         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2015-CA-01759-COA

GRAHAM READ IRBY, A MINOR, BY AND                                               APPELLANT
THROUGH KAREN COLLINS, MOTHER AND
NEXT FRIEND

v.

SUDHAKAR MADAKASIRA, M.D. AND                                                   APPELLEES
PSYCAMORE, LLC

DATE OF JUDGMENT:                            08/24/2015
TRIAL JUDGE:                                 HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                   RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     JOHN W. CHRISTOPHER
                                             WILLIAM P. FEATHERSTON JR.
ATTORNEYS FOR APPELLEES:                     CLIFFORD B. AMMONS
                                             CLIFFORD BARNES AMMONS JR.
NATURE OF THE CASE:                          CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION:                     GRANTED APPELLEES’ MOTION TO
                                             DISMISS
DISPOSITION:                                 AFFIRMED - 03/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       BARNES, J., FOR THE COURT:

¶1.    Graham Read Irby, by and through his mother, Karen Collins, filed a wrongful-death

suit against the psychiatrist who treated his father, Stuart M. Irby (Irby), prior to Irby’s death

by suicide. The suit alleged the psychiatrist’s intentional and negligent acts created an

irresistible impulse in Irby to commit suicide. The circuit court dismissed the action, finding

that the claims of intentional acts were barred by the one-year statute of limitations for

intentional torts and that Irby’s suicide was a superseding event that barred any negligence
claims. On appeal, Collins argues that despite allegations of intentional acts, the complaint

was based in negligence, for which a two-year statute of limitations applies, and the

negligence action is not barred. Finding the circuit court correctly dismissed the complaint,

we affirm.

                                          FACTS

¶2.    Prior to his death, Irby sought psychiatric treatment from Dr. Sudhakar Madakasira,

a physician specializing in psychiatry. Dr. Madakasira treated Irby for various conditions,

including bipolar disorder, anger management, and alcohol abuse. On February 11, 2009,

Irby and his wife, Karen Irby, now Karen Collins, were involved in a car accident. Irby

suffered a severe, traumatic frontal-lobe brain injury. He continued to see Dr. Madakasira

for the brain injury.

¶3.    Due to that injury, Irby was deemed incapable of conducting his own business affairs,

and coconservators were appointed by the Hinds County Chancery Court, First Judicial

District. The conservators petitioned the chancery court for authority to file a divorce

complaint on Irby’s behalf against Collins. The petition was granted. In support of the

divorce complaint, the conservators attached an affidavit executed by Dr. Madakasira on

October 28, 2011, while Irby was under his care. The affidavit stated that Irby had told Dr.

Madakasira that he was unsure if he wanted a divorce from Collins. However, Dr.

Madakasira swore in his affidavit that due to the brain injury, Irby was not capable of making

a decision in his or Graham’s best interest regarding the divorce. Dr. Madakasira opined that

a divorce was in Irby’s best interest and that it would be detrimental to Irby’s health to



                                              2
remain married to Collins. Dr. Madakasira testified consistently at the divorce hearing.

Although Irby testified he did not want a divorce, the divorce was granted.

¶4.    On January 17, 2012, Irby told Collins, over the phone, that he was forced into the

divorce and had no reason to live. Irby committed suicide at his home later that day.

¶5.    On December 16, 2013, Collins sent Dr. Madakasira and his employer, Psycamore

LLC, a notice of intent to commence a medical-malpractice action based on wrongful death.

See Miss. Code Ann. § 15-1-36(15) (Rev. 2012) (requiring at least sixty days’ prior written

notice of intent to begin a professional-negligence claim against healthcare providers). On

March 17, 2014, Collins filed her complaint in Hinds County Circuit Court, First Judicial

District. The complaint alleged that Dr. Madakasira and Psycamore, through the doctrine of

respondeat superior, negligently caused Irby’s death by suicide. It was later determined that

the proper venue was Rankin County, and an agreed order was entered transferring the case

to Rankin County Circuit Court.

¶6.    After the case was transferred, Collins was granted leave to file an amended

complaint. The amended complaint alleged negligence and added a claim for “intentional

acts.” The amended portion of the complaint alleged that “[a]s a direct and proximate result

of the intentional acts of Dr. Madakasira in assisting the conservators in the prosecution of

the divorce action and the granting of a divorce by the Chancery Court[,] Stuart M. Irby

developed an irresistible impulse to commit suicide[.]”

¶7.    Dr. Madakasira moved to dismiss the case on the grounds that the one-year statute of

limitations for intentional torts barred the action and that any negligence claims were barred



                                              3
for failure to state a claim upon which relief can be granted. After a hearing, the circuit court

granted the motion to dismiss. Collins’s motion for reconsideration was denied. Collins

appeals, arguing that the two-year statute of limitations for professional negligence applies

and that the case should be reversed and remanded for discovery and further proceedings.

