source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    Whitney May BONILLA v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT #2, Parish of Jefferson, State of Louisiana, East Jefferson General Hospital
    NO. 16-CA-234
    Court of Appeal of Louisiana, Fifth Circuit.
    December 28, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, WHITNEY MAY BONILLA, Louis L. Plotkin, Rodney P. Vincent, Mark E. Jaffe
    COUNSEL FOR DEFENDANT/AP-PELLEE, JEFFERSON PARISH HOSPITAL SERVICE DISTRICT # 2, PARISH OF JEFFERSON, STATE OF LOUISIANA, EAST JEFFERSON GENERAL HOSPITAL, Conrad Meyer, Charles 0. Taylor
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   CHAISSON, J.

11'Whitney May Bonilla appeals the trial court judgment granting an exception of prematurity filed by Jefferson Parish Hospital Service District #3, Parish of Jefferson, d/b/a East Jefferson General Hospital (“EJGH”), which dismissed without prejudice Ms. Bonilla’s administrative negligence claim against the hospital administrators. For the following reasons, we affirm the judgment of the trial court. FACTS AND PROCEDURAL HISTORY

The facts of the case against EJGH at this interlocutory stage of the proceedings are taken from Ms. Bonilla’s petition for damages, which incorporates the facts set forth in her claim against the hospital and various physicians before a medical review panel. The facts as alleged in the petition are as follows:

Ms. Bonilla was admitted as a patient to EJGH on Saturday, August 31, 2013, with complaints of abdominal pain, nausea, and dizziness. At that time she was 37 weeks pregnant, and her obstetrician, Dr. Christina Goodridge, diagnosed her with chorioamnionitus, a bacterial infection affecting the membranes surrounding the fetus and amniotic fluid. Dr. Goodridge immediately proceeded with a primary Cesarean section, and Ms. Bonilla’s child was delivered on August 31. Ms. Bonilla remained a patient at EJGH for the next four days, during which time she received antibiotic treatment for her infection. While a patient at the hospital, Ms. Bonilla was under the care of two treating physicians: Dr. Goodridge and Dr. Robert Hogan. On August 31, Dr. Goodridge transferred (or “handed off’) care of Ms. Bonilla to Dr. Hogan, who himself transferred care of Ms. Bonilla back to Dr. Goodridge on September 3. Ms. Bonilla was discharged from EJGH on September 4. On September 6, she was again admitted to EJGH and diagnosed with acute sepsis, acute multi-organ failure, and acute septic shock. This diagnosis was confirmed via exploratory laparotomic surgeries on laSeptember 7 and September 10. As a result of the sepsis and toxic shock syndrome, Ms. Bonilla’s hands and feet became gangrenous, and surgeons were forced to amputate her limbs, including her right arm at the mid-forearm, her left hand at the wrist, and both legs below the knee. Ms. Bonilla was discharged from EJGH on October 10 to an inpatient rehabilitation program. After four weeks in the rehab program, she returned to her parents’ home on November 7. Since that time she has been hospitalized on multiple occasions for a variety of setbacks resulting from her amputations.

On June 10, 2014, Ms. Bonilla filed a medical malpractice complaint with the Commissioner of Administration wherein she named as defendants Dr. Goodridge, Dr. Hogan, and EJGH. In that complaint, Ms. Bonilla alleges that the physicians committed malpractice by failing to treat her infection with a proper course of antibiotics, and that the hospital is vicariously liable for the acts and omissions of the EJGH employees and of the physicians.,

On November 12, 2015, prior to the medical review panel rendering its decision on the claims for malpractice, Ms. Bonilla filed a petition for damages against EJGH in the 24th Judicial District Court for the Parish of Jefferson. In her petition, Ms. Bonilla alleges a tort claim sounding in general negligence against EJGH, claiming that before she was ever admitted to the hospital, the EJGH Ijjadministrators had a duty to implement an administrative policy setting forth the procedure for physicians to follow when handing off patients. She alleges in her petition multiple substantial, contributing causes of her catastrophic injuries: the two improper handoffs by the physicians and the administrative failure to adopt a hospital-wide handoff policy. Although EJGH is named as a defendant tortfeasor in both her petition for damages filed in the district court and in her medical malpractice complaint filed with the Commissioner of Administration, and she alleges the same damages in both the petition and the complaint, Ms. Bonilla argues that her claim against the hospital administrators is an independent tort under a theory of general negligence that should be heard and tried separately from the medical malpractice claim. She also states that the negligence claim asserted against EJGH is ripe for judicial determination because the Louisiana Medical Malpractice Act (“LMMA”) does not apply to her claim for administrative negligence.

On December 23, 2015, EJGH filed a dilatory exception of prematurity and peremptory exceptions of no cause of action and no right of action. For the dilatory exception of prematurity, EJGH argued that it is a qualified health care provider under the LMMA and, because Ms. Bonil-la’s claims arise from malpractice, they must first be presented to a medical review panel as required by La. R.S. 40:1231.8(A)(l)(a). For the peremptory exception of no cause of action, EJGH argued that, based on the facts alleged in Ms. Bonilla’s petition, the law does not provide a remedy against EJGH because she alleges that the negligent Uaction took place before she was a patient, a time when there was no legal relationship between the parties.

In response to EJGH’s exception of prematurity, Ms. Bonilla argues (as she did in eonclusory statements in her petition) that her administrative negligence claim against EJGH sounds in general negligence, and is a separate and independent act of negligence from the acts of medical malpractice by the physicians. She therefore argues that her claim against EJGH for administrative negligence falls outside the purview of the LMMA.

A hearing on EJGH’s exceptions was held on February 4, 2016. At the hearing, no evidence was introduced by either party, although under La. C.C.P. art. 930, evidence may be introduced at a trial on a dilatory exception to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. Following argument from both sides on the dilatory exception of prematurity, EJGH withdrew the peremptory exceptions of no cause of action and no right of action. The trial court granted the dilatory exception of prematurity. In its oral reasons for judgment, the court applied the multi-factor test set forth in Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d 303, 315-16, to determine that Ms. Bonilla’s claims sound in medical malpractice rather than general tort, and therefore must first be submitted to a medical review panel pursuant to the provisions of the LMMA. The judgment sustaining the exception of prematurity was amended on February 18,2016, to clarify that Ms. Bon-illa’s claim against [¿EJGH had been dismissed without prejudice, and to designate the judgment as final for purposes of appeal. Ms. Bonilla’s timely appeal followed.

On appeal, Ms. Bonilla asserts that the district court erroneously held that her administrative negligence claim sounded in medical malpractice rather than general tort and improperly granted EJGH’s dilatory exception of prematurity. Ms. Bonilla has also filed a motion to strike the exhibit attached to EJGH’s appellee brief, purporting to be an EJGH handoff policy in effect at the time of her treatment, and EJGH’s arguments related thereto.

MOTION TO STRIKE

We first address Ms. Bonilla’s motion to strike the exhibit attached to EJGH’s appellee brief. Regarding material attached to briefs on appeal, but not introduced at trial, we have previously stated:

Pursuant to La. C.C.P. art. 2164, an appellate court must render judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments, and other rulings, unless otherwise designated. La. C.C.P. arts. 2127 and 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. The appellate briefs of the parties are not a part of the record on appeal, and this Court has no authority to consider facts referred to therein if those facts are not in the record. Examination of exhibits attached to an appellate brief, but not offered into evidence at the trial court, is beyond the scope of our review. Distefano v. B & P Const., Inc., 04-25, pp. 4-5 (La.App. 5 Cir. 5/26/04), 874 So.2d 407, 411, writ denied, 04-1735 (La. 10/15/04), 883 So.2d 1058.

Deutsche Bank Nat’l Tr. Co. ex rel. Morgan Stanley ABS Capital I, Inc. v. Carter, 10-663 (La.App. 5 Cir. 01/25/11), 59 So.3d 1282, 1285.

We find that EJGH’s exhibit, which was attached to its appellee brief, and thus not part of the record, is not properly before this Court and may not be considered on appeal. Accordingly, we grant Ms. Bonil-la’s motion to strike the exhibit attached to EJGH’s appellee brief and its arguments referencing that exhibit.

