                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2004-CA-02532-SCT

CANDICE YOUNG, PERSONAL
REPRESENTATIVE OF THE WRONGFUL
DEATH BENEFICIARIES OF CHERIE S.
HANCOCK, DECEASED

v.

DONALD C. GUILD, M.D.


DATE OF JUDGMENT:                          08/24/2004
TRIAL JUDGE:                               HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                 YAZOO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    RONALD M. KIRK
ATTORNEYS FOR APPELLEE:                    DENISE C. WESLEY
                                           WHITMAN B. JOHNSON, III
NATURE OF THE CASE:                        CIVIL - WRONGFUL DEATH
DISPOSITION:                               ON DIRECT APPEAL: REVERSED AND
                                           REM A N D ED . O N CRO SS-APPEAL:
                                           AFFIRMED IN PART AND REVERSED
                                           AND REMANDED IN PART- 10/30/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    In this wrongful death suicide case, the Court must consider several evidentiary issues

and determine whether the trial court properly instructed the jury. The Court must also

consider whether the Irresistible Impulse Doctrine bars recovery when the wrongful death

beneficiaries have alleged medical malpractice. Finding error, we reverse and remand for a

new trial.
                                            FACTS

¶2.    Jim Herring, Cherie S. Hancock’s divorce attorney, referred his client to Donald Guild,

M.D., a psychiatrist, for a mental evaluation and medical treatment. Herring wanted Dr.

Guild’s expert opinion for a divorce proceeding that involved Hancock and her husband,

George Thomas Hancock. Hancock’s mental state was at issue in the proceeding.

¶3.    Dr. Guild first met with Hancock on August 7, 1999. Hancock informed Dr. Guild that

during the 1990s her relationship with her husband and children had deteriorated; she had

suffered a miscarriage; and she previously had shot herself in the chest, attempting to commit

suicide. Hancock visited Dr. Guild’s office again on August 16, 1999. Dr. Guild began to

treat Hancock on an inpatient basis at St. Dominic Hospital in Jackson, Mississippi, on August

20, 1999.

¶4.    On September 15, 1999, Dr. Guild testified at Hancock’s divorce hearing. When asked

the question, “[D]o you have an opinion as to what her condition would be if she is not

allowed to move back into [her] house and have free reign?”, Dr. Guild responded:

       I really just don’t want to think about that. I don’t think it will be good at all.
       I hope she would make it, but we have to find another place for her to live. It
       won’t be permanent. It will be a temporary place. And for anybody else, for
       most other people, they could look ahead and see the fact that they’re going to
       come out all right. But I’m afraid she can’t do that. With her depression and
       everything, it’s going to be clouded, she’s going to be hopeless. I’m afraid she
       will take her life.

¶5.    Dr. Guild was also asked how long he thought Hancock would need to be hospitalized.

Dr. Guild responded, “I think I could put her back into the house in two days. I would feel

comfortable doing that. If she goes someplace else I just wouldn’t estimate.” Further, when

                                               2
asked how life threatening it would be, in Dr. Guild’s opinion, for Hancock not to be allowed

to go back to her house, Dr. Guild responded:

       I can’t put a figure on it. I can’t put anything [sic], but I couldn’t recommend
       it. I’m here today because I’m very fearful there is a good chance that if she
       doesn’t have that situation, she won’t be here and the need for a divorce won’t
       be before the court.

Dr. Guild discharged Hancock from the hospital on Friday, September 17, 1999.

¶6.    Dr. Guild formulated a discharge plan for Hancock, which provided that she live with

her mother and stepfather. According to the plan, Hancock was to be “with someone at all

times if possible . . . . [and] [i]f there was anything unusual . . . [her mother and step-father]

were to let [Dr. Guild] know.” Hancock’s parents were supposed to make sure that she took

her medications and met with Dr. Guild on an outpatient basis. Dr. Guild did not speak with

Hancock’s parents regarding the discharge plan, but he delegated that task to a social worker

and Herring. Hancock committed suicide on September 20, 1999, three days after her release

from St. Dominic Hospital.

¶7.    As part of its investigation of Hancock’s suicide, the Yazoo County Sheriff’s

Department discovered various suicide notes at the suicide scene and Hancock’s mother’s

house. Throughout the notes, Hancock blamed her husband for her impending suicide, and

she assigned her possessions to various family members. Hancock also left a note telling her

children how much she loved them.




                                                3
                                PROCEDURAL HISTORY

¶8.    On September 14, 2001, Candice Young, individually and as personal representative

of the wrongful death beneficiaries of Hancock, filed a complaint against Dr. Guild. Young

alleged that Hancock was under the care and treatment of Dr. Guild from August 6, 1999,

until her death on September 20, 1999. Young specifically alleged that Dr. Guild directly and

proximately caused Hancock’s death by his negligence in: (1) failing to meet his duty of care

in treating Hancock; (2) failing to adequately assess and screen Hancock as a suicide risk prior

to releasing her from the hospital; and (3) failing to take reasonable steps to eliminate or

mitigate situational factors of which he was aware that constituted a danger to Hancock and

enhanced her ability to take her own life.

¶9.    Dr. Guild filed an Answer on October 18, 2001. He admitted that he had provided

treatment to Hancock prior to her death and that Hancock had taken her life by firearm on

September 20, 1999. Dr. Guild affirmatively pleaded Section 85-5-7 of the Mississippi Code

Annotated and the doctrine of illegality.

¶10.   During discovery, Dr. Guild’s counsel repeatedly attempted to depose Herring and

eventually filed a Motion to Compel the deposition. In Plaintiff’s Response to Defendant’s

Motion to Compel, Young asserted the attorney-client privilege and the work product doctrine

on behalf of the deceased Hancock. Thereafter, the trial court denied the Motion to Compel

Herring’s deposition by Order filed April 5, 2004. The Order did not contain any grounds for

the denial, and the transcript of the hearing could not be located.




                                               4
¶11.   Dr. Guild also filed a Motion for Summary Judgment, contending that suicide was a

common law criminal act, and therefore, the illegality defense barred Young's claims against

Dr. Guild. Further, Dr. Guild argued that since suicide is generally a superceding cause

precluding liability, Young was required to show that her case qualified for the exception

recognized in Mississippi, the Irresistible Impulse Doctrine. Dr. Guild averred that Young

failed to show that Dr. Guild committed an intentional tort which caused an irresistible

impulse in the decedent to commit suicide. Dr. Guild also argued that the suicide notes found

by the Yazoo County Sheriff’s Department demonstrated that Hancock understood the

consequences of shooting herself; thus, her acts were volitional and not compensable.

¶12.   Young responded that the defense of superceding cause is inapplicable in cases based

upon the doctor/patient relationship. Young argued the jury should determine whether the

suicide was foreseeable and judge the reasonableness of Dr. Guild’s actions. Young asserted

that there were genuine issues of material fact as to whether Dr. Guild took reasonable steps

to prevent Hancock's suicide.

¶13.   The trial court denied the motion for summary judgment without explanation on April

5, 2004. A jury trial was conducted August 17-19, 2004. Young called six witnesses,

including Dr. Guild as an adverse witness. Dr. Guild was questioned about whether he

performed a suicide risk assessment and prepared a discharge plan.

¶14.   Young also called Dr. Raymond F. Patterson to testify as a forensic psychiatry expert.

