Medical Negligence Lawsuit Dismissed Based on Statute of Repose

United States Court of Appeals for the Fifth Circuit ____________ No. 25-60111 ____________ Velma Battieste, as Administratrix of the Estate of Gene Cleveland Battieste, Deceased, Plaintiff—Appellant, versus United States of America, Defendant—Appellee. ______________________________ Appeal from the United States District Cour t for the Southern District of Mississippi USDC No. 3:24-CV-304 ______________________________ Before Clement, Graves, and Ho, Circuit Judges. James E. Graves, Jr., Circuit Judge: In 2006, Gene Battieste underwen t an unauthorized surgery at a Veterans Affairs hospital that result ed in post-operative complications. Eighteen years later, his estate sued for medical negligence. Mississippi’s medical malpractice statute bars a clai m brought “more than seven (7) years after the alleged act, omi ssion or neglect occurred.” Miss. Code Ann. § 15-1-36(2). Because we conclude that § 15-1-36(2)’s seven-year provision is a statute of repose wh ich presents an absolute time-bar to this cl aim, we AFFIRM the district court’s dismissal of the suit. United States Court of Appeals Fifth Cir cuit FILED February 27, 2026 Lyle W. Cayce Clerk Case: 25-60111 Document: 54-1 Page: 1 Date Filed: 02/27/2026

No. 25-60111 2 I. BACKGROUND Gene Cleveland Battieste was a vete ran who underwent surgery at the Veterans Affairs (“ VA ”) Medical Center in Jackson, Mississippi on September 7, 2006. 1 Mr. Battieste consented to surgery on his C3–C7 vertebrae. However, the VA also operated on his C2 vertebra without his knowledge or consent. Mr. Battieste repo rted itchiness and a rash at the site of the incision in a post-operative visi t. Subsequently, Mr. Battieste reported an elevated temperature and malais e, and he developed a moderate MRSA (staph) infection and an elev ated white blood cell count. In 2008, Mr. Battieste applied for VA disability benefits, which were approved in 2020 by the VA Board of Veterans’ Ap peals (“ BVA ”). That BVA decision recounts Mr. Battieste’s re levant medical history. It details a 2016 opinion by a VA examiner who diagnosed Mr. Battieste with post- operative degenerative arthritis, wound infection, a C2 cervical fract ure, and increased neck pain. This 2016 exam ination noted that the C2 vertebra operation was conducted without Mr. B a ttieste’s consent or knowledge. Mr. Battieste’s medical history placed him at add itional risk which should have led to additional testing, and “the VA ’s failure to monitor [Mr. Battieste] closely post-operation was clearly a breach in the standard of care.” The 2020 BVA report concluded that the VA did not provide Mr. Battieste with “proper informed consen t” and failed to inform Mr. Battieste or his family of the unapproved surgery. Additionally, the VA had “failed to provide [Mr. Battieste] with an appropri ate standard of ca re prior, durin g, and immediately post-op when he wa s discharged with a fever.” The BVA _____________________ 1 Mr. Battieste passed away in January 2022. Case: 25-60111 Document: 54-1 Page: 2 Date Filed: 02/27/2026

No. 25-60111 3 decision was the first time Mr. Battieste was notified of the VA ’s medical negligence and the unauthorized procedure. In November 2022, Velma Battieste, Administrator of Mr. Battieste’s estate, filed an administrative claim with the VA under the Federal Tort Claims Act (“ FTCA ”) for his injuries caused by the unauthorized surgery and ensuing complications. The VA denied the claim in November 2023. In May 2024, Ms. Battieste filed a complaint for medical negligence under the FTCA. The district court granted th e United States’ motion to dismiss because her claims were time-barred by Mississippi’s medical malpractice statute. Ms. Battieste appealed. II. STANDARD OF REVIEW The court reviews a district court’s grant of a motion to dismiss de novo. Copeland v. Wassers tein, Perella & Co., 278 F.3d 472, 477 (5th Cir. 2002). Likewise, “[a] dist rict court’s determination of state law is reviewed de novo.” Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258 (5th Cir. 2013). III. DISCUSSION A. The FTCA and State Law Under the FTCA, a plaintiff must sue the United States within two years of claim accrua l. 28 U.S.C. § 2401(b). “For liability to attach under the FTCA, the complained of conduct must be actionable under the local law of the state where it occurred.” Smith v. United States, 430 F. App’x 246, 247 (5th Cir. 2011) (per curiam); see also Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (en banc) (explaining that the FTCA waives the United States’ sovereign immunity and requires a breach of state law). Federal courts apply Case: 25-60111 Document: 54-1 Page: 3 Date Filed: 02/27/2026