1 (¡DILATORY EXCEPTION OF PREMATURITY

The dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. La. C.C.P. art. 926; Buford v. Williams, 11-568 (La. App. 5 Cir. 2/14/12), 88 So.3d 540, 543. An action is premature when it is brought before the right to enforce it has accrued. La. C.C.P. art. 423. Under the Louisiana Medical Malpractice Act, a medical malpractice claim against a private qualified healthcare provider is subject to dismissal on an exception of prematurity if the claim has not first been presented to a medical review panel. La. R.S. 40:1231.8(A)(1)(a); LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La. 9/5/07), 966 So.2d 519, 523. The burden of proving prematurity is on the exceptor to show that it is entitled to a medical review panel. Williamson v. Hospital Serv. Distr. No. 1 of Jefferson, 04-0451 (La. 12/1/04), 888 So.2d 782, 785. Accordingly, the question before this Court is whether Ms. Bonilla’s claim as stated in her petition is one of medical malpractice. A case must proceed with the procedure set forth in the LMMA if the claims sound in malpractice, but should proceed under general tort law if the claims sound in negligence. Dupuy v. NMC Operating Co., L.L.C., 15-1754 (La. 3/15/16), 187 So.3d 436, 440. Where no evidence is presented at the trial of a dilatory exception of prematurity, the court must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true; however, this latter principal applies only to properly pleaded material allegations of fact, as opposed to allegations deficient in material detail, conclusory factual allegations, or allegations of law. Hamilton v. Baton Rouge Health Care, 09-0849R (La. App. 1 Cir. 12/08/10), 52 So.3d 330, 333. The issue of whether a claim sounds in medical malpractice is a question of law conducted under a de novo standard of review. Matherne v. Jefferson Parish Hospital Dist. No. 1, 11-1147 (La.App. 5 Cir. 5/8/12), 90 So.3d 534; Buford, 88 So.3d at 544, citing Hernandez v. Diversified Healthcare-Abbeville, LLC, 09-546 (La. App. 3 Cir. 11/4/09), 24 So.3d 284, 285, writ denied, 09-2629 (La. 2/12/10), 27 So.3d 849.

In her petition, Ms. Bonilla makes the following specific allegations of negligence against EJGH:

15.
EJGH’s administrators were negligent in failing to implement an Administrative Policy regarding patient handoffs by physicians before Ms. Bonilla was admitted as a patient. For example:
• EJGH’s administrators failed to adopt and implement a written Administrative Policy governing the process by which patients would be handed off by sending physicians and receiving physicians.
• EJGH’s administrators failed to create a standardized approach to patient handoffs between physicians.
• EJGH’s administrators failed to provide for the development of standardized tools and forms for physicians to use during patient handoffs.
• EJGH’s administrators failed to identify the type of information that the physicians should exchange about the patient in a handoff.
• Instead of implementing a reasonable Administrative Policy, EJGH’s administrators left it up to each physician to decide how to hand off a patient.
21.
The negligence of EJGH’s administrators in failing to implement an Administrative Policy governing patient handoffs between physicians, which led to improper handoffs of Ms. Bonilla, was a substantial contributing cause of her catastrophic injuries.

With regard to the physicians, Ms. Bonilla makes the following allegations:

1.
.. .Ms. Bonilla was subjected to two inadequate and improper handoffs by her physicians while a patient at the Hospital. These improper handoffs were a substantial, contributing cause of Ms. Bonilla’s catastrophic injuries...
The first handoff occurred on Saturday, August 31, 2013... Neither Dr. Hogan nor Dr. Goodridge recall having a conversation, or any other communications, as part of the handoff.
18.
On Tuesday morning, September 3, 2013... Dr. Hogan handed off Ms. Bon-illa to Dr. Goodridge. Again the two physicians do not recall having a conversation, or any other communications, as part of the second handoff.
19.
Due to the negligence of EJGH’s administrators in failing to have an appropriate Administrative policy governing patient handoffs between physicians, Dr. Goodridge and Dr. Hogan were left to decide on their own how to handoff a patient. As to their personal practice, Dr. Hogan and Dr. Goodridge did not provide “specific” information about a patient’s condition, their clinical impression of the patient, or even their diagnosis of a patient’s condition when handing off a patient. Their practice does not comply with the requirements of an appropriate Administrative Policy for patient handoffs between physicians.
20.
Due to the lack of an Administrative Policy, both handoffs of Ms. Bonilla between Dr. Goodridge and Dr. Hogan were unreasonable and inadequate under the circumstances. These improper handoffs were a foreseeable result of EJGH’s administrators’ breach of their duty to implement an appropriate Administrative Policy regarding patient handoffs by physicians.

The Supreme Court has emphasized that the LMMA and its limitations on tort liability for a qualified health care provider apply strictly to claims “arising from medical malpractice,” La. R.S. 40:1231.1(1), and that all other tort liability on the part of the qualified healthcare provider is governed by general tort law. Williamson, 888 So.2d at 786. As a civilian jurisdiction, we look first to the plain language of the statute, and only resort to interpretive analysis when there is some ambiguity. La. C.C. art. 9; McMillian v. Westwood Manor Nursing Home, Inc., 12-54 (La.App. 3 Cir. 5/30/12), 92 So.3d 623, writ denied, 12-1857 (La. 11/9/12), 100 So.3d 839. The LMMA provides the following definitions relevant to our discussion in this case:

“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which | ¡¡should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the pei’son of a patient. “Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.
“Health care” means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.

La. R.S. 40:1231.1(A)(13), (22), and (9). (Emphasis added.)

Under these definitions, we find that Ms. Bonilla’s allegations that she was improperly handed off clearly constitute claims for medical malpractice against her treating physicians, Dr. Goodridge and Dr. Hogan. Ms. Bonilla has alleged that the unreasonable, inadequate, and improper handoffs were substantial and contributing causes of her catastrophic injuries, which would make the handoffs unintentional torts based on health care or professional services rendered, or which should have been rendered, by a health care provider to a patient.

We conclude that Ms. Bonilla’s allegations against EJGH hospital administrators for negligent failure to adopt a han-doff policy also sound in malpractice under these definitions. The legislature amended the definition of malpractice under the LMMA in 2001 to include “all legal responsibility ... arising from acts and omissions ... in the training and supervision of healthcare | inproviders ...” As Ms. Bonilla states in her petition, “E JGH’s administrators left it up to each physician to decide how to hand off a patient.” In other words, Ms. Bonilla alleges that the administrators failed to, by way of a written policy, provide training and supervision of the physicians’ handoffs. Additionally, the adoption of a written handoff policy like the one described in Ms. Bonilla’s allegations would necessarily require the supervision and monitoring of physician-to-physician handoffs of patients to ensure that the standardized tools and forms were being used, and that the necessary information about the patient was being communicated. Furthermore, any physician working at EJGH would necessarily need to be trained to handoff patients according to the standardized approach set forth in an EJGH physician-to-physician handoff policy. Therefore, Ms. Bonilla’s complaint regarding the lack of a handoff policy is a complaint that EJGH failed to provide training and supervision, by way of a written policy, of physicians performing han-doffs in the hospital, and therefore falls squarely within the definition of malpractice under the LMMA.

An analysis of Ms. Bonilla’s claim under the Coleman factors further supports the conclusion that the claim sounds in medical malpractice. However, prior to undertaking this analysis, we note a preliminary general observation regarding the Coleman factors. The basic and pertinent facts in Coleman are that the plaintiff went to the emergency room of one hospital, where the attending physician diagnosed a celluli-tis infection of his left arm, but made the decision to transfer the plaintiff to Charity Hospital for the necessary treatment. After unsuccessful attempts at treatment, the plaintiffs arm was amputated three days later at Charity Hospital. In his claim against the emergency room physician from the first hospital, the plaintiff argued that the decision by this physician to transfer him was strictly an economic decision, rather than a treatment decision, and | ntherefore outside the scope of the LMMA. One of the eventual issues before the Louisiana Supreme Court was whether all of the decisions made by the physician, including the decision to transfer the plaintiff, were decisions related to treatment such that they fell under the purview of the LMMA and its cap on damages. In that factual context, the Court, in concluding that the decision to transfer the plaintiff was part of the physician’s treatment rendered to the plaintiff, articulated six factors that should be considered in determining whether certain conduct by a qualified health care provider constitutes “malpractice” as the term is defined under the LMMA. Thus, the Coleman factors were not initially adopted in the context of analyzing claims of alleged administrative negligence by hospital administrators who, unlike physicians, generally are not directly involved in the hands-on treatment of patients. In analyzing these types of administrative negligence claims, application of the Coleman factors becomes a much more challenging exercise, but one that the Louisiana Supreme Court has nonetheless undertaken in these types of cases. See Williamson, supra; Blevins v. Hamilton Med. Ctr., Inc., 07-127 (La. 6/29/07), 959 So.2d 440; LaCoste, supra; Dupuy, supra; and Billeaudeau v. Opelousas Gen. Hosp. Auth., 16-0846 (La. 10/19/16), _ So.2d _, 2016 WL 6123862, 2016 La. LEXIS 2082.

