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GERALD BENNETT, AS CONSERVATOR OF THE ESTATE AND PERSON OF JAMES W. BENNETT v. SUDHAKAR MADAKASIRA, M.D.; GERALD BENNETT, AS CONSERVATOR OF THE ESTATE AND PERSON OF JAMES W. BENNETT v. ELI LILLY AND COMPANY AND HOFFMANN-LaROCHE, INC.; GERALD BENNETT, AS CONSERVATOR OF THE ESTATE AND PERSON OF JAMES W. BENNETT v. HOFFMANN-LaROCHE, INC. AND JEFFERY A. ALI, M.D.; GERALD BENNETT, AS CONSERVATOR OF THE ESTATE AND PERSON OF JAMES W. BENNETT v. JEFFERY A. ALI, M.D., ELI LILLY AND COMPANY AND HOFFMANN-LaROCHE, INC.
NO. 1999-CA-00266-SCT CONSOLIDATED WITH NO. 1999-CA-00755-SCT CONSOLIDATED WITH NO. 1999-CA-00756-SCT CONSOLIDATED WITH NO. 1999-CA-01656-SCT
SUPREME COURT OF MISSISSIPPI
821 So. 2d 794; 2002 Miss. LEXIS 107

March 21, 2002, Decided
PRIOR HISTORY: [**1] DATE OF JUDGMENT: 12/21/1998. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. W. SWAN YERGER. DATE OF JUDGMENT: 04/05/1999. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. W. SWAN YERGER. DATE OF JUDGMENT: 03/30/1999. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. W. SWAN YERGER. DATE OF JUDGMENT: 09/21/1999. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. W. SWAN YERGER.

DISPOSITION: REVERSED AND REMANDED.

CASE SUMMARY
PROCEDURAL POSTURE: Appellant estate conservator in the Hinds County Circuit Court (Mississippi) sued appellee psychiatrists for negligence in prescribing drugs to the conservator's father and sued appellee drug manufacturers for negligence in failing to adequately warn of the drugs' propensity to cause violent behavior and breach of implied warranty. The trial court granted summary judgment to the psychiatrists and drug manufacturers. The conservator appealed.

OVERVIEW: The conservator's father went to a psychiatrist at a medical center at a state school to be treated for depression. The psychiatrist diagnosed the father and determined what prescription drugs were to be described. Because this doctor had only recently joined the medical center he had not completed all the requirements to be allowed to write a prescription. He therefore solicited another psychiatrist at the medical center to actually write the prescription. The father took the prescribed drugs. Under the influence of the prescribed drugs, the father murdered his wife. The psychiatrists successfully claimed they were state employees and immune from suit under Miss. Code Ann. § 11-46-7(2) (Supp. 2001). The drug manufacturers successfully claimed that they did not breach any duty to adequately warn the father or breach any warranty. On appeal, the supreme court found that the trial court erred in granting summary judgment as genuine issues of fact existed as to all the defenses asserted by the psychiatrists and the drug manufacturers.

OUTCOME: The judgment was reversed and the case was remanded for further proceedings.

An appellate court will conduct a de novo review of orders granting summary judgment and consider all the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.

A motion for summary judgment may be granted only where there is no genuine issue of material fact; summary judgment is not a substitute for the trial of disputed facts. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.

Where summary judgment is at issue, the evidence must be viewed in the light most favorable to the party against whom the motion has been made. In those instances, all that is required of a non-movant to survive a motion for summary judgment is to establish a genuine issue of material fact.

Under the Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 to 11-46-23 (Supp. 2001), no state employee is personally liable for acts or omissions occurring within the course and scope of his duties. Miss. Code Ann. § 11-46-7(2) (Supp. 2001).

Physicians who practice medicine at the University of Mississippi School of Medicine and its medical center (UMMC) may be granted immunity from liability for their negligent acts if the acts complained of were committed during the course and scope of their employment at UMMC. On the other hand, if the acts complained of were committed while the physician was acting as an independent contractor, no immunity is afforded. Miss. Code Ann. § 11-46-1(f) (Supp. 2001).

See Miss. Code Ann. § 11-46-1(f) (Supp. 2001).

A five-part test is to be followed in determining whether a physician who practices at a public hospital is subject to the Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 to 11-46-23 (Supp. 2001), and thereby granted immunity. A court is to consider: (1) the nature of the function performed by the employee; (2) the extent of the State's interest and involvement in the function; (3) the degree of control and direction exercised by the State over the employee; (4) whether the act complained of involved the use of judgment and discretion; and (5) whether the physician receives compensation, either directly or indirectly, from the patient for professional services rendered.