Patterson testified that Dr. Guild violated the standard of care by failing to perform a proper

suicide risk assessment. Patterson opined that Dr. Guild discharged Hancock prematurely.

                                              5
Patterson also testified that Dr. Guild had an inadequate discharge plan to assist Hancock's

survival in the community at the time of discharge. Patterson testified that Dr. Guild violated

the standard of care in implementing the discharge plan when Dr. Guild failed to speak

directly with Hancock’s mother and stepfather prior to her discharge.

¶15.   Dr. Guild called four witnesses. Donna Carey Pigg, Hancock’s best friend, identified

handwritten letters sent to her by Hancock. Pigg also testified about Hancock’s interaction

with her family. Dr. Guild essentially testified that he had met the standard of care regarding

his treatment of Hancock. Willie Bell Hood, the deputy clerk at the Yazoo County Sheriff’s

Department, provided testimony about a fax the Department sent to Dr. Guild’s counsel.

Hood verified the date on the cover sheet as her handwriting, but she could not identify the

papers in the file as those she faxed or attest who placed the papers in the file. Last, Dr.

Sandra Holly testified as an expert in the field of psychiatry that Dr. Guild had met the

standard of care in his treatment of Hancock.

¶16.   At trial, Dr. Guild’s counsel made this offer of proof regarding the testimony of

Herring:

       [W]e would expect him to testify consistent with the - - testify with regard to
       Ms. Hancock’s state of mind regarding how she was being treated and the effect
       it had on her, with regard to her discharge situation that she wanted to be - -
       wanted to go to her mama’s home, she didn’t want to stay in the hospital. He
       talked to Dr. Guild, and he also thought it was the right thing to do. She was
       not suicidal. Those would be the two main things, although we would also
       expect him to confirm various discussions he had with Dr. Guild that’s been
       testified to by Dr. Guild.




                                                6
¶17.   After the offer of proof, the trial court denied any testimony from Herring. Because the

court denied the testimony, Dr. Guild requested the court give a negative inference instruction

to the jury. The court refused the instruction without comment.

¶18.   The jury returned a verdict for Dr. Guild on August 24, 2004. A final judgment was

entered by the trial court on August 26, 2004. On November 22, 2004, the trial court denied

Young’s motion for a new trial. On December 17, 2004, Young appealed, and on December

29, 2004, Dr. Guild cross-appealed.

                          DISCUSSION ON DIRECT APPEAL

¶19.   Young raises the following issues on direct appeal:

       I.     Whether the Trial Court Erred When It Granted All Abstract Instructions and
              Denied Young’s Proposed Instructions P-5 And P-6.

       II.    Whether the Trial Court Erred in Denying Young an Apportionment
              Instruction.

       III.   Whether It Was Reversible Error for the Trial Court To Admit into Evidence
              Cherie Hancock’s Suicide Notes.

       IV.    Whether the Cumulative Errors Of the Admission Of Inappropriate References
              to Privileged Information and Inadmissible Hearsay of Conversations with the
              Decedent Constitute Reversible Error.

       I.     Whether the Trial Court Erred When It Granted All Abstract
              Instructions and Denied Young’s Proposed Instructions P-5 and
              P-6.

¶20.   A party is entitled to a jury instruction so long as it concerns a genuine issue of

material fact and there is credible evidence to support the instruction. Mariner Health Care,

Inc. v. Estate of Edwards, 964 So. 2d 1138, 1156 (Miss. 2007) (citing DeLaughter v.


                                              7
Lawrence County Hosp., 601 So. 2d 818, 824 (Miss. 1992)). However, this Court will not

reverse based on the denial of an instruction unless it is shown that the granted instructions,

taken as a whole, do not fairly present the applicable law. Id. (citing Whitten v. Cox, 799 So.

2d 1, 16 (Miss. 2000)).

¶21.   When considering a refused jury instruction, the trial court is afforded considerable

discretion, and the Court’s primary concern on appeal is that “the jury was fairly instructed

and that each party's proof-grounded theory of the case was placed before it.” Cohen v. State,

732 So. 2d 867, 872 (Miss. 1998) (citing Splain v. Hines, 609 So. 2d 1234, 1239 (Miss. 1992)

(citing Rester v. Lott, 566 So. 2d 1266, 1269 (Miss. 1990))). When analyzing the grant or

refusal of a jury instruction, two questions should be asked: Does the instruction contain a

correct statement of law and is the instruction warranted by the evidence? Beverly Enters.

v. Reed, 961 So. 2d 40, 43-44 (Miss. 2007) (citing Hill v. Dunaway, 487 So. 2d 807, 809

(Miss. 1986)). A party is entitled to have jury instructions given that present his theory of the

case; however, this entitlement is limited in that the court may refuse an instruction which

incorrectly states the law, is covered fairly elsewhere in the instructions, or is without

foundation in the evidence. Harris v. State, 861 So. 2d 1003, 1012-13 (Miss. 2003) (citing

Humphrey v. State, 759 So. 2d 368, 380 (Miss. 2000), superceded by rule of evidence, Miss.

R. Evid. 702, as recognized in Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 39

(Miss. 2003)).

¶22.   This Court has held that “[i]nstructions should be tied to the specific facts of the case

and when given merely in the abstract, may be grounds for error.” McCarty v. Kellum, 667

                                               8
So. 2d 1277, 1287 (Miss. 1995) (quoting T. K. Stanley, Inc. v. Cason, 614 So. 2d 942, 952

(Miss. 1992)). “The test to determine whether or not an instruction is abstract is to determine

whether or not the instruction relates to facts shown by the evidence on the issues involved

in the case. If an instruction merely relates a principle of law without relating it to an issue

in the case, it is an abstract instruction and should not be given by the Court.” Id. at 1288

(quoting Fred's Stores, Inc. v. M & H Drugs, Inc., 725 So. 2d 902, 918 (Miss. 1998)).

“Abstract instructions on legal principles unrelated to facts and issues set out in the

instructions are dangerous, because, although they may be correct in principle, they require

legal training to properly interpret.” Id. at 1287. Instructions that do not inform the jury what

actions or facts constitute negligence run the risk of allowing the jury to determine questions

of law as well as questions of fact. Peoples Bank & Trust Co. v. Cermack, 658 So. 2d 1352,

1361 (Miss. 1995). However, the Court has also noted that “of late where we instruct our

juries that all instructions must be considered as a whole, we do not consider abstractness as

much of a vice, though we still do not regard it a virtue.” M & H Drugs, Inc., 725 So. 2d at

918.

¶23.   Young argues that the trial court erred when it refused Instruction Nos. P-5 and P-6.

Young contends that the jury was not properly instructed as to the Plaintiff’s theory of the

case. The trial court has the responsibility to instruct the jury on the law applicable to the case

and to ensure that any legal errors which are raised by the parties are corrected. See Savory

v. First Union Nat'l Bank of Del., 954 So. 2d 930, 934 (Miss. 2007) (citing Griffin v.

Fletcher, 362 So. 2d 594, 595 (Miss.1978)).

                                                9
¶24.   Young argues Instructions P-5 and P-6 properly advised the jury of the facts, law, and

theory of the case. Young also contends that the jury instructions were abstract as a whole,

since they only instructed the jury on the basic elements of negligence without any reference

to specific conduct. Young argues that the court should have at least admitted some version

of P-5 or P-6 in order to tie the facts of the case to the applicable law.

