              IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2016-IA-01096-SCT

SINGING RIVER HEALTH SYSTEM, JENNIFER
THOMAS-TAYLOR, M.D., ALVA BRITT, R.N.,
BENJAMIN W. HUDSON M.D., AND
EMERGENCY ROOM GROUP, LTD.

v.

TERESA VERMILYEA AND JULIE VERMILYEA
KASBY AS THE WRONGFUL DEATH
BENEFICIARIES OF RANDY VERMILYEA AND
JULIE VERMILYEA KASBY, INDIVIDUALLY


DATE OF JUDGMENT:             07/11/2016
TRIAL JUDGE:                  HON. ROBERT P. KREBS
TRIAL COURT ATTORNEYS:        JAMES E. LAMBERT, III
                              JOHN A. BANAHAN
                              JESSICA B. McNEEL
                              A. KELLY SESSUMS, III
                              MARC L. BOUTWELL
COURT FROM WHICH APPEALED:    JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:     JOHN A. BANAHAN
                              JESSICA B. McNEEL
                              MICHAEL R. MOORE
                              BRETT K. WILLIAMS
                              A. KELLY SESSOMS, III
                              JAMES E. LAMBERT, III
ATTORNEY FOR APPELLEES:       MARC L. BOUTWELL
NATURE OF THE CASE:           CIVIL - WRONGFUL DEATH
DISPOSITION:                  AFFIRMED AND REMANDED - 03/15/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE KITCHENS, P.J., KING AND CHAMBERLIN, JJ.

     KITCHENS, PRESIDING JUSTICE, FOR THE COURT:
¶1.    Teresa Vermilyea and her daughter, Julie Vermilyea Kasby, filed suit against Singing

River Health System, Jennifer Thomas-Taylor, M.D.; Alva Britt, R.N.; Benjamin W. Hudson,

M.D.; and Emergency Room Group, Ltd., pursuant to the Mississippi Tort Claims Act for

the wrongful death of Randy Vermilyea, the husband of Teresa Vermilyea and father of Julie

Vermilyea Kasby (collectively, “Vermilyea”). Vermilyea alleged that Randy Vermilyea had

been admitted to the Singing River Hospital following a suicide attempt and that the

defendants had breached the standard of care by failing to assess his mental condition

properly and prematurely discharging him, proximately causing his suicide minutes after his

discharge. Julie Vermilyea Kasby, who had witnessed her father’s suicide, asserted a claim

for intentional infliction of emotional distress. The trial court denied the defendants’ motions

to dismiss for failure to state a claim. The appellants timely sought, and we granted, an

interlocutory appeal. Finding that Vermilyea did state viable legal claims based upon Randy

Vermilyea’s death, we affirm and remand the case to the Circuit Court of Jackson County for

further proceedings.

                                           FACTS

¶2.    Vermilyea filed a complaint on October 8, 2015, and an amended complaint on

November 13, 2015.1 According to the amended complaint, on October 12, 2014, a severely

depressed and suicidal Randy Vermilyea was standing on the ledge of the Pascagoula River

Bridge, threatening to jump to his death. The amended complaint alleged that officers of the

Jackson County Sheriff’s Department arrived and spent ninety minutes pleading with him to



       1
           The amended complaint added Emergency Room Group, Ltd., as a defendant.

                                               2
leave the bridge. The amended complaint further alleged that, when Randy Vermilyea finally

agreed to step off the bridge, the officers took him into custody and had him transported by

ambulance to the emergency room at Singing River Hospital, where he was evaluated and

released a few hours later. According to the allegations of the amended complaint, Randy

Vermilyea was evaluated by defendants Jennifer Thomas-Taylor, M.D.; Benjamin W.

Hudson, M.D.; and Alva Britt, R.N.; and then he was released from the hospital on his own,

without shoes, and without hospital employees’ having contacted any of his family members

to inform them of his suicide attempt. The amended complaint alleged that, upon his

discharge, Randy Vermilyea telephoned his daughter, Julie Vermilyea Kasby, for

transportation, and the defendants never informed her of his suicide attempt. Finally, the

amended complaint alleged that, within minutes of his discharge, Randy Vermilyea jumped

to his death from a bridge in Moss Point on Highway 613.

