                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2004-CA-01522-SCT


MISSISSIPPI DEPARTMENT
OF MENTAL HEALTH

v.

JULIA RENEE HALL


DATE OF JUDGMENT:                           06/30/2004
TRIAL JUDGE:                                HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED:                  LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     EUGENE M. HARLOW
ATTORNEY FOR APPELLEE:                      GEORGE L. FOLLETT
NATURE OF THE CASE:                         CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                AFFIRMED - 08/24/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE SMITH, C.J., WALLER, P.J., AND DICKINSON, J.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Julia Renee Hall filed a complaint against the East Mississippi State Hospital,1

alleging that, while she was a patient at East Mississippi, she sustained serious injuries after

falling from a third-story window. After conducting a bench trial pursuant to the Mississippi

Tort Claims Act, Miss. Code Ann. §§ 11-46-1 through -23 (Rev. 2002), the Lauderdale




       1
       The East Mississippi State Hospital is a psychiatric facility operated by the
Mississippi Department of Mental Hospital.
County Circuit Court entered a judgment against East Mississippi in the amount of $250,000.

We affirm the circuit court’s judgment in all respects.

                                            FACTS

¶2.    Julia Renee Hall, who was 25 years old at the time of the accident, has been

institutionalized at different mental health facilities since she was 13 years old. Her latest

admitting diagnosis was schizophrenia, disorganized type, borderline; and borderline

personality disorder. Her discharge diagnosis from her last stay at East Mississippi2 was Axis

One: schizoaffective disorder, bipolar type; alcohol dependency, in remission; amphetamine

abuse, in remission; cannabis abuse, in remission; Axis Two: borderline personality disorder.

She has been civilly committed to East Mississippi on four different occasions.

¶3.    On June 4, 2001, Hall became convinced that she would be transferred to the “back

building,” a facility for chronically ill patients. Hall and other patients believed that the back

building was an area where violence and abuse run rampant among the patients and where

there was little to no hope for recovery. Angela Eason, a staff member, filed the following

report about what occurred the afternoon of June 4:

                       Pam Johnson and I took the patients out for a smoke
                break at 5:00 o’clock, 1700. . . .

                       When these patients finished smoking, we returned to the
                unit on the elevator where the patients started talking about the
                back building and asking why would a patient get sent to those
                buildings. I explained it’s usually they can’t be stabilized on
                medications or patients that just keep on cycling through the
                system time and time again.



       2
           The accident occurred on June 4, 2001. Her discharge date was March 8, 2002.

                                                2
                          Julia Hall then laughed and said, You mean like me? I
                   then said, I haven’t heard your name come up about going to the
                   back building, but you do keep moving up and down between
                   second (a less restrictive ward) and third and you need to get it
                   together. You are too young to be institutionalized all your life.

¶4.     When they returned to the third-floor ward, Hall was “hysterical” and “crying”

because she thought that the staff was going to transfer her to the back building. Patients

Amanda Neal and Regina O’Bryant told Hall that they had a plan in place to escape and

coaxed Hall to join them. Neal and O’Bryant’s plan was to escape through a third-story

window in the all-purpose conference room which adjoined the nurses’ station. The door to

the room was not locked, and there was no security screen on the window. The window was

inoperable, but the women somehow removed a window pane. The group took sheets from

a linen closet on the floor which was also unlocked. They entered and exited the conference

room several times before Hall actually went out the window and began climbing down a

“rope” created by tying the sheets together. Hall lost her footing and fell to the ground. She

suffered multiple fractures of the right leg, necessitating eight surgeries so far. Her right foot

and heel have become infected several times due to soft tissue damage. She has undergone

bone and skin grafts. At the time of the hearing, her right foot and lower leg were swollen

and appeared to be deformed, and she noticeably limped. The circuit judge found that Hall

would “never be able to hold gainful employment of any consequence for the rest of her life,”

and that “she has a future of probable repeated and long-term mental health treatment in

institutions.” 3


        3
        Prior to the accident, the Social Security Administration had declared Hall disabled
due to her mental impairments.