¶25.   Instruction 5 read:

       If you find from a preponderance of the evidence in this case that:

       1. Given the circumstances of Cherie S. Hancock’s medical condition during
       the time the defendant, Donald C. Guild, saw and treated her, a minimally
       competent physician and psychiatrist who had available the same general
       facilities, services, equipment and options as Donald C. Guild had during the
       time she was his patient would not have discharged Mrs. Hancock on
       September 17, 1999 from St. Dominic Hospital without performing a
       comprehensive suicide assessment and preparing an adequate discharge plan
       that included taking reasonable steps to provide a supportive environment and
       support system to Mrs. Hancock upon discharge; and

       2. The defendant Donald C. Guild failed to comply with this standard of care
       in his treatment of the plaintiff; and

       3. Such failure on the part of Donald C. Guild constituted a proximate cause or
       contributing proximate cause of the suicide death of Mrs. Hancock, then you
       must return a verdict for the plaintiff against the defendant, Donald C. Guild.

¶26.   Instruction P-6 read:

       If you find [sic] a preponderance of the evidence in this case that:

       1. Cherie S. Hancock was a patient of Dr. Donald C. Guild; and

       2. While a patient of Dr. Guild, Cherie S. Hancock was suffering from a mental
       and physical condition; and




                                               10
       3. Defendant, Donald C. Guild, should have reasonably been aware of Mrs.
       Hancock’s condition and was aware that she had previously attempted to
       commit suicide in 1996; and

       4. That on September 15, 1999, defendant, Donald C. Guild testified in open
       court under oath in the presence of Cherie S. Hancock in a divorce preceding
       that in his opinion, if Cherie S. Hancock were not allowed to move back into
       the marital house that she would take her own life; and

       5. That Donald C. Guild, knowing that Cherie S. Hancock, had not been
       allowed by the Court to return to the marital house, discharged her from St.
       Dominic Hospital two (2) days later on September 17, 1999 without performing
       a comprehensive suicide assessment or otherwise preparing an adequate
       discharge plan that included taking reasonable steps to provide a supportive
       environment and support system for Mrs. Hancock upon discharge; and

       6. That Donald C. Guild failed to provide the care and attention that Cherie S.
       Hancock’s condition reasonable [sic] required and which a reasonable prudent
       and minimally competent psychiatrist treating Mrs. Hancock would have
       provided; and

       7. That Donald C. Guild’s failure to provide such care and attention was the
       proximate cause or a proximate contributing cause of Cherie S. Hancock’s self-
       inflicted death by firearms on September 20, 1999, then your verdict should be
       for plaintiff.

¶27.   Regardless of whether or not the trial court should have granted P-5 and/or P-6, the

trial court failed to fulfill its ultimate duty to properly instruct the jury with any instruction

that tied the facts and issues of the case to the law of negligence. This Court finds the jury

instructions as a whole are abstract. When read in toto, the instructions provided the jury with

the appropriate standard of care but did not relate the standard of care to the facts and issues

of the case. The trial court should have given Young the opportunity to place before the jury

an instruction that informed the jury of all matters the Plaintiff contended were at issue and

necessary to prove her theory of the case.

                                               11
¶28.    Therefore, this Court holds that when a trial court is put on notice of a legal issue on

which the jury should be instructed, it is the court’s ultimate duty to properly instruct the jury

on that issue.1 Kolberg v. State, 829 So. 2d 29, 45 (Miss. 2002) (“There is no doubt that the

trial court is ultimately responsible for rendering proper guidance to the jury via appropriately

given jury instructions.”). The Court reverses the judgment, since the given jury instructions

were all abstract, and when read in toto, they failed to present Young’s theory of the case.

       II.    Whether the Trial Court               Erred   in   Denying     Young     an
              Apportionment Instruction.

¶29.   Young argues that she was entitled to this apportionment instruction. At trial, Young

orally tendered the following instruction:

       I’m proposing to say that . . . we, the jury find for the plaintiff and assess the
       damages, so you may apportion those damages as follows, and list the wrongful
       death beneficiaries, each one of them, and let the jury say – for instance, Your
       Honor, he’s going to argue that the house – that’s the home, the fact that the
       husband and the minor son, the part about cutting the phone line off and getting
       the divorce. I’ve got to two wrongful death beneficiaries that weren’t even
       living at home, had been gone for four years. Any apportionment of damages
       as to causation by the husband or the smallest son cannot be imputed to the
       other two.2




       1
        This Court acknowledges that a trial court is not required to instruct the jury sua
sponte or give instructions in addition to those tendered by the parties. Harris v. State, 861
So. 2d 1003, 1016 (Miss. 2003) (citing Gray v. State, 728 So. 2d 36, 60 (Miss. 1998)); see
also Samuels v. State, 371 So. 2d 394, 396 (Miss. 1979) (It is not generally the obligation
of the trial court to prepare and submit jury instructions on behalf of the State or the
defendant).
       2
        Although the record is not clear, it appears Young wanted an apportionment
instruction because she feared her individual claims would be reduced because of the alleged
negligence of other heirs.

                                               12
¶30.   Young argues the apportionment statute, Section 85-5-7 of the Mississippi Code

Annotated, and the comparative negligence statute, Section 11-7-15 of the Mississippi Code

Annotated, direct the jury to consider all conduct that may have proximately contributed to

an injury. According to Young, the trial court should have given the jury an apportionment

instruction pursuant to Section 85-5-7, since Dr. Guild put forth evidence that Thomas

Hancock and other family members caused Hancock to commit suicide.                 Dr. Guild’s

testimony indicated several times that Hancock's family exacerbated her mental condition.

He referred to notes from previous doctors suggesting Hancock's children and particularly,

her husband, mentally and physically abused her. Dr. Guild also stated that her family knew

from a previous doctor that she was not to have access to any guns. Pigg's testimony

included various references to negative interactions between Hancock and her family and how

the divorce and those interactions had adversely affected Hancock.

¶31.   On the other hand, Dr. Guild asserts that Young waived the right to request an

apportionment instruction when Young swore in an interrogatory response that no heir-at-law

exacerbated Hancock’s mental illness. Dr. Guild cites Coho Resources, Inc. v. McCarthy,

where this Court held that a failure to raise the issue of another tortfeasor during discovery

barred the right to an apportionment instruction. McCarthy, 829 So. 2d 1, 24 (Miss. 2002).

¶32.   In McCarthy, the plaintiff served an interrogatory on the defendants, requesting the

identity of any parties the defendants would contend caused the accident. Id. The defendants

did not identify any additional parties in their answer, nor did they supplement their response.



                                              13
Id. Consequently, the Court found they had waived any right they had to apportion fault to

another tortfeasor. Id.

¶33.   The Court finds that McCarthy controls the outcome for this issue. Young stated in

a discovery response that no heir had exacerbated Hancock’s mental illness. Young provides

no other theory as to how an heir could be held partially responsible for the suicide. Thus,

Young’s denial is binding on her, and waives her right to an apportionment instruction.

       III.   Whether It Was Reversible Error for the Trial Court To Admit into
              Evidence Cherie Hancock’s Suicide Notes.

¶34.   The standard of review governing the admissibility of evidence is whether the trial

court abused its discretion. Bullock v. Lott, 964 So. 2d 1109, 1132 (Miss. 2007). An

erroneous evidentiary ruling alone does not warrant reversal. Young v. City of Brookhaven,

693 So. 2d 1355, 1358 (Miss. 1997). The Court must determine whether the proper legal

standards were applied and prejudice resulted before reversal is warranted. Id.