The test for determining whether a physician who practices at a public hospital is subject to the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§ 11-46-1 to 11-46-23 (Supp. 2001), focuses on the physician-patient relationship, and though the determination of whether MTCA applies is fact sensitive, the question of the applicability of the MTCA is as much a question of law as of fact.

Motions for leave to amend should be liberally allowed. Miss. R. Civ. P. 15(a).

An appellate court will review discretionary determinations by a trial court under an abuse of discretion standard. Unless convinced the trial judge abused his discretion, the appellate court is without authority to reverse.

The statute of limitations contained in the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§ 11-46-1 to 11-46-23 (Supp. 2001), is the exclusive measure of time to be applied to any claim brought under the MTCA.

See Miss. Code Ann. § 11-46-11(3) (Supp. 2001).

Womble does not apply to an interpretation of statutory immunity against a state entity.

Under Mississippi law, a manufacturer of a prescription drug has no duty to warn the patient, consumer, or general public of adverse effects. Under the learned intermediary doctrine, manufacturers do have a duty, however, to adequately warn the treating physician.

An adequate warning for a prescription drug is one reasonable under the circumstances and is usually resolved by the trier of fact. To assist in this determination, courts examine the package inserts which are duplicated in the Physicians Desk Reference pursuant to federal regulations.

Although a doctor testifies that he considers a prescription drug warning to be adequate, this testimony does not dispose of the question. Although his testimony is competent on the issue, the adequacy of the warning is not a matter that can be conclusively resolved solely on the basis of the administering physician's opinion.

Plaintiffs who allege inadequate warning by a prescription drug manufacturer must establish, by the preponderance of the evidence, both: (1) that an adequate warning would have prevented the treating physician from administering a drug; and (2) that the injury would not have occurred had the drug not been administered. To satisfy this burden of proving causation, a plaintiff may introduce either objective evidence of how a reasonable physician would have responded to an adequate warning, or subjective evidence to establish how the treating physician would have responded.

The weight to be afforded affidavits or testimony of how a reasonable physician would have responded to an adequate warning depends on the substance of the evidence as well as the credibility and reliability of the treating physician himself.

The Mississippi Products Liability Act provides that a manufacturer may be held liable when a product breaches an express warranty or fails to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product. Miss. Code Ann. § 11-1-63(a)(i)(4) (Supp. 2001).

Though the Mississippi Products Liability Act (MPLA) creates a cause of action in tort for breach of express warranty, it does not preclude the breach of implied warranty claims under the Mississippi Uniform Commercial Code in products liability actions. Miss. Code Ann. § 75-2-715. In other words, the MPLA does not abrogate a statutory cause of action for breach of implied warranty as grounds for recovery. Miss. Code Ann. §§ 11-1-63, 75-2-715.

Generally speaking, a new statute will not be considered reversing long-established principles of law and equity unless the legislative intention to do so clearly appears.

Inadequate warnings alone can constitute a product defect, whether the theory be implied warranty or strict liability in tort.

Though the learned intermediary doctrine has been applied to a breach of implied warranty case, the learned intermediary doctrine relates only to the issue of whom the manufacturer warned. It does not govern the adequacy of the warning.

There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The seller of such products is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attending with a known but apparently reasonable risk.

Under the unavoidably unsafe products doctrine, liability will be imposed only when a drug is not properly prepared, properly marketed, or accompanied by proper warnings. Further, the unavoidably unsafe products doctrine is an affirmative defense. It does not provide a blanket immunity from strict liability for prescription drugs, id., as not all prescription drugs are unavoidably unsafe.

COUNSEL: ATTORNEY FOR APPELLANT: KENNETH R. WATKINS.

ATTORNEYS FOR APPELLEE: LISA L. WILLIAMS.

ATTORNEY FOR APPELLANT: KENNETH R. WATKINS.

ATTORNEYS FOR APPELLEES: LESLIE JOYNER BOBO, CHRISTY D. JONES, LYNN P. RISLEY, WILLIAM F. GOODMAN, III.

ATTORNEY FOR APPELLANT: KENNETH R. WATKINS.

ATTORNEYS FOR APPELLEES: LYNN P. RISLEY, WILLIAM F. GOODMAN, III, LEE DAVIS THAMES, R. E. PARKER, JR.

