author: ROBERTS, J.,

text:
    Willie Lee WILLIAMS a/k/a Black Bill, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00040-COA.
    Court of Appeals of Mississippi.
    April 3, 2012.
    Rehearing Denied July 17, 2012.
    Certiorari Denied Sept. 27, 2012.

      Willie Lee Williams, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. In May 1999, Willie Lee Williams was indicted for the sale or transfer of a controlled substance within 1,500 feet of a school. He was also charged as a subsequent drug offender. In August 1999, Williams went to trial. Prior to voir dire of the jury, the prosecution successfully moved to amend the indictment to charge Williams as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Supp.2011). The jury found Williams guilty. During a bifurcated proceeding, the Marion County Circuit Court found Williams qualified for enhanced sentencing as a habitual offender. Because Williams was also a subsequent drug offender and had been found to sell drugs within 1,500 feet of a school, the circuit court sentenced him to 120 years in the custody of the Mississippi Department of Corrections (MDOC). Williams filed a direct appeal.

¶ 2. On June 28, 2001, the Mississippi Supreme Court affirmed Williams’s conviction in Williams v. State, 794 So.2d 181 (Miss.2001) (overruled on other grounds by Brema v. State, 995 So.2d 698, 703 (¶ 20) (Miss.2008)). However, the supreme court also found there was insufficient evidence that the underlying drug transaction occurred within 1,500 feet of a school. Id. at 188 (¶27). Consequently, the supreme court reversed the circuit court’s judgment in part and remanded Williams’s case for resentencing. Id. at 190 (¶ 40). On remand, the circuit court sentenced Williams to sixty years in the custody of the MDOC.

¶ 3. Approximately nine years later, Williams filed a motion for post-conviction relief (PCR) styled as a “motion to vacate and set aside conviction and sentence.” According to Williams, the circuit court erred when it allowed the prosecution to amend the indictment to charge him as a habitual offender. Williams reasoned that, by extension, he had been illegally convicted and sentenced as a habitual offender. The circuit court found that Williams’s motion was time barred, procedurally barred because he failed to obtain the supreme court’s leave to file his motion, and further barred by the prohibition against successive writs. Aggrieved, Williams appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. We will not reverse a circuit court’s decision to dismiss a PCR motion unless the circuit court’s decision was clearly erroneous. Dobbs v. State, 18 So.Sd 295, 297 (¶6) (Miss.Ct.App.2009) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). We review questions of law de novo. Id.

ANALYSIS

A. TIME BAR

¶ 5. Williams had three years from the time the supreme court ruled on his direct appeal to file a PCR motion. Miss. Code Ann. § 99-39-5(2) (Supp.2011). The supreme court rendered its decision on Williams’s direct appeal on June 28, 2001. Williams filed his most recent PCR motion approximately ten years later. It follows that Williams’s most recent PCR motion is time-barred.

¶ 6. Section 99-39-5(2) does not necessarily subject all PCR motions to a three-year statute of limitations. Trotter v. State, 907 So.2d 397, 401 (¶ 10) (Miss.Ct.App.2005). Excepted from the time bal-are claims that: (1) there has been an intervening decision that would have adversely affected the outcome of the sentence; and (2) there is newly discovered evidence (that was not reasonably discoverable at trial) which would have caused a different result in the conviction or sentence. Miss.Code Ann. § 99-39-5(2). Additionally, the supreme court has held that the three-year statute of limitations is waived when a fundamental constitutional right is implicated. Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). “The right to be free from an illegal sentence is a fundamental right.” Brown v. State, 923 So.2d 258, 259 (¶ 4) (Miss.Ct.App.2006) (citation omitted). Williams does not claim any portion of his sentence is illegal other than his sentence as a habitual offender under section 99-19-81, which he claims is illegal solely because the indictment against him was amended to include the habitual-offender charge.

¶ 7. Uniform Circuit and County Court Rule 7.09 states:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

Furthermore, in Burrell v. State, 726 So.2d 160, 162 (¶4) (Miss.1998), the supreme court clearly stated that amendments to indictments to charge habitual-offender status are allowed. Such amendments are not substantive amendments and are, therefore, allowed by Uniform Circuit and County Court Rule 7.09. Id. An amendment to include qualification for enhanced sentencing as a habitual offender is allowed because the amendment affects only the sentence imposed and does not affect the substance of the offense for which the individual was originally indicted. Id. It follows that Williams has failed to demonstrate that he is subject to an illegal sentence and, therefore, he has failed to demonstrate that the time bar does not apply. Consequently, his PCR motion is untimely.

B. LEAVE TO PROCEED IN THE CIRCUIT COURT

¶ 8. Williams’s PCR motion is barred for yet another reason. Mississippi Code Annotated section 99-39-7 (Supp. 2011) provides that before a movant in Williams’s circumstance may file a PCR motion in the circuit court, he must first seek and obtain permission to do so from the supreme court. The statute reads, in pertinent part, as follows:

Where the conviction and sentence have been affirmed on appeal or the appeal dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in term time or in vacation, and an order granted allowing the filing of such motion in the trial court.

Id. As previously mentioned, the supreme court heard Williams’s direct appeal. Williams, 794 So.2d at 181 (¶ 27). Accordingly, Williams was required to seek and obtain the supreme court’s permission to file his most recent PCR motion. However, the record before us is devoid of any such request, much less an order from the supreme court allowing Williams to pursue his PCR motion in the circuit court.

¶ 9. We have held:
[A]s to post-conviction-relief motions brought after an unsuccessful direct appeal of a criminal conviction, the failure of the movant to obtain the prior permission of the supreme court to file the motion as set out in section 99-39-27 [ (leave to proceed in the trial court) ] deprives the circuit court — and, necessarily, this Court — of authority to reach the merits of the motion.

Epps v. State, 837 So.2d 243, 245 (¶6) (Miss.Ct.App.2003) (citations omitted). Because Williams failed to obtain permission from the supreme court before he filed his most recent PCR motion, the circuit court lacked jurisdiction to consider the motion.

C. SUCCESSIVE-WRIT BAR

¶ 10. Additionally, Williams’s motion for post-conviction relief is barred for a third reason. An order denying a PCR motion is considered a final judgment and a bar to successive motions. Miss. Code Ann. § 99-39-23(6) (Supp.2011). “Essentially, an appellant is granted one bite at the apple when requesting post-conviction relief.” Dobbs, 18 So.3d at 298 (¶ 9) (citation omitted). There are exceptions to this rule. Id. at (¶ 10). “Pursuant to section 99-39-23(6), a prisoner may file a successive writ if the argument presented within that writ falls under one of the exceptions, has not been previously argued, and has not resulted in a circuit court’s decision rendered on the merits.” Id. (citation omitted). Williams bears the burden of proving that he satisfied at least one of the exceptions to the successive-writ bar. Id. Furthermore, Williams has to prove that even if he satisfied an exception, the circuit court had not previously entered a decision on the merits of those claims. Id. (citation omitted).

¶ 11. Williams filed a direct appeal of his conviction. As mentioned above, the supreme court rendered its decision on Williams’s direct appeal in Williams, 794 So.2d at 181 (¶ 27). In March 2002, Williams filed his first application for leave to file a PCR motion in the circuit court. Williams argued that the “portion of the indictment charging [him] as [a] habitual offender was fatally defective.” The supreme court denied Williams’s application.

¶ 12. In September 2002, Williams again sought the supreme court’s permission to file a PCR motion in the circuit court. As in his first attempt, Williams argued that he had been subjected to illegal sentencing. The supreme court dismissed Williams’s second attempt as a successive writ. Specifically, the supreme court stated, “a similar motion has previously been denied by this [e]ourt and ... the present motion is procedurally barred from consideration as a successive writ.”