                                                   3
¶5.    The circuit judge found that $1,000,000 for actual and compensatory damages 4 was

appropriate. He allocated fault as follows: East Mississippi, 50%; Hall, 25%; Neal, 12-

1/2%; and O’Bryant, 12-1/2%. Then, applying the cap on compensatory damages as set out

in Miss. Code Ann. §11-46-15 (Rev. 2002),5 the circuit judge entered a judgment against East

Mississippi in the amount of $250,000. East Mississippi appealed.

                                        DISCUSSION

¶6.        “A circuit court judge sitting without a jury is accorded the same deference with

regard to his findings as a chancellor, and his findings are safe on appeal where they are

supported by substantial, credible, and reasonable evidence.” City of Jackson v. Internal

Engines Parts Group, Inc., 903 So. 2d 60, 63 (Miss. 2005) (citing City of Jackson v. Perry,

764 So. 2d 373, 376 (Miss. 2000)). Questions of law are reviewed de novo. Internal

Engines, 903 So. 2d at 63 (citing Maldonado v. Kelly, 768 So. 2d 906, 908 (Miss. 2000)).

                 I.    WHETHER EAST MISSISSIPPI HAD A DUTY TO
                       PREVENT HALL FROM HARMING HERSELF BY
                       ATTEMPTING TO ESCAPE THROUGH THE
                       THIRD STORY WINDOW.

¶7.    To prevail on a negligence claim, a plaintiff must establish by a preponderance of the

evidence each of the elements of negligence: duty, breach, causation and injury. Miss. Dep’t

of Transp. v. Cargile, 847 So. 2d 258, 262 (Miss. 2003). The cause of Hall’s injuries was



       4
        The circuit judge ruled that the compensatory damages consisted of “past, present and
future reasonable medical expenses, pain and suffering, disability, disfigurement, and the
like.”
       5
       The statutory limitation of liability in effect at the time of Hall’s accident was
$250,000. Miss. Code Ann. § 11-46-15 (Rev. 2002).

                                               4
her fall from the third-story window, and the parties stipulate to Hall’s injuries. Therefore,

at issue is 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.

       Standard of Care for Patients with Mental Impairments

¶8.    A state facility providing mental health care is statutorily mandated to provide “proper

care and treatment, best adapted, according to contemporary professional standards.” Miss.

Code Ann. § 41-21-102 (Rev. 2005). Neither the Legislature nor Mississippi courts have

defined “contemporary professional standards,” but, in dicta, this Court, speaking through

the learned Presiding Justice Banks, commented, “[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.” Carrington v. Methodist Med. Ctr.,

Inc., 740 So. 2d 827, 829-30 (Miss. 1999). In Texas, “[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.” Mounts v. St. David’s Pavilion, 957 S.W.2d 661, 663

(Tex. Ct. App. 1997).6



       6
        See also Tomfohr v. Mayo Found., 450 N.W.2d 121, 124 (Minn. 1990) (a hospital
voluntarily undertakes the duty to protect the patient from self-inflicted injury, it had
assumed a duty to exercise reasonable care to prevent the event.); Cowan v. Doering, 545
A.2d 159, 162 (N.J. 1988) (under certain circumstances, a hospital has the duty to exercise
reasonable care to prevent patients from engaging in self-damaging conduct); Kent v.
Whitaker, 58 Wash. 2d 569, 364 P.2d 556, 557 (1961) (where patient with known suicidal
tendencies strangled herself with plastic tubing while unattended in locked room concerned
“failure of the specific duty of exercising reasonable care to safeguard and protect a patient
with known suicidal tendencies from injuring herself”).

                                              5
¶9.    The Texas standard of care for the duty a hospital owes to a patient is similar to what

we enunciated in Carrington. It is flexible in that the duty owed to patients may increase

depending on the physical or mental condition of the patient. It can therefore be applied to

different fact situations. We therefore adopt the Texas standard of care.

