rule in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). We do not find that suppressing this evidence would serve that goal. In the analogous case of Hudson v. Michigan, — U.S.-, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), police officers readily admitted a clear violation of the mandated knock-and-announce rule; however, the physical evidence seized pursuant to the execution of the search warrant was not suppressed because applying the exclusionary rule would not advance any societal purpose other than the issuance of a “get out of jail free card.” The majority tellingly observed, “Suppression of evidence, however, has always been our last resort, not our first impulse.” Id., at 2163.

We would also note that since the rendition of Mapp, certain factors are now universally present: (1) aggressive internal affairs procedures are embedded in all of today’s law enforcement agencies; (2) increased training requirements have heightened the professionalism of today’s law officers; and (3) civil rights lawsuits are readily available for those aggrieved by perceived police misconduct. The same rationale applies here.

We deny rehearing and reaffirm our prior ruling.


author: CARLSON, Justice, DIAZ, Justice,

text:
    Robert SUTHERLAND v. ESTATE OF Robert M. RITTER, M.D.
    No. 2006-CA-00082-SCT.
    Supreme Court of Mississippi.
    April 19, 2007.
    Rehearing Denied July 26, 2007.

      Rick D. Patt, Shane F. Langston, Jackson, attorneys for appellant.
    Whitman B. Johnson, III, Shelly G. Burns, Jackson, attorneys for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. Aggrieved by the Hinds County Circuit Court’s grant of summary judgment in favor the Estate of Robert M. Ritter, M.D., Robert Sutherland, a former patient of Dr. Ritter, appeals to us. Finding no error in the trial court’s grant of summary judgment and dismissal of this case, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. In June, 1999, Dr. Robert M. Ritter, a psychiatrist, prescribed for Robert Sutherland Zyprexa, a drug manufactured by Eli Lilly. Soon after, Sutherland developed side effects, including abnormal, involuntary movements by way of lip-licking and facial twitching. Sutherland subsequently stated under oath that Zyprexa caused the maladies for which he sought damages. Without consulting Dr. Ritter, Sutherland stopped taking Zyprexa for a short period of time but eventually resumed taking the drug. On April 16, 2001, Sutherland checked himself into St. Dominic-Jackson Memorial Hospital’s Chemical Dependency Unit (St. Dominic). In his deposition, Sutherland stated the following:

Q. Okay. Now, did you check yourself into Dr. Cronin or were you checked in by someone?
A. I checked myself.
Q. Okay. And why did you check yourself in?
A. The Zyprexa was destroying my life.
Q. Okay. So you believed when you checked yourself in it was the Zyprexa?
A. It was not a belief, it was a knowing.
Q. Okay.
A. It was knowledge of it.
Q. And while you were in the hospital at St. Dominie’s under Dr. Cronin’s care, was that the last time you took Zyprexa?
A. Yes, sir.
Q. All right. Did — but my understanding is you felt like the Zyprexa was causing you problems almost from the get-go.
A. Yes.
Q. And that you stopped it in (sic) at least by April 2001?
A. Stopped under the direction of Dr. Kenneth Cronin.

¶ 3. Sutherland was discharged from St. Dominic on April 19, 2001. Sutherland’s discharge summary stated, “the Zyprexa has been discontinued and the patient reports that he feels less flat and ‘zombie’ like.”

¶4. On January 31, 2002, Sutherland sought follow-up treatment from Dr. Lee Voulters. The report of Dr. Voulters states that Sutherland had taken “Zyprexa which caused a lot of bad side effects,” and Dr. Voulters described the condition Sutherland complained of as Tardive Dyskine-sia Syndrome (TDS).

¶ 5. On January 30, 2004, two years and nine months after he was discharged from St. Dominic, Sutherland sent Dr. Ritter’s estate a Notice of Claim. On March 30, 2004, Sutherland filed suit in the Circuit Court for the First Judicial District of Hinds County, and in due course, the trial court granted summary judgment in favor of Dr. Ritter’s estate. Judge Swan Yer-ger’s Order of Summary Judgment stated, inter alia:

The Plaintiff, Robert Sutherland, alleges medical negligence on the part of the late Dr. Ritter. Specifically, Mr. Sutherland claims that Dr. Ritter was negligent in prescribing the medication Zy-prexa which, in turn, caused a medical condition called tardive dyskinesia syndrome exemplified by various symptoms. However, Mr. Sutherland last took Zy-prexa during April 2001, and yet he took no steps to initiate legal action until January 2004. This is problematic since Mississippi Code Annotated § 15-1-36, which governs medical malpractice claims reads in pertinent part as follows:
[N]o claim in tort may be brought against a licensed 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 ...