¶3.    In the amended complaint, Vermilyea alleged that the defendant medical providers

had a duty to their patient, Randy Vermilyea, to exercise such reasonable care and attention

as his mental and emotional condition required. Vermilyea claimed that the defendants had

breached the standard of care by failing to conduct an adequate suicide assessment because,

if one had been conducted, Randy Vermilyea would not have been discharged from the

hospital prematurely. Vermilyea claimed that the failure to take adequate measures to assess

Randy Vermilyea’s mental state and keep him hospitalized proximately had caused his

suicide immediately after his discharge. The amended complaint charged that the defendants

had failed to assess and treat Randy Vermilyea’s psychiatric condition, failed to hospitalize



                                             3
him, negligently and prematurely released him from the hospital, failed to take reasonable

steps to prevent him from harming himself, failed to follow the standard of care applicable

to a depressed and suicidal patient, and failed to inform Theresa Vermilyea or Julie

Vermilyea Kasby of his attempted suicide and need for follow-up care. The amended

complaint also alleged that the physicians and nurse had failed to recognize the definitive

signs and symptoms of Randy Vermilyea’s medical condition. Vermilyea claimed that

Singing River Health System and Emergency Room Group, Ltd., were vicariously liable for

the negligent acts and omissions of their employees. Additionally, Julie Vermilyea Kasby

asserted a claim for intentional infliction of emotional distress based on her having witnessed

her father’s suicide after the defendants had omitted informing her that he had attempted

suicide earlier in the day.

¶4.    Singing River Health System and Jennifer Thomas-Taylor, M.D., answered and filed

a motion to dismiss for failure to state a claim upon which relief could be granted pursuant

to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. Dr. Benjamin Hudson and

Emergency Room Group, Ltd., filed an answer and a joinder in Singing River’s and Dr.

Thomas-Taylor’s motion to dismiss. Alva Britt, R.N., filed an answer and affirmative

defenses in which she moved to dismiss the amended complaint for failure to state a claim.

The defendants asserted that Vermilyea had failed to state a claim because, under Truddle

v. Baptist Memorial Hospital-DeSoto, Inc., 150 So. 3d 692 (Miss. 2014), recovery against

a third party for a suicide is permitted only upon proof that the decedent had acted under an

irresistible impulse, proximately caused by the defendant’s intentional conduct, that had



                                              4
rendered him unable to discern the nature or consequences of suicide. Because Vermilyea’s

amended complaint alleged negligence, not that the defendants had committed an intentional

act that had proximately caused an irresistible impulse in Randy Vermilyea to commit

suicide, the defendants argued that the amended complaint should be dismissed for failure

to state a claim.

¶5.    After a hearing, the trial court denied the motion to dismiss, finding the case to be

distinguishable from Truddle. The defendants jointly filed a petition for an interlocutory

appeal of the denial of the motion to dismiss. This Court granted the petition and stayed the

proceedings in the trial court.

                                  STANDARD OF REVIEW

¶6.    A motion to dismiss for failure to state a claim under Rule 12(b)(6) raises an issue of

law which we review de novo. City of Vicksburg v. Williams, 191 So. 3d 1242, 1244 (Miss.

2016). A Rule 12(b)(6) motion tests the legal sufficiency of the complaint, and review is

limited to the content of the complaint. State v. Bayer Corp., 32 So. 3d 496, 502 (Miss.

2010). “On a motion to dismiss, ‘the allegations in the complaint must be taken as true, and

the motion should not be granted unless it appears beyond doubt that the plaintiff will be

unable to prove any set of facts in support of his claim.’” Covington Cty. Bank v. Magee,

177 So. 3d 826, 828 (Miss. 2015) (quoting City of Belmont v. Miss. State Tax Comm’n, 860

So. 2d 289, 295 (Miss. 2003)).




                                              5
                                       DISCUSSION

       WHETHER THE TRIAL COURT ERRED BY DENYING THE MOTION
       TO DISMISS.

¶7.    The defendants argue that, taking the allegations of the complaint as true, Truddle v.

Baptist-Memorial Hospital-DeSoto, 150 So. 3d 692, is an absolute bar to Vermilyea’s ability

to recover for the suicide of Randy Vermilyea. Truddle involved Diane Truddle’s claim

against an internist and Baptist Hospital for the wrongful death of her son, Eric Carmichael,

who had committed suicide after having been discharged from Baptist. Id. at 693. Upon his

admission to Baptist, Carmichael was diagnosed with a gastric ulcer and other physical

ailments and was prescribed the drug Reglan. Id. at 694. The night before his discharge, he

became agitated and aggressive. Id. His mother told his treating internist that Carmichael did

not want to be discharged because he had said that one of the medications had made him

crazy, but the internist discharged him anyway. Id. At the follow-up appointment four days

later, Carmichael’s mother complained to the internist that Carmichael had said his

medications were making him crazy. Nonetheless, the internist wrote him another

prescription for Reglan. Id. Two days later, after telling a friend that he was tired of living,

Carmichael committed suicide. Id. at 694-95. Truddle filed a wrongful death lawsuit against

Baptist and the internist, arguing that Reglan had put Carmichael at a higher risk of suicide.