¶ 13. In May 2006, Williams filed a third application to proceed in the circuit court. In the PCR motion that was attached to his application, Williams argued that the circuit court erred when it allowed the prosecution to amend the indictment to include a charge that he qualified for enhanced sentencing as a habitual offender. Again, the supreme court denied Williams’s application. The supreme court found Williams’s third application was time barred and, as with his second attempt, barred as a successive writ.

¶ 14. Williams filed his fourth application for leave to proceed in the circuit court in April 2007. Again, Williams argued that he had been illegally sentenced as a habitual offender. The supreme court denied Williams’s application and noted that it was “Williams’s fourth petition for post-conviction relief and all previous petitions [had] in some way concerned his sentencing and [had] been denied.” The supreme court explicitly warned Williams that “[a]ny future frivolous filings ... will result in appropriate sanctions.” We interpret the supreme court’s order to mean that it viewed Williams’s fourth petition for post-conviction relief to be frivolous.

¶ 15. Undeterred, Williams filed a fifth motion for post-conviction relief, which is presently before us on appeal. It appears that, having had no success in obtaining the supreme court’s leave to proceed in the circuit court, Williams attempted to circumvent the supreme court. In addition to finding that Williams’s most recent PCR motion is time-barred and procedurally barred for failure to obtain the supreme court’s leave to proceed in the circuit court, we find his PCR motion is barred as a successive writ.

If 16. There is a three-part test to determine whether a ease filed in forma pauperis should be dismissed as frivolous: (1) whether it has a realistic chance of success; (2) whether it presents an arguably sound basis in fact and law; and (3) whether the proponent can prove any set of facts that would warrant relief. Dock v. State, 802 So.2d 1051, 1056 (1111) (Miss.2001). Williams’s motion never had a realistic chance of success. It was time-barred, barred as a successive writ, and barred because he failed to seek the requisite permission to file it. When an inmate in the custody of the MDOC files a lawsuit that is subsequently dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, that inmate faces the possibility of incurring sanctions. Miss.Code Ann. § 47-5-138(3) (Supp.2007). One potential form of sanctions involves forfeiting sixty days of an inmate’s accrued earned time toward his release. Miss.Code Ann. § 47-5-138(3)(b)(i). That sanction may be assessed by the circuit court or a state appellate court. Miss.Code Ann. § 47-5-138(3)(a).

¶ 17. “Sections 47-5-138(3)(a) and (b) are fully applicable against pro se litigants who seek post-conviction relief.” Dock, 802 So.2d at 1056 (¶ 11) (citation omitted). Despite Williams’s obvious candidacy for sanctions, such an order would have no real effect. Williams was sentenced as a habitual offender under section 99-19-81. As a section 99-19-81 habitual offender, Williams’s sentence cannot “be reduced or suspended nor shall [he] be eligible for parole or probation.” Id. Any inmate sentenced as a habitual offender is not be eligible for earned-time allowance. Miss. Code Ann. § 47 — 5—139(l)(b) (Supp.2007). In other words, Williams has no earned time to forfeit.

¶ 18. Even so, Williams should be aware that:

An inmate shall not bring a civil action or appeal a judgment in a civil action or proceeding in forma pauperis if the prisoner has, on three (3) or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

Miss.Code Ann. § 47-5-76(1) (Supp.2007). As of this opinion, Williams now has two cases resolved as contemplated by section 47-5-76(1).

¶ 19. Additionally, the Mississippi Supreme Court has rendered monetary sanctions against pro se litigants proceeding in forma pauperis. In Ivy v. State, 688 So.2d 223, 224 (Miss.1997), a pro se inmate filed petitions for a writ of mandamus in the wrong court. The supreme court found that the inmate had filed an objectively frivolous filing and that he had filed similarly frivolous petitions in the past. Id. As a result, the supreme court dismissed the inmate’s petitions, sanctioned him $250, and prohibited him from filing any further petitions in forma pauperis until he either paid the $250 sanction or received the supreme court’s permission. Id. And in Reed v. State, 70 So.3d 1174, 1175-76 (¶3) (Miss.Ct.App.2011) this Court affirmed a circuit court’s decision to assess $1,000 in sanctions against a petitioner who filed a frivolous PCR motion. If Williams persists in filing facially frivolous post-conviction pleadings, as an appropriate sanction, a circuit court judge may well be justified in denying Williams’s request for in forma pauperis status. We caution Williams to take note of the possibility of incurring such future sanctions.

¶ 20. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


source: Caselaw Access Project

author: MAXWELL, J., CARLTON, J.,

license: Public Domain

text:
    Kathy LEE, Appellant v. G & K SERVICES, CO., Appellee.
    No. 2010-CA-01103-COA.
    Court of Appeals of Mississippi.
    April 24, 2012.
    Rehearing denied Sept. 25, 2012.

      Elise Berry Munn, attorney for appellant.
    James Lawrence Jones, Everett Eaves White, attorneys for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. Kathy Lee alleges she pricked her finger on a used hypodermic needle while reaching into the pocket of her employee uniform — a uniform recently supplied by G & K Services, Co. (G & K). Lee sued G & K to recover expenses she had incurred in testing for whether she had contracted a disease. She also sought emotional-distress damages for her six-month “window of anxiety” while she awaited test results.

¶ 2. Mississippi does not recognize fear of disease as an actionable injury absent substantial proof of exposure to a disease. Because Lee could not show her fear of contracting a disease was based on actual exposure to a disease, we must affirm the grant of summary judgment in G & K’s favor on Lee’s emotional-distress claim. But we reverse the grant of summary judgment to G & K on Lee’s medical-expense claim, because Lee presented expert testimony that testing for disease is part of standard treatment for a needle stick when the original user is unknown. We remand this case to the circuit court solely on Lee’s claim for medical expenses.

FACTS AND PROCEDURAL HISTORY

¶ 3. G & K provides employee uniforms to various entities, including Lee’s employer, Copiah-Lincoln Community College (Co-Lin). On March 5, 2008, Tim Malone, a G & K representative, delivered uniforms to Co-Lin. Among those uniforms were two jackets for Lee, a Co-Lin maintenance employee.

¶4. Lee claims she placed her hand in the left pocket of one of the jackets and pricked her finger on a used hypodermic needle. Lee alleges she found three used needles and syringes in the jacket’s pocket. Lee took the needles to a doctor and, from March 2008 through September 2008, underwent testing for various diseases, including AIDS and hepatitis. All tests came back negative.

¶ 5. Lee filed suit against G & K on December 31, 2008, alleging negligence and res ipsa loquitur. Lee sought recovery for her medical bills, totaling approximately $700, and for six months of emotional distress due to her alleged fear of contracting a disease, requesting $10,000 per month. G & K filed a motion for summary judgment, arguing Lee had offered no evidence she was actually exposed to the disease and, thus, could not prove she was injured. Lee move for additional time to respond and further discovery.

¶ 6. At a November 16, 2009 hearing, the circuit court decided to hold G & K’s motion for summary judgment in abeyance to allow Lee time to conduct further discovery. Soon after, the parties jointly submitted the syringes and needle for testing by Douglas Crawford, a chemist at the Mississippi State University Chemistry Laboratory. Crawford provided the parties the results of the testing in January 2010, reaching the following conclusions:

(1) the syringes are designed for one-time insulin injections and are supposed to be discarded after use; (2) the reddish-brown substance in one of the syringes was dried blood; and (3) the blood did not indicate the presence of any illicit drugs or toxins. Crawford further expressed the futility of testing for HIV or hepatitis at that point, as the needle should have been tested within days or weeks of exposure and any disease-causing agents were no longer present. Lastly, Crawford confirmed Lee was no longer at risk for contracting a disease and had not been since six months after the needle stick.