In Coleman, the Court articulated the six factors as follows:

1. Whether the particular wrong is ‘treatment-related’ or caused by a dereliction of professional skill,
2. Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
3. Whether the pertinent act or omission involved assessment of the patient’s condition,
4. Whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
5. Whether the injury would have occurred if the patient had not sought treatment, and
|126. Whether the tort alleged is intentional.

Coleman, 813 So.2d at 315-316.

Whether the particular imvng is treatment-related or caused by a dereliction in professional skill

This particular factor implicates the issue of causation, with the primary focus being on the alleged act or omission of the tortfeasor. Ms. Bonilla argues that the particular wrong alleged, i.e., not adopting a written handoff policy governing inter-physician communications about a patient’s medical condition, is not directly related to the treatment of the patient and was not caused by dereliction of professional skill. In support of this position, she cites two cases from the Louisiana Supreme Court: LaCoste v. Pendleton Methodist Hosp., L.L.C., supra, and the recent decision in Billeaudeau v. Opelousas General Hospital Authority, supra. We find that both LaCoste and Billeaudeau are distinguishable from the case before us.

In LaCoste, the Court held that a hospital’s negligent failure to design, construct, and/or maintain its facility to provide emergency power to sustain life support systems during and in the aftermath of Hurricane Katrina, and the failure to implement adequate evacuation plans or have facilities available to transfer patients to in emergency or mandatory evacuations, did not directly relate to medical treatment or a dereliction of professional skill within the meaning of the first Coleman factor. LaCoste, 966 So.2d at 525-26. We find LaCoste to be distinguishable from the present case for two reasons. First, the allegations against the hospital in LaCoste related to its operation of the facility itself during a natural disaster, and its failure to provide an adequate facility, either within the hospital itself or at an alternative facility, during that emergency. Whether the physical facility has adequate electricity and water, or whether adequate transportation is provided to evacuate patients to an alternative facility, are not the types of arrangements that require specialized medical knowledge to implement.

haSecond, in LaCoste, there were no allegations of malpractice against any physicians. The plaintiffs only alleged claims of general negligence, and those claims were alleged solely against the hospital administrators. Id. at 521. In the case before us, in addition to the claim made against EJGH for administrative negligence, Ms. Bonilla has also made allegations against her treating physicians that sound in medical malpractice. Of particular importance, in our view, is the fact that the viability of her claim against the hospital administrators is entirely dependent on the existence of the subsequent underlying medical malpractice by the physicians. In other words, if there was no subsequent improper han-doff by her physicians, then the presence or absence of a written policy dictating how physicians handoff their patients is immaterial and irrelevant to Ms. Bonilla’s injury. Absent this crucial link between the alleged administrative negligence of the hospital administrators and the subsequent alleged malpractice of the physicians in transferring Ms. Bonilla, she has no cause of action against the hospital.

While this same inextricable dependency of the administrative negligence claim upon a subsequent act of medical malpractice by the physicians is true of the claims involved in Billeaudeau, we find the claims in Billeaudeau distinguishable from the administrative negligence claim before us because of the difference in the nature of the claims. In Billeaudeau, the plaintiffs brought suit against a hospital for injuries arising from medical malpractice of a doctor who was an independent contractor working in the hospital’s emergency department. Along with the malpractice claims, the plaintiffs specifically alleged that the hospital was negligent in credentialing the doctor. In its application of the Coleman factors to that case, the Court noted that whether or not a particular wrong should be considered inherently “treatment-related” is a factor that can be artfully argued either way. In that case, the Court found that the decision to hire a physician in |uand of itself is administrative and does not directly relate to the treatment of any given patient or involve a dereliction of professional skill. Billeaudeau, 16-0846 at p. 27. The Court stated that “the treatment-related medical decisions and dereliction of skill with which the LMMA is concerned, and for which a hospital can be held liable for malpractice, fall under the ‘supervision and training of the health care providers’ once they enter the building and engage in the practice of medicine therein.” Id.

The case before us does not involve a claim of negligent credentialing. According to Ms, Bonilla’s petition, both Dr. Goo-dridge and Dr. Hogan were credentialed physicians with “privileges” to work at the hospital and practice medicine therein, and both handoffs occurred while the physicians and Ms. Bonilla were in the hospital. Furthermore, the act of credentialing of a physician, which merely allows access to the hospital, does not thereafter dictate to that physician how to practice any aspect of medicine once she is credentialed. To the contrary, the handoff policy in question in this case would specifically dictate to physicians what information they must share with each other concerning a patient’s medical condition when transferring that patient between physicians. Necessarily, any physician practicing medicine in a hospital with such a policy would have to be trained according to the policy, and enforcement of the policy would require supervision and monitoring of the physician’s practice of medicine by the hospital administrators. In our view, the failure of EJGH to enact a handoff policy as suggested by Ms. Bonilla, is the type of treatment-related medical decision for which a hospital can be held hable for malpractice under the “supervision and training of the health care providers” once they enter the building and engage in |1sthe practice of medicine therein. Consequently, not only is the viability of Ms. Bonilla’s cause of action against the hospital administrators entirely dependent on the existence of the subsequent underlying medical malpractice by the physicians, but the complained of administrative negligence of the hospital administrators in failing to enact a handoff policy is specifically directed to instructing physicians on how to provide the very treatment to patients that Ms. Bonilla alleges her physicians negligently provided to her.

Additionally, regarding the “treatment-related” Coleman factor, Ms. Bonilla argues that the administrators’ failure to adopt a policy cannot be directly related to her treatment at EJGH because the negligent omission occurred before she was admitted to the hospital on August 31, 2013. A similar argument was recently addressed by the Supreme Court in Dupuy v. NMC Operating Co., L.L.C., supra. In that case, concerning injuries sustained from a post-operative infection, the plaintiffs filed suit against the hospital alleging, inter alia, that the hospital failed to properly maintain and service all of the equipment used to sterilize the surgical instruments used in Mr. Dupuy’s surgery. In rejecting plaintiffs’ argument under the first Coleman factor, that the injuries were not “treatment-related” because the alleged failure to maintain and service the sterilization equipment occurred before Mr. Dupuy ever entered the hospital, the Supreme Court stated:

[Tjhere is no requirement that an action must be contemporaneous with a patient’s treatment in order to fall under the MMA. Indeed, the MMA itself specifically states that failures in the ‘training and supervision’ of healthcare providers is within the definition of malpractice, and such training and supervision necessarily occur before any treatment. ... Nothing in the statute’s plain language limits its application to direct treatment by a physician. Indeed, the statute includes under the ambit of the MMA injuries that are ‘based on healthcare or professional services rendered ... by a health care provider, to a patient ... ’ La. R.S. 40:1231.1(A)(13). The use of the broad term “health care provider,” rather than simply “physician” or “medical doctor,” necessarily includes actions which are treatment-related and undertaken by the Hospital in its capacity as health care provider— even if those actions are not performed directly by a | ^medical professional.

Dupuy, 187 So.3d at 442.

Like the Supreme Court in Dupuy, we specifically reject Ms. Bonilla’s assertion that the injury at issue must be contemporaneous with the act or omission at issue to fall within the purview of the LMMA. Furthermore, we agree with the finding of the trial court that the existence or absence of a policy regarding patient han-doffs is inherently treatment-related, and that the policy or custom of allowing physicians to determine what information, if any, to exchange during a patient handoff is also treatment-related and a matter of professional skill. Accordingly, we find that analysis under this factor weighs in favor of a finding that the administrative negligence claim against EJGH falls under the purview of the LMMA.

Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached

Ms. Bonilla argues that this factor weighs in her favor'because expert medical testimony would not be required to show' that the hospital breached its standard of care. Instead, she argues that the only expert testimony required would be that of hospital administrators to testify as to whether a handoff policy should have been implemented at EJGH because such written handoff policies are signed by hospital administrators. We disagree with Ms. Bon-illa’s contention. A hospital administrative policy which governs a physician’s practice of medicine is not created in a vacuum, but rather in coordination with the medical staff, including physicians, which develops and adopts bylaws and rules for self-governance of professional activity and accountability to the governing body. See Louisiana Administrative Code 48:1.9321, What constitutes a proper handoff policy would necessarily require expert medical testimony and would be beyond the scope of common knowledge of ordinary laypersons. See, e.g., W.P. & E.P. v. Universal Health Servs. Found., 11-801 (La.App. 5 Cir. 3/27/12), 91 So.3d 1097 (allegations that hospital was negligent in placing a minor psychiatric patient in a room with another psychiatric patient with special medical needs, and in failing to provide appropriate supervision and monitoring of the minor child “involve issues of medical judgment which are treatment-related and are not within the common knowledge and experience of laymen.”); Coleman, 813 So.2d at 317 (allegation of improper transfer of patient from one hospital to another “was not a case in which the alleged wrongful conduct could be evaluated based on common knowledge”).

At a minimum, expert medical testimony will be required to establish the cause of Ms. Bonilla’s infection and consequent catastrophic injuries. See, Dupuy, 187 So.3d at 443. Specifically, if expert medical testimony cannot establish that an improper handoff by Ms. Bonilla’s treating physicians contributed to her injuries, then any testimony by a hospital administrator regarding whether the hospital breached its standard of care by failing to adopt a handoff procedure would not be relevant. Accordingly, we find that analysis under this factor weighs in favor of a finding that the administrative negligence claim against EJGH falls under the purview of the LMMA.

Whether the pertinent act or omission involved assessment of the patient’s condition

Ms. Bonilla argues that the failure to have an administrative policy on patient handoffs between physicians does not involve the medical assessment of Ms. Bonil-la’s condition in any way, but rather, the omission relates exclusively to the policy governing handoffs that should have been in place before Ms. Bonilla was ever a patient. However, Ms. Bonilla's own allegations clearly indicate that an appropriate administrative policy for patient handoffs between physicians includes specific information about a patient’s condition, a clinical impression of the patient, and a diagnosis of the patient’s condition when handing off the patient. All handoffs, and the policies which govern them, involve an assessment of the patient’s condition.

1 laMs. Bonilla also argues that the Court’s holding in Billeaudeau supports her position that an administrative failure to adopt a hospital-wide handoff policy did not involve the assessment of Ms. Bonilla’s condition. However, Billeaudeau may again be distinguished from this case. While a physician’s credentials may be assessed before the physician ever enters the hospital, and independently from that physician’s assessment of a patient’s medical condition, the decision to adopt or not adopt a handoff policy requires a review of the physicians’ practice of medicine inside the hospital, including how physicians assess a patient’s medical condition and what information they communicate regarding that condition. Accordingly, we find that analysis under this factor weighs in favor of a finding that the administrative negligence claim against EJGH falls under the purview of the LMMA.

Whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform

Ms. Bonilla argues that, under this factor, her claim sounds in general negligence because the incident in question, the failure of the hospital administrators to implement a handoff procedure, was beyond the scope of the physician-patient relationship. Again Ms. Bonilla bases her argument on the distinction between the administrative failure to adopt a handoff policy and the actual handoffs by the physicians. The handoffs in question between Dr. Goo-dridge and Dr. Hogan clearly occurred in the context of the physician-patient relationship. It is unclear whether an administrative failure to adopt a policy which would directly affect the physician-patient relationship is “in the context” of that relationship. Under only this part of the fourth factor, it would be difficult to say it weighed in favor of finding the claim sounds in malpractice.

Both parties, however, disregard the other half of this factor; namely, whether a decision to adopt a hospital-wide handoff policy was within the scope of activities which a hospital is licensed to perform. In particular, EJGH, as the |igexceptor, has not pointed to any specific rules adopted by the Louisiana Department of Health and Hospitals pursuant to the Hospital Licensing Law, La. R.S. 40:2100, et seq., which pertain generally or specifically to handoffs between physicians. Accordingly, we find that analysis under this factor does not weigh in favor of a finding that the administrative negligence claim against EJGH falls under the purview of the LMMA.

Whether the injury would have occurred if the patient had not sought treatment

Like the treatment-related Coleman factor, this particular factor also implicates the issue of causation, but with the primary focus being on the alleged injury to the patient and the circumstances under which it occurred. See, Dupuy, 187 So.3d at 445.

Ms. Bonilla argues that if an “overly facile,” “but for” reasoning is adopted in analyzing this factor, then every patient injury in a hospital would be considered malpractice. This is so because every injured patient making a claim against a hospital would, by necessity, have to allege that some act or omission of the hospital staff caused her injury, and no act or omission on the part of the hospital staff would have occurred unless the patient entered the facility. In other words, “[i]n a general sense, any wrong that a patient suffers in a hospital or doctor’s office would not occur if the patient had not first entered the facility.” LaCoste, 966 So.2d at 529. In LaCoste, the Court recognized, however, that despite the necessity of the patient entering the facility, “many claims of medical malpractice resulting from omissions might not qualify as medical malpractice if this factor were applied singly and without relation to the other Coleman factors, because an omission, such as a failure to diagnose, ostensibly leaves a patient in the same position as she would have been in had she never sought treatment in the first place.” Id. Rather than apply a “but for” reasoning, the Court then analyzed this | ^factor in relation to the “treatment-related” Coleman factor, concluding that its finding that the particular wrongs alleged were not treatment-related, and the plaintiffs outcome if she had not sought treatment being unknown, did not weigh greatly in favor of finding the alleged wrongful conduct to be medical malpractice within the confines of the LMMA. Id.

In Billeaudeau, the Court, in quoting this discussion and analysis from LaCoste, stated that it took “... particular guidance from our holding in LaCoste ...” Billeau-deau, 16-0846 at p. 21. The Court concluded that, having found in its first factor analysis that the alleged wrongful conduct was not treatment-related, the fifth factor “ .. .likewise does not weigh greatly in favor of finding the negligent credentialing alleged in the petition was medical malpractice under the LMMA.” Id. (emphasis in original).

In the case before us, Ms. Bonilla’s allegations of negligence are essentially that (1) her physicians failed to properly treat her bacterial infection; (2) that this failure was at least partly due to the physicians’ failure to properly communicate with one another when transferring Ms. Bonilla between physicians; and (3) the failure to properly transfer Ms. Bonilla between physicians was at least partly due to the failure of EJGH to have a handoff policy in place. In the record before us, there is nothing to suggest what the source of Ms. Bonilla’s bacterial infection was, or what her outcome might have been had she not sought treatment at EJGH. It is therefore somewhat difficult to evaluate this factor in the context of this case.

Furthermore, as discussed in our analysis of the treatment-related Coleman factor, we do not find that in a case where the viability of the administrative negligence cause of action is completely dependent upon the existence of a subsequent act of malpractice by a physician, that we can consider the allegation of administrative negligence independently from, and without consideration of, the subsequent act of alleged malpractice.

|2]Following the guidance of the Supreme Court in LaCoste and Billeaudeau to apply the Coleman factors in relation to one another, and having found the alleged administrative negligence of EJGH to be treatment-related under our first factor analysis, and further having found the viability of the administrative negligence claim to be completely dependent upon the existence of a subsequent act of malpractice by the physicians, we find that the fifth factor also weighs in favor of a finding that the administrative negligence claim against. EJGH falls under the purview of the LMMA.

Whether the tort alleged is intentional

Contrary to Ms. Bonilla’s assertion that the sixth Coleman factor is not at issue here because Ms. Bonilla did not allege an intentional tort, this factor is relevant to our determination that her claim arises out of malpractice. Intentional torts are clearly outside the scope of the LMMA. La. R.S. 40:1231.1(A)(13); Buford, 88 So.3d at 548. Had Ms. Bonilla alleged an intentional tort, then that claim would clearly not be considered malpractice. However, because Ms. Bonilla has alleged negligence on the part of the hospital administrators, who are qualified health care providers, this factor weighs in favor of a finding that her claim falls within the purview of the LMMA.