No. 25-60111 4 the substantive law of the stat e where the conduct occurred. Smith, 430 F. App’x at 247. Mississippi’s medical malpractice statute contains a ti me-limiting provision. It does not a llow a claim in tort to be broug ht against a licensed physician or hospital for injuries arisin g out of surgical services “unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence migh t have been first kn own or discovered, and . . . in no event m ore than seven (7) years after the alleged act, omission or neglect occurred.” Miss. Code Ann. § 15-1-36(2). B. Statutes of Limitation s and Statutes of Repose As Ms. Battieste concedes, “the ou tcome of this matter hinges upon whether Miss. Co de Ann. § 15-1-36(2) constitutes a statute of limitations or a statute of repose.” Ms. Battieste argu es that it is a st atute of limitations, and she pursued the medical negligen ce claims within two years of the claim’s accrual, making her suit timely. A statute of limitations “creates ‘a time limit for suing in a civil case, based on the date when the claim accrued.’” CTS Corp. v. Waldburger, 573 U. S. 1, 7 (2 0 1 4) (q u o t i n g Statute of Limitations, Black’s La w Dictionary (9th ed. 2009)). The limitations p e r i o d b e g i n s t o r u n w h e n the plaintiff can file suit and obtain relief. Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99, 105 (2013). A statute of repose “puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the la st culpable act or omission of the defendant.” CTS Corp., 573 U.S. at 8. A statute of repose bars suit s brought after a certain time from the defendant’s negligence, even if the plaintiff has not yet suffered or discovered an injury. Id. Case: 25-60111 Document: 54-1 Page: 4 Date Filed: 02/27/2026

No. 25-60111 5 C. Mississippi Law The Mississippi Supreme Court has not considered whether § 15-1-36(2) contains a statute of rep ose provision. “If a state’s hi gh court has not spoken on a state-law issue, we defer to intermediate state appellate court decisions, unless convince d by ot her persuasive data that the higher court of the state would decide otherwise.” Learmonth, 710 F.3d at 258 (citation modified). Mississippi’s lower courts view § 15-1 -36(2)’s seven-year provision as a statute of repose. 2 In Russell v. Williford, when analyzing which version of § 15-1-36 applied to the plaintiff’s med ical malpractice claim, the appeals court explained that “[t]he seven year statute of repose runs from the date the alleged act or omission occurred....” 907 So. 2d 362, 366 (Miss. Ct. App. 2004). The dissent described the st atute further, noting that “in 1998, the legislature amended Section 15-1-36 to create a statute of repose for medical negligence actions.” Id. at 373 (Irving, J., dissenting) (referencing Miss. Code Ann. § 15-1-36(2)). In Andrie v. Millette, the plaintiff filed a 2018 complaint against a doctor for negligent misdiagnosis. No. 2018-00,102(3), 2020 WL 13588445, at *1 (Miss. Cir. May 19, 2020). Th e doctor moved for summary judgment, _____________________ 2 Federal district courts, interpreting Mississippi law, have also referred to § 15-1-36(2)’ s seven-year provision as a statute of repose. See Turner v. Galloway, No. 3:14CV562 DPJ-FKB, 20 16 WL 3249245, at *1 (S.D. Miss. Apr. 6, 2016) (“The question is whether her suit, filed in 2014, is barred by Mississippi’s seven-year statute of repose. Miss. Code Ann. § 15-1-36(2).”); Balfour v. Jackson HMA, LLC, No. 3:24-CV-93- KHJ-MTP, 2024 WL 44 46508, at *3 (S.D. Miss. O ct. 8, 2024) (“[Defendant] contends that the seven-year statute of r epose bars [p laintiff’s] claims becaus e the alleged negligent interpretation claims.... It is undisputed that this statute applies and that [the plaintiff] filed her Complaint after the seven-year limit had passed.” (citation modified)). Case: 25-60111 Document: 54-1 Page: 5 Date Filed: 02/27/2026