¶ 7. On March 3, 2010, G & K renewed its motion for summary judgment due to Lee’s failure to provide sufficient evidence of a compensable claim of emotional distress based on fear of disease. Lee responded to the motion, attaching an affidavit from Dr. Joel Nitzkin. Dr. Nitzkin, a public health physician, described the proper testing protocol following a needle stick. Dr. Nitzkin explained: (1) if the original user and needle-stick victim are both known and the exposure occurs within hours to a few days of the initial contamination, the blood of both is tested; but (2) if the original needle user is not known, the victim’s blood is tested during the six months following exposure. “Either way,” Dr. Nitzkin attested, “the needle itself is never submitted for laboratory analysis” because:

Testing a needle for the presence of such viruses, even in a research setting, would not conclusively confirm or rule out exposure. The needle could test “negative” because the virus died before or after exposure. [And a] “positive” test on material found in or on the hypodermic needle would not confirm that exposure sufficient to transmit illness has occurred.

In Dr. Nitzkin’s opinion, the “protocol of testing the victim for symptoms is the only method to conclusively determine exposure.

¶ 8. At the conclusion of the May 19, 2010 hearing, the circuit court, relying on Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648 (Miss.1995) and South Central Regional Medical Center v. Pickering, 749 So.2d 95 (Miss.1999), held “exposure must be proved either by the presence of a substance on the offending instrument, proof that at some time there was such a substance — for instance, that the instrument had previously been used on a person with a disease — or, third, obviously disease in the plaintiff that can be tied back to the instrument.” The circuit judge found “[n]one of those are present here.... [A]bsent proof of exposure, plaintiff is not entitled to recover on a fear of illness claim.” The court granted G & K’s motion for summary judgment and dismissed Lee’s claims with prejudice.

¶ 9. Lee timely appealed.

STANDARD OF REVIEW

¶ 10. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). ■ “Summary judgment must be granted when the nonmoving party ‘fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.’ ” Kitchens v. Dirtworks, Inc., 50 So.3d 388, 389 (¶ 4) (Miss.Ct.App.2010) (quoting Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (1116) (Miss.Ct.App.2009)).

¶ 11. “We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment.” Id. at (¶ 3) (citing Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002)). In deciding whether summary judgment was proper, we view the facts in the light most favorable to the nonmovant. Id. (citation omitted).

DISCUSSION

¶ 12. “To prevail on a negligence claim, a plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury.” Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 3 (¶ 5) (Miss.2007) (Paz I) (quoting Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 922 (¶ 7) (Miss.2006)). This appeal solely concerns the element of injury. We must decide whether Lee’s fear of contracting a disease from the needle stick — in the absence of proof that the needle exposed Lee to any diseases — is a legally cognizable “injury” such that Lee can potentially recover for the “window of anxiety” between the needle stick and the final negative test results.

¶ 13. Lee argues that inherent in every needle-stick case is a “window of anxiety” between the stick and conclusive test results six months later, which the Mississippi Supreme Court acknowledged in Pickering as a compensable emotional-distress injury. Alternatively, Lee asserts she was physically injured by the needle stick and is entitled to emotional-distress damages tied to her injury. Because part of the protocol following a needle stick is to test for diseases for six months, she claims she should be allowed to also pursue her claim for the emotional distress of waiting for the results of the tests.

¶ 14. According to the supreme court in Pickering and Ferguson, the “window of anxiety” must result from actual exposure to be an actionable injury. And Lee did not present substantial evidence of actual exposure. Though Lee can potentially recover her medical expenses incurred in testing for disease after the physical injury of the needle stick, she cannot recover corresponding emotional-distress damages without proving actual exposure to diseases was part of the physical injury.

I. Emotional Distress Based on Fear of Disease

¶ 15. “Injury” is not synonymous with “harm.” An “injury” is “the invasion of any legally protected interest of another,” while “harm” is “the existence of loss or detriment in fact of any kind to a person resulting from any cause.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 398 (5th Cir.2009) (Paz II) (quoting Restatement (Second) of Torts § 7(l)-(2) (1965)). “[H]arm, like injury, is not necessarily actionable” and “gives rise to a cause of action only when it results from the invasion of a legally protected interest, which is to say an injury.” Id. at 399 (quoting Restatement (Second) of Torts § 7 cmt. d).

¶ 16. Lee’s alleged injury is not that she was exposed to a disease but that she feared she was exposed to a disease — and that her fear was a reasonable, foreseeable result of the needle stick. See Burk v. Sage Prods., Inc., 747 F.Supp. 285, 288 (E.D.Pa.1990) (finding “[pjlaintiff ... has alleged no injury which arises out of his exposure to the AIDS virus[, but rjather, plaintiffs only injuries stem from his fear that he has been exposed to the disease”). We are certainly sensitive to Lee’s allegations that she was harmed — that she feared the needle stick exposed her to diseases like AIDS or hepatitis. But we are bound by the supreme court’s delineation between an actionable versus an un-actionable claim for emotional distress based on fear of disease. The supreme court has held “emotional distress based on the fear of a future illness must await a manifestation of that illness or be supported by substantial exposure to the danger[.]” Ferguson, 662 So.2d at 650 (also requiring “medical or scientific evidence so that there is a rational basis for the emotional fear”). Because Lee did not present substantial evidence of exposure to a disease, we find the circuit court properly dismissed her window-of-anxiety claim. Id.

A. Requirement of Actual Exposure

¶ 17. In “garden variety negligence” cases, such as Lee’s, some type of injury must be proven. Ferguson, 662 So.2d at 658; see Paz I, 949 So.2d at 5 (¶¶ 13-16) (refusing to recognize a cause of action for medical monitoring based on increase risk of disease because the plaintiff would not have to prove an injury to recover).

¶ 18. In Ferguson, the Mississippi Supreme Court considered whether fear of cancer based on exposure to dioxin was a cognizable injury. Ferguson, 662 So.2d at 657-58. The supreme court noted it “has never allowed or affirmed a claim of emotional distress based on a fear of contracting a disease or illness in the future, however reasonable.” Id. at 658. While acknowledging “the Court may someday recognize the tort of infliction of emotional distress based on fear of future disease,” id. at 659, the supreme court reversed the plaintiffs’ emotional-distress award based on fear of contracting a disease because it found “a lack of evidence proving exposure ... to a dangerous or harmful agent[.]” Id. at 658. It held “if one is to recover for emotional distress predicated on potential future illness there must be substantial proof of exposure and medical evidence that would indicate possible future illness.” Id.

¶ 19. Four years later, in a fear-of-AIDS case, the supreme court considered Ferguson’s requirement of substantial proof of exposure and found “it is logical that the standard in Ferguson ... would apply[.]” Pickering, 749 So.2d at 99 (¶ 10). The supreme court considered how other jurisdictions had approached fear-of-AIDS cases. Id. at 99-101 (¶¶ 11-15). It recognized the majority approach required proof of actual exposure to HIV, while the minority view did not mandate actual exposure to maintain a claim based on fear of AIDS. Id. at 100-01 (¶¶ 14-15). The supreme court stated twice in Pickering that it was not overruling Ferguson’s actual-exposure requirement, impliedly categorizing Mississippi as one of the majority of jurisdictions that require proof of actual exposure to HIV to recover for fear of contracting AIDS. Id. at 102 (¶¶ 17, 19).