       Duties Owed to Hall

¶10.   Wood Hiatt, M.D., a board-certified psychiatrist,7 testified that East Mississippi had

the duty to protect patients from the consequences of their own dangerous behavior, to lock

doors to rooms where a patient could be present without supervision, and to put safety

screens on windows in rooms where a patient could be present without supervision. Dr. Hiatt

also testified that East Mississippi staff was required to know the location of each patient and

the actions in which each patient was engaged. Hall had attempted suicide in March of 2001,

and she should have been under “special observation.” The May 15, 2001, progress notes

concerning Hall state that Hall was a “danger to herself and others.”             Hall became

argumentative with a staff member on May 31 and was placed on the third-floor ward, which

was a locked unit.

¶11.   Dr. Hiatt further testified that East Mississippi breached the above-referenced duties

by allowing third-floor ward patients to freely enter and leave an unlocked room without

supervision, to have access to the linen closet, and to be without supervision long enough to

take sheets out of the linen closet, make a rope out of the sheets, pry the window open in the



       7
        Dr. Hiatt was a consultant for the East Mississippi adolescent unit, a position which
required weekly visits. He had never, however, visited the unit from which Hall attempted
her escape.

                                               6
conference room, take off their pajamas and put on regular clothes, attach the rope to a table

in the conference room, and climb out the window. What astounds the Court is that the three

women were coming in and out of the supposedly off-limits conference room which was

right next to the nurse’s station. Also, each patient was to be checked every thirty minutes.

Whoever staffed the nurse’s station or monitored the patients during these events should have

become suspicious about the women’s activities. Someone should have noticed that the three

women had pajamas on and then they changed into regular clothes. Hall testified that most

of the nurse’s aides were “watching television.”

¶12.   We find, as the circuit court did, based on Dr. Hiatt’s testimony, East Mississippi

breached the duties of care owed to Hall.

       Foreseeability

¶13.   East Mississippi contends that it committed no negligent acts because Hall’s injury

was unforeseeable. It states that the door to the conference room was “inadvertently”

unlocked and that the window in the conference room was “non-operable” and “non-

opening.” Therefore, East Mississippi argues, the only foreseeable action on the part of a

patient would have been to have been in the room without supervision and not for that patient

to pry the glass panes out of the window in an attempt to escape. Several members of the

East Mississippi nursing staff testified that they never considered the conference room to be

an escape risk and that they never thought a patient would attempt to escape out a third-story

window. Furthermore, East Mississippi claims it had no reason to consider Hall to be an

escape risk or to require closer supervision. Finally, East Mississippi cites Mississippi



                                              7
precedent which holds that, to be held negligent, an injury must be “reasonably foreseeable.”

Rein v. Benchmark Constr. Co., 865 So. 2d 1134, 1143 (Miss. 2004).

¶14.   In response, Hall points out that, under Gulledge v. Shaw, 880 So. 2d 288, 293 (Miss.

2004), the fact that an injury rarely occurs, or has never happened, is insufficient to protect

the actor from a finding of negligence.

¶15.   The evidence adduced at trial supports the circuit judge’s finding that Hall’s escape

attempt and injuries were foreseeable. Patricia Dudley, M.D., an East Mississippi staff

psychiatrist, testified that it is common knowledge that patients will try to climb out

windows; a staff nurse testified that any rooms where patients could be present without

supervision should have security screens on the windows (all of the patients’ rooms had

security screens); and another staff psychiatrist testified that the staff was aware that patients

would try to leave the third floor ward. Finally, Dr. Hiatt testified that mental hospital staff

should know that psychiatric patients will attempt to escape.

¶16.   The circuit court found that East Mississippi had a duty to keep unsupervised rooms

locked, to place safety screens on windows in unsupervised areas, and to monitor patients’

activities, that East Mississippi breached these duties on the night in question, and that the

injuries suffered by Hall were reasonably foreseeable. We find that the circuit court’s

findings were supported by substantial and credible evidence.