See § 15-1-36(2) Miss.Code Ann. (Rev. 2003).

¶ 6. After Judge Yerger entered a final judgment of dismissal consistent with the order granting summary judgment, Sutherland perfected his appeal to this Court.

DISCUSSION

¶ 7. The parties in essence couch the issue that this Court must decide as whether Sutherland’s injury was latent so that the discovery rule would apply to toll the statute of limitations. Upon reflection as to how this Court has previously dealt with this issue in the medical malpractice context, we recognize our use of the term, “latent injury” in previous cases has led to confusion and misunderstanding of the discovery rule, and we therefore take this opportunity to clarify the law. Thus, we restate the issue for the sake of clarity in discussion.

WHETHER THE DISCOVERY RULE APPLIES TO TOLL THE STATUTE OF LIMITATIONS IN THIS MEDICAL MALPRACTICE CASE.

¶ 8. “The standard of review in considering on appeal a trial court’s grant or denial of summary judgment is de novo.” Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006) (citing Satchfield v. R.R. Morrison & Son, Inc., 872 So.2d 661, 663 (Miss.2004)). “In considering this issue, we must examine all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits.” Id. (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Id. (citing Aetna, 669 So.2d at 70). “Issues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and the other party takes the opposite position.” Id. (citing American Legion Ladnier Post No. 42 v. Ocean Springs, 562 So.2d 103, 106 (Miss.1990)). “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Id. (citing Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005)). “The movant carries the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party is given the benefit of the doubt as to the existence of a material fact issue.” Id. (citing Monsanto, 912 So.2d at 136). “However, our decisions which discuss this rule are clear that when a motion for summary judgment is made and supported as provided in Miss. R. Civ. P. 56, an adverse party may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial.” Id. at 483-84 (citing Stuckey v. Provident Bank, 912 So.2d 859, 864 (Miss.2005)). “If any triable issues of fact exist, the trial court’s decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed.” Id. at 484 (citing Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000)).

¶ 9. Sutherland argues that his injury was latent and, thus, the discovery rule applies. Sutherland further argues that the statute of limitations did not begin to run until January 31, 2002, which is the date Sutherland learned that the condition from which he suffered was called TDS. On the other hand, Dr. Ritter’s estate argues that Judge Yerger correctly held that the statute of limitations began to run, at the latest, in April, 2001, when Sutherland, by his own admission, knew that Zyprexa was the cause of his symptoms.

Latent injury — undiscovered negligence

¶ 10. The word “latent” means “[hjidden; concealed; dormant; that which does not appear upon the face of a thing.” Black’s Law Dictionary 794 (5th ed.1979). “Latent” has also been defined as “present but invisible or inactive; lying hidden and undeveloped within a person or thing.” Webster’s New Word Dictionary 762 (3rd College ed.1988). This Court has defined a latent injury “as one where the ‘plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question ... [or] when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.’ ” Neglen v. Breazeale, 945 So.2d 988, 991 (Miss.2006) (citing PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 50 (Miss.2005); Donald v. Amoco Prod. Co., 735 So.2d 161, 168 (Miss.1999)). Thus, a latent injury is an injury which is hidden or unseen.

¶ 11. The confusion associated with the term “latent injury” apparently results from the difference in the language of Miss.Code Ann. § 15-1-49 (Rev.2003), the general statute of limitations, which provides for tolling of the statute of limitations until a “plaintiff has discovered, or by reasonable diligence should have discovered” a “latent injury or disease.”

¶ 12. The discovery rule for medical negligence cases, however, is different. The inquiry does not center on a latent injury, but rather on “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(2) (Rev.2003). Thus, in medical negligence cases, we must focus our inquiry on when a plaintiff, exercising reasonable diligence, should have first discovered the negligence, rather than the injury. In applying the unambiguous language of Miss.Code Ann. § 15-1-36(2), although a hidden or unseen injury might very well serve to trigger the discovery rule and toll the statute of limitations, it is not because the injury itself is hidden or unknown, but rather because the negligence which caused the injury is unknown. Furthermore, in the medical malpractice context, the discovery rule may apply in cases where the injury is not latent at all, but where the negligence which caused the known injury is unknown. For instance, a patient who undergoes a medical ■ procedure may develop serious complications which are clearly known. However, if the patient has no reason to know that the doctor’s negligence in performing the procedure caused the complications, the discovery rule will apply, even though the injury itself is not latent at all.