¶ 20. In Pickering, a hospital nurse attempted to draw blood from Jimmie Pickering with a lancet that had already been used on another patient. Realizing her mistake, the nurse immediately threw the used lancet away. The supreme court found throwing away the lancet “allowed or caused the best evidence to be destroyed, despite the fact that the defendant had notice that a material, factual issue existed regarding that evidence, thereby resulting in the plaintiffs being denied an opportunity to test it[.]” Id. at 102 (¶ 17). The supreme court held a re-buttable presumption of actual exposure arose. Id. But it expressly limited the presumption to the hospital’s actions following the lancet prick. The supreme court emphasized:

Of course where the defendant did not know or have reason to know that the evidence which it discarded was in question and where it was disposed of during the course of usual medical practice, a rebuttable presumption in favor of the plaintiff would not arise. The plaintiff would retain the burden of proving actual exposure.

Id.

B. “Window of Anxiety”

¶ 21. In remanding Pickering’s emotional-distress claim, the supreme court limited her potential recovery, based on the rebuttable presumption of exposure, to her “window of anxiety” — “the time between when Pickering learned of the possible exposure and the receipt of conclusive HIV negative results.” Id. at 103 (¶ 20); see also id. at 101 (¶ 15) (discussing the “window of anxiety” approach followed in Madrid v. Lincoln County Medical Center, 122 N.M. 269, 923 P.2d 1154, 1162 (1996)).

¶22. Lee argues, based on Pickering, the window of anxiety is an exception to the actual exposure requirement. Lee asserts Pickering erroneously presumed, but for the hospital’s throwing the lancet away, the lancet could have been tested to resolve the question of Pickering’s exposure. But here, Lee’s expert opined there was no way to test the used hypodermic needle for conclusive evidence of exposure or non-exposure.

¶ 23. Lee urges that, as a matter of public policy, we declare that fear of disease during the window of anxiety is recoverable in all needle-stick cases because of the inability to prove actual exposure through testing the needle. However, this court, as an intermediate appellate court, is bound by supreme court precedent. And the supreme court in Pickering expressly stated it did not overrule its holding in Ferguson that proof of actual exposure is required. Pickering, 749 So.2d at 102 (¶ 19). In granting Pickering a rebut-table presumption of actual exposure, the supreme court “simply offer[ed] a way for the plaintiff to recover damages brought about by the defendant’s negligence that would otherwise not be recoverable because of the defendant’s subsequent act of blocking the plaintiffs path to a successful case by destroying or disposing of a key element in the plaintiffs case.” Id. Here, Lee does not argue G & K’s actions blocked her path to proving actual exposure by destroying evidence.

¶ 24. Because the limited circumstance described in Pickering is not present, we find the rebuttable presumption of exposure is not applicable. See id. at 102 (¶ 17). Even if the supreme court in Pickering did presume, but for the hospital’s actions, Pickering would have had a way to prove exposure, see id. at 103 (¶ 19), it is not for this court to say that, without this presumption, the supreme court would have overruled Ferguson and removed the plaintiffs burden of showing substantial proof of exposure to recover for emotional distress based on fear of disease. See Ferguson, 662 So.2d at 658.

¶ 25. This notion is solidified when considered in light of the supreme court’s more recent decision in Paz I. In Paz I, the supreme court answered the question, certified by the United States Court of Appeals for the Fifth Circuit, does Mississippi recognize as a cause of action a medical monitoring claim based on an increased risk of future disease. The supreme court responded with a definite “no.” Paz I, 949 So.2d at 3-6 (¶¶ 5-16). Actual exposure was not at issue because the plaintiffs had presented evidence of exposure to beryllium. The question was the existence of a resulting injury. Id. The plaintiffs sought compensation for medical monitoring due to an increased risk of future disease based on their actual exposure:

Though plaintiffs analogize emotional distress actions to medical monitoring actions, the two claims are not analogous. One element of an emotional distress action is that the victim have suffered some injury. Yet, a medical monitoring cause of action, as Plaintiffs present it, would not require an injury be proven.

Id. at 5 (¶ 18) (internal citation omitted). In rejecting medical monitoring as a cause of action, the supreme court explained:

Recognizing a medical monitoring cause of action would be akin to recognizing a cause of action for fear of future illness. Each bases a claim for damages on the possibility of incurring an illness with no present manifest injury. There is no tort cause of action in Mississippi without some identifiable injury, either physical or emotional. Thus, this Court has held that “it is clear that Mississippi does not recognize a cause of action for fear of possibly contracting a disease at some point in the future.” Brewton v. Reichhold Chemicals, Inc., 707 So.2d 618, 620 (Miss.1998) (citing Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 451 (Miss.1997); Ferguson, 662 So.2d at 658 (for the same proposition)).

Id. at 5 (¶ 15).

¶ 26. Though Paz I did not consider Pickering, it did extensively discuss Ferguson, relying on it to hold Mississippi requires a plaintiff to prove an injury. And Ferguson holds that to prove the emotional-distress injury of fear of disease, the plaintiff must present substantial proof of exposure. Ferguson, 662 So.2d at 658. Only then may a plaintiff recover for her window of anxiety. See Majca v. Beekil, 183 I11.2d 407, 233 Ill.Dec. 810, 701 N.E.2d 1084,1091 (1998).

¶ 27. Because Lee cannot show substantial evidence of exposure, we must affirm the circuit court’s dismissal of her window-of-anxiety claim.

II. Needle Stick as a Physical Injury

¶ 28. Lee alternatively argues she is entitled to recover for her window of anxiety because she was physically injured by the needle stick. And because part of the protocol following a needle stick is to test for diseases for six months, she claims she should be allowed also to pursue her claim for the emotional distress while awaiting the test results.

¶ 29. But we point out Pickering involved a physical injury as well — a lancet prick. And, as discussed, Pickering allowed potential recovery for the window of anxiety based on the rebuttable presumption that the lancet prick actually exposed Jimmie Pickering to disease. Pickering, 749 So.2d at 102-03 (¶¶ 17-20). Lee does not claim she feared the needle puncture wound itself would become infected or diseased. Instead, she alleges she feared disease was present in the syringe and traveled via the needle into her body through the puncture wound. See Falcon v. Our Lady of the Lake Hosp., Inc., 729 So.2d 1169, 1172 (La.Ct.App.1999) (categorizing needle stick as a “channel of exposure” to HIV). Absent the presence of disease in the syringe, the type of communicable diseases Lee claims she feared could not develop. Under Pickering and Ferguson, without substantial proof of the presence of disease, Lee cannot recover for fear of contracting a disease. Thus, we find Lee’s needle stick, unaccompanied by proof of disease introduced into her body, is not an actual harm for which parasitic emotional-distress damages for fear of disease are available. See Macy’s Cal., Inc. v. Superior Court, 41 Cal.App.4th 744, 48 Cal.Rptr.2d 496, 504 (1995) (“In a routine needle stick, harm, if it occurs, takes place when a hazardous foreign substance, introduced to the body through the needle, causes detrimental change to the body. Only if the plaintiff proves detrimental change to the body may he or she recover parasitic emotional distress damages.”).

¶ 30. We find, however, Lee can potentially recover for her medical expenses. After the needle stick, Lee sought medical treatment. And Lee’s medical expert agreed that Lee’s physician followed medically accepted protocol by testing her for disease contraction for six months following the needle stick. Thus, we reverse the grant of summary judgment solely as to the denial of her claim for medical expenses. On remand, should Lee prevail on the issues of duty, breach, and causation, she is entitled to recover her proven medical expenses related to her treatment.

