GRIFFIS, P.J., for the Court:
¶ 1. This appeal arises from a medical-malpractice wrongful-death claim. The circuit court granted a summary judgment based on the "wrongful conduct" rule. The Appellants argue that the court erred in the application of the "wrongful conduct" rule and erred in the consideration of hearsay statements to decide the summary judgment. We find reversible error and remand for further proceedings.
¶ 2. Defendant COPAC, Inc., doing business as COPAC Addiction Services ("COPAC"), operates a residential drug and alcohol treatment facility in Flowood, Mississippi. The facility is licensed and regulated by the State of Mississippi and listed by the Department of Health as a facility authorized to render such services. Defendant Lloyd Gordon, M.D., is the chief medical director and owner of COPAC. Defendants Bridget Rule, LPN, and Rebecca Osborne, LPN, are nurses at the COPAC facility and were the medical staff present at the times relevant to the claims presented.
¶ 3. On October 7, 2011, Ben Cahn was admitted to COPAC for treatment. The primary purpose for his treatment and inpatient admission was drug and alcohol addiction with a "predisposition for the abuse of prescription medications." Dr. Gordon was Ben's treating physician and was responsible for his care at COPAC.
¶ 4. Ben's stay at COPAC was relatively unremarkable until the weekend of December 14, 2011. On December 14, Nurse Rule noted that Ben was expressing great anxiety regarding his "family." Also, she noted that he became defiant with the staff while taking his "lunch meds." And in the presence of COPAC staff, Ben swallowed many more of his Neurontin medication than his prescription allowed.
¶ 5. After learning of this, Jeff and Laurie Cahn, Ben's parents, traveled from their home in Minnesota to COPAC to visit Ben and speak with his caregivers. On Friday, December 16, 2011, the Cahns took Ben to dinner and then returned Ben to COPAC. Ben refused to get out of their vehicle and insisted on leaving COPAC. The COPAC counselor on duty intervened, and Ben agreed to be transferred from his room to the infirmary, so that he could be monitored more closely. Ben was to remain at COPAC until Monday, when his parents would provide his counselor with a list of alternative treatment facilities for a possible transfer. On December 16, Ben apologized to the counselor and told her to relay a message to his parents that he would agree to remain at COPAC until January 4, 2012.
¶ 6. On Saturday, December 17, 2011, Ben was housed in the infirmary. Dr. Gordon began the day rushing into his office, which was located in the same building and directly across the hall from the infirmary. He was there to get some cheese and turn on his computer. He got the cheese quickly, turned on his computer, "thought" he locked his office door, and left.
¶ 7. Another patient, identified as "C.T.," was also housed in the infirmary on December 17. As part of this appeal, the Cahns have contested the fact that COPAC offered C.T.'s testimony through Dr. Gordon and others, but COPAC has refused to produce C.T.'s records and the "statements" they took from C.T. after Ben's incident. C.T. was transferred to the infirmary due to some behavioral problems. This same weekend, C.T. had stolen some beer from a convenience store off-site, and COPAC placed C.T. back into the infirmary.
¶ 8. After Ben's death, COPAC's director of operations Tom Kepner interviewed C.T. Kepner testified that C.T. said that on the weekend evenings, December 16-17, he and Ben were "running up and down" the halls outside of the infirmary trying to access the offices, and the COPAC nurses "had been trying to chase them back" into their room. C.T. said that they finally broke into Dr. Gordon's office because they "thought it would be the most likely place for there to be something."
¶ 10. From noon until 3:00 p.m., Nurse Rule noted that Ben "complained that he could not urinate" for the UDS. Around 3:15 p.m., she reported that she observed another patient exit the restroom and hand Ben his urine specimen, who in turn presented it to Nurse Rule as his UDS. Nurse Rule confronted Ben and he denied using "substances." Ben, however, continued to complain that he could not urinate. This continued for a several more hours until just prior to the 5:30 p.m. shift change, when Nurse Rule documented that she finally observed Ben give a urine specimen. She then reported that the "10 line drug panel" test performed on Ben's urine "showed [p]ositive BZOs," which can indicate the presence of Valium, Librium, Xanax, and/or other tranquilizers.
