           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2017-CA-00265-COA

THEOPOLOIS HARPER, INDIVIDUALLY AND                                         APPELLANT
ON BEHALF OF ALL THE HEIRS AT LAW AND
WRONGFUL DEATH BENEFICIARIES OF
LAURA TINE HARPER, DECEASED

v.

HUDSPETH REGIONAL CENTER AND                                                APPELLEES
MISSISSIPPI DEPARTMENT OF MENTAL
HEALTH

DATE OF JUDGMENT:                            01/13/2017
TRIAL JUDGE:                                 HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                   RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      DAVID L. VALENTINE
ATTORNEYS FOR APPELLEES:                     STUART ROBINSON JR.
                                             RICHARD T. CONRAD III
NATURE OF THE CASE:                          CIVIL - WRONGFUL DEATH
DISPOSITION:                                 AFFIRMED: 08/21/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

       TINDELL, J., FOR THE COURT:

¶1.    Laura Harper died while in the care of Hudspeth Regional Center. Following Laura’s

death, her brother, Theopolois Harper, individually and on behalf of Laura’s heirs-at-law and

wrongful-death beneficiaries, sued Hudspeth1 and the Mississippi Department of Mental

Health (collectively, the Appellees) under the Mississippi Tort Claims Act.2           After


       1
           Hudspeth is a state-operated facility.
       2
           See Miss. Code Ann. § 11-46-13 (Rev. 2012).
conducting a bench trial, the Rankin County Circuit Court found in favor of the Appellees.

On appeal, Theopolois argues he proved by a preponderance of the evidence that the

Appellees breached their standard of care to Laura and that this breach proximately caused

Laura’s death and resulted in damages.

¶2.    Because we find substantial credible evidence supports the circuit court’s judgment,

we affirm.

                                          FACTS

¶3.    Laura was born on October 28, 1954, with severe developmental disabilities. On

February 12, 1980, Laura became a resident at Hudspeth, which is an intermediate-care

facility for the developmentally disabled. For the next twenty-eight years, Hudspeth served

as Laura’s home. The Hudspeth staff diagnosed Laura with obsessive compulsive disorder

(OCD), psychotic disorder, and seizure disorder. To provide better care specifically tailored

to Laura’s needs, Hudspeth created an individual-support plan (ISP) for her. The staff used

the ISP to monitor Laura’s progress toward stated goals, and an interdisciplinary team

periodically reviewed the ISP.

¶4.    On July 21, 2008, the interdisciplinary team reviewed and revised Laura’s ISP. The

ISP noted that Laura had a good appetite and was allowed to independently feed herself.

However, the ISP also stated that Laura ate quickly “and should be monitored closely to

prevent her from grabbing food in any environment.” In addition, the ISP provided that the

staff should redirect Laura “to an area farthest from the door, especially during lunch time”


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because she might try to steal food from the kitchen. With regard to Laura’s other privileges,

the ISP stated that she enjoyed going to the different areas of Tulip Cottage (her residence

at Hudspeth), “toilet[ed] independently,” and had bathroom privileges.

¶5.    Laura died on October 26, 2008.         Hudspeth’s video footage showed Laura’s

movements prior to her death. The beginning of the video showed Laura asleep in a beanbag

chair in Tulip Cottage’s north dayroom. A Hudspeth employee awoke Laura, who then

exited the dayroom. The employee followed Laura to the door, but after a few seconds, the

employee turned around and reentered the dayroom. Laura walked down the north hallway

and entered Tulip Cottage’s south hallway, where she then entered the south hallway

bathroom alone. The video showed Laura’s legs while she was in the bathroom.

¶6.    After exiting the bathroom, Laura walked back down the south hallway and headed

in the direction of Tulip Cottage’s kitchen. About forty seconds had passed since Laura had

awoken and left the dayroom. After an additional forty seconds passed, Laura reappeared

from the direction of the kitchen with what appeared to be cheese in her hand. Laura walked

back down the south hallway, entered the north hallway, and stopped outside the dayroom

door. Without entering the dayroom, Laura turned around and went back into the south

hallway bathroom. A Hudspeth employee followed Laura into the bathroom. After Laura

and the employee exited the bathroom, Laura entered Tulip Cottage’s south classroom.

¶7.    Once inside the classroom, Laura sat down and appeared to eat the item in her hand.

A Hudspeth employee came toward Laura for a moment and appeared to speak to Laura.


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Laura then exited the classroom and walked back into the south hallway bathroom. A

Hudspeth employee again followed Laura into the bathroom. Shortly after, a second

Hudspeth employee also entered the bathroom. The video then showed Laura’s legs on the

floor as one of the staff members exited the bathroom. Nurses then entered the bathroom to

help Laura, who remained unresponsive to their efforts. From the time Laura awoke from

her nap to the time she collapsed in the bathroom, just over five minutes had elapsed.

¶8.    At trial, the circuit court heard testimony from Hudspeth’s director, Michael Harris.