CONCLUSION

¶ 31. We affirm the grant of summary judgment against Lee’s claim for emotional-distress damages because Lee did not present substantial evidence that her fear of disease was based on actual exposure to a disease. But we reverse the grant of summary judgment against Lee’s claim for medical expenses incurred in testing her for diseases after her puncture wound, allegedly caused by G & K’s negligence, as Lee presented evidence that these expenses resulted from following standard medical protocol after a needle stick.

¶ 32. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. RUSSELL, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RUSSELL, J.

CARLTON, J.,

concurring in part and dissenting in part:

¶ 33. I concur with the majority’s reversal of the trial court’s grant of summary judgment against Lee’s claim for the medical expenses she incurred in obtaining communicable-disease testing. Lee claims that she incurred these costs for medical testing because a used needle punctured her skin due to the alleged negligence of G & K.

¶ 34. I dissent, however, from the remainder of the majority’s decision. A dispute of material fact exists in this case regarding Lee’s claims for emotional-distress damages, and I respectfully submit that this determination of damages falls within the province of the jury. Therefore, I would also reverse the trial court’s grant of summary judgment as to Lee’s claim for emotional-distress damages she suffered during the six months of communicable-disease testing following the needle puncture. The jury should determine the reasonableness of Lee’s damages, including her emotional-distress damages, since Lee claims that these damages were proximately caused by the needle puncture, an injury.

¶ 35. In response to G & K’s renewed motion for summary judgment, Lee presented the court with an affidavit from Dr. Joel Nitzkin, a public health physician, describing the futility of testing needles for the presence of viruses. Significantly, in his affidavit, Dr. Nitzkin recognized that if the original needle user is not known, then the victim’s blood is to be tested over the six-month period following exposure. However, in granting summary judgment, the trial court in this case found the lack of testing of the needle dispositive even though Lee’s expert, Dr. Nitzkin, opined in his affidavit that following a puncture from a used needle of an unknown user, testing of the victim is required. Jurisprudence has recognized the scientific principle attested to by Dr. Nitzkin, that testing a needle of an unknown user was futile. As such, Lee would have to undergo six months of medical testing. See Brown v. N.Y. City Health & Hosp. Corp., 225 A.D.2d 36, 41, 648 N.Y.S.2d 880 (N.Y.App.Div.1996) (expert testimony submitted showing that HIV cannot live on a surface exposed to air for more than a few hours).

¶ 36. This case differs from the case relied upon by the trial court, Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648 (Miss.1995), in two significant ways. First, Lee suffered an actual physical injury of a puncture by a used needle that she claims proximately caused her injury, whereas in Leaf River, no physical contact was alleged. See id. at 658. Second, Lee seeks damages for the emotional distress she suffered during the six months of communicable-disease testing, and she does not seek the damages sought by the plaintiffs in Leaf River for the fear of contracting future disease. See id.

1Í 37. In South Central Regional Medical Center v. Pickering, 749 So.2d 95, 102 (¶ 17) (Miss.1999), the Mississippi Supreme Court explained that in order to make a prima facie case a plaintiff must establish: (1) “the defendant owed a duty to the plaintiff to protect her from exposure to diseases”; (2) “the defendant breached that duty by negligently allowing or causing a medically recognized instrument or channel of transmission to come into physical contact with the plaintiff’; (3) “the resulting emotional injury was a foreseeable result of that breach”; and (4) “there was, in fact, an emotional injury[,]” (Footnote added). In this case, Lee met this burden, and I submit that the factual question of the reasonableness and foreseeability of her damages belongs within the province of the jury as the finders of fact. See id. at 99 (¶ 9) (“We have before found that emotional distress inflicted either negligently or intentionally is compensable.”) (quotation omitted).

¶ 38. The Pickering court further found that the “window of anxiety” was limited to the time between when the plaintiff learned of the possible exposure and the receipt of conclusive negative test results. Id. at 103 (¶¶ 20-21). Consistent with the window-of-anxiety approach described by the supreme court in Pickering, other jurisdictions have addressed recovery for emotional-distress claims based on a fear of contracting a disease. These jurisdictions similarly have found reasonable the recovery of emotional-distress damages suffered for the six months of testing following a needle puncture. See, e.g., Marchica v. Long Island R.R. Co., 31 F.3d 1197, 1207 (2d Cir.1994); Murphy v. Abbott Lab., 930 F.Supp. 1083, 1087 (E.D.Pa. 1996) (finding recovery permissible for a needle stick); Doe v. Northwestern Univ., 289 Ill.App.3d 39, 224 Ill.Dec. 584, 682 N.E.2d 145, 152 (1997) (“[Pjlaintiffs who fear that they have contracted AIDS because of a defendant’s negligence should recover damages for the time in which they reasonably feared a substantial, medically verifiable possibility of contracting AIDS.”); Madrid v. Lincoln County Med. Ctr., 122 N.M. 269, 923 P.2d 1154, 1163 (1996); Brown, 225 A.D.2d at 48-49, 648 N.Y.S.2d 880 (holding that the defendant’s breach of duty constituted a fact question for the jury, and recovery would be allowed for the plaintiffs emotional-distress claim for the first six months following the needle stick).

¶ 39. “To survive summary judgment, [Lee] needed first to establish the applicable standard or duty of care.” McIntosh v. Victoria Corp., 877 So.2d 519, 523 (¶ 10) (Miss.Ct.App.2004). “Duty and breach of duty are essential to finding negligence and must be demonstrated first.” Id. (citation omitted). In eases of alleged negligent conduct, the standard of care is “whether the party charged with the negligent conduct acted as a reasonable and prudent person would under like circumstances.” Id. at (¶ 11) (citing Hankins Lumber Co. v. Moore, 774 So.2d 459, 464 (¶ 12) (Miss.Ct.App.2000)). “If the conduct of the defendant is reasonable given the foreseeable risks, the defendant is not negligent and there is no liability.” Id. (citation omitted). “The defendant must take reasonable steps to remove or protect against foreseeable risks that he knows about or should know about in the exercise of due care.” Id. (citation omitted).

¶ 40. “Summary judgment is appropriate when ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. at 522 (¶ 7) (quoting Piggly Wiggly of Greenwood, Inc. v. Fipps, 809 So.2d 722, 725 (¶ 9) (Miss.Ct.App.2001)). “Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure.” Partin v. N. Miss. Med. Ctr., Inc., 929 So.2d 924, 928 (¶ 13) (Miss.Ct.App.2005) (quoting Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (¶ 10) (Miss.2001)). We utilize a de novo standard of review when considering a trial court’s grant or denial of summary judgment. Id. “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Id. The burden of demonstrating that no genuine issues of material fact exist is on the moving party. Id.

1Í41. In applying the applicable standard for summary judgment to the facts of this case, I submit that genuine issues of material fact exist sufficient to survive summary judgment. Since damages fall within the province of the jury to determine, I would reverse the trial court’s grant of summary judgment and remand the case for further proceedings.

RUSSELL, J., JOINS THIS OPINION.

      . See also Wilson-Watson v. Dax Arthritis Clinic, Inc., 766 So.2d 1135, 1136 (Fla.Ct.App.2000) (finding “plaintiffs fear of contracting AIDS is unreasonable as a matter of law and not a legally compensable injury ... unless she proves both that the virus was present and that her contact with it was a medically and scientifically accepted channel for the transmission of the disease”); Falcon v. Our Lady of the Lake Hosp., Inc., 729 So.2d 1169, 1172 (La.Ct.App.1999) (holding "when the presence of HIV is not shown (or, at the pleading stage, alleged) ... [fjear in such situations may be genuine but it is based on speculation rather than fact”).