                                STANDARD OF REVIEW

¶8.    The application of the correct statute of limitations is a question of law, which we

review de novo. Lyas v. Forrest Gen. Hosp., 177 So. 3d 412, 416 (¶18) (Miss. 2015). We

also review de novo a trial court’s decision to grant a motion to dismiss under Mississippi

Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief can be granted.

Stockstill v. State, 854 So. 2d 1017, 1019-20 (¶4) (Miss. 2003). When considering a Rule

12(b)(6) motion to dismiss, “the allegations in the complaint must be taken as true, and the

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

to prove any set of facts in support of her claim.” Stockstill, 854 So. 2d at 1020 (¶4).

                                        DISCUSSION

       I.     Whether Collins’s wrongful-death complaint is barred by the one-
              year statute of limitations for intentional torts.

¶9.    The applicable statute of limitations in “a wrongful[-]death action is adopted from the

statute of limitations that governs the tort that caused the death.” Tolliver ex rel. Wrongful

Death Beneficiaries of Green v. Mladineo, 987 So. 2d 989, 996 (¶17) (Miss. Ct. App. 2007)

(citing Lee v. Thompson, 859 So. 2d 981, 990 (¶21) (Miss. 2003)). The statute of limitations

for medical malpractice is two years. Id.; Miss. Code Ann. § 15-1-36(2) (Rev. 2012).

Intentional torts not within the medical-malpractice statute, however, are subject to a


                                               4
one-year statute of limitations. Miss. Code Ann. § 15-1-35 (Rev. 2012).1

¶10.   Collins’s original complaint alleged medical negligence. In November 2014, after

Collins’s complaint was filed, the Mississippi Supreme Court handed down its decision in

Truddle v. Baptist Memorial Hospital-DeSoto Inc., 150 So. 3d 692 (Miss. 2014). Both sides

agree that Truddle controls this case. Truddle held that “to sustain a cause of action for a

suicide . . . , the plaintiff must show that the defendant committed an intentional act that

[proximately caused] an irresistible impulse [in the decedent] to commit suicide[.]” Id. at

697 (¶19) (emphasis added) (citing State ex rel. Richardson v. Edgeworth, 214 So. 2d 579,

586-88 (Miss. 1968)). This is an exception to common law, which prohibited recovery for

wrongful death by suicide, as “suicide is an ‘unforeseeable, intervening cause[,] which

breaks the causal connection between the wrongful act and the death.’” Id. at 695 (¶11)

(quoting Edgeworth, 214 So. 2d at 586).

¶11.   To comply with Truddle’s intentional-act pleading requirement, Collins moved for,

and was granted, leave to amend the complaint. The pertinent section of the amended

complaint reads:

                        INTENTIONAL ACTS OF DEFENDANT
       ....

       15.    Dr. Madakasira knowingly engaged in a course of conduct with the

       1
         “All actions for assault, assault and battery, maiming, false imprisonment, malicious
arrest, or menace, and all actions for slanderous words concerning the person or title, for
failure to employ, and for libels, shall be commenced within one (1) year next after the cause
of such action accrued, and not after.” Miss. Code Ann. § 15-1-35. “[T]he proscription of
the statute necessarily extends beyond the tort labels specifically appearing,” and applies to
all “substantially like” intentional torts “for which no specific statute has been provided.”
City of Mound Bayou v. Johnson, 562 So. 2d 1212, 1218 (Miss. 1990).

                                              5
       conservators of Stuart M. Irby to have a divorce granted to Irby by the action
       prosecuted by the conservators even though Stuart Irby expressed his
       opposition to the divorce. By advising with the conservators in the divorce
       action, which resulted in a divorce being granted, Dr. Madakasira stepped
       outside of the psychiatrist-patient relationship and created a conflict of interest
       with his patient, Stuart Irby. As Irby’s attending psychiatrist for several years,
       Dr. Madakasira knew that Stuart Irby was mentally and emotionally fragile and
       that he had threat[en]ed to commit suicide in the past. However,
       notwithstanding his personal knowledge of lrby’s mental condition[,] Dr.
       Madakasira intentionally participated with the conservators to secure a divorce
       for Stuart Irby from his wife, [Collins,] and took an active part in the chancery
       court proceedings which resulted in the divorce being granted against Stuart
       Irby’s will.

       16.    As a direct and proximate result of the intentional acts of Dr.
       Madakasira in assisting the conservators in the prosecution of the divorce
       action and the granting of a divorce by the Chancery Court[,] Stuart M. Irby
       developed an irresistible impulse to commit suicide and on January 17, 2012[,]
       he committed suicide.