ATTORNEY FOR APPELLANT: KENNETH R. WATKINS.

ATTORNEYS FOR APPELLEES: LEE DAVIS THAMES, R. E. PARKER, LESLIE JOYNER BOBO, CHRISTY D. JONES, LYNN P. RISLEY, WILLIAM F. GOODMAN, III.

JUDGES: BEFORE PITTMAN, C.J., WALLER AND CARLSON, JJ. PITTMAN, C.J., DIAZ, EASLEY, CARLSON, AND GRAVES, [**2] JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J. COBB, J., JOINS IN PART. SMITH, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED IN PART BY COBB, J.

OPINIONBY: WALLER

OPINION: [*796]

NATURE OF THE CASE: MEDICAL MALPRACTICE

BEFORE PITTMAN, C.J., WALLER AND CARLSON, JJ.

WALLER, JUSTICE, FOR THE COURT:

P1. On October 19, 1994, James W. Bennett ("Jake") killed his wife by stabbing her more than 200 times. He was indicted, tried and found not guilty of murder by reason of insanity and confined at the Mississippi State Hospital at Whitfield. A conservatorship for Jake's estate was established with Jake's son, Kevin, named as conservator. n1 Kevin filed several lawsuits pertaining to Jake's medical care and course of treatment prior to the murder and Jake's subsequent confinement at Whitfield. In the lawsuits Kevin alleges that Sudhakar Madakasira, M. D., a Professor of Psychiatry and Human Behavior at the University of Mississippi School of Medicine and its medical center ("UMMC"), and Jeffery A. Ali, M. D., an Assistant Professor of Psychiatry and Human Behavior at UMMC and a member of University Psychiatric Associates, [**3] were negligent in prescribing certain drugs for Jake and that the drugs' manufacturers, Eli Lilly and Company and Hoffmann-LaRoche, Inc., were negligent in failing to warn adequately of the drugs' propensity to cause violent behavior. After summary judgment was granted to each of the four defendants, Kevin filed an appeal to this Court. We reverse and remand for further proceedings.

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n1 Kevin's brother Gerald has since been substituted as conservator.

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FACTS

P2. In 1994, Jake was being treated by S. H. Subramony, M. D. On August 14, 1994, Jake informed Dr. Subramony that he suspected that his wife was tampering with his medications. Dr. Subramony felt that it was imperative for Jake to see a psychiatrist that day and called the University of Mississippi Department of Psychiatry for a referral. The Department asked Dr. Ali to see Jake. P3. Dr. Ali noted that Jake had been prescribed Librium, Doxepin for depression, Librax for stomach problems, and Klonopin for myoclonic jerks, that there had been [**4] "an unclear prescribing pattern," and that Jake had seen many neurologists and internists. Jake was also taking Captopril, [*797] Hydrochlorothlorothiazide and Zantac. After examining Jake, Dr. Ali diagnosed major depression with anxiety symptoms. Dr. Ali decided that the best course of treatment would be to continue the Librium, Librax and Klonopin (all manufactured by Hoffmann-LaRoche), and that Prozac (manufactured by Eli Lilly) be added to the medical regimen. Because Dr. Ali had recently moved to Mississippi and had not yet obtained a DEA number which was required for writing certain prescriptions, Dr. Ali consulted with Dr. Madakasira. Dr. Ali explained to Dr. Madakasira that he was hesitant to take Jake off the Librium, Librax and Klonopin all at once because severe withdrawal symptoms might occur. Dr. Madakasira agreed with Dr. Ali's judgment and wrote prescriptions for the Librium, Librax and Klonopin. Dr. Ali wrote the prescription for the Prozac.

STANDARD OF REVIEW

P4. HN1clscc1clscc1We conduct a de novo review of orders granting summary judgment and consider all the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. [**5] Aetna Cas. & Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996). HN2clscc2clscc2A motion for summary judgment may be granted only where there is no genuine issue of material fact; summary judgment is not a substitute for the trial of disputed facts. APAC-Miss., Inc. v. Goodman, 803 So. 2d 1177, 1180 (Miss. 2002); Brown v. Credit Ctr., Inc., 444 So. 2d 358, 362 (Miss. 1984). Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Berry, 669 So. 2d at 70. HN3clscc3clscc3Where summary judgment is at issue, "the evidence must be viewed in the light most favorable to the party against whom the motion has been made." Id. In those instances, "all that is required of a non-movant to survive a motion for summary judgment is to establish a genuine issue of material fact. . . ." Simmons v. Thompson Mach. of Miss., Inc., 631 So. 2d 798, 801 (Miss. 1994).