¶35.   Dr. Guild entered as an exhibit suicide notes the sheriff’s office found in Hancock’s

bedroom and in her mother’s home. The exhibit also contained handwritten letters, which

Pigg and Young attested were written by Hancock. At trial, Young objected to the admission

of the suicide notes and argued they were never authenticated. The objection was overruled.

Young contends the admission of the suicide notes is reversible error.

¶36.   Rule 901 of the Mississippi Rules of Evidence governs the authentication requirements

for evidence. Sewell v. State, 721 So. 2d 129, 140 (Miss. 1998). Authentication requires

evidence sufficient to support a finding that the matter in question is what its proponent


                                            14
claims. Id.; Miss. R. Evid. 901(a). A person's handwriting may be authenticated by a lay

witness who is familiar with the handwriting. Sewell, 721 So. 2d at 140 (citing Hentz v. State,

542 So. 2d 914, 917 (Miss. 1989)). Such an authenticated document may be used by the trier

of fact in comparison with a specimen for which authenticity is in question. Miss. R. Evid.

901(b)(3). A party need only make a prima facie showing of authenticity, not a full argument

on admissibility. Sewell, 721 So. 2d at 140. “Once a prima facie case is made, the evidence

goes to the jury and it is the jury who will ultimately determine the authenticity of the

evidence, not the court. The only requirement is that there has been substantial evidence from

which they could infer that the document was authentic." Id.

¶37.   The Court finds that the letters Hancock wrote to Young and her children while

hospitalized were sufficiently authenticated by Young’s testimony. Likewise, during her trial

testimony, Pigg sufficiently authenticated a letter Hancock wrote to her. The trial court

appropriately allowed the jury to compare the letters with the unauthenticated suicide notes.

This issue is without merit.

       IV.    Whether the Cumulative Errors of the Admission of Inappropriate
              References to Privileged Information and Inadmissible Hearsay of
              Conversations with the Decedent Constitute Reversible Error.

¶38.   The standard of review governing the admissibility of evidence is whether the trial

court abused its discretion. Bullock v. Lott, 964 So. 2d 1109, 1132 (Miss. 2007). An

erroneous evidentiary ruling alone does not warrant reversal. Young v. City of Brookhaven,

693 So. 2d 1355, 1358 (Miss. 1997). The Court must determine whether the proper legal

standards were applied and prejudice resulted before reversal is warranted. Id.

                                              15
              A.      Whether Dr. Guild’s Counsel Erred When He Made Comments
                      Regarding Hancock’s Divorce Attorney After Young Invoked the
                      Attorney-Client Privilege.

¶39.   Young contends Dr. Guild’s counsel inappropriately commented to the jury that they

would not hear from Hancock’s divorce attorney, Jim Herring, despite Young’s claim of the

attorney/client privilege. Young claims that these comments were prejudicial to her, since

they left the jury to consider that Herring’s testimony would have been detrimental to her. Dr.

Guild responds that the trial judge instructed the jury to disregard the comment about Herring,

so any error was cured.

¶40.   In Parker v. Jones County Community Hospital, this Court ruled that certain

testimony violated the Mississippi Rules of Evidence and was inadmissible. Parker, 549 So.

2d 443, 445 (Miss. 1989). The Court then noted the trial court sustained the objection to the

testimony and instructed the jury to disregard the testimony. Id. The Court stated that “[t]he

law of error and curative instructions seems to be an analog to harmless error.”            Id.

“Generally speaking, our law presumes that jurors follow the trial judge’s instructions, as

upon their oaths they are obliged to do.” Jerry Lee's Grocery, Inc. v. Thompson, 528 So. 2d

293, 295 (Miss. 1988). Thus, a trial court’s admonishment to the jury to disregard an

improper question and answer is generally sufficient to cure any taint. The Court concludes

that this issue does not contribute to any reversible error.

              B.      Whether the Trial Court Erred in Admitting Hearsay in the Form
                      of Conversations between Pigg and Hancock.




                                              16
¶41.   Young also avers that throughout Pigg’s examination, Pigg referred to conversations

between herself and Hancock which were hearsay. Young further argues that the statements

were irrelevant, unfairly prejudicial, confusing, and misleading. Dr. Guild notes that Young

failed to identify any particular statements. Dr. Guild also argues that Young elicited hearsay

statements, similar to those complained of, when she testified about conversations between

herself and Hancock. Dr. Guild further argues the conversations were hearsay exceptions, as

they went to Hancock’s state of mind.

¶42.   Young broadly states that Pigg’s testimony constituted hearsay, but failed to provide

this Court with any reference to that testimony. Without support from the record, this Court

is not required to rule upon the merits of Young’s argument. See Varvaris v. Perreault, 813

So. 2d 750, 753 (Miss. Ct. App. 2001) (“The argument shall contain the contentions of the

appellant with respect to the issues presented, and the reasons for those contentions, with

citations to the authorities, statutes, and parts of the record relied upon.”). Therefore, we need

not decide this issue.

              C.         Whether the Trial Court Erred in Admitting Hearsay in the Form
                         of Undocumented Conversations between Dr. Guild and Hancock.

¶43.   The third error Young raises is that Dr. Guild, during his examination, repeatedly

referenced conversations between himself and Hancock. Dr. Guild claims that these

conversations contained statements made for the purpose of medical diagnosis or treatment.

However, Young replies that these statements do not meet the trustworthiness requirement of

Mississippi Rule of Evidence 803(4) because they were not written down in Dr. Guild’s


                                               17
medical records. Dr. Guild argues that Mississippi Rule of Evidence 803(4) contains no such

requirement or limitation.

¶44.   Once again, Young has failed to provide this Court with any direction as to the specific

testimony at issue. Without support from the record, this Court is not required to rule upon

the merits of Young’s argument. Therefore, the Court does not decide this issue.

                                   ON CROSS-APPEAL

¶45.   Dr. Guild raises the following issues on cross-appeal:

       I. Whether the Trial Court Erred in Denying Summary Judgment Because
       Young Failed to Provide Evidence Sufficient for the Irresistible Impulse
       Doctrine.

       II. Whether the Court Should Have Allowed Dr. Guild to Depose Herring.

       III. Whether the Court Erred in Denying Dr. Guild’s Inference Instruction.


       I.     Whether the Trial Court Erred in Denying Summary Judgment Because
              Young Failed to Provide Evidence Sufficient for the Irresistible Impulse
              Doctrine.

¶46.   “This Court reviews summary judgments de novo.” Univ. of Miss. Med. Ctr. v.

Easterling, 928 So. 2d 815, 817 (Miss. 2006) (citation omitted). Pursuant to Rule 56 of the

Mississippi Rules of Civil Procedure, “[t]he judgment sought shall be rendered forthwith if

the pleadings, depositions, answers to interrogatories and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact.” Miss. R.

Civ. P. 56(c). The court views the evidence in the light most favorable to the nonmoving




                                              18
party. Easterling, 928 So. 2d at 817. “The moving party bears the burden of demonstrating

there is no genuine issue of material fact.” Id.