       17.     The intentional conduct of Dr. Madakasira, as aforesaid, created an
       irresistible impulse in Stuart Irby to commit suicide so that he took his own
       life. Based upon the negligence and intentional acts of the defendants it was
       foreseeable that Stuart M. Irby would commit suicide.

       18.     Madakasira’s intentional conduct, as aforesaid, was the proximate cause
       or a proximate contributing cause of the irresistible impulse suffered by Stuart
       M. Irby to commit suicide and rendered him unable to discern the nature or
       consequences of suicide which was the proximate cause or was a proximate
       contributing cause of Stuart Irby’s wrongful death.

¶12.   The trial court found the allegations in the amended complaint sounded in intentional

tort, for which a one-year statute of limitations applies, barring the claims. Collins argues

that notwithstanding the pleading of intentional acts, the claims are based in medical

negligence, for which the two-year statute of limitations applies. Collins argues that an

“intentional act” is not the same as an “intentional tort,” and the trial court confused the two

terms. Rather, Collins argues that “[t]his is a medical[-]negligence case in which an

                                               6
intentional act serves as a basis for the malpractice[.]” That is, Collins asserts the amended

complaint alleges one cause of action—negligence for medical malpractice—which is based,

in part, on Dr. Madakasira’s intentional acts of executing the affidavit and testifying at the

divorce trial.

¶13.   However, despite Collins’s assertion that the claims lie in negligence, an intentional

act cannot form the basis of a negligence claim. “Negligence is a failure to do what [a]

reasonable person would do under the same or similar circumstances,” resulting in a breach

of the applicable standard of care and injury to the plaintiff. Estate of St. Martin v. Hixson,

145 So. 3d 1124, 1128 (¶9) (Miss. 2014). Intent “denotes that the actor desires to cause the

consequences of his act.” S. Farm Bureau Cas. Ins. v. Allard, 611 So. 2d 966, 968 (Miss.

1992) (quoting Restatement (Second) of Torts § 8A(a) (1965)). Intentional behavior

designed to bring about the plaintiff’s injury forms the basis of an intentional tort, id., and

“an intentional tort cannot be committed negligently.” Jordan v. Wilson, 5 So. 3d 442, 447

(¶18) (Miss. Ct. App. 2008).

¶14.   “[A] claim alleging an intentional tort and a claim alleging negligence are mutually

exclusive, in that, one who is found to have acted negligently cannot at the same time be

found to have acted intentionally.” Id. While our law permits a party to allege inconsistent

claims based on negligence and intentional tort, id. at 448 (¶19); M.R.C.P. 8, this is not what

Collins alleges. Rather, Collins alleges that Dr. Madakasira’s intentional acts serve as the

basis for the negligence claim. There is no basis in our law to support this argument. See

Jordan, 5 So. 3d at 447-48 (¶¶18-19).



                                              7
¶15.   Regardless of the title Collins gives the allegations, we must look to their substance

to determine whether the claims lie in negligence or intentional tort. See Howard v. Wilson,

62 So. 3d 955, 956 (¶6) (Miss. 2011). “There can be no escape from the bar of the statute

of limitations applicable to intentional torts by the mere refusal to style the cause brought in

a recognized statutory category and thereby circumvent prohibition of the statute.” Id. at

956-57 (¶¶6-9) (finding the plaintiff could not circumvent the statute of limitations for an

intentional tort by alleging that the defendant “negligently attacked [her] with a pair of

scissors”).

¶16.   Our supreme court recently reiterated this principle in Sanderson Farms Inc. v.

McCullough, 2015-IA-00854-SCT, 2017 WL 454994 (Miss. Feb. 2, 2017). The supreme

court held that while McCullough’s complaint alleged negligence, for which a three-year

statute of limitations applied, the court was “not bound by the claims set forth in his

petition.” Id. at *3 (¶13). Rather, “the law of the state is realistic. Substance prevails over

form.” Id. “The question . . . is whether the substance of McCullough’s claim . . . sounds

in intentional tort or negligence.” Id. The court again noted that our law is “clear that the

principal difference between an intentional tort and negligence is that ‘an intentional tort is

an act of intentional behavior designed to bring about the injury[.]’” Id. at *4 (¶18) (quoting

Peaster v. David New Drilling Co., 642 So. 2d 344, 349 (Miss. 1994)). Negligence,

however, “simply requires that the defendant failed to act as a reasonable person would under

the same or similar circumstances, thereby breaching the applicable standard of care.” Id.