ANALYSIS

I. WHETHER THE GRANT OF SUMMARY JUDGMENT TO DR. ALI WAS APPROPRIATE.

P5. [**6] HN4clscc4clscc4Under the Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 to -23 (Supp. 2001), no state employee is personally liable for acts or omissions occurring within the course and scope of his duties. Id. § 11-46-7(2). HN5clscc5clscc5Physicians who practice medicine at UMMC may be granted immunity from liability for their negligent acts if the acts complained of were committed during the course and scope of their employment at UMMC. Smith v. Braden, 765 So. 2d 546, 550 (Miss. 2000). On the other hand, if the acts complained of were committed while the physician was acting as an independent contractor, no immunity is afforded. n2

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n2 Miss. Code Ann. § 11-46-1(f) (Supp. 2001) provides as follows:
HN6clscc6clscc6"Employee" means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation. The term "employee" shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision; provided, however, that for purposes of the limits of liability provided for in Section 11-46-15, the term "employee" shall include physicians under contract to provide health services with the State Board of Health, the State Board of Mental Health or any county or municipal jail facility while rendering services under such contract.

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[**7]

[*798] P6. In support of his motion for summary judgment, Dr. Ali submitted a copy of his employment contract with the Board of Trustees of State Institutions of Higher Learning. The contract shows that he would be paid a monthly salary and that, in addition to this salary, Dr. Ali:
[would] be permitted to earn additional income from medical practice subject to the following limitations:

a) [Dr. Ali] shall retain 100% of earnings from medical practice up to a total income of $ 140,000, . . .

b) Income in excess of $ 140,000 will be divided 50% to the employee and 50% to the University of Mississippi Medical Center (UMMC). Of the amount allocated to the Medical Center, 60% shall be for the use of the department of the employee.

* * *

3. [Dr. Ali] agrees to pay [his] pro rata share of expenses in the private patient association (University of Mississippi Clinical Associates). This payment shall be based upon gross medical practice earnings from all patient care related income at the Medical Center. . . .

P7. The circuit court found that Dr. Ali was, for purposes of these lawsuits, an employee of UMMC and therefore entitled to immunity:
Dr. Ali adduced overwhelming [**8] credible evidence that he was, in fact, an employee of the University Medical Center at all times relevant to this matter. Dr. Ali presented the Court with an affidavit of Marjorie Soloman, the Director of Human Resources of the University Medical Center, which stated in no uncertain terms that all treatment allegedly provided to James W. Bennett by Dr. Ali, at all times relevant to this lawsuit, was provided in the course and scope of Dr. Ali's employment with the University Medical Center through the Board of Trustees of State Institutions of Higher Learning. In addition, Dr. Ali presented the Court with a copy of his employment contract which evidences the nature of his relationship with the University Medical Center as an employee of the Hospital and not as an independent contractor. To that end, this Court finds that Dr. Ali is an employee as defined under the MTCA

P8. We have recently remanded a medical malpractice case for further discovery as to the doctor's employment status. The defendant doctor was an Assistant Professor of Pediatrics at UMMC, as well as a member of two medical practice partnerships. After examining the partnership agreements which limited membership [**9] to UMMC faculty members and which referred to each member's "private practice," we found that genuine issues of fact existed as to the employment status of the defendant doctor. Smith, 765 So. 2d at 550-51.

P9. In the instant case, we do not have the benefit of a copy of the partnership agreement between Dr. Ali and University Psychiatric Associates. In Smith, we reversed and remanded for further discovery even when the partnership agreement was a part of the record. On the record presented on appeal, a determination of Dr. Ali's relationship to the private patient association cannot be made.
P10. Furthermore, there is no evidence in the record of the circumstances under which Dr. Ali saw Jake as a patient: as an [*799] associate professor for UMMC or as a member of the University Psychiatric Associates. The circuit court relied upon affidavits submitted by UMMC officials. However, the record contains no details of how Jake was billed for Dr. Ali's services and whether the bill included a separate charge for physician services that would go in whole, or in part, directly or indirectly, to Dr. Ali.

P11. We find that the record is insufficient to support [**10] a grant of summary judgment to Dr. Ali and that genuine issues of fact exist. We therefore reverse and remand to the circuit court for further proceedings.