DECREE

We find that Ms. Bonilla’s claim against EJGH for failure to adopt a written physician handoff policy sounds in malpractice both as that term is defined under La. R.S. 40:1231.1(A)(13), and through an application of the Coleman factors. Therefore, the judgment granting the dilatory exception of prematurity and dismissing Ms. Bonil-la’s claim without prejudice is affirmed.

AFFIRMED

      . No mention of improper handoffs is made in the medical malpractice complaint attached as an exhibit to Ms. Bonilla’s petition for damages, It is unknown whether the complaint was amended to place the question of improper handoffs by the physicians before the medical review panel.

      . Specifically, Ms. Bonilla makes the following allegation with regard to defendants’ negligence and her resulting damages in the complaint: "Defendants breached the standard of care ordinarily exercised by obstetricians/gynecologists and hospitals in the following nonexclusive ways: by failing to treat Ms. Bonilla's infection with a long course of intravenous therapy of appropriate broad spectrum antibiotics; by suppressing and masking, but not treating, the infection with only one day of intravenous cefoxitin and five 500 mg doses of cefalcor over a 31-hour period and then discontinuing antibiotics by discharging Ms. Bonilla without a prescription for antibiotic medication; and by failing to treat the infection post-discharge. Had defendants properly treated Ms. Bonilla’s infection, she would not have suffered septic shock and toxic shock syndrome, her amputation and other permanent injuries, and enormous pain and suffering and she would not have incurred massive expenses for past and future medical care and related benefits.”

      . According to Ms. Bonilla, this petition is based on information learned during the course of discovery in the medical malpractice proceedings before the medical review panel.

      . Whether or not Louisiana law recognizes an independent cause of action against hospital administrators for negligent failure to adopt a handoff policy when the plaintiff alleges multiple other substantial, contributing causes (including malpractice by her treating physician) is a question best analyzed on an exception of no cause of action. See Severn Place Assocs. v. Am. Bldg. Servs., 05-859 (La.App. 5 Cir. 04/11/06), 930 So.2d 125.

      . Prior to the enactment of House Concurrent Resolution No. 84 of the 2015 Regular Session, La. R.S. 40:1231.8 was previously designated La. R.S. 40:1299.47.

      . In its application of the Coleman factors, the trial court made the following findings: the existence or absence of a policy regarding patient handoffs is inherently treatment-related and that the policy or custom of allowing physicians to determine what information, if any, to exchange during a patient handoff is also treatment-related and a matter of professional skill; a determination of what information, if any, should have been shared during Ms. Bonilla's handoffs and whether a policy should have been established to guide the sharing of information between her physicians during those handoffs necessarily requires an assessment of her condition at the time in question; expert medical evidence would assist the trier of fact in determining whether the appropriate standard of care was breached in failing to establish a policy regarding the exchange of information between Ms. Bonilla's physicians and whether that absence caused or was otherwise a substantial factor contributing to her injury.

      . It is undisputed that both EJGH and the physicians are "qualified health care providers” as defined in the LMMA.

      . As previously stated, it is unknown whether these claims have been submitted to a medical review panel.

      . Claims were also made against other defendants.

      . We note that in Billeaudeau, the Supreme Court considered the question of whether negligent credentialing fell within the definition of malpractice under the LMMA upon review of a motion for partial summary judgment. In that case, there was additional evidence in the record beyond the plaintiffs’ petition which indicated that the hospital had failed to follow its own bylaws regarding credentialing. As previously noted, in this case, no evidence was admitted at the hearing on the dilatory exception of prematurity.


author: GREENLEE, J.,

text:
    Pearlie WRIGHT Appellant v. R.M. SMITH INVESTMENTS, L.P. Appellee
    NO. 2015-CA-00199-COA
    Court of Appeals of Mississippi.
    08/30/2016
    Rehearing Denied February 7, 2017

      ATTORNEYS FOR APPELLANT: CRYSTAL WISE MARTIN JAMES A. BOBO SUZANNE GRIGGINS KEYS.
    ATTORNEY FOR APPELLEE: JOHN D. BRADY.
    BEFORE LEE, C.J., WILSON AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶1. This is an appeal from Hinds County Circuit Court of a grant of summary judgment and strike of expert testimony after Pearlie Wright was injured when she attempted to retrieve her stolen purse from a moving vehicle while in a parking lot owned by R.M. Smith Investments L.P. (Smith). Finding no error, we affirm.

Facts and Proceedings Below

¶2. On October 18, 2012, Wright went to a store at 1129 West Capitol Street, Jackson, Mississippi. The store is located on property owned and managed by Smith. Wright entered the store, purchased some items, then exited and returned to her vehicle. While Wright was inside her vehicle, an assailant drove onto the parking lot of the property and parked immediately adjacent to Wright’s vehicle. As Wright started her vehicle, the assailant got out of his vehicle, opened Wright’s passenger side door, and grabbed Wright’s purse. The assailant then returned to his car and proceeded to leave the property. As the assailant was leaving the property, Wright got out of her car and went to the assailant’s driver’s side front window. Wright reached into the window in an attempt to retrieve her purse. The assailant continued to drive, causing Wright to be dragged by the assailant’s vehicle. Wright was injured in the process.

¶3. Wright filed suit against Smith based on premises liability, claiming that an atmosphere of violence existed on the property, and that Smith’s failure to employ additional security measures was the proximate cause of her damages. As evidence, Wright produced affidavits of Gerald Jones (Wright’s safety and security expert), as well as incident reports and records of “calls for service” from within a one-mile radius of Smith’s property for the five years preceding the incident. The incident reports and calls for service demonstrated that one incident of violent crime occurred on Smith’s property in the five years preceding the incident.

¶4. In the affidavits, Jones stated that Smith should have taken the minimum security measures to ensure safety on the property, including: “monitored security cameras covering the parking lot and common areas, deterrent signage concerning the presence of security cameras and security, [and] armed security guard(s) on pa-tool in the parking lot, during hours of operation of the stores on the property.” Jones stated that these measures are the minimum standards based on state and national standards and studies. Jones did not cite any source for the measures, standards, or studies referenced, nor did Jones indicate how the measures given would have prevented the incident.

¶5. After discovery, Smith moved for summary judgment, asserting that Wright’s proof did not support her claim that an atmosphere of violence existed on the property, and that the proof failed to demonstrate how additional security measures would have prevented Wright from being injured. Ultimately, the trial court granted Smith’s motion for summary judgment, stating that Wright’s proof of a single violent crime on the property in the five years preceding the incident was insufficient as a matter of law. Further, it stated that Jones’s opinions were insufficient evidence of causation. Smith also moved to strike Jones’s opinions on causation. The trial court granted Smith’s motion to strike Jones’s opinions, stating that Jones’s opinions were speculative concerning causation and, thus, unreliable. After Wright’s motion for reconsideration was denied by the trial court, Wright appealed to this Court.

Discussion

¶6. A trial court’s grant of summary judgment is reviewed de novo. Thrash v. Deutsch, Kerrigan & Stiles LLP, 183 So.3d 838, 841 (¶ 10) (Miss.2016). “Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to [a] judgment as a matter of law.” Id. at 842 (¶ 10) (citing M.R.C.P. 56(c)). The moving party bears the burden to show that no genuine issue of material fact exists, and the evidence must be viewed in the light most favorable to the nonmovant. Id. (citing Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss. 2005)). Our standard of review for the admission or suppression of evidence is abuse of discretion. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss. 2003). The admission or suppression of expert testimony is within the sound discretion of the trial judge, whose decision will stand unless the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion. Id.

¶7. On appeal, Wright argues that Jones’s opinions should not have been stricken and that granting summary judgment for Smith was improper.

I. Expert Testimony

¶8. The Mississippi Rules of Evidence state that expert-opinion testimony is allowable if the testimony is based upon sufficient facts and data, if it is the product of reliable principles and methods, and if the witness has applied the principles and methods reliably to the facts of the case. M.R.E. 702. “The facts upon which the expert bases his opinion or conclusion must permit reasonably accurate conclusions as distinguished from mere guess or conjecture.” McLemore, 863 So.2d at 36 (¶ 8). The proponent of the expert’s testimony must demonstrate that such testimony is not based merely on his subjective beliefs or unsupported speculation. Id. at (¶ 11) (citing Daubert v. Merrel Dow Pharm. Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). The court is not required to “admit opinion evidence connected to existing data only by the ipse dixit of the expert, as self-proclaimed accuracy by an expert [is] an insufficient measure of reliability.” Id. at 37 (¶ 13) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). The reliability of expert testimony is analyzed under the nonexhaustive factors adopted from Daubert v. Merrel Dow Pharmaceuticals Inc., which include (1) whether the expert’s theory can be or has been tested, (2) whether the theory has been subjected to peer review and publication, (3) the known or potential rate of error of a technique or theory when applied, (4) the existence and maintenance of standards and control, and (5) the degree to which the technique or theory has been generally accepted in the scientific community. Inn By the Sea Homeowners’ Ass’n Inc. v. Seainn LLC, 170 So.3d 496, 503 (¶ 17) (Miss.2015) (citing McLemore, 863 So.2d at 37 (¶ 13)).