¶17.   Collins’s amended complaint alleges the following intentional acts: “Dr. Madakasira



                                               8
intentionally participated with the conservators to secure a divorce for . . . Irby from his wife,

[Collins,] and took an active part in the chancery court proceedings which resulted in the

divorce being granted against . . . Irby’s will,” and this “intentional conduct . . . created an

irresistible impulse in . . . Irby to commit suicide.” The first sentence of the punitive-

damages section of the complaint states, “Dr. Madakasira[] willfully, deliberately[,] and

intentionally participated in the divorce proceedings against the will and wishes of . . . Irby[,]

which resulted in a divorce which Mr. Irby did not want and resulted in Mr. Irby being forced

to divorce his wife against his will.”

¶18.   The allegations in the amended complaint that Dr. Madakasira acted “knowingly,”

“intentionally,” “active[ly],” willfully,” and “deliberately,” sound in intentional tort,

regardless of the title Collins gives them.2 We further find that Collins’s intentional-tort

claims do not state a claim for medical malpractice. A medical-malpractice claim must

“aris[e] out of the course of medical, surgical[,] or other professional services[.]” Miss. Code

Ann. § 15-1-36(2). The amended complaint, under the section titled “INTENTIONAL

ACTS OF DEFENDANT,” states that “[b]y advising with the conservators in the divorce

action, which resulted in a divorce being granted, Dr. Madakasira stepped outside of the

psychiatrist-patient relationship and created a conflict of interest with his patient, Stuart

Irby.” (Emphasis added). As Collins alleges Dr. Madakasira’s intentional acts were

committed “outside of the psychiatrist-patient relationship,” not arising out of the course of



       2
         While not titled as such, the claims sound akin to intentional infliction of emotional
distress, which “is of like kind or classification as the torts enumerated in . . . [s]ection 15-1-
35[.]” Jones v. Fluor Daniel Servs. Corp., 32 So. 3d 417, 425 (¶36) (Miss. 2010).

                                                9
it, the intentional-act allegations do not fall within the medical-malpractice statute.

¶19.   Looking at the substance of the amended complaint, we find the alleged intentional

acts lie in intentional tort, for which the one-year statute of limitations in section 15-1-35

applies. Collins cannot avoid the one-year statute of limitations by claiming the alleged

intentional acts are negligence under the medical-malpractice statute. See McCullough, 2017

WL 454994, at *3 (¶13); Howard, 62 So. 3d at 957 (¶¶9-10). Irby committed suicide on

January 17, 2012. Collins’s complaint was filed on March 17, 2014, and the amended

complaint was filed on March 3, 2015. Collins’s intentional-tort claims are barred by the

one-year statute of limitations.

       II.    Whether Collins can sustain a negligence cause of action for Irby’s
              suicide.

¶20.   To the extent that Collins’s complaint alleges negligence, we find these claims were

correctly dismissed. Collins makes the following negligence allegations in the amended

complaint: (1) Dr. Madakasira “[f]ail[ed] to properly monitor [Irby’s] mental health”; and

(2) Dr. Madakasira “[f]ail[ed] to prescribe an appropriate treatment for . . . Irby to prevent

his suicide in spite of the fact that Dr. Madakasira was well aware of Irby’s history and his

suicidal ideations.” However, under Truddle, a wrongful-death action for suicide cannot be

sustained solely based on allegations of “medical malpractice, i.e., negligence.” Truddle, 150

So. 3d at 697 (¶15).3



       3
        The supreme court discussed an exception to its finding in Truddle for cases where
the decedent was under the defendant’s custody and control, such as in a mental facility.
Truddle, 150 So. 3d at 697-98 (¶¶20-22). We do not address the exception here, as there is
no allegation that Irby was under Dr. Madakasira’s or Psycamore’s custody or control.

                                              10
¶21.   “A medical-malpractice cause of action in Mississippi tracks the typical negligence

action[.]” Id. at (¶16). The plaintiff must prove: “(1) the existence of a duty by the defendant

to conform to a specific standard of conduct for the protection of others against an

unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an

injury to the plaintiff proximately caused by the breach of such a duty by the defendant.” Id.

(quoting Johnson v. Pace, 122 So. 3d 66, 68 (¶8) (Miss. 2013)). In proving these elements,

the plaintiff must show “a causal connection between the breach and the [injury], such that

the breach is the proximate cause of the [injury].” Double Quick Inc. v. Lymas, 50 So. 3d

292, 298 (¶30) (Miss. 2010) (emphasis added).

¶22.   However, “suicide constitutes ‘an independent, intervening[,] and superseding event

that severs the causal nexus between any wrongful action on the part of the defendant.’”

Truddle, 150 So. 3d at 697 (¶17) (quoting Shamburger v. Grand Casino of Miss. Inc./Biloxi,

84 F. Supp. 2d 794, 798 (S.D. Miss. 1998)). “[A] rebuttable presumption exists ‘that a

person will not destroy himself by suicide.’” Id. at 695 (¶11) (quoting Edgeworth, 214 So.