Id. at 694. The trial court granted summary judgment to the defendants, and Truddle

appealed. Id. at 693.

¶8.     In determining that the trial court properly had granted summary judgment to the

defendants, this Court discussed two lines of cases concerning a third party’s liability for


                                               6
another’s suicide. Id. at 695-98. The Court first reviewed the line of cases concerning the

irresistible impulse doctrine in Mississippi, originally recognized in State for Use and

Benefit of Richardson v. Edgeworth, 214 So. 2d 579, 585 (Miss. 1968). Edgeworth was a

suit for the wrongful death of Billy Joe Edgeworth, who had committed suicide after having

suffered continuous, intense harassment by two justices of the peace who had used the

criminal process of the courts wrongfully to collect civil debts. Edgeworth, 214 So. 2d at

581, 584. The plaintiff’s expert psychiatrist testified that, due to the defendants’ actions,

Edgeworth had been seized by an irresistible fear of prison that had manifested as an

uncontrollable impulse to kill himself. Id. at 584.

¶9.    The Court in Edgeworth found that a rebuttable presumption exists “that a person will

not destroy himself by suicide.” Id. at 585. Notably, the Court held that the rebuttable

presumption does not exist when it is apparent the decedent was insane. Id. The Court also

recognized cases applying the common law rule barring recovery for suicide because it is

considered an “unforeseeable, intervening cause of death.” Id. at 586. The Court recognized

that those cases barred recovery because “suicide is a new and independent agency which

breaks the causal connection between the wrongful act and the death.” Id. But the Court

declined to follow those cases, holding that “[w]here a defendant has committed an

intentional tort, questions of whether the deceased was induced to take his life by an

irresistible impulse and whether the intentional tort was a substantial factor in causing the

suicide are ordinarily issues for the jury.” Id. The Court reversed the directed verdict and

remanded for a full trial because a jury could find that the defendants had committed



                                              7
intentional torts that contributed to a “delirium or insanity” which had caused a suicidal

impulse in Billy Joe Edgeworth that robbed him of his reason and made it impossible for him

to resist. Id. at 593, 588.

¶10.   Truddle found that, after Edgeworth, to recover for a decedent’s suicide, the plaintiff

must plead and prove that “(1) the decedent was under an ‘irresistible impulse’ rendering him

or her unable to discern the nature or consequences of suicide, and (2) the ‘irresistible

impulse’ was proximately caused by the defendant’s intentional conduct.” Truddle, 150 So.

3d at 696. Truddle cited the post-Edgeworth case of Shamburger v. Grand Casino of Miss.,

Inc./Biloxi, 84 F. Supp. 2d 794, 798 (1998), in which the United States District Court for the

Southern District of Mississippi recognized that, in Mississippi, the irresistible impulse rule

provides an exception to the common law rule that suicide is a superseding event that

precludes recovery for a wrongful act.

¶11.   In Shamburger, Michelle Shamburger alleged that Grand Casino’s attempt to collect

her husband’s $3,000 gambling debt had caused his suicide. Id. at 796. Grand Casino argued

that suicide is an independent, intervening cause severing the causal nexus between any

wrongful acts and the suicide. Id. at 798. The district court recognized that, in Edgeworth,

Mississippi had fashioned an exception to this rule “for intentional conduct resulting in

suicide where the tortious conduct produces ‘a mental illness resulting in an irresistible

impulse to commit suicide.’” Id. The district court found that the rule requires the decedent

to have acted under a mental illness that rendered him unable to control his faculties or

understand the nature and consequences of his actions. Id. at 799. Because the plaintiff had



                                              8
not produced expert testimony showing that the decedent’s suicide had resulted from an

irresistible impulse, nor had she shown that Grand Casino had acted tortiously, the district

court granted summary judgment to Grand Casino. Id. at 799-800, 803.

¶12.   Truddle also cited Collums v. Union Planters Bank, N.A., 832 So. 2d 572, 574 (Miss.

Ct. App. 2002), in which a business owner committed suicide after the bank that had

financed his business instigated foreclosure proceedings on the business’s account. The Court

of Appeals affirmed the grant of summary judgment to the defendant. Id. at 579. Applying

Edgeworth, the Court of Appeals found that, because the evidence showed that Collums had

planned his suicide with the objective that his family would receive benefits from his life

insurance policies, the plaintiff had not shown he had acted under an irresistible impulse. Id.

at 578. Further, the Court of Appeals found that the plaintiff had failed to show that the bank

had committed an intentional act. Id.