¶47.   In Mississippi, suicide is a common law crime. Boutwell v. State, 181 Miss. 509, 178

So. 585, 587 (1938); see Shamburger v. Grand Casino of Miss., Inc., 84 F. Supp. 2d 794,

798 (S.D. Miss. 1998). Suicide is usually an intervening, superceding cause that cuts off

liability. See State ex rel. Richardson v. Edgeworth, 214 So. 2d 579, 586 (Miss. 1968)

(stating that “[r]ecovery in wrongful death actions has been denied in several cases where the

decedent committed suicide, on the ground that the suicide was an unforeseeable, intervening

cause of death”). In 1968, this Court recognized the Irresistible Impulse Doctrine as an

exception to the rule that a plaintiff could not recover for a suicide. See id. at 579. Under the

Irresistible Impulse Doctrine, a plaintiff may recover when a tortfeasor has (1) committed an

intentional tort that (2) causes an irresistible impulse in the decedent to commit suicide. See

id. at 587.

¶48.   In Edgeworth, the plaintiffs alleged that two justices of the peace and their deputies

committed intentional torts, the abuse of process, which led to the decedent’s suicide. Id. at

586. The Court declined to consider the criminality of the decedent’s suicide, since the

“plaintiffs’ evidence [made] a jury issue as to whether as a result of defendants’ intentional

torts, [the decedent] acted under an irresistible impulse and committed suicide.” Id. The

Court found that the “intentional conduct [of the defendants was] a legal cause of harm to the

plaintiffs [since] their individual acts were substantial factors in bringing about the harm.”

Id. The Court held:

                                               19
       [W]here the suicide is committed in response to an uncontrollable impulse,
       recovery may be had if the mental state of deceased was substantially caused
       by the defendant’s intentional wrongful acts, and whether they were substantial
       factors in bringing about the death by suicide may be issues for the jury.

Id. at 587 (emphasis added).       Because the facts showed the decedent acted under an

irresistible impulse, the Court did “not reach the additional issues considered in Tate v.

Canonica, which allowed recovery for suicide caused by an intentional tort if the mental

stress which the defendant inflicted was a substantial cause of the suicide, even if the decedent

was aware of his act and was not responding to an irresistible impulse.” Id. at 586 (citing

Tate v. Canonica, 180 Cal. App. 2d 898 (1960)).

¶49.   The Court in Edgeworth also looked to a prior case, Prentiss Truck & Tractor Co. v.

Spencer, 228 Miss. 66, 87 So. 2d 272 (1956), as support for its holding. In Spencer, a widow

filed for death benefits under the Mississippi Workmen’s Compensation Act. Spencer, 87 So.

2d at 273-74. She claimed benefits after her husband committed suicide due to a work injury.

Id. at 275. Under the Workmen’s Compensation Act, the plaintiff had to show the decedent’s

death was not willful. Id. at 276. The Court affirmed an award of compensation, since the

evidence showed:

       [T]he deceased employee took his life at a time when he was suffering from a
       mental disturbance of depressive insanity and did not have the mental capacity
       to determine the consequences of his act; that his mental condition was brought
       about by the injury received by him while working for his employer, and that
       his reasoning faculties were so far impaired that his self-destruction was not
       voluntary and wilful.

Id. at 279 (emphasis added).



                                               20
¶50.   The federal courts have followed Edgeworth and allowed compensation for a suicide

only upon a showing that an intentional tort caused an irresistible impulse which then caused

the decedent to commit suicide.        For instance, in Shamburger v. Grand Casino of

Mississippi, Inc., the decedent’s heirs claimed that Grand Casino caused the decedent to

commit suicide when it turned over bad checks written by the decedent to the district attorney.

Shamburger, 84 F. Supp. 2d 794, 796-98 (S.D. Miss. 1998). The federal court applied

Mississippi law, recognizing that Edgeworth was the “seminal case” that articulated the

Irresistible Impulse Doctrine. Id. at 798. The court stated “Mississippi now apparently

permits recovery if, at the time of suicide, the decedent was acting under an irresistible

impulse proximately caused by the intentional wrongful conduct of the defendant.” Id. The

court then articulated the following test for recovery in Mississippi: 1) the decedent must

suffer from a “mental disturbance”;3 2) the decedent must not act volitionally with the

understanding of his consequences; and 3) “the impulse must in fact be proximately caused

by the wrongful conduct of the defendant.” 4 Id. at 799. The court granted summary judgment

to the defendant, Grand Casino, since the plaintiffs had failed to provide expert testimony that

the decedent had suffered from an irresistible impulse at the time of death. Id. Expert



       3
         The court then went into a lengthy discussion of a “mental ‘condition’” versus a
“mental ‘illness,’” and found a plaintiff must show that the decedent suffered from a mental
illness at the time of death. Id. at 799-800. If the decedent suffers from a mental condition,
the court found that the suicide is volitional, and thus, an intervening cause. Id.
       4
       Shamburger requires expert testimony that the suicidal actions of the decedent arose
from an irresistible impulse. Id. at 799.

                                              21
testimony established the decedent acted volitionally in committing suicide. Id. at 800. The

court ruled that the decedent’s actions were voluntary, and as such, the suicide broke the

causal chain. Id. at 799.

¶51.   In Gunn v. City of Corinth, the decedent committed suicide by hanging himself with

his belt in a jail cell. Gunn, No. 1:90-CV-222-B-D, 1999 U.S. Dist. LEXIS 4263, at *2 (N.D.

Miss. Mar. 30, 1999). The jail officers were supposed to search and remove personal items

such as the belt prior to placing the detainee in the cell. Id. The officers failed to remove the

belt and failed to monitor the cell. Id. at *3-*4. The district court stated “[t]o assert a claim

under Mississippi law for wrongful death from suicide, the plaintiff must show that the suicide

was committed in response to an irresistible impulse proximately resulting from the

defendant's intentional wrongful act.” Id. at *10-*11 (citations omitted). The court held that

the plaintiff failed to make a prima facie case of wrongful death, since the plaintiff did not put

forth any evidence that the officers committed an intentional tort. Id. at *11. The Court also

noted that the officer’s failure to remove the belt aided the decedent, but the failure did not

cause an irresistible impulse. Id.

¶52.   The Court of Appeals has also recently considered the Irresistible Impulse Doctrine in

the context of a wrongful death suicide case. In Collums ex rel. Collums v. Union Planters

Bank, N.A., the plaintiffs alleged that the bank’s foreclosure of the decedent’s business

caused the decedent to commit suicide. Collums, 832 So. 2d 572, 575-76 (Miss. Ct. App.

2002) (upholding circuit court’s grant of summary judgment to defendants). The plaintiffs

asserted various claims, including intentional infliction of emotional distress and negligent

                                               22
infliction of emotional distress. Id. at 576. The Collums court cited Edgeworth for the

proposition that “suicide is actionable if the suicide is proximately caused by intentional

wrongdoing by the defendant and is the result of an irresistible impulse.” Id. at 577 (citing

State ex rel. Richardson v. Edgeworth, 214 So. 2d 579, 585-88 (Miss. 1968)). The court

noted that it “view[ed] irresistible impulse as a failure to control the body and not be able to

understand the consequences of certain actions.” Id. at 578. The Court of Appeals could not

identify an intentional tort by the defendants. Id. The Court of Appeals also ruled that the

decedent “planned his suicide and knew the benefits that his family would receive upon his

death from his life insurance policies.” Id.