2d at 585). The Edgeworth court stated that recovery for a wrongful suicide death is

permissible only when the defendant committed an intentional act that created “an irresistible

impulse in the decedent to take his or her own life.” Id. (citing Edgeworth, 214 So. 2d at

586-88). It held that “where the suicide is committed in response to an uncontrollable

impulse, recovery may be had if the mental state of [the] deceased was substantially caused

by the defendants’ intentional wrongful acts.” Edgeworth, 214 So. 2d at 587. In recognizing

this exception to the common-law rule barring recovery for suicide, “[t]he Edgeworth [c]ourt



                                              11
reasoned that intentional acts which cause an irresistible impulse to commit suicide should

be compensable because ‘a higher degree of responsibility is imposed upon a wrongdoer

whose conduct was intended to cause harm than upon one whose conduct was negligent.’”

Id. at 696 (¶11) (quoting Edgeworth, 214 So. 2d at 587). “[T]his principle extends to

medical-malpractice claims.” Id. at 697 (¶18).

¶23.   “Nothing in Mississippi caselaw, save the irresistible-impulse doctrine, . . . abrogates

the general rule that suicide constitutes ‘an independent, intervening[,] and superseding event

that severs the causal nexus between any wrongful action on the part of the defendant.’” Id.

at (¶17). As stated by the United States District Court for the Northern District of

Mississippi, “[a]pplying the substantive law of the State of Mississippi, a claim for wrongful

suicide death can be maintained only where it can be shown that as a result of defendant’s

intentional torts, decedent acted under an irresistible impulse in committing suicide.” Hare

v. City of Corinth, 814 F. Supp. 1312, 1326 (N.D. Miss. 1993) (vacated and remanded on

other grounds, 74 F.3d 633 (5th Cir. 1996)). The holding in Truddle specifically extended

this principle to medical-malpractice claims. Truddle, 150 So. 3d at 697 (¶18).

¶24.   Therefore, under Truddle, while a claim for wrongful suicide death under the

irresistible-impulse doctrine set out in Edgeworth may be sustained based on a doctor’s

actions, the claim cannot lie in medical negligence. Id. at (¶17).4 While Truddle discusses

       4
         In finding that the irresistible-impulse doctrine extends to medical-negligence
claims, the supreme court cited Haney v. River Oaks Hospital, 2006-CA-00219-SCT (Order,
May 17, 2007), which involved “a medical-negligence action against a doctor and hospital
where a patient committed suicide after being released from the hospital over her family’s
objections.” Truddle, 150 So. 3d at 697 (¶18). The supreme court noted that it affirmed per
curiam the finding of summary judgment in favor of the doctor and hospital. Id.

                                              12
a possible exception for circumstances where the decedent was under the custody and control

of a physician or facility, such as a mental institution, that exception does not apply here. Id.

at 697-98 (¶¶20-22). Therefore, the claim must stem from an intentional tort. Id. Because

the suicide action must be based on an intentional tort, Collins’s negligence claims do not

state a cause of action for which relief can be granted and were correctly dismissed.

¶25.   We disagree with the dissent’s finding that Truddle permits a medical-negligence

cause of action for Irby’s suicide death. First, Truddle clearly states that an intentional act

must be pled to support a cause of action for suicide, and our caselaw is well established that

an intentional act cannot form the basis of a negligence claim. Truddle, 150 So. 3d at 697

(¶19); Jordan, 5 So. 3d at 447 (¶18). Second, a medical-negligence claim cannot be

sustained based on Irby’s suicide because “suicide constitutes ‘an independent, intervening[,]

and superseding event that severs the causal nexus between any wrongful action’” of Dr.

Madakasira and Irby’s death. Truddle, 150 So. 3d at 697 (¶17) (quoting Shamburger, 84 F.

Supp. 2d at 798). If Irby’s death had not been the result of suicide, we would agree with the

dissent that the medical-negligence action could be sustained. However, based on the facts

presented, there is no negligence cause of action for which relief can be granted.

¶26.   We also disagree with the dissent’s statement that our decision effectively holds “that

intentional conduct cannot serve as the basis for a medical-malpractice action,” which the

dissent points out is contrary to our holding in Chitty v. Terracina, 16 So. 3d 774 (Miss. Ct.

App. 2009). In Chitty, we held that whether a doctor’s “alleged actions were intentional, or

merely negligent, is not determinative” of whether a claim falls under the medical-



                                               13
malpractice statute; rather, “the main issue” is “whether the tort arises out of the course of

medical, surgical or other professional services.” Id. at 779 (¶12).5 We do not stray from

that decision. We acknowledge that the plain language of our medical-malpractice statute

encompasses all applicable torts against physicians; it is not limited to the tort of negligence.