               II.    WHETHER EAST MISSISSIPPI IS IMMUNE
                      FROM LIABILITY UNDER THE MISSISSIPPI
                      TORT CLAIMS ACT.




                                                8
¶17.   The parties do not contest that East Mississippi, as a state hospital, is a “governmental

entity” for purposes of the Mississippi Tort Claims Act. Miss. Code Ann. §§ 11-46-1

through -23 (Rev. 2002). The MTCA cloaks governmental entities and state employees with

immunity “based upon the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a governmental entity or employee thereof,

whether or not the discretion be abused.” Miss. Code Ann. § 11-46-9(d) (Rev. 2002). A

duty is ministerial and not discretionary if it is imposed by law and its performance is not

dependent on the employee’s judgment. Cargile, 847 So. 2d at 267 (citing Mohundro v.

Alcorn County, 675 So. 2d 848, 853 (Miss. 1996)).

¶18.   Hall’s expert witness testified at trial that East Mississippi’s (1) failure to check the

third-floor conference room door to see if it was locked; (2) failure to install a security screen

on the third floor window; and (3) failure to monitor adequately its patients housed on a

locked ward constituted violations of the applicable standard of care.          East Mississippi

argues that these failures to act were discretionary functions and dependent upon its

employees’ judgments, and therefore it is immune from liability under the MTCA. It states

that there was no written policy, rule or standard which required the conference room to be

locked when not in use, which required security screens to be placed on non-patient rooms,

or which required the staff to monitor continuously the patients. Also, it contends that the

monitoring and supervision on the third-floor unit required the use of judgment and

discretion depending upon the individual patients, the staff’s knowledge of the patients, and

the activities of the patients and the staff at any given time. East Mississippi cites the



                                                9
definition of “ministerial function” from Black’s Law Dictionary 996 (6th ed. 1990): “a

function as to which there is no occasion to use judgment or discretion.”

¶19.   Hall responds that Mississippi case law has set out a two-part analysis in determining

whether a governmental function is discretionary or ministerial: (1) whether the activity

involves an element of choice or judgment (whether the act is discretionary in nature); and,

if so, (2) whether the choice or judgment involves social, economic, or political policy

alternatives (whether the act constituted a discretionary function). Doe v. State ex rel. Miss.

Dep’t of Corrs., 859 So. 2d 350, 356 (Miss. 2003) (citing Bridges v. Pearl River Valley

Water Supply Dist., 793 So. 2d 584, 588 (Miss. 2001)). Doe also held that duties are

ministerial if they are imposed by law, and performing them is not dependent on the

employee’s judgment. 859 So. 2d at 356. Hall points out that the duties involved in this case

(supervision of patients, locking doors to rooms where patients may be unsupervised, and

installing security screens in rooms where patients may be unsupervised) are not matters of

social, economic or political policy alternatives. Therefore, Hall concludes, these duties are

not discretionary.

¶20.   East Mississippi is required by statute to provide patients with mental health care and

treatment in accord with contemporary professional standards. Miss. Code Ann. § 41-21-

102(6) (Rev. 2005). Adhering to the mandates of this statute is not discretionary, and,

therefore, it is ministerial. Dr. Hiatt testified that contemporary professional standards dictate

that: (1) the doors to rooms where a patient might be present and unsupervised should be

locked; (2) security screens should be placed on windows in rooms where a patient might be



                                               10
present and unsupervised; and (3) patients should be monitored in a way so that any out-of-

the-ordinary actions on the part of the patients might be detected.

¶21.   We find that the duties East Mississippi owed to its patients were not discretionary

and that the discretionary function immunity provisions of the Mississippi Tort Claims Act

do not shield East Mississippi from liability in this matter.

              III.   WHETHER THE ACTIONS OF HALL AND THE
                     OTHER TWO WOMEN RELIEVED EAST
                     MISSISSIPPI OF LIABILITY AND WHETHER
                     THE CIRCUIT COURT’S ALLOCATION OF 50%
                     FAULT TO EAST MISSISSIPPI WAS TOO HIGH.