¶53.   Although the Irresistible Impulse Doctrine remains part of Mississippi law, this Court

has never addressed its applicability in the context of a medical malpractice case filed against

a doctor who treated a patient for the mental condition which led to the patient’s suicide. This

Court, the Mississippi Court of Appeals, and the United States District Court for the Southern

District have decided cases in which claimants were allowed to proceed on a theory of

negligence in wrongful death suicide cases. None of these cases, however, address the

common law rule barring recovery in suicide cases. See Estate of Moffett v. SmithKline

Beecham Corp., No. 1:03cv532WJG-JMR, 2005 U.S. Dist. LEXIS 34326 (S.D. Miss. June

9, 2005); Carrington v. Methodist Med. Ctr., Inc., 740 So. 2d 827 (Miss. 1999); Mississippi

State Hosp. v. Wood, 823 So. 2d 598 (Miss. Ct. App. 2002).

¶54.   In Carrington, the decedent committed suicide while in the care of the Methodist

Medical Center. Carrington, 740 So. 2d at 828. The plaintiffs alleged that Methodist “failed

                                               23
to exercise ordinary and reasonable care in the custody of James Carrington, that Methodist

departed from the generally accepted and recognized standard of care and skill in the care and

custody of James Carrington . . . .” Id. Methodist asserted immunity under Mississippi Code

Annotated Section 41-21-105 (Rev. 2005), which grants immunity for good faith acts in

commitment proceedings. Id. This Court held “the statute does not immunize negligent

custodial care.” Id.

¶55.   In Mississippi State Hospital v. Wood, the Court of Appeals applied the physician

standard of care in determining whether a hospital was liable for a patient’s suicide. Wood,

823 So. 2d at 602. In Wood, the patient voluntarily committed herself, and while receiving

treatment in the hospital, she committed suicide. Id. at 600. The trial court and Court of

Appeals analyzed the case as a normal medical malpractice case.5 See Id. at 600-602. The

Court of Appeals affirmed the trial court’s judgment for the plaintiff, stating “we find that

there is, beyond question, substantial evidence in the record to support the trial court’s factual

determination establishing both the standard of care and its violation by MSH.” Id. at 602.

¶56.   In Estate of Moffett v. SmithKline Beecham Corp., the plaintiff filed a wrongful death

suicide action alleging “negligence, strict liability, breach of express and implied warranties,

breach of contract, fraud, battery, and loss of consortium.” Moffett, No. 1:03cv532WJG-



       5
        This Court notes the plaintiff’s expert testified the hospital’s actions “substantially
increased the likelihood that [the decedent] would have both the opportunity and a
compelling psychological impulse to do harm to herself.” Id. at 601 (emphasis added).
While the expert’s opinion addresses an “impulse,” that impulse was not caused by an
intentional tort, a required element under the Irresistible Impulse Doctrine.

                                               24
JMR, 2005 U.S. Dist. LEXIS 34326 *2-*3 (S.D. Miss. June 9, 2005). The plaintiff’s husband

committed suicide after taking Paxil for depression. Id. at *2. The defendants moved for

summary judgment. Id. at *1.

¶57.   The court analyzed the case under Mississippi’s product liability statute. Id. at *6.

The court found that the plaintiff’s expert report was inadequate and the expert failed to show

Paxil caused the decedent to commit suicide. Id. at *11-12. The court noted while “some

degree of speculation is necessary in cases which turn on medical causation, the Mississippi

Supreme Court has insisted, ‘that proof of causation remain within the realm of the reasonably

probable,’ rather than ‘the merely speculatively possible.’” Id. (quoting Harris v. Shields, 568

So. 2d 269, 273 (Miss. 1990)).

¶58.   We hold today that the Irresistible Impulse Doctrine is inapplicable to a physician or

other medical provider from whom treatment is sought for a mental condition, where the

plaintiff claims that the negligent care led to the suicide. Such cases must proceed under the

analysis required in other medical negligence cases. Applying these principles to today’s

case, we hold the trial court did not err in denying summary judgment to Dr. Guild.

       II.    Whether the Court Should Have Allowed Dr. Guild to Depose
              Herring.

¶59.   This Court has stated “‘[t]he application of privilege is properly a mixed question of

law and fact, with the circuit court’s factual findings reviewed for clear error and its

interpretation of the law reviewed de novo.’” Nester v. Jernigan, 908 So. 2d 145, 147 (Miss.




                                              25
2005) (quoting Hewes v. Langston, 853 So. 2d 1237, 1241 (Miss. 2003) (citing United States

v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994))).

¶60.   Pursuant to Rule 502 of the Mississippi Rules of Evidence, “[a] client has a privilege

to refuse to disclose and to prevent any other person from disclosing confidential

communications made for the purpose of facilitating the rendition of professional legal

services to the client (1) between himself or his representative and his lawyer or his lawyer’s

representative . . . .” Miss. R. Evid. 502(b) (emphasis added); see also Miss. Code Ann. § 73-

3-37(4) (Rev. 2008) (stating that an attorney has the duty “[t]o maintain inviolate the

confidence and, at every peril to themselves, to preserve the secrets of their clients”).

Confidential communications can be actions as well as words. Hayden v. State, 972 So. 2d

525, 532 (Miss. 2007). A representative of a lawyer is a person “employed by the lawyer to

assist the lawyer in the rendition of professional legal services.” Miss. R. Evid. 502(a)(4).

A representative of a client is “one having authority to obtain professional legal services, or

to act on advice rendered thereto . . . .” Miss. R. Evid. 502(a)(2).

¶61.   A communication is not confidential if it is made in the presence of a third party

“unless it complies with the statement in Rule 502(a)(5).” Miss. R. Evid. 502 cmt. Under

Rule 502(a)(5), “[a] communication is confidential if not intended to be disclosed to third

persons other than those to whom disclosure is made in furtherance of the rendition of

professional legal services to the client or those reasonably necessary for the transmission of

the communication.” Miss. R. Evid. 502(a)(5) (emphasis added). The intent of the client is

“inferred from the particular circumstances.” Miss. R. Evid. 502 cmt. Furthermore, “[t]he

                                              26
privilege may be claimed by . . . the personal representative of a deceased client.” Miss. R.

Evid. 502(c).

¶62.   Dr. Guild argues the trial court should have allowed his counsel to depose Herring,

since Herring was involved in implementing Dr. Guild’s discharge plan. Furthermore,

Herring initially referred Hancock to Dr. Guild. Dr. Guild also states that he was barred from

receiving relevant documents from Herring.

¶63.   Dr. Guild argues that the attorney-client privilege should not apply to unprivileged

communications or documents. Additionally, Dr. Guild states he should have been allowed

to question Herring about the following: 1) communications between Dr. Guild and Herring;

2) communications between Herring and Hancock’s parents; 3) communications between

Herring and Hancock in Dr. Guild’s presence; 4) observations of Hancock’s behavior; and 5)

observations of the interaction of Hancock with her family.

¶64.   Dr. Guild cites Hewes v. Langston in support of his argument that the court should

have at least allowed a limited deposition. Hewes, 853 So. 2d 1237 (Miss. 2003). In Hewes,

the plaintiff requested that the trial court compel the defendant to produce certain documents

which the defendant claimed were privileged. Id. at 1239. After an in camera review, the

trial court ruled that some of the documents were discoverable while others were privileged.