¶9. Wright asserts that Jones’s expert testimony establishes an atmosphere of violence, that the security measures in place the day of the incident were below the “minimum standard,” and that had Smith had at least the “minimum stan-dardes]” in place, then the incident would not have occurred.

1Í10. Jones stated in his affidavit that the standard of care he referenced is the “national standard,” that the National Standard and the “Mississippi standard” are the same, that anything not meeting that standard is negligent, and that his opinions are to a “reasonable degree of probability, and consistent with [the] prevailing opinion in [his] field.” Further, Jones stated that “[his] opinion testimony set forth herein is based upon sufficient facts or data, is the product of reliable principles and methods[,] and [that he] has applied the reliable principles and methods to the facts of the case.” That is the extent to which Jones established the admissibility of his affidavit as an expert witness.

¶11. Jones failed to articulate what the national or Mississippi standards for property security were, where they came from, or who had established them. He only stated that they were the same. He stated that his opinion was consistent with the prevailing opinion in his field, but failed to identify in any way how that opinion could be established or verified. He stated that his opinion was the product of reliable principles and methods, but failed to articulate what those principles and methods were, how they had been established, or who had established them. He offered no indication that any theory upon which he based his opinions could or had been tested, that a theory had been subjected to peer review and publication, any known or potential rate of error of a related technique or the theory when applied, any existence or maintenance of standards and control, or the extent to which his supposed theory or technique had been accepted in his field. Jones’s affidavit fails to meet the requirements of Daubert and Rule 702, thus making it unreliable. Therefore, we find no merit to Wright’s claim.

II. Summary Judgment

¶12. To recover on a negligence claim, a plaintiff must show that the defendant breached a particular duty owed to the plaintiff, and that the breach of duty proximately caused damages. Kroger v. Knox, 98 So.3d 441, 443 (¶ 13) (Miss.2012). Property owners have a duty to remedy most dangerous conditions on them property and to warn of those they cannot eliminate. Id. That duty to warn or make safe presupposes that the defendant knows, or should know, of the dangerous condition. Id. When the alleged dangerous condition is the threat of an assault, the plaintiff must prove the defendant had either (1) active or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence existed on the premises. Id. at (¶ 14).

A. Atmosphere of Violence

¶13. Wright asserts that Smith had or should have had actual knowledge of an atmosphere of violence on his property, citing “calls for service” and “incident reports” for the past five years covering a one-mile radius from the subject property. In that time, there was one confirmed incident of violence, an armed robbery occurring inside the store more than a year prior to the subject incident.

¶14. In Kroger v. Knox, a case similar to this one, the plaintiff, while in the defendant’s parking lot, was told to hand over her purse by an assailant and, when she did not comply, the assailant pushed her to the ground and proceeded to strike her repeatedly before fleeing with the plaintiffs purse. Kroger, 98 So.3d at 442 (¶ 2). In Knox, as many as four incidents had occurred prior to the one involving Knox's, plaintiff (three purse snatchings and one purse stolen from a ear). Id. at 444 (¶ 20). There, even with several more incidents occurring on the premises prior to the subject incident, the court held that there was insufficient evidence of an atmosphere of violence. Here, only one confirmed incident of violence occurred on the property in the five years preceding the incident involving Wright. Further, the preceding incident was an armed robbery occurring inside the store, while this incident was a purse snatching occurring in the parking lot. We find that this one prior incident falls short of putting Smith on notice that a parking-lot purse snatching upon an invitee was foreseeable. Therefore, we find that Wright’s assertion is without merit.

B. Security Measures

¶15. Wright asserts that had certain minimum security measures been in place on the day of the incident, the incident would have been prevented. In particular, Wright asserts that, had there been cameras covering the parking lot, signage indi-eating cameras, and armed security, then the incident would have been prevented. As evidence of this assertion, Wright proffers the sole opinion of Jones, which did not include any supporting studies, data, theories, tests, or anything else to support his conclusion that the incident would have been prevented if the measures would have been in place. Further, Jones failed to answer the critical question of how the incident would have been prevented. ¶16. The Mississippi Supreme Court has stated that such evidence cannot be used to establish causation. Bennett v. Highland Park Apartments LLC, 170 So.3d 450, 454 (¶ 12) (Miss.2015) (“Our Lymas holding should be understood to hold that a plaintiff may not prove that a premises owner’s failure to provide security measures proximately caused injuries based on cursory and unsupported statements of causation by an expert witness.” (citing Double Quick, Inc. v. Lymas, 50 So.3d 292 (Miss. 2010))). Therefore, we find Wright’s claim is without merit.

Conclusion

¶17. We affirm the ruling of the Hinds County Circuit Court, striking Jones’s expert testimony and granting Smith’s motion for summary judgment.

¶18. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR AND WILSON, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.

      . The trial court found that if Jones's affidavits had been accepted, summary judgment for Smith was still proper.


author: LEE, C.J.,

text:
    Allen GOUL a/k/a Allen Robert Goul, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee
    NO. 2016-CP-00167-COA
    Court of Appeals of Mississippi.
    02/07/2017

      ATTORNEY FOR APPELLANT: ALLEN GOUL (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ANTHONY LOUIS SCHMIDT JR.
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Allen Goul is an inmate in the custody of the Mississippi Department of Corrections (MDOC). In this appeal, we must determine whether the trial court properly affirmed the MDOC’s decision that Goul possessed contraband in violation of prison rules. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Goul was convicted of murder in 1993 and sentenced to life. On March 26, 2015, Goul was found with “spice,” a synthetic cannabinoid, in Area II at South Mississippi Correctional Institution (SMCI). According to the rule-violation report (RVR), Goul admitted to possessing the contraband in violation of the rules. Goul signed the RVR and indicated that he did not waive the right to a hearing but marked that he did not want to call witnesses. After a hearing, the hearing officer determined that Goul had violated the MDOC’s rules against possessing contraband.

¶ 3. Goul appealed through the Administrative Remedy Program (ARP). The MDOC issued a first-step-response form on April 26, 2015, denying Goul’s appeal. On June 11, 2015, Goul filed a petition for judicial review in the Greene County Circuit Court. The trial court affirmed the MDOC’s decision.

¶ 4. Goul now appeals, asserting several issues that we have condensed as follows: (1) his right to confront witnesses was violated and (2) the evidence was insufficient.

STANDARD OF REVIEW

¶ 5. “We will not disturb the decision of an administrative agency, such as the MDOC, unless the decision is ‘unsupported by substantial evidence, arbitrary or capricious, beyond the agency’s scope or powers, or violative of the constitutional or statutory rights of the aggrieved party.’ ” Taylor v. Petrie, 41 So.3d 724, 727 (¶ 8) (Miss. Ct. App. 2010) (quoting Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss. 2001)).

DISCUSSION

¶ 6. We first note the State argues that Goul failed to exhaust his administrative remedies and that his appeal is out of time. The record indicates Goul only completed the first step of the ARP. However, the bottom of the first-step-response letter states, “The above named inmate has fulfilled the requirements of the [ARP] for an RVR appeal and is eligible to seek judicial review within [thirty] days of receipt of the First Step Response.” Goul clearly had the option to appeal to the circuit court rather than complete the remaining steps of the ARP.

¶ 7. In regard to the timeliness of Goul’s appeal, the hearing officer signed and dated the first-step-response letter on April 26, 2015. But the letter does not contain Goul’s signature or the date he received the letter. In his petition for judicial review, filed June 11, 2015, Goul stated he received the letter on May 22, 2015, thereby making his appeal timely. See Miss. Code Ann. § 47-5-807 (Rev. 2015) (“Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure ... may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.”). The State did not contradict Goul’s claim that he received the letter on May 22, 2015; thus, we find his appeal was timely filed. See King v. McCarty, 196 So.3d 175, 177 (¶ 6) (Miss. Ct. App. 2016) (The MDOC bears the burden of proving an appeal was untimely filed.).