¶22.   The circuit judge allocated 25% of the fault to Hall, 25% to Neal and O’Bryant (12-

1/2% each), and 50% to East Mississippi. East Mississippi argues that all fault should be laid

at Hall’s feet because: (1) her actions were intentional; (2) she knew she should not have

been in the unsupervised conference room; and (3) she intentionally attempted to avoid

personnel in the escape attempt. East Mississippi concludes, without citing any case law, that

it “should not be held liable for [Hall’s] poor judgment.” Alternatively, East Mississippi

argues that the allocation of 50% fault to East Mississippi was too high.

¶23.   One of the reasons Hall was committed to East Mississippi was her poor judgment.

Her medical records show that she was highly impulsive and reckless. She had attempted

suicide on prior occasions. Her condition would deteriorate from time to time so that it was

necessary to move her to the third-floor locked ward for her own safety.            The civil

commitment order stated that Hall was a danger to herself and to others and that Hall’s




                                              11
behavior was “sometimes irrational and often described as ‘childlike.’”8          It was East

Mississippi’s duty to care and to provide a safe environment for a person who, because of

her mental impairments, could not take very good care of herself.

¶24.   That the three women entered and departed from the third-floor conference room

adjacent to the nurses’ station several times within a short time, changed from pajamas to

street clothes, broke a window pane, and transported a rope made out of sheets to the

conference room without detection shocks the Court’s conscience. A review of Hall’s

testimony at the bench trial clearly shows the severity of Hall’s mental impairments. An

allocation of 50% fault to East Mississippi is a very conservative estimate of the extent of

its negligence in caring for Hall. We find the circuit court’s allocation of fault is supported

by substantial evidence.

              IV.    OTHER POSSIBLE BARS TO LIABILITY.

¶25.   East Mississippi argues that Miss. Code Ann. § 11-46-9(1)(m) (Rev. 2002) provides

it with immunity. The statute provides as follows:

              (1)    A governmental entity and its employees acting within
                     the course and scope of their employment or duties shall
                     not be liable for any claim:

                                            ***

                     (m)     Of any claimant who at the time the claim arises
                             is an inmate of any detention center, jail,
                             workhouse, penal farm, penitentiary or other such


       8
       To involuntarily commit a person to a mental institution, a court must find by clear
and convincing evidence that the person is mentally ill and that “involuntary commitment is
necessary for the protection of the patient or others.” Miss. Code Ann. § 41-121-83 (Rev.
2005).

                                              12
                             institution, regardless of whether such claimant is
                             or is not an inmate of any detention center, jail,
                             workhouse, penal farm, penitentiary or other such
                             institution when the claim is filed; . . .

East Mississippi contends that “other such institution” may be interpreted as a state mental

hospital. However, subsection (m) clearly pertains to penal institutions.

¶26.   East Mississippi also claims that Hall was not entitled to recover damages because she

was injured during the performance of an illegal act pursuant to Miss. Code Ann. §§ 97-9-25

(Rev. 2000) and 11-46-9(1)(f) (Rev. 2002). A mental patient’s attempted escape is not a

criminal act. This claim is without merit.

              V.     WHETHER THE CIRCUIT COURT ERRED IN
                     DENYING IN PART EAST MISSISSIPPI’S
                     MOTION IN LIMINE.

¶27.   Gwendolyn Hardaway was a patient advocate 9 at East Mississippi at the time of the

accident. She conducted an investigation, interviewed many witnesses and wrote a report.

East Mississippi filed a motion in limine to prevent Hardaway from testifying at the trial and

to bar the introduction of her report into evidence. The circuit court granted that part of the

motion in limine which pertained to the report, finding it was confidential and privileged

under Miss. Code Ann. § 41-63-21 (Rev. 2005). However, the circuit court held that a

patient advocate was not subject to any privilege and that Hardaway could testify. East

Mississippi contends that Hardaway was, in essence, a quality assurance officer and was thus




       9
        Hardaway testified that a patient advocate protects the rights of patients and
investigates any allegations of abuse, neglect or exploitation.