¶13.   Unlike Shamburger and Collums, Truddle’s case did not involve an allegation that

intentional conduct had caused the decedent’s suicide. Rather, Truddle’s complaint alleged

that the decedent’s suicide was the result of medical negligence. The Court recognized

Truddle’s argument that the common law rule barring recovery for suicide should not apply

in a case alleging that medical negligence had caused the death. Truddle, 150 So. 3d at 696-

97. First, the Court set out the elements of medical negligence. Id. at 697. The plaintiff has

the burden to prove “(1) the existence of a duty by the defendant to conform to a specific

standard of conduct for the protection of others against an unreasonable risk of injury; (2) a

failure to conform to the required standard; and (3) an injury to the plaintiff proximately



                                              9
caused by the breach of such a duty by the defendant.” Id. Then, the Court found that nothing

in Mississippi case law abrogated the general rule that suicide is “an independent, intervening

and superseding event” that breaks the causal nexus between the defendant’s wrongful act

and the death.2 Id. The Court declared, “this principle extends to medical-malpractice

claims.” Id. As support for this proposition, the Court cited a per curiam opinion in Haney

v. River Oaks Hospital, 2006-CA-00219-SCT (Order, May 17, 2007), in which the Court

affirmed the dismissal of a medical negligence suit against a physician alleging the patient

had committed suicide after having been released from the hospital over her family’s

objections. Truddle, 150 So. 3d at 697. Applying the law to the facts, the Court in Truddle

concluded:

       Truddle argues that the side effects of Reglan include depression and suicide,
       which should have been investigated. But, under Mississippi law, this failure
       alone is not sufficient to sustain a cause of action for a suicide. In such a case,
       the plaintiff must show that the defendant committed an intentional act that led
       to an irresistible impulse to commit suicide in order to prevail.

Id.

¶14.   After discussing and applying the rule from Edgeworth, the Court in Truddle

reviewed another line of cases holding that, under certain circumstances, a defendant can be

held liable in a negligence action for another’s suicide when the defendant assumed a duty



       2
         The Court recognized that, in the withdrawn opinion of Young v. Guild, 2008 WL
4740038 (Oct. 30, 2008), opinion withdrawn on grant of reh’g, substituted at 7 So. 3d 251
(Miss. 2009), the Court had held that the irresistible impulse doctrine was inapplicable to
a physician or medical provider from whom the decedent sought treatment. The Court noted
that, because the opinion was withdrawn and the substituted opinion did not address the
issue, “the status of the law in Mississippi remained unchanged.” Truddle, 150 So. 3d at
696.

                                               10
of care to the decedent. Id. at 697-98. Of these, the lead case is Mississippi Department of

Mental Health v. Hall, 936 So. 2d 917 (Miss. 2006). Julie Renee Hall was a psychiatric

patient at the East Mississippi State Hospital and suffered from several mental illnesses. Id.

at 921. She fell from a third-floor window during an escape attempt and was seriously

injured. Id. at 922. On appeal of a judgment in her favor, this Court described the issues as

“whether East Mississippi had a duty to prevent Hall from harming herself by attempting to

escape through the third-story window and whether that duty was breached.” Id. This Court

adopted the Texas standard of care defining the duty that a hospital owes a patient,

specifically, “[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.”

Id. at 923 (quoting Mounts v. St. David’s Pavilion, 957 S.W. 2d 661, 663 (Tex. Ct. App.

1997)).

¶15.   The Court, noting that Hall had attempted suicide on prior occasions and that her civil

commitment order recited that she was a danger to herself and others, found that East

Mississippi had a duty to provide a safe environment for people like Hall who could not care

for themselves due to their mental illnesses. Id. at 926. The Court found that Hall’s injury

had been foreseeable because hospital employees testified that it was common knowledge

that patients would try to escape by climbing out of the hospital’s windows. Id. at 924.

Further, the Court concluded that the circuit court had not erred by finding that East




                                              11
Mississippi had breached the duty of care it owed Hall by failing to monitor her behavior and

by keeping safety screens on the windows. Id. at 923-24.

¶16.   The Court in Truddle also reviewed Carrington v. Methodist Medical Center, 740

So. 2d 827, 828 (Miss. 1999), a lawsuit concerning the death of James Wiley Carrington, III,

who had been committed involuntarily to the Mississippi State Hospital at Whitfield and had

committed suicide at Methodist Medical Center while awaiting transfer to Whitfield. Id. at

828. His family filed a complaint alleging that Methodist had failed to comply with the

applicable standard of care by failure to provide adequate surveillance, failure to assess

Carrington’s suicidal ideation adequately, failure to protect Carrington from self-harm,

failure to treat him with antidepressant medication, and failure to assess his mental status. Id.

Methodist asserted that it was immune from suit under Mississippi Code Section 41-21-105.