¶ 11. Nurse Rule also documented that she had asked two CAs to search Ben's "clothing." But there was no documentation that anyone searched the infirmary room where Ben and C.T. were staying.
¶ 12. COPAC tested two of Ben's urine specimens. The first was collected at 4:31 p.m., but it was not tested by the lab until 6:40 p.m. It tested positive for buprenorphine/ Suboxone. A second specimen was collected at 5:31 p.m., and at 5:47 p.m.; it tested positive for buprenorphine/Suboxone.
¶ 13. Nurse Osborne took over the care of Ben around 5:30 p.m. There was no medical record or "Progress Note" that indicated that she or anyone else was caring for Ben. Nevertheless, the Cahns claim that, as early as 5:47 p.m. and no later than at 6:40 p.m., COPAC was aware that Ben had ingested Suboxone. Ben did not have a prescription for Suboxone, and he was not authorized to have it or to ingest it.
¶ 14. Around 9:45 or 10:00 p.m., COPAC's staff was told by C.T. that Ben was not breathing. They checked on Ben and noted that "[his face was] bluish, black, there was no heartbeat and there were copious amounts of bloody looking secretions pouring from mouth and nose. Bed noted to be soaked from bodily fluids." Ben could not be resuscitated and was pronounced dead at 10:45 p.m.
¶ 15. On September 19, 2012, Jeff and Laurie Cahn, along with David Cahn
¶ 16. On September 20, 2013, Dr. Gordon filed a motion for summary judgment, joined by the other defendants. The Cahns filed a response, and they had also filed motions to compel discovery. The circuit court granted the motion for summary judgment and ruled:
It is from this judgment that the Cahns now appeal.
¶ 17. This Court's review of the grant of summary judgment is de novo. Price, 920 So.2d at 483 (¶ 10). In Price, the court also further defined the standard of review as follows:
¶ 18. The Cahns have asserted claims for negligence and/or gross negligence and wrongful death. The negligence claim is often referred to as a medical-malpractice claim. A medical-malpractice claim requires that the plaintiffs prove there was "a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; a failure to conform to the required standard; and an injury to the plaintiff proximately caused by the breach of such duty by the defendant." Hubbard v. Wansley, 954 So.2d 951, 956-57 (¶ 12) (Miss.2007). The plaintiffs allege that the defendants owed Ben Cahn a duty to exercise that standard of care required of minimally qualified providers of drug and alcohol inpatient rehabilitation services, the defendants breached this duty, and the breach proximately caused or contributed to the death and damages of Ben Cahn.
¶ 19. Dr. Gordon's motion for summary judgment was joined by the other defendants. At the hearing, Dr. Gordon's counsel argued:
The summary judgment did not consider the merits of the Cahns' medical-malpractice claims. It was limited to whether the "wrongful conduct" rule barred the Cahns' claims. The circuit court ruled that "Ben Cahn[ ] illegally obtained, illegally possessed and/or illegally ingested buprenorphine/[S]uboxone, a controlled substance, which was the cause of his death." As a result of Ben's illegal activity, the court barred his wrongful-death beneficiaries' claim for negligence and granted summary judgment. We review the motion de novo.