Id. On appeal, the defendant argued that all the documents were protected by the attorney-

client privilege. Id. at 1240.

¶65.   In Hewes, this Court noted that the attorney-client privilege “‘relates to all

information regarding the client received by the attorney in his professional capacity and in

                                             27
the course of his representation of the client.’” Id. at 1244 (quoting Barnes v. State, 460 So.

2d 126, 131 (Miss. 1984)). The Court then conducted a de novo review to determine whether

the documents were discoverable, since the trial court twice failed to “conduct an item by item

review” and provide a “specific explanation of the . . . basis for concluding why certain

documents were discoverable and why certain documents were not.” Id. at 1240, 1249-50.

The Court stated “[w]e reiterate that when objections to discovery of specific documents are

made, the trial court should deal with each on an item-by-item basis, carefully considering

each objection, deciding whether to allow discovery, and stating the rule of exception which

provides the basis for the decision.” Id. at 1250.

¶66.   Young correctly counters that Dr. Guild’s Motion to Compel did not request any

documents from Herring. Dr. Guild requested only to depose Herring. Young also argues

that Dr. Guild failed to demonstrate the relevance of Herring’s testimony or any resulting

prejudice from the denial of the deposition.

¶67.   In his offer of proof, Dr. Guild proposed that Herring should be allowed to testify about

Hancock’s state of mind regarding how she was treated by her family and how she felt about

being discharged to her mother’s home. On appeal, Dr. Guild also requested that Herring

provide testimony of the interaction between Hancock and her family. Whether Herring

gleaned Hancock’s state of mind from her behavior or actual statements, such actions and

statements are protected by the attorney-client privilege if they were confidential and made

in the context of Hancock’s legal representation. On remand, the trial court should inquire

into the circumstances and substance of these actions, statements, and interactions, in order

                                               28
to determine if the attorney-client privilege is applicable. The trial court should use the item-

by-item approach of Hewes v. Langston, 853 So. 2d 1237 (Miss. 2003), as a model for

determining whether these actions and statements are privileged.

¶68.   In his offer of proof, Dr. Guild’s counsel also stated that he expected Herring to

confirm conversations to which Dr. Guild already had testified. Conversations between Dr.

Guild and Herring (regardless of Hancock’s presence) are protected under the attorney-client

privilege, since Dr. Guild was acting as Herring’s representative pursuant to Rule 502(a)(4)

when he treated Hancock. Although these conversations are privileged, this Court finds that

Young waived the attorney-client privilege during the following cross-examination of Dr.

Guild (called by Young as an adverse witness) regarding the discharge plan:

       Q      Right. But what I’m saying is you don’t know if you talked to the
              mother or not, do you?
       A      Yes, I do.
       Q      You know you did?
       A      Well, I know Mr. Herring did.
       Q      No, do you know – well, did you talk to her?
       A      I don’t know that I talked to her.
       Q      You don’t know if Mr. Herring talked to her, do you?
       A      I know that.
       Q      Okay. So you don’t know if he talked to her or not, do you?
       A      I don’t believe Mr. Herring would lie. It’s possible, but very unlikely.
       Q      What did Mr. Herring tell her?
       A      He told her what we discussed.
       Q      What was that?
       A      The main thing was that she was to be with somebody as much of the
              time, if anything changed, let us know, and take her medicine, come to
              the appointments.
                             ....
       Q      Well, I thought the attorney did the contacting of the mother?
       A      He did too. It was double.
       Q      What did they tell her? Do you know what they told her?

                                               29
       A      I didn’t hear the conversation.

¶69.   Young’s attorney asked specific questions regarding the conversations between Dr.

Guild and Herring regarding the discharge plan and its implementation. Young also asked Dr.

Guild about the substance of Herring’s conversations with Hancock’s mother. This Court

finds instructive Jackson Medical Clinic for Women, P.A. v. Moore, 836 So. 2d 767 (Miss.

2003), in support of waiver.

¶70.   In Moore, the defendant issued a subpoena duces tecum to the plaintiff’s former

attorney. Moore, 836 So. 2d at 768. The plaintiff filed a motion to quash the subpoena duces

tecum, asserting the attorney-client privilege, and the court granted the motion. Id. On

appeal, the defendant asserted that the plaintiff had waived the attorney-client privilege by

statements she made in an affidavit and during a deposition. Id. at 771-72. In her affidavit

and deposition, the plaintiff had testified to discussions she had had with her former attorney.

Id.

¶71.   In its analysis of waiver, this Court stated “‘[o]nce the client has effectively waived the

privilege, the attorney is competent as a witness regarding matters otherwise within the scope

of the privilege.’” Id. at 771 (quoting Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984)).

This Court also looked to American Standard, Inc. v. Bendix Corp., 80 F.R.D. 706, 708

(W.D. Mo. 1978) and Metropolitan Life Insurance Co. v. Aetna Casualty & Surety Co., 249

Conn. 36, 730 A.2d 51, 52-53 (1999), for the rule that the attorney-client privilege is waived

when a litigant voluntarily injects a material issue into a case. Id. at 773. This Court quoted

the following from Aetna Casualty:

                                                30
       [E]xception [to the attorney-client privilege] is invoked only when the contents
       of the legal advice is integral to the outcome of the legal claims of the action.
       Such is the case when a party specifically pleads reliance on an attorney’s
       advice as an element of a claim or defense, voluntarily testifies regarding
       portions of the attorney-client communication, or specifically places at issue,
       in some other manner, the attorney-client relationship.

Id. (quoting Aetna Casualty, 730 A.2d at 52-53). The Court held the plaintiff had voluntarily

testified about otherwise privileged communications; thus she effectively waived the

privilege. Id.

¶72.   This Court finds Jackson Medical Clinic for Women, P.A. v. Moore, 836 So. 2d 767

(Miss. 2003), analogous to the facts at hand. Young’s attorney directly questioned Dr. Guild

about conversations between Herring and himself and Herring and Hancock’s mother.

Young’s counsel voluntarily elicited testimony regarding the substance of privileged

conversations and injected a material issue into the case.       The discharge plan and its

implementation was a material issue before the trial court. This Court finds a limited waiver

as to these noted discussions. Cf. Century 21 Deep S. Props., Ltd. v. Corson, 612 So. 2d

359, 374 (Miss. 1992) (ruling that the “attorney-client privilege can be waived for limited

purposes”).

¶73.   On remand, the trial court should allow Herring to testify about conversations with Dr.

Guild that concern the discharge plan and its implementation. Herring should also be allowed

to testify about conversations he had with Hancock’s mother that concerned the discharge

plan and its implementation. The trial court may allow further testimony after an item-by-

item review of the topic or area of proposed testimony, including the context of such


                                              31
communications. The court may consider any other information it deems prudent in order to

determine whether the communication was confidential and within the scope of the attorney-

client relationship. In line with Hewes v. Langston, 853 So. 2d 1237 (Miss. 2003), the court

should consider each objection, decide whether to allow the discovery, and state the rule or

exception which provides the basis for the decision.

       III. Whether the Court Erred in Denying an Inference Instruction.

¶74.   Because this Court finds that Herring is allowed to give limited testimony, the issue

of an inference instruction is now moot.

