A Cleveland doctor gave up his immunity defense in a wrongful death case after spending five years of a Bolivar County trial court’s time with motions and discovery, the Mississippi Supreme Court has ruled.

The Supreme Court this past week ordered the case to trial.

Helen Grimes sued Dr. James Warrington Jr. in 2001 for medical malpractice in the death of her husband, John Grimes. John Grimes was treated by Warrington in August 2000 for pain in his right side and stomach, according to the court record. Warrington prescribed medication for inflammation and pain.

John Grimes underwent surgery days later after being diagnosed with a perforated gallbladder and other problems. He died while still at Bolivar Medical Center.

In his reply to the lawsuit, Warrington claimed he was an employee of Cleveland Medical Alliance clinic, a subsidiary of Greenwood-Leflore Hospital, and was entitled to protection from lawsuits under the Mississippi Tort Claims Act. However, he did not at that time ask that the lawsuit be dismissed for that reason.

The Tort Claims Act, or MTCA, controls all lawsuits for negligence brought against the state or local governments and public officials. The law limits damages that can be sought against the government.

However, the court record showed that for five years, Warrington and Helen Grimes prepared for trial, including pretrial depositions, also called discovery. Several trial dates were scheduled and rescheduled.

In August 2006, Warrington formally asked the court to dismiss the lawsuit because he was immune from being sued. The trial court granted Warrington’s request in October 2006.

Helen Grimes appealed, arguing Warrington unreasonably delayed the trial when he already knew he was protected under MCTA. Warrington said the delay was not unreasonable.

Chief Justice Jim Smith, writing for the unanimous Supreme Court, said Warrington was protected by MCTA as an employee of a clinic affiliated with a public hospital but acted too late.

“Dr. Warrington offers no explanation as to why he did not move the lower court for summary judgment until August 2006. He offers no evidence that any information needed to assert this affirmative defense was not available to him from the inception of the litigation,” Smith wrote.

Smith said the court record showed that for five years, the case was set and twice reset for trial, experts were designated and questioned on the merits of the negligence claim.

“All of this was an unnecessary and excessive waste of the time and resources of the parties and the court if Dr. Warrington had been immune from tort liability since the moment the complaint was filed.

“Dr. Warrington’s failure actively and specifically to pursue his MTCA affirmative defense while participating in the litigation served as a waiver of the defense,” Smith said.