I. Right to Confront Witnesses

¶8. Goul argues his right to confront witnesses was violated because his accuser was not named in the RVR. However, the reporting employee’s signature is on the RVR. And the form indicates the reporting employee was a Corrections Investigation Division investigator. Goul also chose not to call witnesses at the RVR hearing. This issue is without merit.

II. Insufficient Evidence

¶ 9. Goul claims the evidence was insufficient to support the violation, and the trial court erred in upholding the MDOC’s decision. However, the RVR indicates that Goul initially admitted to possessing the contraband. The RVR does indicate that Goul later denied possessing the contraband. “There is a rebuttable presumption which favors the agency’s decision!,] and the challenging party has the burden of proving the contrary.” Ross v. Epps, 922 So.2d 847, 849 (¶ 4) (Miss. Ct. App. 2006). We find that Goul has failed to prove that the MDOC’s decision was not supported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers, or violated his constitutional or statutory rights.

¶ 10. The trial court stated, “Nothing has been presented by [Goul] that would lead this Court to disturb the decision rendered by the ARP.” Finding sufficient evidence supported the MDOC’s decision, we can find no error by the trial court in affirming the MDOC’s decision.

¶ 11. THE JUDGMENT OF THE GREENE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: WILSON, J.,

text:
    Kenneth MOORE and Carolyn Moore, Appellants v. Roy D. MCDONALD, Donna R. McDonald and Ruth Belton, Appellees
    NO. 2015-CA-01252-COA
    Court of Appeals of Mississippi.
    02/07/2017

      ATTORNEYS FOR APPELLANTS: JOHN R. REEVES, JOHN JUSTIN KING.
    ATTORNEYS FOR APPELLEES: SAMUEL STEVEN MCHARD, MARCUS ALAN MCLELLAND.
   WILSON, J.,

FOR THE COURT:

¶ 1. This appeal involves a long-running boundary dispute between neighbors in Pearl River County. In 2010, this Court unanimously affirmed the judgment of the chancery court establishing the boundary between the property of Roy and Donna McDonald and Donna’s mother, Ruth Bel-ton (collectively, “the McDonalds”), and the property of Kenneth and Carolyn Moore. Moore v. McDonald, 47 So.3d 1186, 1190 (¶ 17) (Miss. Ct. App. 2010). The judgment also enjoined the Moores from disturbing the McDonalds’ peaceful and quiet enjoyment of their property. In 2013, the Moores willfully violated that injunction by ignoring the boundary established by the judgment; using a tractor and auger to put fenceposts in the McDonalds’ driveway, which rendered the driveway impassable and forced the McDonalds to install a new gate to access their land from another road; tearing down the Mc-Donalds’ fence; uprooting or cutting down numerous large crepe myrtle trees on the McDonalds’ property; littering the Mc-Donalds’ property with debris; and threatening, intimidating, and bullying Donna McDonald. The McDonalds filed a petition for contempt and other relief, and the chancellor found that the Moores were in contempt and awarded the McDonalds compensatory damages, attorneys’ fees and expenses, and $10,000 in punitive damages.

¶2. On appeal, the Moores do not dispute any of the chancellor’s findings. Nor do they dispute that their conduct was malicious and outrageous such that it was appropriate for the court to assess punitive damages and attorneys’ fees. They argue that the chancellor erred by awarding the McDonalds attorneys’ fees incurred in connection with the Moores’ bankruptcy case and attorneys’ fees for the work of more than one lawyer. They also argue that the punitive award exceeds two percent of their net worth, in violation of Mississippi Code Annotated section 11-1-65(3) (Rev. 2014). As we explain below, the chancellor’s award of attorneys’ fees was proper, and the Moores are not entitled to the benefit of the statutory cap on punitive damages because they waived the issue and failed to present any credible evidence of their net worth. Therefore, we affirm.

¶ 3. The Moores do not challenge any of the chancellor’s factual findings, and their brief includes virtually no discussion of the facts or procedural history of the case; accordingly, we discuss the facts and proceedings below only to the extent necessary to address the Moores’ three issues on appeal.

DISCUSSION

I. Attorneys’ Fees Related to the Moores’ Bankruptcy Case

¶ 4. On May 16, 2014, the Mc-Donalds filed a motion for summary judgment supported by exhibits and affidavits. Eleven days later, the Moores filed for bankruptcy.-As a result, all proceedings in the chancery court were stayed and the impending trial was cancelled. Counsel for the McDonalds entered an appearance in the bankruptcy case and filed an adversary complaint to preserve the McDonalds’ claim against the Moores. See 11 U.S.C. § 523(a)(6) (2012) (providing that a debt for “willful and malicious injury” to the person or property of another is not dis-chargeable in bankruptcy). The Mc-Donalds’ counsel also attended the meeting of creditors and filed a motion for sanctions based on the Moores’ alleged misrepresentations in the bankruptcy case. In response to hearing notices in the Mc-Donalds’ adversary proceeding, the Moores appeared before the bankruptcy court and asked that their bankruptcy petition be dismissed. The court granted their request, which permitted the chancery case to proceed.

¶ 5. The chancellor found “that the Moores intentionally stalled [the chancery] action by filing [a petition for] bankruptcy which was dismissed after considerable time and effort by [counsel for the Mc-Donalds].” The chancellor therefore found that “attorney time and expenses expended.... in the Moore bankruptcy case were properly incurred on behalf of the Mc-Donalds and should be awarded as part of the fees and' costs awarded in this case.” On appeal, the Moores do not challenge the chancellor’s factual basis for awarding attorneys’ fees incurred in connection with the bankruptcy case. The Moores’ only argument is that “[t]he Pearl River County Chancery Court was not the appropriate forum to request attorneys’ fees for work related to the bankruptcy.” They argue that approximately $3,975 in fees that the McDonalds incurred related to the bankruptcy proceeding could only be recovered in the bankruptcy court.

¶ 6. The Moores’ argument • is without merit. The Moores do not dispute that the McDonalds were entitled to an award, of attorneys’ fees, and they cite no authority for their argument that such fees are not recoverable simply because they were incurred in a related bankruptcy proceeding. Although not directly on point, our Supreme Court recently held that a state court can award fees incurred in federal court in connection with a motion to remand the case to state court. See O.D. v. Dillard, 177 So.3d 175, 189 (¶ 44) (Miss. 2015). In addition, other courts have held that a state court may award attorneys’ fees incurred in connection with a related bankruptcy proceeding. See Chinese Yellow Pages Co. v. Chinese Overseas Mktg. Serv. Corp., 170 Cal.App.4th 868, 882, 169 Cal.App.4th 1025, 88 Cal.Rptr.3d 250 (Cal. Ct. App. 2009); Gill Sav. Ass’n v. Chair King Inc., 797 S.W.2d 31, 32 (Tex. 1990). Accordingly, we hold that the chancellor did not err by awarding attorneys’ fees related to the bankruptcy case.

II. Attorneys’ Fees for Multiple Attorneys

¶ 7. The Moores next assert that the chancellor “erred by assessing attorneys’ fees ... that cover the costs of more than one attorney.” The Moores argue that Mississippi Supreme Court precedent “clearly sets forth that ... only a sufficient fee to secure one competent attorney may be granted.” In fact, however, our Supreme Court has rejected this very argument. Coleman & Coleman Enters. Inc. v. Waller Funeral Home, 106 So.3d 309, 318 (¶ 27) (Miss. 2012) (“We do not interpret [McKee v. McKee, 418 So.2d 764 (Miss. 1982),] as having held that attorneys’ fees in Mississippi are limited to the fees of only one lawyer.”); see also Upchurch Plumbing Inc.v. Greenwood Utils. Comm’n, 964 So.2d 1100, 1116 (¶ 40) (Miss. 2007) (affirming an award of attorneys’ fees for the work of two attorneys); Mabus v. Mabus, 910 So.2d 486, 490 (¶ 13) (Miss. 2005) (same). The Moores do not identify any duplicative time entries or excessive charges. They make only a broad ai-gument that fees for the work of more than one attorney are not recoverable. This argument is contrary to Supreme Court precedent and thus without merit.