The statute specifically states that “no claim in tort may be brought against a licensed

physician . . . [for] wrongful death arising out of the course of medical, surgical or other

professional services unless it is filed within two (2) years[.]” Miss. Code Ann. § 15-1-36(2)

(emphasis added).6 Regardless, the issue before us is not whether an intentional tort can form

the basis of a medical-malpractice claim. The issue here is which statute of limitations

applies to the allegations in the complaint—the two-year medical-malpractice statute of

limitations set out in section 15-1-36, or the one-year intentional-tort statute of limitations




       5
         The two statutes of limitation discussed in Chitty were the medical-malpractice
statute and Mississippi Code Annotated section 15-1-49(1) (Rev. 2003), which provides a
three-year limitations period for claims for which no other statute of limitations applies.
Chitty, 16 So. 3d at 777 (¶7). The plaintiff in Chitty categorized her claim against her doctor
as a “business dispute,” rather than medical malpractice, and argued that the general three-
year statute of limitations in section 15-1-49(1) applied. However, because the dispute
(“alleged fraudulent billing conduct and falsification of records and invoices” resulting from
an allegedly unnecessary medical procedure) arose out of the course of the defendant’s
professional services, we found the more specific two-year medical-malpractice statute of
limitations controlled. Chitty, 16 So. 3d at 779-80 (¶14).
       6
         We note that the medical-malpractice statute also states that “[n]o action based upon
the health care provider’s professional negligence may be begun unless the defendant has
been given at least sixty (60) days’ prior written notice of the intention to begin the action.”
Miss. Code Ann. § 15-1-36(15) (emphasis added). Either this means that notice is only
required for negligence claims, or that only negligence actions can be brought under the
medical-malpractice statute. However, this issue has not been decided by our supreme court,
and it is unnecessary to address it here.

                                               14
set out in section 15-1-35.7 As stated, the negligence allegations cannot be sustained, as the

suicide severed the proximate cause between Dr. Madakasira’s alleged negligent actions and

Irby’s death. Further, the intentional acts were alleged to have occurred outside the scope

of Dr. Madakasira’s treatment, removing the intentional-tort allegations from the scope of

the medical-malpractice statute. Thus, the one-year intentional-tort statute of limitations

applies, barring Collins’s claims.

¶27.   Taking the allegations in the complaint as true, Collins’s medical-negligence

allegations do not state a claim upon which relief can be granted. Suicide is an independent,

intervening, and superseding event that breaks the nexus between any alleged wrongful act

of Dr. Madakasira and Irby’s death. Without this nexus, a causal connection for a medical-

negligence action cannot be formed, and the claims cannot be sustained. The trial court

correctly dismissed the negligence allegations in the complaint.

       7
         The dissent assumes, without citation of authority, that the medical-malpractice
statute of limitations would automatically apply to an alleged intentional-tort action arising
out of medical malpractice. We are not so sure. In such a case, there would be a conflict
between the medical-malpractice statute of limitations (“claim in tort” arising out of
professional services must be brought within two years) and the intentional-tort statute of
limitations (“[a]ll actions” for the named intentional torts must be brought within one year).
However, we need not decide this conflict, as Collins’s amended complaint admits the
intentional conduct was “outside of the psychiatrist-patient relationship.”

        Further, the dissent points out that the complaint in Truddle was filed more than a
year after the decedent’s suicide death and reasons that the complaint could have only been
brought under the two-year medical-malpractice statute of limitations. Summary judgment
was affirmed in Truddle based on the plaintiff’s failure to plead an intentional wrongful act.
Truddle, 150 So. 3d at 698 (¶21). The decision does not address the applicable statute of
limitations. “[T]he statute of limitations is an affirmative defense[,] which must be pled.”
Alexander v. Womack, 857 So. 2d 59, 62 (¶11) (Miss. 2003). We cannot take the supreme
court’s decision not to address the statute of limitations as implicitly finding that the two-
year statute of limitations applied.

                                             15
                                       CONCLUSION

¶28.   Under the holding in Truddle, Collins’s wrongful-death claim for Irby’s suicide must

lie in intentional tort, for which a one-year statute of limitations applies. Truddle, 150 So.

3d at 697 (¶17). Irby committed suicide on January 17, 2012. Collins’s original complaint

was filed on March 17, 2014, and the amended complaint was filed on March 3, 2015.

Collins’s intentional-tort claims are barred as both the complaint and amended complaint

were filed outside the one-year limitations period. Further, although within the two-year

statute of limitations for negligence,8 Collins’s negligence claims are barred for failure to

state a claim upon which relief can be granted, as the negligence alleged in the facts of this

case cannot form a cause of action for a wrongful suicide death. Therefore, the circuit court

correctly dismissed this action. We affirm.