                                              13
subject to Miss. Code Ann. § 41-63-23 (Rev. 2005), which provides in pertinent part as

follows:

              No person involved in preparation, evaluation or review of
              accreditation or quality assurance materials shall be permitted or
              required to testify in any civil action as to any evidence or other
              matters produced or presented during the course of preparation,
              evaluation or review of such materials or as to any finding,
              recommendation, evaluation, opinion, or other action of such
              accreditation or quality assurance or other person involved
              therein.

¶28.   The circuit court found that a patient advocate’s primary duties were to protect

vulnerable adults and to investigate allegations of abuse, neglect or exploitation. Hardaway

also testified that patients had specific rights guaranteed by statute and by East Mississippi,

and had civil rights. Her purpose was to respond to reports and determine whether a patient’s

rights had been violated or if the patient had been abused, neglected or exploited. We find

that the circuit court’s denial in part of the motion in limine was not an abuse of discretion.

See Poole v. Avara, 908 So. 2d 716, 721 (Miss. 2005) (“The standard of review for the

admission or suppression of evidence . . . is abuse of discretion.”). Hardaway’s function was

to protect Hall’s rights as a patient, not to participate in accreditation or quality assurance.

              VI.     WHETHER THE CIRCUIT COURT ERRED IN
                      ALLOWING AN EXPERT WITNESS IN THE
                      FIELD OF PSYCHIATRY TO TESTIFY AS TO
                      HALL’S PHYSICAL INJURIES AND FUTURE
                      MEDICAL EXPENSES.

¶29.   East Mississippi objects to Dr. Hiatt’s testimony as to Hall’s physical injuries and

what medical expenses she might incur in the future. It contends that Dr. Hiatt, who had

practiced family medicine in the past, was not an expert in orthopedics, infectious disease,


                                              14
vascular medicine, pain management or neurology. He never examined Hall, but testified

after reviewing her medical records and photographs of her leg.

¶30.   East Mississippi fails to note, however, that Dr. Hiatt served as a general medical

officer in the U. S. Air Force, had served as a flight surgeon for the Mississippi Air National

Guard, and had performed or assisted in numerous orthopedic surgeries. He was familiar

with the use of antibiotics and how they treat infections.

¶31.   Rule 702 of the Mississippi Rules of Evidence provides that expert testimony must

be based upon sufficient facts or data; the testimony must be the product of reliable principles

and methods; and the witness must have applied the principles and methods reliably to the

facts of the case. Poole, 908 So. 2d at 722. “Scientific knowledge means something more

than unsupported speculation or subjective belief that is grounded in methods and procedures

of science. Id. at 723 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590, 113

S. Ct. 2786, 125 L. Ed. 2d 469 (1993), superceded by F.R.E. 702). Also, “[u]nlike an

ordinary witness . . . an expert is permitted wide latitude to offer opinions, including those

that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 592. This

Court has held that, “[a]bsent other grounds to exclude, an expert’s testimony is

presumptively admissible when relevant and reliable.”            Miss. Transp. Comm’n v.

McLemore, 863 So. 2d 31, 39 (Miss. 2003). The basic threshold for admitting an expert’s

opinion is whether the testimony is “based on scientific knowledge which would assist the

trier of fact to understand or determine a fact at issue.” Poole, 908 So. 2d at 724 (citing

Daubert, 509 U.S. at 592).



                                              15
¶32.   Dr. Hiatt testified that Hall suffered extensive orthopedic injuries, extensive soft tissue

damage, and a string of infections. He pointed out that, after her hospitalization immediately

following the accident, Hall was hospitalized several times for infections. He opined that,

because of the nature of the soft tissue damages and the recurring infections, it was

reasonable to assume that Hall would undergo additional treatment requiring hospitalization

and possibly an amputation.

¶33.   We find that Dr. Hiatt’s testimony was admissible under M.R.E. 702. The testimony

was not based on any new or untested medical theories, but merely on his lengthy experience

as a physician. All his testimony was based on facts found in extensive medical records;

therefore it was reliable. The testimony assisted the trier of fact (here, the circuit judge);

therefore, it was relevant.

