CARLSON, Justice, for the Court.
¶ 1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.
¶ 2. Aggrieved by the trial court's refusal to dismiss this medical malpractice case due to the plaintiffs failure to give the required statutory notice, Salvador Arceo, M.D., petitioned this Court for an interlocutory appeal. St. Dominic — Jackson Memorial Hospital joined Dr. Arceo's petition. Having granted the interlocutory appeal, see M.R.A.P. 5, we find that since the plaintiff failed to comply with the notice provisions of Miss. Code Ann. § 15-1-36(15) (Rev. 2003), the Hinds County Circuit Court erred in denying the defendants' motion to dismiss, or in the alternative, for summary judgment. Accordingly, we reverse the trial court judgment and render judgment here in favor of the defendants.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶ 3. On July 9, 2002, Tommie C. Tolliver, the daughter of the plaintiff, Myrtis Tolliver, was seen and evaluated in the emergency room at St. Dominic-Jackson Memorial Hospital. Over the course of several days, Tommie Tolliver was treated by Dr. Salvador Arceo and various hospital employees for meningococcal meningitis and sepsis; however, on July 13, 2002, Tommie Tolliver died. On June 4, 2004, Myrtis Tolliver filed a complaint for medical malpractice and negligence against Dr. Arceo and John and Jane Doe defendants. On June 25, 2004, the plaintiff filed a first amended complaint; and, on July 23, 2004, the plaintiff filed a second amended complaint. Prior to the filing of these complaints, the plaintiff failed to submit the notice required by Miss. Code Ann. § 15-1-36(15) (Rev. 2003). After Dr. Arceo filed a motion to dismiss, or in the alternative, for summary judgment, the trial court denied the motion, stating in its order, inter alia:
The original complaint was styled " Myrtis Tolliver, On Behalf of Tommie C. Tolliver, Deceased v. Salvador Arceo, M.D., and John and Jane Does 1-5." The first amended complaint was styled " Myrtis Tolliver, as Administratrix of the Estate of Tommie C. Tolliver, Deceased, Individually, and on Behalf of the Wrongful Death Beneficiaries of Tommie C. Tolliver, Deceased v. St. Dominic — Jackson Memorial Hospital; Salvador Arceo, M.D.; Amy Morehead, R.N.; (FNU) Cleveland, R.N.; and John and Jane Does 1-1." The second amended complaint had the identical style, except that, with the first name of Nurse Cleveland having been determined, "(FNU) Cleveland, R.N.," was amended to read "Stephanie Cleveland, R.N." The record is silent as to process being issued after the filing of the original complaint and the seconded amended complaint; however, the record does reveal that after the first amended complaint was filed on June 25, 2004, process was issued that same day. The return on this summons reveals that on July 13, 2004, copies of the summons and first amended complaint were left with Catherine Arceo, the wife of Dr. Arceo, and thereafter, that copies of the summons and first amended complaint were mailed to Dr. Arceo. St. Dominic was likewise served with process on July 13, 2004. However, the first responsive pleadings filed by the defendants addressed only the second amended complaint. Certainly, pursuant to Miss. R. Civ. P. 15(a), the plaintiff appropriately filed the first amended complaint and second amended complaint without leave of court, since at the time of the respective filings, no responsive pleadings had been served. Likewise, the record reveals that Dr. Arceo actually received a copy of the summons and first amended complaint on or about July 13, 2004.
It appears from the record that the first time the plaintiff attempted to give the required statutory notice was by letter from her counsel to Dr. Arceo. This letter was dated November 30, 2004.
The Court finds that while the Notice provisions of Miss. Code Ann. § 15-1-36(15) are mandatory, they are not jurisdictional. The Court finds that the purpose of such Notice provisions is to afford the parties a period of 60 days within which they can investigate and attempt an amicable resolution of the claim without the necessity of litigation. The Court further finds that while Plaintiff did not comply with the Notice provisions of Miss. Code Ann. § 15-1-36(15), to impose the ultimate sanction of dismissal is unduly harsh under the circumstances. The Court is of the opinion that the purpose of the Notice provision of Miss. Code Ann. § 15-1-36(15) will be fulfilled by an abatement of the action for a period of 60 days and that such abatement is proper.
Jackson v. City of Wiggins, 760 So.2d 694 (Miss. 2000);
City of Pascagoula v. Tomlinson, 741 So.2d 224 (Miss. 1999);
Schepps v. Presbyterian Hospital of Dallas, 652 S.W.2d 934 (Tex. 1983).