Id. The Court held that Section 41-21-105 did immunize “good faith actions taken during the

actual commitment process,” but did not immunize the hospital against liability for the

negligent care alleged in the complaint. Id. at 829. In its analysis, the Court found that

“[p]ersons deemed incapable of making rational judgments, such that they must be

committed, are not to be protected by a lesser standard than reasonable care under the

circumstances.” Id. at 829-30.

¶17.   Another case reviewed in Truddle was Mississippi State Hospital v. Wood, 823 So.

2d 598, 599 (Miss. Ct. App. 2002), involving a claim that the hospital’s breach of the

standard of care applicable to its inpatient psychiatric treatment of April Wood was a

proximate contributing cause of her suicide. Wood was committed voluntarily to the hospital



                                               12
for drug dependency and depression. Id. at 600. After a rules infraction, she was placed in

isolation and later informed that her isolation would be extended due to additional

misconduct. Id. Shortly thereafter, she hanged herself. Id. The plaintiff presented expert

testimony that the hospital’s course of treatment had breached the standard of care because

it had focused on Wood’s substance abuse problems rather than her depression, despite the

fact that Wood had displayed the signs and symptoms of severe depression and had a history

of suicide attempts. Id. The expert also testified that the hospital had breached the standard

of care by failing to place Wood under frequent observation. Id. The Court of Appeals

affirmed the bench verdict for the plaintiff because nothing suggested the trial court

manifestly had erred in accepting the expert’s testimony that the hospital had breached the

standard of care “in a manner that substantially increased the likelihood that April Wood

would have both the opportunity and a compelling psychological impulse to do harm to

herself.” Id. at 601.

¶18.   The Court in Truddle also reviewed Lyle v. Johnson, 240 Miss. 154, 159, 126 So. 2d

266, 267 (1961), in which a patient committed to a private sanitarium by her family left the

building and committed suicide by drowning in a lake. Her relatives sued the sanitarium’s

owner, alleging that the sanitarium had breached the standard of care by failing to provide

adequate surveillance of the patient. Id. at 160, 126 So. 2d at 268. The jury returned a verdict

for the defendant. Id. at 159, 126 So. 2d at 267. On appeal, the Court determined the duty

owed by the sanitarium to the patient, holding that “[t]he degree of care exacted of a private

institution toward their patients is, under the general law, ‘such reasonable care and attention



                                              13
for their safety as their mental and physical condition, if known, may require.’” Id. at 161,

126 So. 2d at 268. The Court found that the contract between the patient’s family and the

sanitarium had not required that the sanitarium render a level of care higher than ordinary

care, and that the evidence before the jury conflicted on whether the sanitarium had breached

the duty of ordinary care by not monitoring the patient more closely. Id. at 162, 126 So. 2d

at 269. Therefore, the Court affirmed the defense verdict. Id. at 164-65, 126 So. 2d at 270.

¶19.   Truddle found these cases recognizing liability for the negligent failure to prevent

another’s act of self-harm distinguishable because each case had involved a patient

committing suicide or injuring himself or herself in the custody and control of the facility;

and, in some of the cases, the decedent had communicated a desire to harm himself or

herself. Id. The Court stressed that these cases were inapplicable because Carmichael never

had communicated to hospital employees that he had a desire to harm himself or that he was

considering suicide. Id. Further, Carmichael had been at home for several days and was not

in the custody or control of the hospital at the time of his suicide. Id. at 698. Thus, the Court

in Truddle held that “[t]he Mississippi cases Truddle cites for her argument that Mississippi

recognizes a defendant’s liability for another’s suicide because he or she owed the defendant

a duty of care are inapposite to the facts of this case.” Id. The Court further found that, “[i]n

those cases, the defendants had the ability to control the patient’s conduct, whereas here,

Baptist and [the internist] did not.” Id.

¶20.   The dissent argues that the duty of care identified in Truddle and Hall applies only

in civil commitment cases and to inpatient psychiatric facilities. But Truddle never said that



                                               14
the duty of care from Hall applies only to inpatient psychiatric facilities or civil commitment

cases, and not to hospitals such as Singing River that knowingly accept acutely suicidal

patients into the hospital for evaluation and treatment. In fact, Hall adopted the Texas

standard of care, which is applicable to hospitals and inpatient psychiatric facilities alike. See

Harris Hospital v. Pope, 520 S.W. 2d 813, 815 (Tex. Civ. App. 1975). There is no indication

in Truddle, Hall, or elsewhere in our case law that would limit the applicability of the duty

of care articulated in Hall to civil commitment cases and inpatient psychiatric facilities. Nor

did Truddle distinguish Hall on the ground that it was not a suicide case. Instead, the key

distinction in Truddle was that the Hall line of cases “involve[d] patients committing suicide

or injuring themselves in the custody and control of the facility, and in some cases, the

decedent or plaintiff already had expressed a desire to harm himself or herself.” Truddle, 150

So. 3d at 697-98. In this case, the defendants recognize that this was Truddle’s holding by

arguing that they had no duty to Randy Vermilyea under Truddle because he was not in the

hospital’s custody at the time of his suicide, but had been discharged.

