Cahn v. COPAC, Inc.

• Decision Date: 08 December 2015
• Docket Number: No. 2014–CA–00021–COA.,2014–CA–00021–COA.
• Citation: 198 So.3d 347
• Parties: Jeff CAHN, Laurie Cahn, and David Cahn, Individually, and on Behalf of All Wrongful Death Beneficiaries of Ben Cahn, Deceased, Appellants v. COPAC, INC., d/b/a Copac Addiction Services, Dr. Lloyd Gordon, M.D., Bridget Rule, LPN, and Rebecca Osborne, LPN, Appellees.
• Court: Mississippi Court of Appeals

198 So.3d 347

Jeff CAHN, Laurie Cahn, and David Cahn, Individually, and on Behalf of All Wrongful Death Beneficiaries of Ben Cahn, Deceased, Appellants

v.COPAC, INC., d/b/a Copac Addiction Services, Dr. Lloyd Gordon, M.D., Bridget Rule, LPN, and Rebecca Osborne, LPN, Appellees.

No. 2014–CA–00021–COA.

Court of Appeals of Mississippi.

Dec. 8, 2015.

Rehearing Denied April 26, 2016.

Certiorari Denied Aug. 25, 2016.

Shane F. Langston, Rebecca M. Langston, John Breckenridge Hunt IV, Jackson, attorneys for appellants.

James Leroy Banks IV, Jackson, Stuart Bragg Harmon, Wade G. Manor, Andrew James Stubbs, Jackson, attorneys for appellees.

Before GRIFFIS, P.J., CARLTON and WILSON, JJ.

GRIFFIS, P.J., for the Court:

¶ 1. This appeal arises from a medical-malpractice wrongful-death claim. The circuit court granted a summary judgment based on the “wrongful conduct” rule. The Appellants argue that the court erred in the application of the “wrongful conduct” rule and erred in the consideration of hearsay statements to decide the summary judgment. We find reversible error and remand for further proceedings.

FACTS

¶ 2. Defendant COPAC, Inc., doing business as COPAC Addiction Services (“COPAC”), operates a residential drug and alcohol treatment facility in Flowood, Mississippi. The facility is licensed and regulated by the State of Mississippi and listed by the Department of Health as a facility authorized to render such services. Defendant Lloyd Gordon, M.D., is the chief medical director and owner of COPAC. Defendants Bridget Rule, LPN, and Rebecca Osborne, LPN, are nurses at the COPAC facility and were the medical staff present at the times relevant to the claims presented.

¶ 3. On October 7, 2011, Ben Cahn was admitted to COPAC for treatment. The primary purpose for his treatment and inpatient admission was drug and alcohol addiction with a “predisposition for the abuse of prescription medications.” Dr. Gordon was Ben's treating physician and was responsible for his care at COPAC.

¶ 4. Ben's stay at COPAC was relatively unremarkable until the weekend of December 14, 2011. On December 14, Nurse Rule noted that Ben was expressing great anxiety regarding his “family.” Also, she noted that he became defiant with the staff while taking his “lunch meds.” And in the presence of COPAC staff, Ben swallowed many more of his Neurontin medication than his prescription allowed.

¶ 5. After learning of this, Jeff and Laurie Cahn, Ben's parents, traveled from their home in Minnesota to COPAC to visit Ben and speak with his caregivers. On Friday, December 16, 2011, the Cahns took Ben to dinner and then returned Ben to COPAC. Ben refused to get out of their vehicle and insisted on leaving COPAC. The COPAC counselor on duty intervened, and Ben agreed to be transferred from his room to the infirmary, so that he could be monitored more closely. Ben was to remain at COPAC until Monday, when his parents would provide his counselor with a list of alternative treatment facilities for a possible transfer. On December 16, Ben apologized to the counselor and told her to relay a message to his parents that he would agree to remain at COPAC until January 4, 2012.

¶ 6. On Saturday, December 17, 2011, Ben was housed in the infirmary. Dr. Gordon began the day rushing into his office, which was located in the same building and directly across the hall from the infirmary. He was there to get some cheese and turn on his computer. He got the cheese quickly, turned on his computer, “thought” he locked his office door, and left.

¶ 7. Another patient, identified as “C.T.,” was also housed in the infirmary on December 17. As part of this appeal, the Cahns have contested the fact that COPAC offered C.T.'s testimony through Dr. Gordon and others, but COPAC has refused to produce C.T.'s records and the “statements” they took from C.T. after Ben's incident. C.T. was transferred to the infirmary due to some behavioral problems. This same weekend, C.T. had stolen some beer from a convenience store off-site, and COPAC placed C.T. back into the infirmary.