¶ 13.' Judge Yerger clearly understood this distinction and applied it to the facts of this case. In his Order of Summary Judgment, he stated that “[b]y April 2001, at‘the latest, there existed a basis for initiation of reasonable diligence on Mr. Sutherland’s part such that might allow him to discover Dr. Ritter’s alleged negligence.”

¶ 14. In recent cases, we have discussed the discovery rule in medical malpractice cases brought under the Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1, et seq. (Rev.2002) (MTCA) concerning the applicability of the discovery rule to the MTCA’s one-year statute of limitations found in section 11-46-11(3). Wright v. Quesnel, 876 So.2d 362 (Miss.2004); Wayne Gen. Hosp. v. Hayes, 868 So.2d 997 (Miss.2004). Other cases, such as PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47 (Miss.2005), discuss the discovery rule in relation to the “catch-all” statute of limitations found in Miss.Code Ann. § 15-1-49 (Rev.2003), which expressly mentions latent injuries or diseases. However, even in Hayes, we stated that our discovery rule will only toll the statute of limitations “until a plaintiff ‘should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent.’ ” 868 So.2d at 1000-1001 (quoting Sarris v. Smith, 782 So.2d 721, 725 (Miss.2001)). In PPG, we stated that “ ‘a plaintiff knew or reasonably should have known that some negligent conduct had occurred, even if they did not know with certainty that the conduct Was negligent as a matter of law.’ ” 909 So.2d at 51 (emphasis in original) (citing Hayes, 868 So.2d at 1000).

¶ 15. According to the facts of today’s case, we find that Sutherland’s own suspicions and actions 'thereon, together with the passage of time from when Sutherland first recognized the adverse effects from the Zyprexa until Sutherland checked himself into the hospital in April, 2001, were enough to satisfy the statutory requirement of discovery of the alleged medical negligence on the part of Dr. Ritter. Sutherland originally knew or suspected that Dr. Ritter’s prescription of Zyprexa caused his undesirable side effects no later than the date of his discharge from St. Dominic on April 19, 2001, because he stated that “[t]he Zyprexa was destroying my life” and that “[i]t was not a belief, it was a knowing.”

¶ 16. By his own admission, Sutherland knew who, when, how, and by what he had been injured soon after receiving treatment and the Zyprexa 'prescription from Dr. Ritter, and certainly, no later than the date of his discharge from St. Dominic. Considering Sutherland’s actions, we conclude that Sutherland knew that Dr. Rit-ter’s prescribing him Zyprexa had caused him to suffer an injury.

¶ 17. In sum, we conclude from the record before us that Sutherland knew, soon after receiving his treatment from Dr. Ritter, that the Zyprexa had caused undesired effects. Almost two years later, he checked himself into St. Dominic on April 16, 2001; clearly by the time of his discharge from the hospital on April 19, 2001, and his termination of Dr. Ritter as his physician, Sutherland was on notice of Dr. Ritter’s alleged negligence. Therefore, Sutherland unquestionably knew, at least by April 2001, that Zyprexa was causing his troubles and that Dr. Ritter had prescribed the drug. By reasonable inquiry, Sutherland should, or with reasonable diligence might have discovered the alleged negligence. Thus, the discovery rule would not toll the statute of limitations beyond the date of April 19, 2001, when Sutherland was discharged from the hospital. Therefore, the statute of limitations had long since expired by the time Sutherland submitted his statutory notice of claim to Dr. Ritter’s estate on January 30, 2004.

CONCLUSION

¶ 18. For the reasons stated, the judgment of dismissal entered by the Circuit Court for the First Judicial District of Hinds County is affirmed.

¶ 19. AFFIRMED.

SMITH, C.J., WALLER, P.J., DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY AND GRAVES, JJ. COBB, P.J., NOT PARTICIPATING.

DIAZ, Justice,

Dissenting:

¶ 20. Because today’s opinion effectively precludes any action against a physician where the patient does not discover the injury before the one-year statute of limitations, I must dissent.