It is from this trial court order denying their motion to dismiss, that the defendants petitioned this Court for an interlocutory appeal. We granted the defendants' petition and stayed the trial court proceedings, pending resolution of this issue on appeal.
DISCUSSION
¶ 4. Dr. Arceo and St. Dominic frame the issues this way: "(1) Section 15-1-36(15) of the Mississippi Code states that `[n]o action based upon the health care provider's professional negligence may be begun unless the defendant has been given at least sixty (60) days' prior written notice of the intention to begin the action.' Does the Plaintiffs noncompliance with this notice requirement require dismissal of her medical malpractice claims against Dr. Arceo? (2) Are the Plaintiff's claims now time-barred by the two year medical malpractice statute of limitations? (3) If Plaintiffs noncompliance requires dismissal, should her Motion for Leave to Amend Complaint have been denied?" On the other hand, the plaintiff presents the issues by stating: "1. Whether this Court should affirm the trial court's ruling that a proper remedy for a failure to comply with the `notice provision' of Mississippi Code Annotated Section 15-1-36(15) is to order a 60 day stay. 2. In the alternative, whether this Court should decide that the proper remedy is to dismiss the suit without prejudice and allow the Plaintiff to re-file her Complaint, pursuant to the `savings clause' found in Miss. Code Ann. § 15-1-69. 3. Whether the `discovery rule' should apply to extend the two year statute of limitations in this case, under the facts of this case, including the fraudulent concealment of certain facts by the Defendants. 4. Whether Miss. Code Ann. § 15-1-36(15) is ambiguous. 5. Whether Plaintiff should be allowed to amend her Complaint pursuant to the trial court's Order Denying Defendants' Motion to Dismiss." (Emphasis in original).
This is taken from Dr. Arceo's brief. St. Dominic filed a separate joinder wherein it stated that it joined the Appellant's Brief submitted by Dr. Arceo inasmuch as the arguments raised by Dr. Arceo applied equally to St. Dominic.
¶ 5. We will restate these issues for clarity.
WHETHER IT WAS ERROR FOR THE CIRCUIT COURT TO DENY THE DEFENDANTS' MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
¶ 6. This Court reviews a trial court's grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard. Monsanto v. Hall, 912 So.2d 134, 136 (Miss. 2005). Under Miss. Code Ann. § 15-1-36(1) (Rev. 2003), a plaintiff has two years from the date of the alleged negligent act in which to commence a lawsuit against medical providers. Also, effective from and after January 1, 2003, Miss. Code Ann. § 15-1-36(15) provides:
No action based upon the health care provider's professional negligence may be begun unless the defendant has been given at least sixty (60) days' prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.
¶ 7. In today's case, the plaintiff wholly failed to provide any written notice to any medical provider concerning her intention to commence suit. We recently addressed this specific issue in Pitalo v. GPCH-GP, Inc., 933 So.2d 927 (Miss. 2006). In Pitalo, the plaintiff failed to provide the statutory notice prior to commencement of her negligence suit against the doctor and the hospital. In affirming the trial court's dismissal for failure to comply with section 15-1-36(15), we stated:
On appeal, Pitalo argues that it was error for the trial court to dismiss her
cause of action because she failed to send a letter to the defendant as provided in Miss. Code Ann. Section 15-1-36(15) (Rev. 2003). Miss. Code Ann. Section 15-1-36 was amended in the special session of the Mississippi Legislature on tort reform in 2002. Section 15 was added and became effective January 1, 2003. It requires that an action based on professional negligence of a health care provider may not begin unless the defendant has been given at least 60 days prior written notice of the intention to begin the action.
When interpreting a statute that is not ambiguous, this Court will apply the plain meaning of the statute.
Claypool v. Mladineo, 724 So.2d 373, 382 (Miss. 1998). In construing a statute, the Court must seek the intention of the Legislature, and knowing it, must adopt that interpretation which will meet the real meaning of the Legislature.
Evans v. Boyle Flying Service, Inc., 680 So.2d 821, 825 (Miss. 1996). When drafting Miss. Code Ann. Section 15-1-36(15), the Legislature did not incorporate any given exceptions to this rule which would alleviate the prerequisite condition of prior written notice. Simply stated, "shall" is mandatory, while "may" is discretionary.
Franklin v. Franklin, 858 So.2d 110, 114 (Miss. 2003). Pitalo's failure to send notice of her intent to sue clearly violates the mandatory instructions concerning notice in Miss. Code Ann. Section 15-1-36(15).