¶29. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

     GRIFFIS, P.J., ISHEE, WILSON AND GREENLEE, JJ., CONCUR. LEE, C.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.,
CARLTON AND WESTBROOKS, JJ. FAIR, J., NOT PARTICIPATING.

       LEE, C.J., DISSENTING:

¶30.   I disagree with the majority’s decision in this case that a one-year statute of limitations

for intentional torts applies, rather than the two-year statute of limitations for medical-

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         Collins sent a notice-of-claim letter on December 16, 2013, which tolled the statute
of limitations for sixty days. See Miss. Code Ann. § 15-1-36(15) (“If the notice is served
within sixty (60) days prior to the expiration of the applicable statute of limitations, the time
for the commencement of the action shall be extended sixty (60) days from the service of the
notice for said health care providers and others.”). Thus, the two-year statute of limitations
would have run on March 18, 2014.

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malpractice actions. I find that the majority misinterpreted the controlling case, Truddle v.

Baptist Mem’l Hosp.-DeSoto Inc., 150 So. 3d 692 (Miss. 2014), which unequivocally

categorizes the claim at issue as one for medical malpractice. Thus, I respectfully dissent.

¶31.   Under Mississippi law, a decedent’s suicide is actionable against a third-party

defendant as a wrongful-death claim “only if the suicide was proximately caused by the

intentional act of the defendant, creating an irresistible impulse in the decedent to take his

or her own life.” Id. at 695 (¶11) (citing State ex rel. Richardson v. Edgeworth, 214 So. 2d

579, 585 (Miss. 1968)). I agree with the majority that Truddle controls the instant case. In

Truddle, the Mississippi Supreme Court addressed the irresistible-impulse doctrine as it

applies to medical-malpractice claims arising from an individual’s suicide. Even the

majority opinion acknowledges that the Truddle case is one of medical malpractice. Yet the

majority goes on to find that the one-year statute of limitations for intentional torts applies

to this medical-malpractice case. Mississippi law is clear that a two-year statute of

limitations applies to medical-malpractice claims. Estate of Johnson ex rel. Shaw v.

Graceland Care Ctr. of Oxford LLC, 41 So. 3d 692, 695 (¶10) (Miss. 2010).

¶32.   In Truddle, the supreme court noted that the “crux of [the plaintiff’s] argument . . . is

that [the decedent’s] suicide was the result of medical malpractice, i.e., negligence.”

Truddle, 150 So. 3d. at 696-97 (¶15). The court stated that in medical-malpractice claims

the burden is upon the plaintiff to

       prove (1) the existence of a duty by the defendant to conform to a specific
       standard of conduct for the protection of others against an unreasonable risk
       of injury; (2) a failure to conform to the required standard; and (3) an injury to
       the plaintiff proximately caused by the breach of such a duty by the defendant.

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Id. at 697 (¶16). The court went on to recognize that nothing in our caselaw has abolished

the rule that suicide constitutes an “independent, intervening[,] and superseding event that

severs the causal nexus between any wrongful action on the part of the defendant,” except

for the irresistible-impulse doctrine. Id. at (¶17) (“Nothing . . . save the irresistible-impulse

doctrine . . . .” (emphasis added)). The court reasoned that the irresistible-impulse doctrine

imposes a higher degree of responsibility because of the nature of the act, and stated:

“Furthermore, this principle extends to medical-malpractice claims.” Id. at (¶¶17-18)

(emphasis added). Accordingly, the supreme court held that “[i]n such a [medical-

malpractice] case, the plaintiff must show that the defendant committed an intentional act

that led to an irresistible impulse to commit suicide in order to prevail.” Id. at (¶19).

¶33.   In the instant case, Collins amended the complaint in order to comply with the legal

standard set forth in Truddle—specifically, the pleading requirements. Again,

       to recover against a third party for a decedent’s suicide, . . . a plaintiff must
       plead and prove: (1) the decedent was under an irresistible impulse rendering
       him or her unable to discern the nature or consequences of suicide, and (2) the
       irresistible impulse was proximately caused by the defendant’s intentional
       conduct.

Id. at 696 (¶12) (emphasis added). As such, Collins’s amended complaint alleged that Dr.

Madakasira’s intentional conduct of engaging with Irby’s conservators, executing an

affidavit, and testifying in court proceedings to obtain a divorce against Irby’s wishes created

an irresistible impulse in Irby to commit suicide and thus constituted medical malpractice.