¶ 20. We begin our review with the question of whether there is a genuine issue of a material fact in dispute. We compare the defendants' itemization of undisputed facts to the Cahns' response (in brackets and italics):
¶ 21. The defendants' motion argues that there were two types of "wrongful conduct" by Ben. First, they claim that Ben committed three separate criminal acts (two acts of larceny and one act of burglary) when he broke into Dr. Gordon's office. The Cahns dispute this factual allegation, and they challenge the admissibility of this evidence that supports the "break in." Second, the defendants contend that Ben committed a crime by the
¶ 22. In Price v. Purdue Pharma Company, 920 So.2d 479 (Miss.2006), Ernest Price alleged that he was injured by ingesting OxyContin and that he was addicted to the drug. Id. at 481 (¶ 1). His complaint named several defendants, including physicians, pharmacies, and pharmaceutical companies. Id. at 481-82 (¶ 3). Price asserted claims for negligence, products liability, malicious conduct, fraud, and malpractice. Id. at 482 (¶ 3). Price argued that OxyContin was addictive, that the addictive nature of the drug caused him injury, and that the defendants were liable to him because they prescribed, distributed, and manufactured the drug. Id. The physicians named as defendants had provided Price medical treatment, and he used several physicians and pharmacies to obtain the drug. Id. at (¶ 4).
¶ 23. The defendants asserted the "wrongful conduct" rule in a motion for summary judgment. The trial court granted summary judgment and the supreme court affirmed. The court ruled:
Price, 920 So.2d at 484-85 (¶¶ 13-14).
¶ 24. The court concluded that "Price's entire claim is wholly rooted in his own transgressions taking place at the time his alleged injury occurred." Id. at 485 (¶ 15). "However, Price's wrongdoing coincides with his claim on a level beyond the mere question of when it took place." Id. Then, the court held:
Id. at (¶ 14). The court then summarized its holding:
Id. at 486 (¶ 17).
¶ 25. The Mississippi Supreme Court first discussed the "wrongful conduct" rule in 1914, in Western Union Telegraph Co. v. McLaurin, 108 Miss. 273, 66 So. 739, 740 (1914). The plaintiff sued Western Union when his relationship with a prostitute was revealed to his mother and the community-at-large by the incorrect delivery of two telegrams. Id. at 739-40. The court held that "[i]f a plaintiff cannot open his case without showing that he has broken the law, a court will not aid him." Id. at 740. The court recognized that the telegraph company "violate[d] its public duties." Id. at 741. Despite this violation, the court barred the plaintiff from recovery because "when it appears [the] plaintiff's right to recovery is based upon his own wrongs, the courts will bring his case to an end and disregard the wrongs of the defendant." Id.
¶ 26. The court also acknowledged the difficulty of the rule's application.
¶ 27. Next, in Illinois Central Railroad Co. v. Messina, 111 Miss. 884, 72 So. 779, 780 (1916), the court determined that the "wrongful conduct" rule did not bar recovery where a man was injured in a train wreck, even though he was present on the train illegally. The court found that the "plaintiff's injuries were not caused or increased by the violation of the law." Id. The court distinguished Western Union and found that, in Western Union, "[i]t was absolutely necessary for the plaintiff to disclose his own wrong in order to make out his case." Id. There, the plaintiff could not prove damages without revealing his immoral and illegal conduct, as the injuries were "self-inflicted." Id. But the court found that the plaintiff in Messina, who was injured in the train wreck, could show all of the essential elements of his case without disclosing his illegal conduct because "the violation of the law did not cause or contribute to the damages." Id. Thus, the "wrongful conduct" rule did not bar the plaintiff's recovery.
¶ 28. In Whitley v. Holmes, 164 Miss. 423, 144 So. 48 (1932), the court did not bar a man from recovery when he was injured in a car wreck while participating in secular work on a Sunday. The defendant argued that the man could not recover because he was violating the statute prohibiting secular work on Sunday when his injury occurred. Id. at 49. The court disagreed, finding "no causal connection between such violation and the negligence" of the defendant. Id. The court went on to say that
Id.
¶ 29. Then, in Meador v. Hotel Grover, 193 Miss. 392, 9 So.2d 782, 786 (1942), the court held that the "wrongful conduct" rule did not bar a plaintiff from recovery when he received his injuries as a result of an elevator accident that occurred as he was going to a prostitute's hotel room. The court ruled that, for a plaintiff to be barred by the rule, the plaintiff's "injury must have been suffered while and as a proximate result of committing an illegal act." Id. at 785. The court reasoned:
Id. at 785-86. Under these facts, the court found "[t]he status of the deceased as a violator of the law" an irrelevant inquiry. Id. at 786. The court found that the "wrongful conduct" rule did not bar the plaintiff's recovery.