Pitalo contends that even though she failed to provide notice of her intent to sue, the circuit court's dismissal of her action violates our holding in
Jackson v. City of Wiggins, 760 So.2d 694 (Miss. 2000). Pitalo's claim is clearly distinguishable from
Jackson as the present case concerns medical negligence actions under Miss. Code Ann. Section 15-1-36 (Rev. 2003) — not the Mississippi Tort Claims Act, and Pitalo did not at any time attempt to send a notice of intent to sue to Dr. Graham or Garden Park, as had been done in
Jackson. Pitalo's arguments do not excuse the absence of notice of an intent to sue being sent to the defendants in the present case.
. . .
Pitalo's failure to send to defendants a notice of intent to sue is an inexcusable deviation from the Legislature's requirements for process and notice under Miss. Code Ann. Section 15-1-36(15), and such failure warrants dismissal of her claim. Accordingly we affirm the judgment of the circuit court.
933 So.2d at 928-29.
¶ 8. While we find that, consistent with Pitalo, the trial judge erred in failing to grant the defendants' motion to dismiss, or in the alternative, for summary judgment, we acknowledge that the trial judge did not have the benefit of our decision in Pitalo when he denied the defendants' motion. We also acknowledge that at the time the trial judge was confronted with this issue, there was a dearth of pronouncements from this Court on the recently revised Miss. Code Ann. § 15-1-36; therefore, we find no fault with the trial judge's effort to fashion a remedy consistent with this Court's prior decisions in addressing similar issues under the Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 et seq. See, e.g., Jackson v. City of Wiggins, 760 So.2d 694, 696 (Miss. 2000); City of Pascagoula v. Tomlinson, 741 So.2d 224, 228-29 (Miss. 1999).
In our recent decision in Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 819-20 (Miss. 2006), City of Wiggins and other cited cases were overruled as to their analysis of the 90-day notice requirement under the MTCA.
¶ 9. We note that although the tenor of the dissent is that of a belief that our interpretation of the applicable statute brings about an unconstitutional result, the dissent does state that "[t]he constitutional right of notice to the defendants was satisfied when Myrtis Tolliver filed her complaint. The implementation and enforcement of an additional notice requirement, without any other method to cure, is inequitable, unconstitutional, and deprives this plaintiff of her day in court." Dissenting op. ¶ 22. Thus, to the extent that the dissent finds Miss. Code Ann. § 15-1-36(15) to be unconstitutional, we are compelled to note that none of the parties, or the amici curiae, have raised the issue of the constitutionality of the statute for our consideration in today's appeal. Accordingly, we decline to address an issue not even raised on appeal. Martin v. Lowery, 912 So.2d 461, 464 (Miss. 2005); Cockrell v. Pearl River Valley Water Dist., 865 So.2d 357, 360 (Miss. 2004); Corey v. Skelton, 834 So.2d 681, 686-87 (Miss. 2003); Pickens v. Donaldson, 748 So.2d 684, 691-92 (Miss. 1999). Additionally, no notice challenging the constitutionality of the statute was given to the Attorney General as required by law. Miss. R. Civ. P. 24(d). See Martin, 912 So.2d at 465 (citing In re D.O., 798 So.2d 417, 423 (Miss. 2001)); Cockrell, 865 So.2d at 360; Corey, 834 So.2d at 687; Pickens, 748 So.2d at 691. In sum, the issue of the constitutionality of Miss. Code Ann. § 15-1-36(15) is not before us.
¶ 10. Also, the dissent cites a similar California statute and the "Borrowed Statute" doctrine as support for the proposition that our Legislature did not intend Miss. Code Ann. § 15-1-36(15) to mandate dismissal of medical malpractice cases filed prior to full compliance with the notice requirement. However, our Legislature omitted from Miss. Code Ann. § 15-1-36(15) the following language found in the California statute: "failure to comply with this chapter shall not invalidate any proceeding of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein." Cal.Civ.Proc. Code § 365 (1982). While claiming it is attempting to ascertain the intent of our Legislature, the dissent fails to offer any explanation of why this specific language was omitted. We conclude that the explanation is that our Legislature omitted the provision because it did not wish it to be part of our law. This explanation is perfectly consistent with the "Borrowed Statute" doctrine cited in Pope v. Brock, 912 So.2d 935, 938 (Miss. 2005).
¶ 11. Finally, in applying the statute to today's case, we have not attempted to determine legislative intent, as stated by the dissent, but instead we have merely considered the plain language of the statute. Our application of Miss. Code Ann. § 15-1-36(15) does not deprive Myrtis Tolliver of any constitutionally endowed right. In University of Mississippi Medical Center v. Easterling, 928 So.2d 815, 820 (Miss. 2006), a case involving the Mississippi Tort Claims Act, we stated:
We do so today because of our constitutional mandate to faithfully apply the provisions of constitutionally enacted legislation. We also note that our decision today provides consistency.