No. 25-60111 6 arguing that pre-2011 claims were barre d. Id. In granting the motion, the court identified § 15-1-36(2) as the re levant provision and noted that “[a]cts of negligence more than seven years befor e the filing of the suit are barred by the statute of repose . . . .” Id. at *2. Ms. Battieste asks that the issue be certified to the Mississippi Supreme Court. Yet Mississippi courts have spoken on this issue. See Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 549 (5th Cir. 1998) (“The most important [factors for certificat ion] are the closeness of the question and the existence of sufficient sources of state law—statutes, judicial decisions, attorney general’s opinions —to allow a principled r ather than conjectural conclusion.”). Ce rtification is not warranted. Mississippi courts view § 15-1-36(2)’s seven-year provision as a statute of repose that presents an “a bsolute bar on a defendant’s temporal liability.” CTS Corp., 573 U.S. at 8 (citation modified). D. Section 15-1-36(2)’s Text Ms. Battieste also argues that the tolling exceptions in § 15-1-36(2) are an “unambiguous textual indication” th at it is not a statute of repose provision. That is, because § 15-1-36(2) “allows for several situat ions that abrogate the seven-year period an d subjects defendants to liability indefinitely,” it is unlike most statut es of repose. This is because most statutes of repose are designed to prov ide certainty that defendants will be immune to suit after a “legislati vely determined period of time.” See Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec., Inc., 582 U.S. 497, 505 (2017) (citation omitted). Section 15-1-36 includes exceptions for: (1) foreign objects left in a patient’s body, (2) fraudulent concealment, (3) minor patients, and (4) claimants with a disability of unsoundness of mind. Miss. Code Ann. § 15-1-63(2)(a)–(b), (3)–(5). Case: 25-60111 Document: 54-1 Page: 6 Date Filed: 02/27/2026

No. 25-60111 7 However, statutes of repose can and do contain express exception s. The statutes can include tolling provisions when there is indication that the legislature “anticipated the extension of the statutory period under certain circumstances.” Cal. Pub., 582 U.S. at 507. Section 15-1-36(2)’s text tracks othe r statutes of repo se. Under it, an action must be brought within two years, but “in no event more than seven (7) years after the alleged act.” Miss. Code Ann. § 15-1-36(2). “The statute provides in clear terms that ‘[i]n no event’ shall an action be brought more than [a certain number of] ye ars after the [last culpable act]. This instruction admits of no exceptio n and on its face creates a fixed bar against future liability.” Cal. Pub., 582 U.S. at 505 (holding that 15 U.S.C. § 77m contains a three-year st atute of repose provision). Its structure—paired as it is with a statute of limitations provision— also indicates that the seven-year provision is a statute of repose. See id. at 506 (“The pairing of a shorter statute of limitations and a longer statute of repose is a common feature of statutory time limits.”). Ms. Battieste replies that the Mississippi legislature does not refer to the seven-year period as a “statute of repose,” unlike the Texas medical negligence statute which says, “[t]his su bsection is intended as a statute of r e p o s e s o t h a t a l l c l a i m s m u s t b e b r ought within 10 years or they are time barred.” Tex. Civ. Prac. & Rem. Code § 74.251(b). The lack of specific language “is inst ructive, but it is not dispositive.” CTS Corp., 573 U.S. at 13 (considering whether 42 U.S.C. § 9658 preempted a state statute of repose even though it “use[d] the te rm ‘statute of limitations’ four times (not including th e caption), but not the term ‘statute of repose’”). Here, the structure of § 15-1-36(2)’s text bolsters our conclusion that the seven-year provis ion is not a statute of limitations. Case: 25-60111 Document: 54-1 Page: 7 Date Filed: 02/27/2026

No. 25-60111 8 IV. CONCLUSIO N Mississippi’s intermediate appellate courts identify § 15-1-36(2)’s seven-year provision as a statut e of repose. The statute bars any claim brought more than seven years after th e complained-of act occurred. Because Ms. Battieste brought her claims ei ghteen years after Mr. Battieste underwent the unauthorized surgery, he r claim is time-barred. The district court’s judgment is AFFIRMED. Case: 25-60111 Document: 54-1 Page: 8 Date Filed: 02/27/2026