¶ 31. Until Price, the supreme court did not consider the "wrongful conduct" rule in a reported decision for almost sixty years. The Cahns urge this Court to abrogate the "wrongful conduct" rule based on Mississippi's comparative-negligence statute, Mississippi Code Annotated section 11-7-15 (Rev.2004). We have found no Mississippi case that considers both the "wrongful conduct" rule and the comparative-negligence statute. However, we do find other informative authorities on this subject.
¶ 32. A leading treatise on torts, Prosser and Keeton on The Law of Torts § 36 (5th ed.1984), states:
¶ 33. West Virginia has rejected the "wrongful conduct" rule. In Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo County, 235 W.Va. 283, 773 S.E.2d 627, 631-32 (2015), the court held:
Further, the court ruled:
Tug Valley, 773 S.E.2d at 636.
¶ 34. This Court has considered other cases where, under the comparative-negligence statute, illegal conduct does not bar recovery. Gen. Motors Co. v. Pegues, 738 So.2d 746 (Miss.Ct.App.1998). In Pegues, the plaintiff sued General Motors after a car wreck, claiming that the ball joint in his truck broke, causing the accident. Id. at 748 (¶ 1). General Motors claimed that the ball joint broke after the car accident, and that the car accident was caused by plaintiff's drunk driving. Id. This Court upheld the jury verdict in favor of the plaintiff because the jury, as the finder of fact, was in the best position to decide what caused the accident. Id. at 757 (¶ 32). The opinion does not indicate whether the "wrongful conduct" rule was asserted by General Motors.
¶ 35. We recognize that there is a conflict in reasoning between the "wrongful conduct" rule and the comparative-negligence statute. However, this Court does not have the authority to overrule or ignore supreme court precedent. Instead, we must interpret it even if we find two doctrines that have some legal contradiction. As a result, we conclude that the "wrongful conduct" rule is an exception to the comparative-negligence statute. And we interpret its applicability to the facts here. We would, however, urge the supreme court to consider and resolve this conflict of legal doctrine.
¶ 36. We view this as a case of first impression. We have found no cases that are factually similar. There are, however, cases with some similarity that merit discussion.
¶ 37. Under Mississippi law, a "hospital is under a duty to exercise reasonable care to safeguard the patient from any known or reasonably apprehensible danger from herself and to exercise such reasonable care for her safety as her mental and physical condition, if known, may require." Miss. Dep't of Mental Health v. Hall, 936 So.2d 917, 923 (¶ 8) (Miss.2006) (quoting Mounts v. St. David's Pavilion, 957 S.W.2d 661, 663 (Tex.Ct.App.1997)). This duty may require the facility to safeguard even against a foreseeable risk of suicide by inpatients under the facility's care.
¶ 38. In Hall, the court considered whether a state mental institution could be held negligent to a patient who was injured when she fell from a third-story window at the institution. The court held:
Hall, 936 So.2d at 922-23 (¶¶ 8-9).
¶ 39. The supreme court then addressed the hospital's argument that the patient's injury was unforeseeable because the room that led to the window was "inadvertently" unlocked. Id. at 924 (¶ 16). The nurses also testified that they did not consider the window to be an escape risk and did not think a plaintiff would use the window to escape. The hospital argued that negligence required that the injuries be "reasonably foreseeable." Id. (citing Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143 (Miss.2004)). Hall argued that the fact that an injury rarely occurs, or has never happened, is insufficient to protect the actor from a finding of negligence. Hall, 936 So.2d at 924 (¶ 14) (citing Gulledge v. Shaw, 880 So.2d 288, 293 (Miss. 2004)).