At the time of Laura’s death, Harris served as Hudspeth’s assistant director. Although Harris

was not at Hudspeth on the day Laura died and had no firsthand knowledge of how she died,

he testified he was familiar with Hudspeth’s policies and procedures. At the time of Laura’s

death, Hudspeth’s policy directed the staff to observe and monitor patients. While Hudspeth

later implemented a policy that directed the staff to escort patients from one area of the

residence to another, Harris acknowledged the policy was not in effect at the time of Laura’s

death. Harris further testified he possessed no experience in providing direct care to patients

like Laura at a facility such as Hudspeth and was not qualified to offer an opinion on the

nursing standard of care for monitoring and observing patients.

¶9.    Mary Stubblefield, who worked at Hudspeth as a risk-management investigator,

testified about her investigation into Laura’s death. Stubblefield stated that someone from

Hudspeth informed her that “it was the practice of the staff to accompany [Laura] from one

location of the building to the other.” After watching the video footage from the day of


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Laura’s death, Stubblefield testified that the staff members’ actions did not fully comply with

the practice she had been told they usually employed for monitoring Laura. Stubblefield

further acknowledged, though, that she did not review Laura’s ISP, had never worked as a

direct-care worker, and was not qualified to offer an opinion as to whether the Hudspeth staff

appropriately monitored or supervised Laura on the day of her death. Stubblefield also stated

she did not know whether a staff member was monitoring the facility’s cameras and watching

the live footage as Laura walked around Tulip Cottage prior to her death.

¶10.   Dr. Russell Bennett testified for Theopolois as an expert in the fields of nursing and

long-term care. In forming his opinions, Dr. Bennett testified that he reviewed discovery,

depositions, Laura’s medical records and ISP, the video footage from the day of Laura’s

death, Hudspeth’s floor plans, and some of the facility’s policies and procedures. The

Appellees objected to Dr. Bennett providing any expert opinions related to the video footage

and Laura’s cause of death. After hearing the parties’ arguments, the circuit court found that

such testimony fell outside Dr. Bennett’s expert designation. The circuit court therefore

sustained both objections.

¶11.   On direct examination, Dr. Bennett opined the Appellees breached the standard of

care owed to Laura because they failed to provide a safe environment for her and observe her

activities. Specifically, Dr. Bennett testified the Appellees failed to escort Laura from one

area of Tulip Cottage to another and failed to properly secure the kitchen to prevent Laura

from obtaining food. On cross-examination, Dr. Bennett agreed there could have been staff


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members not shown in the video footage who were observing Laura’s movements. Dr.

Bennett also acknowledged that the applicable standard of care for nursing is a constant and

is not necessarily based on one particular facility’s policies and procedures.

¶12.   Although neither party called Christy Smith to testify at trial, the Appellees offered

into evidence excerpts of Smith’s deposition testimony. Smith was a registered nurse who

supervised all the registered nurses on staff at Hudspeth. Prior to her deposition, Smith

reviewed her nursing notes from the date of Laura’s death. Smith testified she was charting

when the staff alerted her that Laura had choked. After performing a finger sweep of Laura’s

mouth, Smith removed some cheese, checked Laura’s pulse, retrieved a crash cart, and began

CPR on Laura.

¶13.   With regard to Hudspeth’s client-monitoring policies and procedures, Smith testified

that, if patients were left in a room by themselves, staff members were supposed to check on

the patients every fifteen minutes. Smith agreed that Hudspeth’s policy directed staff

members to not allow patients to enter the kitchen unsupervised. However, Smith denied that

Hudspeth breached the standard of care owed to Laura by allowing her to walk around the

facility’s different areas unsupervised.

¶14.   Smith testified that Laura had bathroom privileges and that Laura “could walk around

by herself because the cottage [was] her home.” Smith also stated that Laura did not have

to be followed around the cottage. According to Smith, “monitored closely” meant that the

staff had to know where Laura was at all times, but they did not have to be right there with


                                              6
Laura or looking directly at her. Smith testified that Laura was not under constant one-on-

one supervision. Smith further stated that, even if staff members saw Laura had obtained

some cheese, they did not have to take the cheese from her if they did not think Laura would

choke on it. Although Smith testified it appeared Laura had in fact choked on some cheese,

she stated the incident also could have occurred during any meal.

¶15.   Luanne Trahant testified for the Appellees as an expert in the fields of nursing and

patient care and, more specifically, in the care of individuals in intermediate-care facilities

for the developmentally disabled. In forming her expert opinions, Trahant reviewed records

and documents from Hudspeth, deposition testimony, and the video footage. According to

Trahant, a facility such as Hudspeth does not typically provide one-on-one patient

supervision and observation except for a specified purpose, such as a patient’s time out, or

in emergency circumstances. Consistent with Smith’s testimony, Trahant stated the staff in

such facilities is only required to be aware of a patient’s general whereabouts on an every

fifteen-minute basis.