¶21.   Since Truddle, the Court of Appeals decided Cahn v. Copac, Inc., 198 So. 3d 347,

367 (Miss. Ct. App. 2015), holding that a drug treatment facility could be held liable for an

inpatient’s fatal drug overdose. Ben Cahn was admitted to Copac for the purpose of treatment

of his addiction to alcohol and prescription medications. Id. at 349. Cahn died of an overdose

of Suboxone after he and another patient had purloined that drug from the office of a

physician. Id. at 353. The trial court granted summary judgment on the plaintiffs’ medical

malpractice claim, and the Court of Appeals reversed. Id. at 348. The Court of Appeals found



                                               15
that, under Mississippi Department of Mental Health v. Hall, Mississippi State Hospital v.

Wood, and Carrington v. Methodist Medical Center, Inc., a hospital has a duty of care to

its patients to exercise reasonable care to safeguard them from known or reasonably

apprehensible dangers as the patient’s mental and physical condition requires, a duty that

includes guarding against a foreseeable risk of suicide by patients under the facility’s care.

Id. at 358. The Court of Appeals found that Copac had assumed such a duty to Cahn when

it accepted responsibility for his medical care. Id. at 361. Further, the Court of Appeals found

that it was foreseeable that a patient who was a drug addict would attempt to obtain and

abuse controlled substances. Id. After finding that Cahn’s “wrongful conduct” of stealing the

controlled substance did not bar recovery, the Court of Appeals found genuine issues of

material fact on whether Copac’s negligent storage of Suboxone in the office, in violation

of the controlled substances law, proximately had caused his death. Id. at 365.

¶22.   We recognize that the parties cite Irby v. Madakasira, 2017 WL 1164219, *5 (Miss.

Ct. App. March 28, 2017), in which the Court of Appeals found that a complaint alleging a

psychiatrist’s acts had created an irresistible impulse that led an outpatient to commit suicide,

was time-barred under the one-year statute of limitations applicable to intentional torts. The

Court of Appeals also held that, under Truddle, claims of medical negligence were not

cognizable because the decedent was not under the custody or control of a physician or

facility. Id. But, because a motion for rehearing has been filed in Irby, and the decision is

subject to modification on rehearing, the case, at this point, has no precedential value. See

M.R.A.P. 40(a).



                                               16
¶23.   Having discussed the pertinent case law, we turn to its application to this case. The

defendants argue that, because Vermilyea’s amended complaint is grounded in medical

negligence and does not allege that Randy Vermilyea committed suicide either (1) while in

the defendants’ custody, or (2) under an irresistible impulse, proximately caused by the

defendant’s intentional conduct, that rendered him unable to discern the nature and

consequences of suicide, the complaint fails to state a claim upon which relief may be

granted. We reject this argument.

¶24.   The plaintiffs agree with the contention of the defendants that they have not framed

their claims under the irresistible impulse doctrine. Instead, Vermilyea argues that, as in Hall,

Carrington, Wood, and Lyle, the amended complaint stated a claim for medical negligence.

We agree. While Truddle held that the principle that suicide is an intervening, superseding

cause that breaks the causal connection between the wrongful act and the death applies in

medical negligence cases, the case also recognized precedent holding that liability exists if

the plaintiff shows that the defendant owed the decedent a certain duty of care and breached

that duty. Specifically, Truddle recognized that, if the decedent was under the custody and

control of a facility, then the facility and treating medical care providers can be held liable

for a breach of the duty of care that proximately caused or contributed to the decedent’s

suicide.

¶25.   This case is analogous to the medical negligence cases cited in Truddle. As in those

cases, the defendants were on notice that Randy Vermilyea was suicidal. They specifically

accepted him for treatment for being suicidal and depressed. In fact, they accepted Randy



                                               17
Vermilyea for treatment after he had been transported to the hospital by sheriff’s deputies

who had thwarted his attempt to jump to his death from the Pascagoula River Bridge.