                                       CONCLUSION

¶75.   On Young’s direct appeal, the judgment is reversed and the case is remanded for

further proceedings and a new trial consistent with this opinion, since the jury instructions as

a whole were abstract. The remaining errors asserted on direct appeal are without merit. As

for the cross-appeal, the Court affirms the trial court’s denial of summary judgment because

the Irresistible Impulse Doctrine is inapplicable in this case. On remand, Dr. Guild should be

allowed to take a limited deposition of Jim Herring, and the trial court is instructed take an

item-by-item approach to any further issues of attorney-client privilege or work product

doctrine.

¶76. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-
APPEAL: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

     DIAZ, P.J., EASLEY, GRAVES AND DICKINSON, JJ., CONCUR.
RANDOLPH, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION JOINED BY SMITH, C.J., AND CARLSON, J. WALLER, P.J.,
NOT PARTICIPATING.

                                              32
    RANDOLPH, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶77.   I concur with the well-reasoned Majority opinion, but for Issue I. regarding jury

instructions. The Majority reverses and remands the case, finding that “the given jury

instructions were all abstract, and when read in toto, they failed to present Young’s theory of

the case.” (Majority Opinion at paragraph 28). I respectfully disagree, finding no error in the

jury instructions given, for collectively they pronounce the applicable rules of law.

¶78.   The central issue at trial was whether the applicable standard of care was satisfied, vel

non, regarding Dr. Guild’s suicide risk assessment, discharge plan, and communication

thereof. The propriety of the suicide risk assessment, discharge plan, and Dr. Guild’s

communication of same were matters of disputed expert testimony, which the jury was free

to reject or accept. The purpose of a jury instruction is to give the jury the law.

¶79.   “If an instruction merely relates a principle of law without relating it to an issue in the

case, it is an abstract instruction and should not be given by the Court.” Freeze v. Taylor, 257

So. 2d 509, 511 (Miss. 1972). However, even “defects in specific instructions do not require

reversal ‘where all instructions taken as a whole fairly – although not perfectly – announce

the applicable primary rules of law.’” 6 Wallace v. Thornton, 672 So. 2d 724, 729 (Miss.

1996) (quoting Burton v. Barnett, 615 So. 2d 580, 583 (Miss. 1993)). Reviewing the jury


       6
        “Of late where we instruct our juries that all instructions must be considered as a
whole, we do not consider abstractness as much of a vice, though we still do not regard it a
virtue.” Splain v. Hines, 609 So. 2d 1234, 1241 (Miss. 1992).

                                               33
instructions as a whole, “other instructions to the jury did provide the jury with appropriate

facts and specific standards.” McCarty v. Kellum, 667 So. 2d 1277, 1288 (Miss. 1995). See

also Fred’s Stores v. M&H Drugs, Inc., 725 So. 2d 902, 918 (Miss. 1998) (“[w]hen read as

a whole . . . the jury was fairly instructed in this case.”); Beckwith v. Shah, 964 So. 2d 552,

555 (Miss. Ct. App. 2007) (“when read in toto with the other instructions, we find that the jury

was provided with appropriate standards and facts.”). Furthermore, “[t]he granting of an

abstract instruction is not ordinarily considered to be a reversible error unless it tends to

confuse and mislead the jury.” Freeze, 257 So. 2d at 511. I find no confusion in the

instructions given which would mislead the jury.

¶80.   Jury Instruction No. 5 as modified defines negligence and the standard of care for a

physician in this state, and is neither misleading or confusing, stating:

       [t]he Court instructs the jury that the word “negligence” as used in these
       instructions with regard to Dr. Guild’s actions means the doing of some act
       which a reasonably prudent, minimally competent psychiatrist treating a patient
       such as Ms. Hancock would not have done under the same or similar
       circumstances, or the failure to do some act which a reasonably prudent,
       minimally competent psychiatrist treating a patient such as Ms. Hancock would
       have done under the same or similar circumstances. Therefore, if you believe
       that, during his care and treatment of Ms. Hancock, Dr. Guild acted as a
       reasonably prudent, minimally competent psychiatrist would have acted when
       faced with the same or similar circumstances, it is your duty to return a verdict
       for the defendant, Dr. Guild.

       If you believe that, during his care and treatment of Ms. Hancock, Dr. Guild
       failed to act as a reasonably prudent, minimally competent psychiatrist would
       have acted when faced with the same or similar circumstances, it is your duty
       to return a verdict for the plaintiffs.




                                              34
This instruction clearly “‘announce[s] the applicable primary rules of law.’” 7 Wallace, 672

So. 2d at 729 (quoting Burton, 615 So. 2d at 583). The instruction fairly states the medical

malpractice standard of care previously established by this Court. See Bickham v. Grant, 861

So. 2d 299, 303 (Miss. 2003); McCarty v. Mladineo, 636 So. 2d 377, 381 (Miss. 1994)

(recommended jury instruction).

¶81.   Jury Instruction No. 6 ties facts regarding Hancock’s suicide following her release

from the hospital to the principles of law in Jury Instruction No. 5, see Freeze, 257 So. 2d at

511, as well as introducing the legal principle that a physician is not the insurer of a patient’s

well-being, stating:

       [t]he Court instructs the jury that you may not return a verdict against Dr. Guild
       simply because Ms. Hancock committed suicide after being released from the
       hospital. Instead, the burden of proof is on the plaintiff to prove that the
       psychiatrist was guilty of negligence which caused the injury. In this case, the
       plaintiff must prove by a preponderance of the evidence that Dr. Guild was
       negligent in his treatment of Ms. Hancock and that such negligence, if any,
       caused her suicide. Therefore, before the plaintiff is entitled to a verdict in any
       amount whatsoever against Dr. Guild, she must prove by a preponderance of
       the evidence (1) that Dr. Guild failed to act as a reasonably prudent, minimally
       competent psychiatrist would have acted when faced with the same or similar
       circumstances, and (2) that such failure, if any, proximately caused Ms.
       Hancock’s death.

Recognizing the “considerable discretion” extended to the trial court as to “the form and

substance of jury instructions[,]” Higgins v. State, 725 So. 2d 220, 223 (Miss. 1998), when


       7
       Likewise, Jury Instructions No. 1a, 3, 8, and 9, which were clearly patterned on the
Mississippi Model Jury Instructions, announce the applicable primary rules of law on the
preponderance of the evidence standard, proximate cause, and the consideration of expert
witness testimony. See Mississippi Model Jury Instructions - Civil §§ 1.28, 1:38, 15:3, 15:4
(West 2007).

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the jury instructions considered as a whole “provide[d] the jury with appropriate facts and

specific standards[,]” McCarty, 667 So. 2d at 1288, there is no basis for reversal.

¶82.   Even assuming arguendo that some jury instructions were abstract, there is no support

that they “tend[ed] to [so] confuse and mislead the jury[,]” as to constitute reversible error.

Freeze, 257 So. 2d at 511. See also Fred’s Stores, 725 So. 2d at 918 (“[w]e find that these

instructions would not tend to confuse or mislead the jury, and therefore, we hold any error

for abstractness to be harmless.”); Beckwith, 964 So. 2d at 555 (“[i]n reviewing all of the jury

instructions, we do not find that instructions C-7 and D-4 are confusing or misleading as to

suggest that the jury misunderstood its role or the law.”). Young was not prohibited from

offering her factual theories expressly to the jury. Therefore, any suggested error should not

be deemed reversible, and the judgment entered on the jury verdict should be affirmed.

       SMITH, C.J., AND CARLSON, J., JOIN THIS OPINION.




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