¶ 40. The court concluded that there was sufficient evidence to support the trial court's finding of negligence. Hall, 936 So.2d at 924 (¶ 15). The trial judge determined that Hall's attempts to escape and her injury were foreseeable. A psychiatrist on staff at the hospital testified "that it is common knowledge that patients will try to climb out windows." A nurse testified "that any rooms where patients could be present without supervision should have security screens on the windows." Hall's treating physician also testified that "mental hospital staff should know that psychiatric patients will attempt to escape." Id. The court concluded that the hospital "had a duty to keep unsupervised rooms locked, to place safety screens on windows in unsupervised areas, and to monitor patients'
¶ 41. When we consider how Price and Hall affect the decision in this case, we recognize that Hall, and the cases cited therein, implies that an inpatient's "wrongful conduct" is not a defense to a negligence claim when the defendant facility has a legal duty to safeguard the inpatient from that very conduct. A number of courts in other states have made this point expressly in various contexts.
¶ 42. We turn to the consideration of this case.
¶ 43. The Cahns argue that there was a genuine issue of a material fact in dispute as to how Ben obtained the Suboxone. However, they do not dispute that Ben had Suboxone in his system at the time of death and that he did not have the legal right to this controlled substance. Thus, we find that there is no genuine issue of material fact that Ben violated the law through the possession of Suboxone without a prescription.
¶ 44. We consider whether the "wrongful conduct" rule bars the Cahns' claims based on Ben's apparent criminal activity in the possession of a controlled substance and whether the proof was sufficient to grant summary judgment. The defendants argue that the "wrongful conduct" rule looks only at Ben's illegal actions.
¶ 45. The Cahns argue that the defendants' "negligent or criminal acts" must also be considered. The Cahns identify three separate negligent or criminal acts by the defendants.
¶ 46. First, the Cahns argue that COPAC, as a medical facility that houses, monitors, treats, and secures drug addicts, voluntarily assumed a number of duties relative to Ben Cahn who, as COPAC knew, had a propensity for prescription-drug abuse.
¶ 47. Second, the Cahns argue that COPAC and Dr. Gordon illegally possessed and stored the Suboxone, which Ben ingested and which caused his death. The Cahns claimed that Dr. Gordon criminally and negligently possessed the drug; criminally and negligently stored it in the unlocked drawer of his desk in his office across the hall from the infirmary where Ben was housed; and, on the day prior to the fatal ingestion by Ben, Dr. Gordon likely forgot to engage the deadbolt to his office when he rushed in on Saturday morning to secure some cheese that needed to be refrigerated.
¶ 48. Third, the Cahns argue that once COPAC knew that Ben had ingested Suboxone
¶ 49. COPAC was not obligated to admit or provide medical care and treatment for Ben. COPAC assumed this obligation when it accepted payment and admitted him to the facility. The defendants were well aware that Ben had a propensity for abusing controlled substances. With knowledge of his propensity for illegal conduct, COPAC and the defendants accepted responsibility for the medical care and treatment of Ben and had a duty to safeguard him from controlled substances.
¶ 50. The defendants' motion for summary judgment does not challenge the Cahns' ability to present a prima facie case as to duty, breach of duty, and proximate cause. So it is not necessary that we closely examine the duties owed or whether there was a breach. Instead, it is important to realize that the standard of care was based on the proper care and treatment of a prescription-drug addict by a drug-treatment facility and its medical staff.
¶ 51. The Cahns argue that the "wrongful conduct" rule does not apply to their claim that the defendants were negligent, i.e., committed medical malpractice, in their care and treatment of Ben after they learned that he had ingested Suboxone. It was certainly foreseeable for a drug-treatment facility to expect its residents, who are there for their addiction to controlled substances, will attempt to secure controlled substances for their use while at the facility.
¶ 52. The defendants owed Ben a duty to treat such foreseeable events in a non-negligent manner. Thus, the first question is whether the "wrongful conduct" rule, as a matter of law, bars the Cahns' claims that COPAC had a duty to use reasonable care to assess, monitor, and treat Ben on Sunday, December 18, 2011, after his first urine sample indicated the presence of Suboxone. We find Meador v. Hotel Grover controlling.