              VII.    WHETHER THE CIRCUIT COURT ERRED IN
                      FAILING TO ADMIT INTO EVIDENCE AN
                      ERRATA SHEET PERTAINING TO A
                      DEPOSITION.

¶34.   Khin Wai, M.D., was Hall’s treating psychiatrist. Her deposition consisted of two

volumes. There was only one correction on the errata sheet for her deposition. Nowhere

does East Mississippi state what the correction was or whether it was relevant to the outcome

of the case. “To the appellant falls the duty of insuring that the record contains sufficient

evidence to support his assignments of error on appeal.” Dillard’s, Inc. v. Scott, 908 So. 2d

93, 99 (Miss. 2005) (quoting Burney v. State, 515 So. 2d 1154, 1160 (Miss. 1987),

superceded by statute, Miss. Code Ann. § 99-7-2 (Rev. 2000)).

              VIII. WHETHER THE DAMAGES WERE EXCESSIVE.


                                               16
¶35.   Hall’s past medical expenses totaled $348,402.94. East Mississippi offered no

rebuttal to these costs.

¶36.   Hall was hospitalized immediately after the accident, but she had several other

hospitalizations to treat the recurring infection in her leg. The circuit judge found that the

average cost of these hospitalizations was $15,000. He awarded $75,000 for future medical

expenses. East Mississippi offered no rebuttal to this estimate.

¶37.   The damages total was $1,000,000, meaning that the circuit judge gave Hall

$591,597.06 for pain and suffering and for a permanent physical impairment to the leg and

foot. The circuit judge stated:

                      The injuries to the Plaintiff’s right foot and heel cause
               drainage to ooze and her sock becomes attached to the wounds
               when she tries to remove it. As depicted by the photographs in
               evidence, it is clear that the Plaintiff’s right foot and lower leg
               are swollen and that she has significant scar tissue as well. The
               foot appears to be deformed with a large calloused area around
               the heel. . . .

                                             ***

               She is permanently physically impaired and she will continue to
               have pain and suffering for the balance of her life. She has a
               noticeable limp in her walk and gait.

¶38.   Hall suffered horrible injuries to her leg, and she will be impaired for the rest of her

life. The amount of $591,597.06 is not even one and one-half times the amount of the

compensatory damages. The circuit court’s award of $1,000,000 in damages was not

excessive and is supported by substantial evidence.




                                               17
              IX.    WHETHER THE CIRCUIT COURT ERRED IN
                     GRANTING HALL’S MOTION FOR POST-
                     JUDGMENT INTEREST.

¶39.   Miss. Code Ann. § 75-17-7 (Rev. 2000) provides that judgments in cases such as this

“shall bear interest at a per annum rate set by the judge hearing the complaint from a date

determined by such judge to be fair but in no event prior to the filing of the complaint.”

(Emphasis added.) Here, the circuit court did not include post-judgment interest in its

memorandum opinion and judgment. Subsequently, Hall filed a motion for post-judgment

interest, which was granted.

¶40.   Hall filed her motion under M.R.C.P. 60(a), alleging that the circuit court’s failure to

address her prayer for post-judgment interest was a clerical error. East Mississippi contends,

however, that her motion is, in actuality, a motion to alter or amend a judgment under

M.R.C.P. 59(e), which is required to be filed within 10 days of the entry of judgment. Hall

did not file her motion until 58 days after the circuit court filed its judgment. East

Mississippi’s argument does not take into account our ruling in U.S. Fidelity & Guar. Co. v.

Estate of Francis ex rel. Francis, 825 So.2d 38, 50 (Miss. 2002):

                     We also hold the chancellor was within the bounds of his
              discretionary authority in awarding post-judgment interest.
              Because the right to post-judgment interest is a statutory right
              according to Miss. Code Ann. § 75-17-7 (1991), this Court does
              not conclude that the motion for interest was a motion to amend
              or alter the judgment. Therefore, we need not address the
              timeliness of filing the motion in accordance with M.R.C.P. 59.
              Miss. Code Ann. § 75-17-7 (1991) has been amended to allow
              interest “at a per annum rate set by the judge.” We hold that the
              chancellor's awarding of interest at the rate of one percent above
              the prime rate of eight percent was within his discretion under
              the revised statute.