      . The Illinois Supreme Court has held:
      Once an individual is actually exposed to HIV, a genuine fear of contracting AIDS may exist. The subsequent receipt of HIV-negative test results cannot erase an individual’s genuine fear of contracting AIDS during the period between actual exposure and the eventual receipt of HIV-negative test results more than six months later. In fact, defendants' recitation of the current status of medical research emphasizes that there exists a period of time in which the exposed individual will simply not know what the future may hold. This interim period, sometimes referred to as the "window of anxiety,” is when an individual’s fear of contracting AIDS may be reasonable.

        Majca, 233 Ill.Dec. 810, 701 N.E.2d at 1091 (emphasis added).

      . "Proximate cause is defined as the ‘cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.' ” McIntosh v. Victoria Corp., 877 So.2d 519, 523 (¶ 14) (Miss.Ct.App.2004) (citation omitted).

      . The elements of a negligence action are well-settled in Mississippi. A plaintiff in a negligence suit must prove by a preponder-anee of the evidence duty, breach of duty, causation, and injury. McIntosh, 877 So.2d at 522 (¶ 9). To recover, a plaintiff must prove causation in fact and proximate cause. See Jackson v. Swinney, 244 Miss. 117, 124, 140 So.2d 555, 557 (1962). "Foreseeability is an essential element of both duty and causation.” Delahoussaye v. Mary Mahoney's, Inc., 783 So.2d 666, 671 (¶ 13) (Miss.2001).

      . See also Debbie E. Lanin, Note, The Fear of Disease as a Compensable Injury: An Analysis of Claims Based on AIDS Phobia, 67 St. John’s L. Rev. 77 (1993).


author: ISHEE, J.,

text:
    Santanu SOM, D.O., Appellant v. The BOARD OF TRUSTEES OF the NATCHEZ REGIONAL MEDICAL CENTER and the Natchez Regional Medical Center, Appellees.
    No. 2011-CA-00578-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2012.

      Christopher T. Graham, Jackson, E. Taylor Polk, attorneys for appellant.
    Walter Brown Jr., Natchez, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2009, Dr. Santanu Som, a physician employed by the Natchez Regional Medical Center (hospital), was suspended by the hospital’s board of trustees (board) from practicing intra-abdominal surgeries at the hospital. Dr. Som appealed the board’s decision to the Adams County Chancery Court. The chancery court affirmed the board’s decision. Aggrieved, Dr. Som appeals on the grounds that the hospital prevented him from fully defending himself at a hearing regarding his suspension and that the hospital failed to comply with appropriate standards when reviewing his performance of intra-abdom-inal surgeries. Finding no error, we affirm the chancery court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. Dr. Som joined the staff of the hospital on June 10, 2008, as an associate member practicing general surgery. By August 2008, the hospital had received numerous reports from other hospital employees questioning Dr. Som’s pei'formance in intra-abdominal surgeries. Pursuant to the hospital’s medical staff bylaws (bylaws), the hospital’s medical executive committee (committee) ordered a peer review of Dr. Som’s surgical cases.

¶ 3. Shortly after the committee’s peer review had begun, the committee received written complaints regarding Dr. Som’s surgical practices from nurses who had participated in one of his intra-abdominal surgeries at the hospital in November 2008. The complaints were forwarded to the hospital’s chief executive officer (chief). The chief then formed an ad hoc investigative committee (the AHIC) to gather information on Dr. Som’s conduct in intra-abdominal surgeries performed at the hospital.

¶ 4. In February 2009, the committee interviewed Dr. Som. Dr. Som’s interview and the AHIC’s findings were presented to the committee at a hearing on February 27, 2009. The committee then recommended to the chief that Dr. Som’s summary suspension be continued based on quality-of-care and surgical-training concerns. The chief notified Dr. Som by a letter dated March 4, 2009, of the committee’s recommendation. Because the recommendation was adverse to Dr. Som, the bylaws granted him the right to request an appellate hearing on the matter.

¶ 5. Dr. Som retained an attorney and requested a hearing on the proposed continued suspension. Present at the June 2009 hearing were Dr. Som and his counsel; counsel for the hospital, the AHIC, the committee, and the board; six members of the AHIC; and four members of the hospital’s administrative staff. Seven physicians, including Dr. Som, and two nurses were called to testify. Over twenty-five exhibits were entered into evidence.

¶ 6. The bylaws allowed each party the right to cross-examine witnesses at the hearing. During the hearing, Dr. Som requested to personally cross-examine one of the testifying physicians. However, because Dr. Som was also a testifying witness, the committee determined that cross-examination by Dr. Som’s attorney was sufficient to satisfy the bylaws’ provision.

¶ 7. In July 2009, the committee concluded that the suspension of Dr. Som’s clinical privileges to perform intra-abdominal surgeries should be continued. Under the bylaws, Dr. Som sought appellate review by the board. At a hearing in September 2009, the board affirmed the committee’s decision. Dr. Som again appealed to the chancery court on the ground that the committee’s denial of his personal cross-examination of a witness prevented him from fully defending himself and was a direct violation of the bylaws. He also asserted that the hospital failed to adhere to proper standards in its review of his performance in intra-abdominal surgeries. The chancery court affirmed the board’s determination, and Dr. Som now appeals the chancery court’s judgment. Finding no error, we affirm.

DISCUSSION

¶ 8. In reviewing a hospital’s decision to limit a doctor’s privileges, we have held:

No court should substitute its evaluation of such matters for that of the [h]ospital [b]oard. It is the [b]oard, not the court, which is charged with the responsibility of providing a competent staff of doctors. The [b]oard has chosen to rely on the advice of its [m]edical [s]taff, and the court cannot surrogate for the Staff in executing this responsibility. Human lives are at stake, and the governing board must be given discretion in its selection so that it can have confidence in the competence and moral commitment of its staff. The evaluation of professional proficiency of doctors is best left to the specialized expertise of their peers, subject only to limited judicial surveillance. The court is charged with the narrow responsibility of assuring that the qualifications imposed by the [bjoard are reasonably related to the operation of the hospital and fairly administered. In short, so long as staff selections are administered with fairness, geared by a rationale compatible with hospital responsibility, and unencumbered with irrelevant considerations, a court should not interfere.

Lloyd v. Jefferson Davis Mem’l Hosp., 345 So.2d 1046, 1048 (Miss.1977) (quoting Sosa v. Bd. of Managers of Val Verde Mem’l Hosp., 437 F.2d 173, 177 (5th Cir.1971)). Furthermore, Mississippi Code Annotated section 73-25-93 (Rev.2008) provides that hospitals are authorized to “suspend, deny, revoke[,] or limit the hospital privileges of any physician practicing or applying to practice therein, if the governing board ... considers such physician to be unqualified .... ” The statute also provides that such restrictions on privileges must comply with the hospital’s bylaws. As such, our review of the chancery court’s order affirming the board’s determination is very limited. We look to the hospital’s bylaws to determine if the board’s suspension of Dr. Som was permissible.

I. Right to Cross-Examine Witnesses

¶ 9. Dr. Som’s first argument on appeal directly relates to the hospital’s provision under Article 8, Section 5, Bylaw 5.9, which states a physician “shall have the ... right[ ] ... to cross-examine any witness on any matter relevant to the issue of the [committee] [hjearing.” During the committee hearing, Dr. Som requested to personally cross-examine one of the physicians testifying on behalf of the AHIC. The committee denied Dr. Som’s request, but allowed Dr. Som’s attorney to proceed with the cross-examination. Therefore, Dr. Som asserts that his individual right to cross-examine was violated.