III. Punitive Damages

¶ 8. The Moores do not dispute that their conduct was malicious such that an award of punitive damages was appropriate. Miss. Code Ann. § ll-l-65(l)(a). Their only objection is that the punitive award exceeds two percent of their net worth in violation of Mississippi Code Annotated section 11-1-65(3). See id. § 11—1— 65(3)(a)(vi) (“[N]o award of punitive damages shall exceed ... [t]wo percent (2%) of the defendant’s net worth for a defendant with a net worth of Fifty Million Dollars ($50,000,000.00) or less.”). On appeal, they argue that the chancellor was required to accept at face value their own representations of their net worth and cap punitive damages at $1,268. However, in the court below, the Moores failed to raise the issue of the statutory cap on punitive damages. The Moores also failed to introduce any reliable evidence of their net worth. Accordingly, they were not entitled to the benefit of the statutory cap on punitive damages.

¶ 9. On March 20, 2015, at the conclusion of the hearing on the McDonalds’ contempt petition, the chancellor found that an award of $10,000 in punitive damages would be appropriate. After that hearing, the Moores, who had been proceeding pro se, decided to hire a lawyer. At a hearing on May 8, 2015, the Moores’ recently retained counsel argued that the burden was on the McDonalds to prove the Moores’ net worth before the court could award any amount of punitive damages. Indeed, counsel asserted that “[t]he case law is clear” on this point. At the Moores’ request, the chancellor then continued the case to July 7, 2015, for a hearing on attorneys’ fees and the Moores’ net worth for purposes of assessing punitive damages.

¶ 10. At the July 7 hearing, counsel for the Moores acknowledged that his argument at the prior hearing was mistaken and that proof of net worth is not necessary to support an award of punitive damages. Counsel then argued that either side could offer such evidence, which the court should then consider in assessing punitive damages. However, in all of the proceedings in the chancery court, the Moores never—at any hearing or in any pleading—mentioned the statutory cap on punitive damages or argued that punitive damages must be capped at two percent of their net worth or any other number. “It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of Sup’rs of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936). “Moreover, it is not sufficient to simply mention or discuss an issue at a hearing. The rule is that a ‘trial judge cannot be put in error on a matter which was never presented to him for decision..’ ” City of Hattiesburg v. Precision Constr. LLC, 192 So.3d 1089, 1093 (¶ 18) (Miss. Ct. App. 2016) (quoting Methodist Hosps. of Memphis v. Guardianship of Marsh, 518 So.2d 1227, 1228 (Miss. 1988)). Accordingly, the Moores waived any argument that the chancellor should have applied the statutory cap.

¶ 11. Procedural bar notwithstanding, the Moores also failed to present evidence sufficient to require the chancellor to apply the cap. The only evidence that the Moores introduced of their net worth was a Uniform Chancery Court Rule 8.05 financial statement that they apparently signed on the morning of the hearing. The Moores’ 8.05 statement estimated the value of their home and land as $85,000 with a $22,000 mortgage balance; claimed household goods, furniture, and clothing worth $400; disclosed checking accounts with a combined balance of $325 or less; and listed two vehicles—one worth $5,600 or less with a $5,600 loan, and the other worth $1,500 with an $1,800 loan. The Moores gave a total value of their assets of $0, although the assets listed totaled $63,425.

¶ 12. The Moores claimed that their 8.05 statement was accurate; however, in response to questions by the chancellor, Carolyn Moore admitted that the statement failed to account for the proceeds of the $22,000 mortgage loan, which they had only recently obtained following the hearing on the McDonalds’ contempt petition. Carolyn Moore testified that they had paid their new attorney $5,000 and had budgeted the remaining $17,000 for attorneys’ fees for post-trial motions and appeal. On cross-examination, she testified as follows:

Q. Where is the money, Ms. Moore?
A. Well, I’ve got the money. Don’t worry about that.
THE COURT: Well, you do have to tell—I’m worried about that. Where is the $17,000?
MS. MOORE: My daughter has got it if you want to know the truth about it.
Q. Do you not have any control about how that money is spent?
A. Well, it’s not spent yet so—
Q. Okay. But you didn’t list that on your 8.05, did you?
A. No, I did not list it.
Q. So, in fact, it’s not correct that this financial declaration reflects everything that you have got?
A. Well I guess not.

¶ 13. In addition, the transcript of the meeting of creditors in the Moores’ bankruptcy case indicates that the Moores failed to make a full and complete disclosure of their assets in their bankruptcy filings and may have understated the value of their property or other assets. When questioned about omissions from their bankruptcy filings, Kenneth Moore repeatedly refused to answer or claimed that he had forgotten. The Moores did not introduce their tax returns or the loan application that they had submitted to the Bank of Wiggins only weeks earlier. Instead, they relied solely on their admittedly inaccurate 8.05 statement.

¶ 14. Having heard the Moores’ testimony regarding their net worth, the chancellor made the following findings and observations:

The Court has reviewed the financial statement of the Moores, ... [a]nd finds that it is by their own admission inaccurate. $17,000 that was borrowed and placed with their daughter is not included on the financial statement, and that really puts the whole financial statement into question, in addition to the whole line of questioning ... of Mr. Moore and his dishonesty with the Bankruptcy Court.
The Court has no idea what the value of their property is. I don’t believe that the value is what they say it is. I don’t believe them period. I wish the Appellate Court—because I’m confident that this will be appealed—could sit in this chair and see the snickering periodically of the Moores, both. I remember making a note of that in the initial trial, as well as I have just noted for myself smug looks or at one point, I saw them—Mr. and Ms. Moore—laughing between the two of them while the Court was going on.

After noting some additional questions regarding claims in the Moores’ 8.05 statement, the chancellor concluded that the Moores’ evidence of their net worth was “not sufficient for the Court to disturb its order that the Moores should pay $10,000 in punitive damages.”

¶ 15. The chancellor did not err by reaffirming her $10,000 punitive award. “[P]roof of net worth is not required to award punitive damages. ... [F]or a defendant to mitigate potential punitive damages, it is his responsibility to present proof of his net worth and financial condition.” Woodkrest Custom Homes Inc. v. Cooper, 108 So.3d 460, 469 (¶¶ 41-42) (Miss. Ct. App. 2013) (citing C & C Trucking Co. v. Smith, 612 So.2d 1092, 1102, 1105 (Miss. 1992)); accord Coleman & Coleman Enters., 106 So.3d at 320 (¶ 33). Furthermore, the “evidence must be sufficient to enable the trial court to determine the defendant’s current net worth, according to generally accepted accounting principles.” In re Miss. Medicaid Pharm. Average Wholesale Price Litig. (“AWP Litig.”), 190 So.3d 829, 846 (¶ 40) (Miss. 2015) (opinion of Chandler, J., joined by Kitchens and King, JJ., affirming). The Moores failed to meet their burden. They presented only one self-serving and admittedly inaccurate document of their own creation. Clearly, they did not present “evidence ... sufficient to enable the [chancellor] to determine [their] current net worth, according to generally accepted accounting principles.” Id.

¶ 16. A trial judge is not required to apply the punitive damages cap when, as in this ease, the defendant presents absolutely no credible evidence to support its application. Again, the Supreme Court has made clear that proof of the defendant’s net worth “is not legally necessary ... to support an award of punitive damages.” Coleman & Coleman Enters., 106 So.3d at 320 (¶ 33) (quoting C & C Trucking, 612 So.2d at 1105). So if a defendant relies on the cap, it must present “evidence ... sufficient to enable the trial court to determine [its] current net worth, according to generally accepted accounting principles.” AWP Litig., 190 So.3d at 846 (¶ 40). The Moores failed to provide evidence sufficient to enable the trial court to make such a determination. Given the Moores’ failure of proof, the chancellor was not required to apply the statutory formula based on speculation or guesswork.

¶ 17. In summary, the Moores waived appellate review of their argument regarding the statutory cap on punitive damages. In addition, the Moores provided no reliable basis for the chancellor to apply the statutory cap. Therefore, we affirm the chancellor’s award of $10,000 in punitive damages.

CONCLUSION

¶ 18. For the foregoing reasons, the chancery court did not err by awarding attorneys’ fees incurred in connection with the Moores’ bankruptcy proceeding, fees for the services of more than one attorney, or $10,000 in punitive damages. Accordingly, we affirm.

¶ 19. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., AND GREENLEE, J., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.