Therefore, under Hall, they assumed a duty toward Randy Vermilyea to exercise reasonable

care to safeguard him from the known danger he presented to himself, and to exercise such

reasonable care for his safety as his mental condition required. Hall, 936 So. 2d at 923. It was

foreseeable that, if the hospital and its staff failed in their duty by releasing Randy Vermilyea

without adequate treatment and care, he would resume his attempt to take his own life. Had

the hospital and its staff properly performed an adequate suicide risk assessment, and thereby

discovered Randy Vermilyea’s true state of mind, they could have initiated civil commitment

proceedings in the event that Randy Vermilyea refused treatment. See Miss. Code Ann. § 41-

21-65(2) (Rev. 2013) (“any interested person” may initiate civil commitment proceedings);

Bass v. Parkwood Hosp., 180 F.3d 234, 239 (5th Cir. 1999) (hospital staff initiated civil

commitment proceedings of apparently mentally ill patient). Taking the allegations of the

amended complaint as true, the defendants negligently failed to perform an adequate suicide

risk assessment and then negligently discharged Randy Vermilyea from the hospital on his

own, without shoes, and without notifying any of his relatives of his suicide attempt.

¶26.   The defendants argue that the fact that Randy Vermilyea’s suicide occurred when he

was outside the hospital’s custody is fatal to his claim. They contend that Truddle stands for

the proposition that the decedent must have been under the custody and control of the facility

at the time of the death or there can be no liability for a suicide allegedly caused by medical

negligence. The dissent takes this position as well. Considering the specific facts alleged in



                                               18
the amended complaint, we disagree. Just as in Lyle, in which the decedent escaped from the

facility and then killed herself, Vermilyea’s complaint is that the decedent was in the

facility’s custody and control, but the defendants negligently discharged him from the

facility, proximately causing his immediate suicide. Here, suicide was the very thing that his

hospitalization was supposed to prevent. The hospital and its staff, by undertaking treatment

of the acutely suicidal Randy Vermilyea, assumed a duty of care toward him and it was

foreseeable that a breach of that duty could result in his swift death from suicide. Negligently

discharging a suicidal patient and leaving him to his own devices is not materially different

from failing to provide a safe environment inside the facility.3

¶27.   This case is distinguishable from the medical negligence alleged in Truddle. Unlike

Truddle, in which the suicide occurred days after the patient’s discharge, Randy Vermilyea

committed suicide “minutes” after he was turned out of the hospital. And, also unlike

Truddle, because Randy Vermilyea was admitted to the hospital and treated for being

suicidal, the facility and its staff were very much on notice of his mental condition. Finally,

and also unlike Truddle, where the plaintiff’s claim was that the physician should not have



       3
         The defendants also rely on the order in Haney v. River Oaks Hospital, 2006-CA-
00219-SCT (Order, May 17, 2007), the per curiam affirmance of the grant of summary
judgment to a doctor and hospital in a case alleging medical negligence in which the patient
committed suicide after being released from the hospital over the family’s objection.
Vermilyea argues that Haney is distinguishable because, as shown by the briefs in that case,
the decedent had been hospitalized for an anxiety attack, not a suicide attempt. But because
Haney was a per curiam opinion, the facts of the case and the Court’s reasoning are
unknown. See M.R.A.P. 35-A ([t]he Court, with the concurrence of all justices participating
. . . may affirm the action of the trial court without rendering a formal opinion when an
opinion would have no precedential value . . . .”). Therefore, we decline to construe Haney
to bar recovery in this case.

                                              19
prescribed a drug that the decedent had complained was “making him crazy,” here the

plaintiffs’ claim rests upon the negligent discharge of an acutely suicidal patient.

¶28.   For these reasons, we hold that the plaintiffs did present a claim of medical negligence

regarding the death of Randy Vermilyea. Regarding Julie Vermilyea Kasby’s claim for

intentional infliction of emotional distress, the defendants admit that the amended complaint

actually described this claim as one of negligent, not intentional, infliction of emotional

distress. But they argue that the claim fails because it is wholly dependent upon Vermilyea’s

claim of medical negligence, which they contend must be dismissed. As discussed above,

the medical negligence claim was not subject to dismissal under Rule 12(b)(6). And,

although the amended complaint mislabeled the claim as one of intentional infliction of

emotional distress, the amended complaint indeed stated a claim of negligent infliction of

emotional distress. See Sanderson Farms, Inc. v. McCullough, 212 So. 3d 69, 74 (Miss.

2016) (holding that, when construing allegations of a complaint, “substance prevails over

form”).

                                      CONCLUSION

¶29.   Because the amended complaint stated negligence claims for the death of Randy

Vermilyea, this Court affirms the trial court’s denial of the motion to dismiss and remands

this case to the Jackson County Circuit Court for further proceedings.

¶30.   AFFIRMED AND REMANDED.

    WALLER, C.J., KING, CHAMBERLIN AND ISHEE, JJ., CONCUR.
MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
COLEMAN AND BEAM, JJ. RANDOLPH, P.J., NOT PARTICIPATING.