¶ 10. At first glance, Dr. Som’s argument appears to have some merit when reading Bylaw 5.9 in solitude. However, preceding Bylaw 5.9 is Article 8, Section 5, Bylaw 5.5, which states: “The affected practitioner ... shall be entitled to be ... represented at the hearing by an attorney.” As in any other civil or criminal matter, the hospital’s bylaws grant an accused the right to be represented by a skilled attorney in the field who acts on behalf of the accused during legal proceedings. Just as a party represented by counsel in any other legal matter may not personally cross-examine a witness at trial, so too do we see logic in not allowing a party represented by counsel to conduct a party led cross-examination during a hospital committee hearing. Party-led examinations and cross-examinations are only proper in cases of pro se litigants. Such logic was reiterated by the hospital in its brief: “Certainly if [Dr. Som] had appeared pro se[,] he himself would have been allowed to conduct his own personal cross-examination.” Accordingly, we find that the hospital adhered to its bylaws during the committee hearing. This issue is without merit.

II. Compliance with Professional Standards Regarding Peer Review

¶ 11. In his second argument on appeal, Dr. Som asserts that the hospital failed to comply with appropriate professional standards in its review and subsequent suspension of him. In support thereof, Dr. Som directs our attention to the following two federal resources: the 1986 Healthcare Quality Improvement Act (HQIA) and the Comprehensive Accreditation Manual for Hospitals (manual) compiled by the Joint Commission on Accreditation and Healthcare Organizations (JCAHO). The HQIA was enacted by Congress to address “[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care .... through effective professional peer review.” 42 U.S.C. § 11101(1), (3) (2006). Likewise, the manual provides that JCAHO’s mission is to protect the public by providing safe, effective, and high-quality healthcare. The manual provides that a “hospital’s governing body has the ultimate authority and responsibility for the oversight and delivery of healthcare rendered by licensed independent practitioners and other practitioners credentialed and privileged through the [hospital].”

¶ 12. Having reviewed the hospital’s bylaws and the provisions laid out by the HQIA, we find the bylaws adhere to the requirements under 42 United States Code section 11112 (2006). In sum, Dr. Som had the right to receive a written statement of charges, a timely notice of a hearing, a fair hearing, the right to produce evidence at the hearing, the right to be represented by counsel during the proceedings, and an appellate process.

¶ 13. Here, Dr. Som was notified by the hospital in writing on two occasions of the charges against him. In the first letter dated January 21, 2009, the charges were outlined and explained. The letter also advised Dr. Som of the hospital’s bylaws allowing the hospital to further investigate the claim while temporarily suspending his surgical privileges with regard to intra-abdominal procedures. The hospital’s second letter to Dr. Som, dated March 4, 2009, again advised him of the charges against him as well as the suspension of his privileges. The letter also reiterated the bylaws providing him with the right to request a hearing and the right to appellate review of the hospital’s decision. After retaining counsel, Dr. Som requested a hearing and was given a tentative hearing date that was rescheduled numerous times at the joint request of all parties. A hearing took place, during which Dr. Som’s counsel was allowed to examine or cross-examine all witnesses and produce evidence. Dr. Som later utilized the appellate process by appealing the committee’s decision to the board, the board’s decision to the chancery court, and the chancery court’s decision to this Court.

¶ 14. Dr. Som takes issue with the right to a fair hearing. He argues that because Dr. Robert Haimson, one of the members of the AHIC, is business partners with Dr. Carl Passman, one of the members of the committee, the committee’s decision was inherently tainted and biased. However, Dr. Som failed to make any objection to Dr. Haimson and Dr. Passman’s involvement until now. Furthermore, Dr. Som has not provided any evidence other than speculation that the business relationship between the physicians rendered the committee’s decision unfair and subjective. Dr. Som’s entire argument on this point merely states: “[T]he peer reviewers on the [AHIC] in-eluded Dr. Haimson, who is the business partner of a member of [the committee] who determined Dr. Som’s case. Dr. Haimson can hardly be described as an unbiased peer to Dr. Som.”

¶ 15. Dr. Som has failed to show how the mere inclusion of Dr. Haimson in the AHIC or the inclusion of Dr. Passman on the committee prejudiced the committee’s decision. Moreover, as a practical matter, we acknowledge the following statement made by the chancery court in its decision: “[T]he community of physicians [in Natchez] is limited. One would have to be realistic, but fair, in disqualifying physicians in this small pool from reviewing his or her peers as to prevent disqualification ... on perceived competition or associations with other physicians.” We agree and find this issue to be without merit.

¶ 16. Dr. Som goes on to argue that an expert hired by Dr: Kenneth Stubbs, Vice President of Medical Staff Affairs at the hospital, to analyze the accusations against Dr. Som on a professional level failed to conduct a proper peer review. Dr. Som bases his argument on the fact that the expert was only given the facts and records from Dr. Som’s intra-abdominal surgeries but was not told Dr. Som’s name. We find it proper for Dr. Stubbs not to have given the expert reviewer any personal information that could identify Dr. Som. In cases such as this, a proper professional peer review by an expert is meant to produce an unbiased opinion on the manner in which medical procedures have been executed. The review should be conducted without any personal feelings regarding the physician.

¶ 17. Additionally, the expert was not the only witness heard at the hearing. Indeed, Dr. Som testified on his own behalf, called witnesses to the stand, and produced evidence in his favor. As such, the hearing allowed Dr. Som ample opportunity to contradict the expert’s conclusions. These factors negated any hypothetical prejudice suffered by Dr. Som due to the expert’s peer review. Nonetheless, we cannot find error in an expert’s peer review of cases on a strictly factual basis. This issue is meritless.

¶ 18. Finally, Dr. Som contends that the committee made a reversible error by failing to review Dr. Som’s intra-abdominal surgeries at Natchez Community Hospital (NCH), a hospital located in the same geographical area. First, while the hospital had the duty to review Dr. Som’s procedures performed at the hospital, we cannot say the hospital had any duty to review Dr. Som’s procedures at other hospitals. The hospital was charged with ensuring the safety of its patients and the quality of care offered at its location based on the practices of the physicians employed by it. Second, the record reflects that documentation of Dr. Som’s in-tra-abdominal procedures at NCH was gathered by the AHIC and submitted to the committee. Accordingly, there is no evidence to contest that the committee reviewed both the records from the hospital and the records from NCH regarding Dr. Som’s practice of intra-abdominal surgeries. This issue is meritless.

¶ 19. Dr. Som makes several other arguments in passing regarding the fairness of the evidence considered during both the committee hearing and the board hearing. However, each argument goes to the weight of the evidence considered by the committee. The scope of our review prevents us from determining whether the weight of the evidence supported the committee’s and the board’s decisions. We are charged with determining whether the hospital complied with its bylaws during the proceedings against Dr. Som. We conclude that the hospital adhered to its bylaws in accordance with the HQIA and JCAHO standards. Dr. Som was provided with a fair hearing at both the committee level and the appellate level with the board. His arguments are without merit.

¶ 20. THE JUDGMENT OF THE ADAMS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., ROBERTS AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT. BARNES AND CARLTON, JJ., CONCUR IN RESULT ONLY.


author: RUSSELL, J.,

text:
    Kimberly Anne COLLINS, Appellant v. Robert Jarrad COLLINS, Appellee.
    No. 2011-CA-01307-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2012.
    Marty Craig Robertson, Jeremy Paul McNinch, Matthew Stanley Easterling, attorneys for appellant.
    Will R. Ford, New Albany, attorney for appellee.