¶ 21. The assertion that “we must focus our inquiry on when a plaintiff, exercising reasonable diligence, should have first discovered the negligence, rather than the injury,” simply defies logic. Discovery of the injury is necessarily discovery of negligence. A cause of action for negligence does not exist without injury. It is elementary tort law that in order to prove negligence, a plaintiff must prove duty, breach of duty, proximate cause, and an injury. Holliday v. Pizza Inn, 659 So.2d 860, 864 (Miss.1995) (quoting Skelton v. Twin County Rural Elect. Ass’n, 611 So.2d 931, 936 (Miss.1992)). Accordingly, in medical malpractice cases, “the discovery rule protects persons with latent injuries.” Neglen v. Breazeale, 945 So.2d 988, 990 (Miss.2006). See also Flores v. Elmer, 938 So.2d 824 (Miss.2006) (applying latent injury analysis to medical malpractice claim); Blailock v. Hubbs, 919 So.2d 126 (Miss.2005) (finding injuries were not latent and therefore the discovery rule did not apply); Wright v. Quesnel, 876 So.2d 362 (Miss.2004) (same); Robinson v. Singing River Hosp. Sys., 732 So.2d 204 (Miss.1999) (same); Williams v. Kilgore, 618 So.2d 51 (Miss.1992) (applying latent injury analysis to medical malpractice claim).

¶ 22. The majority finds that the “confusion” over the application of latent injury analysis to medical malpractice cases is a result of the language found in Miss.Code Ann. § 15-1^19. However, even before this statute was amended to include a provision for latent injuries, this Court recognized the common law exception for latent injuries. Barnes, 733 So.2d at 205 (Miss.1999) (citing Schiro v. American Tobacco Co., 611 So.2d 962, 965 (Miss.1992)). Furthermore, as explained in Williams,

[t]he applicability of Miss.Code Ann. § 15-1-49 (1972) to medical malpractice actions was supplanted by the enactment of Miss.Code Ann. § 15-1-36 (1972) (as amended), which created a two year statute of limitations specifically for medical malpractice actions. Although the new statute shortened the limitation period, it liberalized and memorialized the definition of “accrual,” providing that the statute begins to run “from the date the alleged act, omission or neglect shall or with reasonable diligence might have first been known or discovered.”

618 So.2d at 53-54. The Court went on to say, “[t]he operative time is when the plaintiff can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causal relationship of the injury and the conduct of the medical practitioner.” Id. at 54 (quoting Smith v. Sanders, 485 So.2d 1051 (Miss.1986)) (emphasis supplied). The majority, however, not only refuses to recognize our prior precedent, but the common law as well.

¶ 23. The majority holds that medical malpractice plaintiffs must file their causes of action even if they are unaware of any injury. However, had the plaintiff in this case filed a claim before his diagnosis, his case would have been dismissed because he could not have proven any injury. It has been long established that, “[a] cause of action must exist and be complete before an action can be commenced, and, when a suit is begun before the cause of action accrues, it will generally be dismissed if proper objection is made.” Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 706 (Miss.1990) (quoting Estate of Kidd v. Kidd, 435 So.2d 632, 635 (Miss.1983)).

¶24. For the foregoing reasons, the majority’s analysis is highly flawed, and this Court should not remove the long-established latent injury exception from medical malpractice claims.

¶ 25. Regarding the latent injury issue, our summary judgment jurisprudence demands that “the evidence be viewed in the light most favorable to the party against whom the motion has been made.” Gant v. Maness, 786 So.2d 401, 403 (Miss.2001) (citing Massachusetts Bay Ins. Co. v. Joyner, 763 So.2d 877, 878 (Miss.2000)). According to case law, “discovery [of an injury or disease] is an issue of fact to be decided by a jury where there is a genuine dispute.” Schiro v. American Tobacco Co., 611 So.2d 962 (Miss.1992). In reviewing the record, there remains an issue of fact as to whether Mr. Sutherland had knowledge of the injury or was aware of his symptoms.

¶26. First, the majority improperly construes the immediate side-effects that Mr. Sutherland experienced and his subsequent “potentially irreversible syndrome” as one and the same. Mr. Sutherland experienced a number of symptoms while taking Zyprexa, including oversedation and increased anxiety. Once he stopped taking the medication, Mr. Sutherland testified that these immediate side-effects eventually stopped. It was not until his visit with Dr. Voulters, where he was finally diagnosed with TDS, that he was aware of any potentially permanent neurological disorder. As Dr. Hiatt, Mr. Sutherland’s expert, stated in his sworn affidavit, “Robert Sutherland could not have known that the tardive dyskinesia was caused by the Zyprexa prescribed by Dr. Ritter until after he was diagnosed with tardive dys-kinesia on January 31, 2002.”