E.g., Newell v. Jones County, 731 So.2d 580, 582 (Miss. 1999) (ten day time limit to file notice of appeal under Miss. Code Ann. section 11-51-75 is both mandatory and jurisdictional);
Ivy v. GMAC, 612 So.2d 1108, 1116 (Miss. 1992) (citing
Tandy Electronics, Inc. v. Fletcher, 554 So.2d 308, 309-312 (Miss. 1989) (thirty-day limit to file notice of appeal to Mississippi's appellate courts is a "'hard-edged, mandatory' rule which this court `strictly enforces.'")). Since the MTCA's passage in 1993, a considerable amount of time has passed for the legal profession
to become aware of the ninety-day notice requirement in section 11-16-11(1).
See 1993 Miss. Laws 476. The result here, as in
Ivy, is that the ninety-day notice requirement under section 11-16-11(1) is a "hard-edged, mandatory rule which the Court strictly enforces."
Ivy, 612 So.2d at 1116.
928 So.2d at 820.
The dissent correctly points out that in Easterling, we required "strict compliance" with section 11-46-11(1), pertaining to the 90-day notice requirement, while, at the same time, we continued to adhere to what has been termed "substantial compliance" regarding section 11-46-11(2) and what is required to be contained in the notice. 928 So.2d at 819-20. (Dissenting op. 1128). See also South Cent. Reg'l Med. Ctr. v. Guffy, 930 So.2d 1252 (Miss. 2006). The dissent goes further and states that while we have followed a "middle-of-the-road approach" to our interpretation of MTCA cases, we have adopted a strict compliance standard pertaining to our application of the medical malpractice statute. However, with all due respect to the dissent, today's case does not involve a question of whether the plaintiff complied with section 15-1-36(15) by submitting a notice containing information which was substantial enough to be in compliance with the statute. See Guffy, 930 So.2d at 1258. Instead, we are squarely confronted with a situation where the plaintiff, in filing an original complaint, a first amended complaint, and a second amended complaint, wholly failed to submit any notice required by the statute.
¶ 12. In Townsend v. Estate of Gilbert, 616 So.2d 333 (Miss. 1993), this Court found that a four-year statute of limitations, as opposed to a six-year statute of limitations, was applicable to the case under consideration and that the four-year statute of limitations was not unconstitutional, either on its face or in its application. Id. at 337. "There is no absolute right of access to the courts. All that is required is a reasonable right of access to the courts — a reasonable opportunity to be heard." Wayne v. Tenn. Valley Auth., 730 F.2d 392, 403 (5th Cir. 1984) (cited with approval in Townsend, 616 So.2d at 337).
¶ 13. While the right under our state and federal constitutions to access to our courts is a matter beyond debate, this right is coupled with responsibility, including the responsibility to comply with legislative enactments, rules, and judicial decisions. While the plaintiff in today's case had the constitutional right to seek redress in our state courts for the unfortunate death of her daughter, she likewise had the responsibility to comply with the applicable rules and statutes, including section 15-1-36(15). Any different approach would render meaningless any rule or statute setting time limitations on litigants.
¶ 14. Our decision in Pitalo controls today's case. Likewise, our decision today is not only consistent with our holding in Pitalo, but is likewise consistent with our recent decision in Walker v. Whitfield Nursing Ctr, Inc., 931 So.2d 583 (Miss. 2006) (this Court affirmed trial court's grant of medical provider's motion for summary judgment based on plaintiff's failure to comply with the provisions of Miss. Code Ann. § 11-1-58 (Rev. 2002) concerning filing with the complaint an attorney's certificate of consultation with a qualified medical expert). We are thus constrained to find, as a matter of law, that the trial court erred in failing to grant the defendants' motion to dismiss, or in the alternative, for summary judgment.
¶ 15. Because of our disposition of the statutory notice issue consistent with our recent decision in Pitalo, the remaining issues raised by the parties need not be addressed.
CONCLUSION
¶ 16. For the reasons stated, the order denying the defendants' motion to dismiss, or in the alternative, for summary judgment, entered by the Circuit Court for the First Judicial District of Hinds County is reversed, and judgment is rendered here in favor of Salvador Arceo, M.D., and St. Dominic-Jackson Memorial Hospital, dismissing Myrtis Tolliver's second amended complaint and this action without prejudice.
¶ 17. REVERSED AND RENDERED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J.