      Before LEE, C.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Robert Jarrad Collins (Jarrad) was granted a divorce based on adultery from Kimberly Ann Collins (Kim) in the Chancery Court of Lee County, Mississippi. Primary physical custody of their son, Robert Connor Collins (Connor), was granted to Jarrad.

¶ 2. The issue on appeal is whether the chancery court erred in placing undue weight on the moral fitness of Kim. According to Kim, she should be granted sole physical custody or the parties should have been awarded joint physical custody. She argues the case should be remanded with instructions regarding the custody and visitation schedule.

¶ 3. Finding no error, we affirm the decision of the chancery court to grant primary physical custody of Connor to Jar-rad.

FACTS AND PROCEDURAL HISTORY

¶4. Kim and Jarrad were married on June 9, 2001. Connor was born on February 26, 2006. Kim and Jarrad separated in June 2010. Kim filed a divorce complaint on June 7, 2010, alleging that she should be granted a divorce on the grounds of habitual cruel and inhuman treatment or, alternatively, irreconcilable differences. Jarrad filed an answer and counter-complaint, alleging that he was entitled to a divorce on the grounds of adultery, habitual cruel and inhuman treatment, and irreconcilable differences as an alternate ground.

¶ 5. The Chancery Court of Lee County tried this case on September 29, 2010, and December 8, 2010. The court entered its memorandum opinion and judgment on March 22, 2011, granting Jarrad a divorce from Kim on the ground of adultery and dividing the property. The Court granted the parties joint legal custody, with primary physical custody to Jarrad. Custody is the only issue on appeal.

¶ 6. Additional facts will be discussed as they relate to the issue raised.

DISCUSSION

¶ 7. “As this Court has stated on numerous occasions, absent an abuse of discretion, we will uphold the decision of the chancellor.” Brekeen v. Brekeen, 880 So.2d 280, 283 (¶ 4) (Miss.2004). “This Court will not disturb the factual findings of the chancellor unless [they] are manifestly wrong or clearly erroneous.” Id. (quoting Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997)). “However, where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error.” Id. (quoting Hollon v. Hollon, 784 So.2d 943, 946 (¶ 11) (Miss.2001)). See Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 8. Mississippi case law has clearly declared time and time again that the polestar consideration in all cases dealing with child custody and visitation is the best interest and welfare of the child. Crider v. Crider, 904 So.2d 142, 144 (¶ 6) (Miss. 2005); Brekeen v. Brekeen, 880 So.2d 280, 283 (¶ 5) (Miss.2004); Woodell v. Parker, 860 So.2d 781, 788 (¶28) (Miss.2003); Sellers v. Sellers, 638 So.2d 481, 485 (Miss. 1994); Moak v. Moak, 631 So.2d 196, 198 (Miss.1994); Albright, 437 So.2d at 1005. Additionally, the Legislature has determined: “Custody shall be awarded as follows according to the best interests of the child: ...” Miss.Code Ann. § 93-5-24(1) (Rev.2004) (emphasis added).

¶ 9. In Albright, 437 So.2d at 1005, the Mississippi Supreme Court outlined the factors to be considered in child custody:

The age of the child ... is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school[,] and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.

¶ 10. In Thurman v. Johnson, 998 So.2d 1026, 1030 (¶ 18) (Miss.Ct.App.2008), this Court held:

We also note that the Albright factors are simply a guide and not a set formula for determining custody.... The supreme court has ruled that “while the Albright factors are extremely helpful in navigating what is usually a labyrinth of interests and emotions, they are certainly not the equivalent of a mathematical formula. Determining custody of a child is not an exact science.” Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001).... We must defer to the decision of the chancellor. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So.2d 1006,1013-14 (¶ 36) (Miss.2003).

¶ 11. As the Mississippi Supreme Court found in Crider, 904 So.2d at 147 (¶ 13), the question of custody “is for the chancellor to determine[,] as he or she is in the best position to evaluate the credibility, sincerity, capabilities and intentions of the parties.” It is clear that the chancellor did not believe Kim’s version of several events.

¶ 12. Kim cites the principle that “marital fault should not be used as a sanction in custody awards.” Brekeen, 880 So.2d at 287 (¶ 20). See also Albright, 437 So.2d at 1005; Smullins v. Smullins, 77 So.3d 119, 129 (¶ 44) (Miss.Ct.App.2011).

¶ 13. Kim admitted to having an adulterous relationship with Austin Haley (Haley). Kim and Haley started seeing each other in October 2008. Jarrad found out about the relationship on July 8, 2009. Photographs were introduced of Kim on a trip to Las Vegas in April 2009, running a marathon in Nashville in 2009 and 2010, and going to Destín, Florida, in May 2010. These trips were without Jarrad or Con-nor. Haley was not in any of the pictures, and there is no indication that Haley was on any of these trips. But Kim admitted to a sexual relationship with Haley in Florence, Alabama; Ridgeland, Mississippi; Birmingham, Alabama; Tunica, Mississippi; and Cullman, Alabama.

¶ 14. Kim testified that she had not seen or talked to Haley since late July or August 2010. However, during Jarrad’s testimony an exhibit was introduced into evidence showing that there were 38 calls between Kim and Haley, totaling 13.5 hours and 1,479 text messages since late July or August 2010. Kim and Haley talked on the telephone three times totaling 81.62 minutes on September 29, 2010, the first day of the divorce trial, according to the exhibit introduced into evidence. The exhibit also showed that there were 7,161 texts and 499 telephone calls totaling 196 hours between Kim and Haley from April 2009 to October 2010.

¶ 15. Kim also made 140 calls to Al-Anon totaling 58 hours since April 2010. Haley is a recovering alcoholic. At the time that Haley and Kim met, he was married with three children. Haley’s wife got a divorce from him on the ground of adultery in 2009, and she got custody of their three children.

¶ 16. Jarrad’s brother, Darren Collins, videotaped Kim and Haley coming out of a hotel in Birmingham, Alabama, on May 16, 2010. A copy of the videotape was introduced into evidence.

¶ 17. Next door neighbor Shelly Boswell testified that in the fall of 2009, she saw a man pushing a motorcycle out of Kim’s garage around 11:00 p.m. and pushing the motorcycle down the street before driving away. Kim contended that the driver of the motorcycle was a delivery man for Palmtree Productions, but Ann Palmer, the owner of Palmtree Productions, testified that she did not know Kim Collins or know any reason that any of her employees would be at Kim’s house at night or any other time.

¶ 18. It appears from the record that Kim’s adultery was important to show how her behavior with the minor child changed during that period. There was testimony that since her involvement with Haley, Kim appeared to be gone more often and was not around Connor as much as Jarrad. Jarrad’s mother testified that Kim had not been a good mother the last two years because Kim put her relationship with another man before her son.

¶ 19. Joe Johnson testified that he works with Jarrad and is familiar with Jarrad’s schedule. Johnson also testified that Jarrad was his company’s pharmaceutical representative of the year in 2006 and 2007. Johnson further testified that Haley, Kim’s lover, was the cause of his own divorce and had an affair with Johnson’s wife in 2008 to 2004.

¶ 20. As in Smullins, the chancellor expressed concern over Kim’s involvement with another man because of its impact on her relationship with Connor. Thus, the chancellor’s findings “were not a sanction against an adulterous parent....” Smullins, 77 So.3d. at 129 (¶ 46).

¶ 21. We find that the record provides sufficient evidence to support the chancellor’s decision to grant Jarrad primary physical custody of Connor. Given our limited standard of review, and the fact that the chancellor’s findings were supported by the record, we cannot say that the chancellor was manifestly wrong or his decision was clearly erroneous. Accordingly, we find that this issue is without merit, and we affirm the chancellor’s judgment.

¶ 22. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J, CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.