                                             18
Therefore, under Francis, the Rule 59(e) 10-day limitation is not applicable to a motion for

post-judgment interest.

¶41.   Next, East Mississippi contends that the circuit court did not have jurisdiction to rule

on the motion inasmuch as the motion was filed after East Mississippi had filed its notice of

appeal. Indeed, the “timely filing of a notice of appeal is jurisdictional.” Smith v. Parkerson

Lumber, Inc., 890 So. 2d 832, 834 (Miss. 2003). We find, however, that, even if the circuit

court did not have jurisdiction to rule upon Hall’s motion, the error would be harmless due

to the mandatory nature of Miss. Code Ann. § 75-17-7 (Rev. 2000): post-judgment interest

“shall” be awarded.

¶42.   East Mississippi argues that post-judgment interest cannot be awarded where, as here,

the award of compensatory damages is equal to the statutory cap of $250,000 under the

Mississippi Tort Claims Act, Miss. Code Ann. §11-46-15 (Rev. 2002). Section 11-46-15(2)

specifically excludes awards of punitive damages, pre-judgment interest and attorney’s fees

from being imposed against a governmental entity. Therefore, because the Legislature did

not specifically exclude post-judgment interest, it may be awarded against governmental

entities. See Miss. Transp. Comm'n v. Ronald Adams Contr., Inc., 753 So. 2d 1077, 1094

(Miss. 2000) (adopting plurality opinion in City of Jackson v. Williamson, 740 So. 2d 818,

821 (Miss. 1999)). Public policy also demands that governmental entities covered by the

MTCA pay post-judgment interest:

                     Several important public policy considerations undergird
              both legislative intent and our interpretation of that intent today
              regarding post-judgment interest. Post-judgment interest is
              generally recognized as a common-law element of actual


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              damages in civil actions. In fact, we have long held that interest
              is not imposed as a penalty but instead as compensation for
              detention of overdue money. This resolves any questions of
              hybrid situations where the governmental entity is represented
              by an insurance company to which the governmental entity has
              paid a premium for costs, interest, and statutory damages.
              Indeed, our citizenry must be given the benefit of that which
              they have already paid. Dealing with the current issue as we
              have rectifies the gamut of potential scenarios that may arise.

                      Further, simple interest is not a sufficient remedy. The
              utility of post-judgment interest, statutory damages, and costs is
              that of supplementing this simple damages interest with
              necessary additional damages. In addition, the application of
              post-judgment interest and statutory damages discourages
              frivolous appeals and encourages governmental actors to settle
              legitimate claims when made. The potential of paying
              post-judgment interest and statutory damages encourages speedy
              compensation of legitimate claims and discourages litigation of
              unworthy issues. The strategy of delaying payment until the
              award has actually diminished in value will be thwarted. The
              interests of worthy claimants and judicial economy will each be
              advanced by today's holdings.

Williamson, 740 So. 2d at 823 (citations omitted).

¶43.   We find that, due to the mandatory nature of § 75-17-7 and because public policy

heavily favors post-judgment interest, post-judgment interest over and above the statutory

cap may be awarded against a governmental entity.

                                      CONCLUSION

¶44.   For these reasons, we affirm the circuit court’s judgment in favor of Julia Renee Hall.

¶45.   AFFIRMED.

      SMITH, C.J., DIAZ, CARLSON, GRAVES, DICKINSON AND RANDOLPH,
JJ., CONCUR. COBB, P.J., CONCURS IN PART AND DISSENTS IN PART
W ITH O UT SEPA RA TE W R ITTEN O P IN IO N .    EA SLEY , J., N OT
PARTICIPATING.


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