¶ 53. F.L. Meador brought a wrongful-death action, on behalf of Herman Meador. Meador, 9 So.2d at 784. Herman went to the Hotel Grover for an illegal purpose — to use the services of a prostitute. The Hotel Grover gave permission to prostitutes to use the hotel to conduct business. At the hotel, Herman used the elevator. It malfunctioned, and Herman was fatally injured when he was crushed between the floors. Meador, 9 So.2d at 784. The court ruled:
Id.
¶ 54. Defendant Sam Deloach told the night clerk "that Meador had been seriously injured by the elevator." The clerk called the police and asked for officers to come to the hotel. When the officers arrived, the clerk motioned to Herman and said, "There he is, passed out." She directed that Herman be removed. The officers mistakenly thought that Herman was drunk and did not understand he had been
Id. The court also ruled that "[p]utting aside the question whether the hotel as so operated must be viewed in the light of such status, we come at once to the question whether the deceased was injured while and as a result of engaging in an illegal act." The court held:
Meador, 9 So.2d at 786 (emphasis added).
¶ 55. We find that the "wrongful conduct" rule does not, as a matter of law, bar the Cahns' claims that COPAC had a duty to use reasonable care to assess, monitor, and treat Ben on Sunday, December 18, 2011, after his first urine sample indicated the presence of Suboxone.
¶ 56. The Cahns also argue that the "wrongful conduct" rule does not excuse the defendants' negligent, and certainly not their criminal, acts. They claim that Price does not apply because COPAC was aware that Ben was a drug addict and it knew he had a propensity for prescription-drug abuse. Thus, it accepted Ben as a patient with knowledge of the very illegal activity that it now claims bars his action. Also, the Cahns contend that a different result is necessary because, but for COPAC's and Dr. Gordon's criminal actions, Ben would not have been able to ingest the Suboxone.
¶ 58. Dr. Gordon testified that, in or around the year 2003 or 2004, a COPAC nurse (at Dr. Gordon's request) gave Dr. Gordon multiple sheets of expired Suboxone rather than properly disposing of the drug as required by law. Dr. Gordon claimed that he dispensed the drugs to indigent patients for several years until around 2006, 2007, or 2008 "maybe." Though he stopped this practice at some unspecified period between 2006 and 2008, for some reason the drugs remained in Dr. Gordon's unlocked desk drawer for several years until he discovered, on December 19, 2010, following Ben's death, that the drugs were missing. Since he kept no inventories of the drugs (in violation of state and federal laws) and kept no records of how much he dispensed or to whom he dispensed the drugs (in violation of state and federal law), Dr. Gordon could only estimate or speculate that he had four or five pads of the drugs containing about thirty pills per pad. In fact, Dr. Gordon admitted that his handling of Suboxone in this manner was in violation of applicable rules and regulations.
¶ 59. The Cahns claim that Suboxone is a Schedule II controlled substance and is subject to state and federal law. See Miss. Code Ann. § 41-29-117(A)(g) (Rev.2013). Thus, any physician (Dr. Gordon) or medical provider (COPAC) that possesses and distributes Suboxone is subject to the Controlled Substances Act and must procure a license from the Drug Enforcement Administration. See 21 C.F.R. § 808, et. seq.
¶ 60. Further, because Dr. Gordon and COPAC were in possession of Suboxone, they were subject to strict inventory-control requirements and storage requirements. See 21 C.F.R. § 1304.11(a) ("Each inventory shall contain a complete and accurate record of all controlled substances on hand ...."); 21 C.F.R. § 1301.71(a) ("All [licensees] shall provide effective controls to guard against theft and diversion of controlled substances"); 21 C.F.R. § 1301.75(b) ("Controlled substances listed in Schedules II, III, IV, and V shall be stored in a securely locked, substantially constructed cabinet."). The failure to follow these regulations may expose the offender to civil penalties as strict liability and criminal sanctions for knowing or intentional violations. See 21 U.S.C. § 843(a)(4)(A) (2012) ("It shall be unlawful for any person knowingly or intentionally — to ... omit any material information from ... any application, report, record, or other document required to be made, kept, or filed under this subchapter or subchapter II of this chapter"); 21 U.S.C. § 843(d)(1) (2012) ("Except as provided in paragraph (2), any person who violates this section shall be sentenced to a term of imprisonment of not more than 4 years, a fine under title 18, or both[.]").