¶16.   Based on the documents she reviewed, Trahant found that Laura did not require one-

on-one supervision and could, within reason, move independently around Tulip Cottage

unless her programming schedule required her to be somewhere specific. Trahant stated that

the Hudspeth staff followed Laura’s ISP and appropriately monitored Laura. Trahant further

stated that fifteen-minute checks on Laura was a very reasonable plan for the staff to follow.

In Trahant’s expert opinion, the Hudspeth staff properly monitored and observed Laura on


                                              7
the date of her death and did not breach the standard of care.

¶17.   After considering the evidence and testimony, the circuit court found the staff at

Hudspeth may have breached the facility’s policy by allowing Laura to obtain cheese from

the kitchen. Even so, the circuit court determined “that such action did not violate the

standard of care” the Appellees owed to Laura. Because the circuit court concluded that no

breach of the standard of care proximately caused Laura’s death, it found in favor of the

Appellees. Aggrieved, Theopolois appeals.

                                STANDARD OF REVIEW

¶18.   This Court affords a circuit-court judge sitting without a jury the same deference as

a chancellor, and we will not disturb the circuit court’s findings when supported by

substantial credible evidence. City of Jackson v. Lewis, 153 So. 3d 689, 693 (¶4) (Miss.

2014). Furthermore, we will not disturb a circuit court’s findings after a bench trial unless

the circuit court manifestly erred, was clearly erroneous, or applied an erroneous legal

standard. Id. However, we review questions of law de novo. Stratton v. McKey, 204 So. 3d

1245, 1248 (¶8) (Miss. 2016).

                                      DISCUSSION

¶19.   On appeal, Theopolois contends he presented sufficient evidence to establish a prima

facie case of medical negligence. He therefore asks this Court to reverse the circuit court’s

judgment and to remand the case for a trial on damages.

¶20.   To establish a prima facie case of medical negligence, a plaintiff must prove:


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       (1) the defendant had a duty to conform to a specific standard of conduct for
       the protection of others against an unreasonable risk of injury; (2) the
       defendant failed to conform to that required standard; (3) the defendant’s
       breach of duty was a proximate cause of the plaintiff’s injury[;] and[] (4) the
       plaintiff was injured as a result.

Glenn v. Peoples, 185 So. 3d 981, 985 (¶11) (Miss. 2015). “The plaintiff must provide

expert testimony articulating the requisite standard that was not complied with, and . . .

establish that the failure was the proximate cause, or proximate contributing cause.” Univ.

of Miss. Med. Ctr. v. Littleton, 213 So. 3d 525, 535 (¶29) (Miss. Ct. App. 2016) (internal

quotation marks omitted). With regard to proximate causation, “the plaintiff must introduce

evidence which affords a reasonable basis for the conclusion that it is more likely than not

that the conduct of the defendant was a cause in fact of the result. A mere possibility of such

causation is not enough.” Id. (quoting Barrow v. May, 107 So. 3d 1029, 1034 (¶11) (Miss.

Ct. App. 2012)).

¶21.   In the present case, Laura’s ISP noted her tendency to try to steal food from the

kitchen and to eat too quickly. According to the excerpts from Smith’s deposition,

Hudspeth’s policy directed staff members to not allow patients to enter the kitchen

unsupervised. After reviewing the video footage from the date of Laura’s death, the circuit

court concluded that Hudspeth’s staff may have indeed violated a facility policy by allowing

Laura to obtain cheese from the kitchen. Despite this fact, the circuit court found the staff’s

conduct failed to amount to a breach of the standard of care owed to Laura. The circuit court

further concluded that no expert testimony demonstrated the Appellees proximately caused


                                              9
Laura’s death by breaching the standard of care.

¶22.   Based on the trial testimony and evidence, the circuit court found Laura “was free to

move about the cottage so long as the staff knew where she was at least every [fifteen]

minutes” and that she had “bathroom privileges,” which meant she could go to the restroom

unescorted. In Trahant’s expert opinion, Laura was an independent patient who, within

reason, could move about Tulip Cottage without an escort unless her programming schedule

required her to be somewhere specific. Smith corroborated Trahant’s expert opinion by

testifying that Laura could walk around Tulip Cottage by herself because the cottage was her

home. Although Trahant and Smith testified the staff was required to know Laura’s location

at all times and to perform fifteen-minute checks on her, they also both stated that “monitored

closely” did not equate to constant one-on-one supervision. According to both Trahant and

Smith, the Hudspeth staff appropriately monitored Laura on the date of her death and did not

breach the standard of care owed to Laura.

¶23.   After considering both Trahant’s and Dr. Bennett’s expert opinions, the circuit court

determined Trahant’s testimony to be more credible as to the relevant standard of care and

whether a breach occurred. Upon review, we find substantial credible evidence supports the

circuit court’s determination. We therefore conclude this assignment of error lacks merit.

                                      CONCLUSION

¶24.   Because we find substantial credible evidence supports the circuit court’s judgment,

we affirm.


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¶25.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.




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