¶ 8. After Ben's death, COPAC's director of operations Tom Kepner interviewed C.T. Kepner testified that C.T. said that on the weekend evenings, December 16–17, he and Ben were “running up and down” the halls outside of the infirmary trying to access the offices, and the COPAC nurses “had been trying to chase them back” into their room. C.T. said that they finally broke into Dr. Gordon's office because they “thought it would be the most likely place for there to be something.” ¹

¶ 9. On the morning of Sunday, December 18, 2011, Nurse Rule attempted to awaken Ben. She reported that Ben was “very hard to arouse for medications.” She finally got him to take his medications and “he went right back to sleep.” At noon, Ben was still asleep. Nurse Rule “attempted to arouse [him] again with difficulty.” She became alarmed and suspicious. She called the “CAs” to assist her—to get Ben in his scrubs, search his clothing, and conduct a UDS (i.e., urine drug screening ).

¶ 10. From noon until 3:00 p.m., Nurse Rule noted that Ben “complained that he could not urinate” for the UDS. Around 3:15 p.m., she reported that she observed another patient exit the restroom and hand Ben his urine specimen, who in turn presented it to Nurse Rule as his UDS. Nurse Rule confronted Ben and he denied using “substances.” Ben, however, continued to complain that he could not urinate. This continued for a several more hours until just prior to the 5:30 p.m. shift change, when Nurse Rule documented that she finally observed Ben give a urine specimen. She then reported that the “10 line drug panel” test performed on Ben's urine “showed [p]ositive BZOs,” which can indicate the presence of Valium, Librium, Xanax, and/or other tranquilizers.

¶ 11. Nurse Rule also documented that she had asked two CAs to search Ben's “clothing.” But there was no documentation that anyone searched the infirmary room where Ben and C.T. were staying.² The notes indicate that only Ben's clothing was searched. Even after Ben's positive drug screen, COPAC did not search his room. COPAC also failed to document the next search, after Ben's death, when it claimed to have found the Suboxone under Ben's mattress.

¶ 12. COPAC tested two of Ben's urine specimens. The first was collected at 4:31 p.m., but it was not tested by the lab until 6:40 p.m. It tested positive for buprenorphine / Suboxone. A second specimen was collected at 5:31 p.m., and at 5:47 p.m.; it tested positive for buprenorphine /Suboxone.

¶ 13. Nurse Osborne took over the care of Ben around 5:30 p.m. There was no medical record or “Progress Note” that indicated that she or anyone else was caring for Ben. Nevertheless, the Cahns claim that, as early as 5:47 p.m. and no later than at 6:40 p.m., COPAC was aware that Ben had ingested Suboxone. Ben did not have a prescription for Suboxone, and he was not authorized to have it or to ingest it.

¶ 14. Around 9:45 or 10:00 p.m., COPAC's staff was told by C.T. that Ben was not breathing. They checked on Ben and noted that “[his face was] bluish, black, there was no heartbeat and there were copious amounts of bloody looking secretions pouring from mouth and nose. Bed noted to be soaked from bodily fluids.” Ben could not be resuscitated and was pronounced dead at 10:45 p.m.

PROCEDURAL HISTORY

¶ 15. On September 19, 2012, Jeff and Laurie Cahn, along with David Cahn (Ben's brother), individually and on behalf of Ben's wrongful-death beneficiaries, filed a complaint in the Circuit Court of Rankin County. The complaint was amended. The named defendants included COPAC, Inc., Dr. Lloyd Gordon, Bridget Rule, and Rebecca Osborne.

¶ 16. On September 20, 2013, Dr. Gordon filed a motion for summary judgment, joined by the other defendants. The Cahns filed a response, and they had also filed motions to compel discovery. The circuit court granted the motion for summary judgment and ruled:

In the instant case, the Defendants moved for summary judgment and argued that, pursuant to Price v. Purdue Pharma Company, 920 So.2d 479 (Miss.2006), the Plaintiffs were barred from any recovery in this case because the deceased, Ben Cahn, illegally obtained, illegally possessed and/or illegally ingested buprenorphine/[S]uboxone, a controlled substance, which was the cause of his death. The Defendants supported their motion with sufficient “summary judgment” proof to shift the burden to the Plaintiffs.

The Plaintiffs failed to produce sufficient “summary judgment” proof to show that there is a genuine issue as to any material fact which would require a trial in this matter. There is no proof that the deceased legally obtained and/or ingested the buprenorphine /[S]uboxone, which ultimately caused his death. Instead, Plaintiffs argued that a cause of action would still exist against the Defendants for their negligence once they discovered that the deceased had the buprenorphine /[S]uboxone in his system. The Court finds however, pursuant to Price, that is not the case.

It is from this judgment that the Cahns now appeal.

ANALYSIS

I. Whether it was error to grant summary judgment based on the “wrongful conduct” rule.

A. Standard of Review

¶ 17. This Court's review of the grant of summary judgment is de novo. Price, 920 So.2d at 483 (¶ 10). In Price, the court also further defined the standard of review as follows:

In considering this issue, we must examine all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Issues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and another party takes the opposite position. If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in

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