¶ 61. In addition, COPAC, as a facility licensed to dispense medications, is governed by regulations promulgated by the Mississippi Board of Pharmacy and authorized by the empowering statute of Mississippi Code Annotated section 73-21-81 (Rev.2012). Those regulations mandate that controlled substances shall be "maintained in a manner to deter loss by theft or burglary." MBP Regulations, Art. XXIV. Article XXIV(2)(B) specifically provides:
Part 2(C) further provides that "expired medication must be secured." Similarly, Article XXV of the Mississippi Board of Pharmacy regulations requires that any and all controlled substances be subject to an annual inventory. Pursuant to Mississippi Code Annotated section 41-29-141 (Rev.2013), Dr. Gordon and COPAC are subject to civil penalties for refusal or failure "to make, keep or furnish any record, notification, order form statement, invoice or information required under this article."
¶ 62. We recognize that the "wrongful conduct" rule is premised on Lord Mansfield's conclusion that "[n]o Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act." Price, 920 So.2d at 484 (¶ 13). There was no allegation in Price that the defendants had committed any illegal acts. Indeed, in the Mississippi cases that have considered the "wrongful conduct" rule, it does not appear that the defendants were engaged in "immoral or illegal acts." Meador v. Hotel Grover was the exception.
¶ 63. The Cahns have also argued that, even if the "wrongful conduct" rule is applicable, this Court should apply the "culpability exception."
¶ 64. In Morrison v. McCann, 301 F.Supp.2d 647 (E.D.Mich.2003), a federal court applied Michigan law and invoked the "culpability exception" to the "wrongful conduct rule." The plaintiff sued her former attorney for legal malpractice for his mishandling of the plaintiff's medical-malpractice claim against her former psychiatrist. Id. at 649. The psychiatrist had a sexual affair with his married patient (the plaintiff), and it ruined her family life. The attorney-defendant filed a motion for summary judgment. The defendant argued that adultery was a felony under Michigan law. Therefore, the plaintiff was barred from recovery under the "wrongful conduct rule." Id. at 656.
¶ 65. The federal court ruled "this dog will not hunt." Id. The court then weighed the wrongful conduct of the psychiatrist against the felonious, i.e., adulterous, acts of the plaintiff to determine whether to apply the "culpability exception" to the wrongful conduct rule. The court ruled that "[t]he culpability exception to the wrongful conduct rule exists where, although both parties engaged in illegal behavior, the parties are not equally culpable, and the defendant's culpability is greater than the plaintiff's." Id. at 658 (citations omitted). The court applied the exception and rejected the "wrongful conduct" rule. The court gave significant weight to the fact that the psychiatrist was the plaintiff's physician when the affair began and that the plaintiff was in a vulnerable state. Though the plaintiff indeed committed a felonious adulterous act and while Michigan recognized the "wrongful conduct" rule, the court determined that the application of the rule under such circumstances would be wrong because of the bad acts of the psychiatrist. Id. at 659-60. We merely mention the "culpability exception" to the "wrongful conduct" rule. We do not adopt it in Mississippi law or in this case.
¶ 66. Here, we recognize that Ben was at COPAC for treatment for his propensity for prescription-drug abuse. COPAC was paid to assist and treat Ben to help him overcome his drug addiction. As discussed
¶ 67. We are also persuaded by the following ruling in Price:
Price, 920 So.2d at 485 (¶ 14).