                                             20
       MAXWELL, JUSTICE, DISSENTING:

¶31.   There is no dispute that what happened to the Vermilyea family was tragic—that much

is without question. But our duty as an appellate court, reviewing the dismissal of their

related lawsuit, is to specifically answer whether it is actionable under our current law. And

after review, I find that it simply is not. This court made very clear in Truddle that in

Mississippi allegations of medical negligence are “not sufficient to sustain a cause of action

for suicide.” Truddle v. Baptist Mem’l Hospital-DeSoto, Inc., 150 So. 3d 692, 697 (Miss.

2014). Instead—as Chief Justice Waller explained when authoring the Truddle majority—

“[i]n such a case, the plaintiff must show that the defendant committed an intentional act that

led to an irresistible impulse to commit suicide in order to prevail”—something the

Vermilyeas have not alleged occurred. Id.

¶32.   Despite this, the majority holds Truddle does not apply. Instead, the majority imposes

the same duty as in Mississippi Department of Mental Health v. Hall, 936 So. 2d 917 (Miss.

2006). I find this approach problematic. The first problem with the majority’s reliance on

Hall is that Hall was not a suicide case. And the second and more important difference is

that, unlike this case, Hall involved a patient civilly committed to a state psychiatric hospital.

So the duty that hospital owed that patient was one “statutorily mandated” under Mississippi

Code Section 41-21-102. Hall, 936 So. 2d at 922. Furthermore, the standard adopted in Hall

was aimed directly at defining the scope of those particular statutory duties. See id.

¶33.   The same is true for Carrington v. Methodist Medical Center, Inc., 740 So. 2d 827

(Miss. 1999), and Mississippi State Hospital v. Wood, 823 So. 2d 598 (Miss. Ct. App. 2002).



                                               21
In those cases, the patients did commit suicide. But, as in Hall, the patients’ self-harming

acts occurred while they were civilly committed. So the hospitals in each case owed the same

statutory duties under Section 41-21-102.4

¶34.   On a similar note, the other cases the majority cites, Lyle and Copac, involved

inpatient treatment by private facilities—private facilities that expressly assumed the duty to

provide custodial care of clients they knew posed a danger to themselves. Lyle v. Johnson,

240 Miss. 154, 160-62, 126 So. 2d 266, 268-69 (1961) (addressing the plaintiff’s claim that

a private sanitarium owed her mother heightened duties based on the admission contract);

Cahn v. COPAC, Inc., 198 So. 3d 347, 361 (Miss. Ct. App. 2015) (noting an inpatient drug-

treatment facility, though “not obligated to admit or provide medical care and treatment,”

“assumed this obligation when it accepted payment and admitted him to the facility”).

¶35.   Truddle recognized custodial control as the key distinction. Just as in this case, the

wrongful-death beneficiary in Truddle argued that Hall, Carrington, Wood, and Lyle all

supported the hospital’s potential liability for the alleged role medical negligence played in

her son’s suicide, which he committed after he was discharged. But this Court recognized

her reliance on this line of cases was misplaced, because “the cases [she] cited involve[d]

patients committing suicide or injuring themselves in the custody and control of the

facility[.]” Truddle, 150 So. 3d at 697-98 (emphasis added).


       4
         In fact, the sole issue in Carrington was whether the defendant hospital was
immune under the civil-commitment act. Carrington, 740 So. 2d at 828 (“We granted the
petition for writ of certiorari to address a question of broad public importance in regard to
the proper interpretation of Miss. Code Ann. § 41-21-105 (1993), which governs liability
for actions taken during commitment of patients for mental treatment.”).

                                              22
¶36.   The majority here concedes that Randy was not in the custody and control of the

hospital when he committed suicide. And yet it still insists Truddle does not apply. While

the majority likens this case to Lyle, unlike the sanitarium patient in that case, there is no

allegation Randy “escaped” from the hospital and committed suicide. Instead, the complaint

alleges Randy committed suicide after being released following treatment.

¶37.   I do sympathize with what the majority is doing. In the face of such tragedy,

speculation easily arises about what might have been prevented had the hospital assumed

custody and control of Randy and forcefully kept him in its care. But wishing the hospital

had assumed custody and control, in light of what happened after his discharge, does not give

rise to a duty on the hospital’s behalf. Nor is it a sound legal reason to create a new duty to

assume custody and control—which is essentially what the majority does.

¶38.   Based on the facts as alleged in the complaint, Randy was not under the custody and

control of the hospital when he committed suicide. So Truddle applies. And Truddle

emphasizes that, even if the hospital was negligent in its treatment of Randy, “this failure

alone is not sufficient to sustain a cause of action for a suicide.” Truddle, 150 So. 3d at 697.

¶39.   Therefore, based on our current precedent, I dissent.

       COLEMAN AND BEAM, JJ., JOIN THIS OPINION.




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