¶27. According to the Center for the Study of Autism, “[t]ardive dyskinesia may appear anywhere from three months to several years after initial use of these medications.” Stephen M. Edelson, Tardive Dyskinesia, Center for the Study of Autism (1995) (emphasis added). Therefore, while Mr. Sutherland may have been aware of some immediate adverse side-effects, he has sufficiently demonstrated that neither he nor any medical professional could have known of any permanent neurological damage until he was diagnosed by Dr. Voulters. By April 2001, Mr. Sutherland had already sought a second opinion at St. Dominic, yet there is no mention of TDS in any of his medical records from this time. I fail to see what further “reasonable diligence” Mr. Sutherland could have exercised in order to discover his resulting syndrome, which may take years to develop. Mr. Sutherland stated in his deposition that Dr. Ritter never told him that TDS was a possible side-effect. Mr. Sutherland also stated that Dr. Ritter told him to continue taking the drug and that it was “safe.” These facts are further supported by Dr. Ritter’s notes.

¶ 28. Second, Mr. Sutherland’s medical records indicate that he was referred to St. Dominic “because of possible Xanax abuse,” and not because of the adverse side effects he experienced with Zyprexa. In his motion for summary judgement, Dr. Ritter states that “at that time he expressed a specific perceived need to get ‘off of Zyprexa.’ See Exhibit ‘G’.” Yet, Exhibit G consists of a single page from Mr. Sutherland’s medical records which makes no . mention of Zyprexa. Furthermore, Mr. Sutherland was taking a number of drugs, and testified that at the time he checked into St. Dominic, he wanted to “come off those medications,” including Xanax and Zyprexa.

¶ 29. We have held that in cases involving summary judgment “[i]f there is doubt as to whether or not a fact issue exists, it should be resolved in favor of the non-moving party.” Aetna Casualty & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996) (citing Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986)). The record demonstrates substantial doubt as to whether a fact issue exists. Therefore, because there are material issues of fact that should be left to the jury, summary judgement was improper and the case against Dr. Ritter should proceed.

EASLEY AND GRAVES, JJ., JOIN THIS OPINION.

      . Eli Lilly was named as an original party to the suit pursuant to a products liability theory. The trial court granted summary judgment only as to Dr. Ritter's estate; however, the trial court thereafter appropriately entered final judgment consistent with the provisions of Miss. R. Civ. P. 54(b). Today’s appeal does not involve any claims as to Eli Lilly.

      . The questions were asked by Dr. Ritter’s attorney.

      . Tardive dyskinesia is a potentially irreversible syndrome of involuntary hyper-kinetic movements that occurs in predisposed persons receiving extended neuroleptic (antipsy-chotic) drug therapy.

      . Dr. Ritter had by this time passed away.

      .Pursuant to Miss.Code Ann. § 15-1-36(15) (Rev.2003), the written notice of claim is required to be given at least sixty days prior to the commencement of a medical malpractice suit.

      . Counsel for the parties have very ably presented and addressed the issues, consistent with our case law, dealing with latent injuries and the discovery rule as it concerns the applicable statute of limitations on such matters as the running or the tolling of the applicable statute. However, when we read the excellent briefs of the parties as they dutifully address these issues by applying prior decisions from this Court, the urgent need for clarification of our prior cases becomes readily apparent so as to immediately lend aid to the trial bench and bar in dealing with these issues in the medical malpractice arena. Again, this need for clarification is not the fault of the parties and counsel, but instead is due to ambiguities which we have created in our prior decisions.

      . § 15-1-49. Limitations applicable to actions not otherwise specifically provided for.
      (1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
      (2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.
      (3)The provisions of subsection (2) of this section shall apply to all pending and subsequently filed actions.

      . Two exceptions are found in section 15 — 1— 36(2) (foreign object left in patient's body and fraudulent concealment of cause of action), neither of which apply in today's case.

      . The discovery rule also protects medical malpractice plaintiffs who were aware that an injury had occurred but could not discover the cause of the injury until the statute of limitations had run. Sarris v. Smith, 782 So.2d 721 (Miss.2001); Pickens v. Donaldson, 748 So.2d 684 (Miss.1999); Smith v. Sanders, 485 So.2d 1051 (Miss.1986); Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 206 (Miss.1999).