¶ 68. We find that Ben Cahn's death and the Cahns' claims are not wholly rooted in Ben's own transgressions taking place at the time his alleged injury occurred. Further, we find that the Cahns' claims do not absolutely require the essential aid from Ben's own misdeeds to establish their claims. Ben's violation of the law was merely a condition, and not an integral and essential part of his case. As a result, we do not find it necessary to consider the "culpability exception."
¶ 69. To be clear, we do not find that the Cahns are entitled to a judgment as a matter of law. Further, we do not find that the Mississippi comparative-negligence statute abrogates the "wrongful conduct" rule. Instead, our ruling is limited to the conclusion that the "wrongful conduct" rule does not bar the Cahns' medical-malpractice claims.
¶ 70. We reverse the summary judgment and remand the case for further proceedings.
¶ 71. The Cahns also argued that the defendants waived the affirmative defense of the "wrongful conduct" rule. Based on the finding above, this issue is moot.
¶ 72. The Cahns also argue that the trial court manifestly abused its discretion in disregarding their motions to compel. To assist in the efficient resolution of this case, we also address this issue.
¶ 73. To support their motions for summary judgment, the defendants offered the affidavit of Dr. Gordon and the deposition of Tom Kepner. Both of which discussed the hearsay statements made by Ben's roommate C.T., who is now deceased. Apparently, COPAC or Dr. Gordon has actual statements made by C.T. and has withheld the actual statements from production to the Cahns during discovery. The Cahns filed two motions to compel, but the trial court did not consider these motions before
¶ 74. The statements by C.T. appear to be relevant and crucial to the resolution of this litigation. The defendants claim that the statements made by various employees, which were part of the COPAC peer review/quality assurance process, lost their privileged status if they ever were produced in discovery.
¶ 75. COPAC relies on Claypool v. Mladineo, 724 So.2d 373 (Miss.1998), to withhold these documents. It claims that any materials submitted to a quality-assurance or risk-assessment committee are privileged. The Cahns claim that COPAC should not have been allowed to use Claypool as a shield to refuse to disclose relevant and material information, specifically statements by those staff members who were present on the night of Ben's death who were no longer employed by COPAC by the time the parties engaged in discovery in this matter. In Claypool, the supreme court clarified what was and was not covered by peer review proceedings pursuant to Mississippi Code Annotated sections 41-63-9 and 41-63-23 (Rev.2013). The court held:
Claypool, 724 So.2d at 389. The court further clarified: "Information, records or documents submitted to peer review committees should not be privileged merely because they were presented to the committee. If a plaintiff can find the identical information from another source separate and outside of the peer review proceeding, he should be able to discover and use the evidence in his civil suit against the defendants." Id.
¶ 76. The Cahns argue that, in his deposition, Tom Kepner stated that among the materials he reviewed in preparation for his testimony was his notebook presented to the peer review committee regarding the incident. This notebook included a number of statements from current and former employees present at the time of the subject incident. Thus, the Cahns raise Mississippi Rule of Evidence 612, which provides:
¶ 77. On remand, the trial court may consider Mr. Kepner's deposition and determine whether "the interests of justice" entitle the Cahns to Mr. Kepner's entire notebook or certain parts thereof. Certainly
¶ 78. Similarly, although we do not find the trial court abused his discretion, we find that the trial court should carefully consider the production of all documents related to C.T., including his medical records. C.T.'s statements to his medical and clinical providers appear to be relevant and may be the only admissible evidence of any conversations or actions taken by C.T. or Ben in the night and morning prior to Ben's death. Certainly Dr. Gordon's statement in his affidavit that C.T. told him "we broke into that office" is probative, relevant, and discoverable information.
¶ 79. We do not find that the trial court erred in failing to grant the motions to compel. We recognize that the trial court has the discretion to consider the motions as it deems necessary. However, in general, discovery motions should be addressed before the court considers a dispositive summary-judgment motion.
¶ 80.
LEE, C.J., IRVING, P.J., BARNES, ISHEE, MAXWELL, FAIR, JAMES AND WILSON, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.
Hall, 936 So.2d at 923 n. 6.