Truddle does not require the claimant to plead and prove that the defendant intended the

decedent to commit suicide. Rather, Truddle requires that the claimant plead and prove the



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intentional conduct engaged in by the defendant that created the irresistible impulse in the

decedent to commit suicide.

¶34.   According to the briefs and record excerpts in Truddle, the trial court in its order

granting summary judgment explicitly stated: “This is a medical[-]malpractice[/]wrongful

death case[.]” In fact, in Truddle, the decedent committed suicide on June 19, 2008. Id. at

695 (¶6). The complaint was filed on August 9, 2010. As such, the suit could only have

been brought under the two-year statute of limitations applicable in medical-malpractice

cases. Furthermore, the supreme court in Truddle unequivocally stated that the irresistible-

impulse doctrine’s heightened pleading requirements apply to medical-malpractice claims.

Id. at 697 (¶¶17-18). Truddle did not bar medical-malpractice actions arising from an

individual’s suicide, nor did the court characterize the action as an intentional tort. Rather,

the court repeatedly discussed the irresistible-impulse doctrine in the context of medical-

malpractice claims and found that it did in fact apply in medical-malpractice claims: “[T]his

principle extends to medical-malpractice claims.” Id. at (¶18). As such, the applicable

statute of limitations is that governing medical-malpractice claims: two years.

¶35.   In Truddle, the trial court granted summary judgment for the defendants due to the

plaintiffs’s failure to “plead[] . . . [or] create a genuine issue of material fact as to any

wrongful act committed by the defendant that caused [the decedent] to commit suicide.” Id.

at 695 (¶8). That is not the case here. Collins’s amended complaint pled with specificity the

alleged intentional acts of Dr. Madakasira that allegedly created an irresistible impulse in

Irby to commit suicide—a claim that Truddle characterizes as one of medical malpractice.



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Whether there is truth or merit to Collins’s claim is not before this Court. We are tasked only

with deciding whether the claim falls under a one-year statute of limitations or a two-year

statute of limitations. Because the supreme court has very clearly categorized the claim as

one for medical malpractice, it is equally clear that the statute of limitations governing

medical-malpractice claims applies.

¶36.   Our law is clear that a two-year statute of limitations applies to medical-malpractice

claims. Mississippi Code Annotated section 15-1-36(2) (Rev. 2012) provides:

       For any claim accruing on or after July 1, 1998, and except as otherwise
       provided in this section, no claim in tort may be brought against a licensed
       physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse,
       pharmacist, podiatrist, optometrist[,] or chiropractor for injuries or wrongful
       death arising out of the course of medical, surgical[,] or other professional
       services unless it is filed within two (2) years from the date the alleged act,
       omission or neglect shall or with reasonable diligence might have been first
       known or discovered, and . . . in no event more than seven (7) years after the
       alleged act, omission or neglect occurred.

¶37.   In determining whether the two-year medical-malpractice statute of limitations

applies, this Court has previously stated: “the main issue [is] whether the tort arises out of

the course of medical, surgical[,] or other professional services.” Chitty v. Terracina, 16 So.

3d 774, 779 (¶12) (Miss. Ct. App. 2009).             Here, it is clear that conduct of Dr.

Madakasira—which Collins alleged created the irresistible impulse in Irby to commit suicide

and served as the basis for the tort claim—arose out of the course of professional psychiatric

care rendered by Dr. Madakasira. Dr. Madakasira, in the course and scope of care as Irby’s

psychiatrist, met with Irby’s conservators, executed an affidavit, and testified in court

proceedings regarding Irby’s best interests in terms of his mental health. In Chitty, this Court



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further stated that where the tort claim arises out of the course of medical, surgical, or other

professional services, “whether [the medical provider’s] alleged actions were intentional, or

merely negligent, is not determinative.” Id. The majority now departs from that reasoning,

finding that intentional conduct cannot serve as the basis for a medical-malpractice action.

Moreover, in doing so, the majority departs from the supreme court’s explicit and repetitive

characterization of the action in the instant case as one for medical malpractice.

¶38.   Nothing in Truddle characterizes the cause of action as an intentional tort or removes

the action from the medical-malpractice statute and its governing statute of limitations. The

majority erroneously interprets Truddle as characterizing a claim against a physician for a

patient’s suicide as one for an intentional tort. Rather, Truddle consistently characterizes the

action as one for medical malpractice—to which a two-year statute of limitations applies.

¶39.   While I do not consider the merits of Collins’s complaint, I do find that Collins’s

claim—in accordance with Truddle—was one for medical malpractice. As such, I believe

Collins’s medical-malpractice claim was subject to a two-year statute of limitations.

Therefore, I would reverse and remand. For the foregoing reasons, I respectfully dissent.

       IRVING, P.J., CARLTON AND WESTBROOKS, JJ., JOIN THIS OPINION.




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