IN THE SUPREME COURT OF MISSISSIPPI
NO. 2014-CA-01558-SCT
JIM DOE AND BARBARA DOE, INDIVIDUALLY
AND AS NATURAL PARENTS OF ANN DOE, A
MINOR, AND AS ADMINISTRATOR OF THE
ESTATE OF BARBARA DOE, DECEASED, AND
ANN DOE
v.
RANKIN MEDICAL CENTER AND LARRY
SWALES, AS ADMINISTRATOR OF THE ESTATE
OF GINA McBETH, DECEASED
DATE OF JUDGMENT: 10/02/2014
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
TRIAL COURT ATTORNEYS: WAYNE E. FERRELL, JR.
JANICE T. JACKSON
MARK P. CARAWAY
STEPHEN P. KRUGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: WAYNE E. FERRELL, JR.
JANICE T. JACKSON
ATTORNEYS FOR APPELLEES: MARK P. CARAWAY
STEPHEN P. KRUGER
T. L. “SMITH” BOYKIN, III
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 03/10/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.
WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. Ann Doe was treated at Rankin Medical Center (“Rankin Medical”) after she was
sexually assaulted. Doe claimed that when she returned to school, fellow students teased her
about the sexual assault. According to Doe, unidentified classmates said they had heard about
the incident from a classmate, who was the daughter of Gina McBeth, a nurse who worked
in the emergency room at Rankin Medical. Doe sued McBeth and Rankin Medical, alleging
breach of confidentiality and damages. The trial court granted summary judgment in
McBeth’s and Rankin Medical’s favor.
¶2. Doe appeals, arguing that circumstantial evidence and McBeth’s credibility created
a genuine issue of material fact. She also argues first on appeal that the trial-court judge
should have recused himself, since he was the prosecutor in the underlying rape case. Since
Doe did not present any admissible evidence to create a genuine issue of material fact under
any actionable theory of recovery and failed to file a motion for recusal, we affirm the trial
court’s grant of summary judgment.
FACTS AND PROCEDURAL HISTORY
¶3. This case ensues from the alleged disclosure by a Rankin Medical nurse of the sexual
assault of a minor. The facts of the sexual assault are fully discussed in our opinion of Doe
v. Jameson Inn, Inc., 56 So. 3d 549 (Miss. 2011). On Saturday night, March 1, 2003, Ann
Doe1 and her friend H.F. (hereafter referred to as “Doe’s friend” or “her “friend”) were
dropped off at a movie theater in Pearl, Mississippi. Id. at 552. Doe was thirteen, and her
friend was twelve. Id. The girls left the theater with an adult male to smoke marijuana with
a group of teenage boys at a nearby inn. Id. Doe did not know the man or the group of boys
1
The alleged victim will be referred to by the fictitious name of “Doe” to protect the
confidentiality of the minor. “Jim Doe and Barbara Doe, individually and as natural parents
of Ann Doe, a minor, and as administrator of the estate of Barbara Doe, deceased, and Ann
Doe” will be encompassed in the use of “Doe” unless specifically stated to the contrary.
2
before that night. One of the teenagers sexually assaulted Doe in the hotel room bathroom.
Id. The two girls then left the hotel and walked back to the theater. Id.
¶4. The next day, Doe and her friend were caught stealing pregnancy tests from a
drugstore. Id. The girls told the police what had happened the previous night, and the police
contacted their parents. Id. Doe’s family took her to Rankin Medical for treatment that
Sunday, where nurses administered a rape kit. Gina McBeth, a registered nurse employed by
Rankin Medical, was on duty at the time of Doe’s treatment.
¶5. On Monday, Doe’s family took her to the police station to report the assault. The
family remained at the station all day, and Doe also stayed home from school on Tuesday.
She returned to school on Wednesday. According to Doe, “more than ten” classmates
approached her about the sexual assault. But Doe did not recall any of these students’ names.
Doe stated that some of the unknown students told her that McBeth’s daughter, a classmate
of Doe, had told them about the incident. Doe claimed that McBeth’s daughter had received
this information from her mother, McBeth, who Doe claims recognized her in the Rankin
Medical emergency department.
¶6. Doe filed suit in the Circuit Court of Rankin County in January 2004 for damages she
claimed she sustained from the alleged disclosure by McBeth. Doe claimed that McBeth
breached her duty of confidentiality and that the disclosure of this information to other
classmates and the community caused her traumatic emotional distress. McBeth denied these
allegations in her sworn deposition testimony. McBeth testified that: she was involved with
the medical treatment of Doe’s friend but not Doe; she did not know or recognize Doe; she
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did not know why Doe was receiving treatment at Rankin Medical that night; she did not tell
her daughter about Doe’s treatment at Rankin Medical; and she found out from her daughter,
who had heard from classmates at school about Doe’s sexual assault. McBeth died during
the pendency of those proceedings, and her estate was timely substituted as a party.
¶7. McBeth and Rankin Medical filed motions for summary judgment in July 2014. Doe
did not produce any witnesses or documentary evidence to substantiate her claim that
McBeth was the source of rumors at the school or that McBeth even knew Doe. The trial
court judge–who also had served as the prosecuting attorney for the underlying sexual assault
case nearly a decade earlier–granted the motions and dismissed the case. He found “that there
[was] insufficient evidence to create a jury issue on the question of whether . . . McBeth . .
. breached the confidentiality owed to . . . Doe.” Doe raises two issues on appeal: (1) whether
the circuit court erred in granting McBeth’s and Rankin Medical’s motions for summary
judgment, and (2) whether the circuit-court judge should have recused himself, since he was
the prosecuting attorney for the underlying rape case.
ANALYSIS
I. Whether the circuit court erred in granting McBeth’s and Rankin
Medical’s motions for summary judgment.
¶8. Doe argues that she provided sufficient facts and circumstantial evidence of
negligence and violation of confidentiality laws, so the circuit court erred in granting
McBeth’s and Rankin Medical’s motions for summary judgment. Doe argues the circuit court
should not have substituted its decision on disputed issues that should have been decided by
a jury. Doe also argues the circuit court erred in considering only direct evidence, and that
4
the court failed to consider circumstantial evidence as well as the inference of negligence.
Finally, Doe claims the circuit court failed to consider the issue of McBeth’s lack of
credibility.
A. Standard of Review
¶9. This Court reviews a trial court’s dismissal of an action on summary judgment de
novo. Trustmark Nat’l Bank v. Meador, 81 So. 3d 1112, 1116 (Miss. 2012). Rule 56(c) of
the Mississippi Rules of Civil Procedure states that summary judgment “shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c).
To decide if a genuine issue of material fact exists, “the court must view the facts and the
inferences to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc. v. Sandy Creek Energy Assoc., 627 F.3d 134, 138 (5th Cir. 2010).
¶10. The “adverse party may not rest upon the mere allegations or denials of his pleadings,
his response must set forth specific facts showing that there is a genuine issue for trial.”
Corey v. Skelton, 834 So. 2d 681, 684 (Miss. 2003) (quoting Miller v. Meeks, 762 So. 2d
302, 304 (Miss. 2000)). The party opposing summary judgment may not defeat the motion
merely by responding with general allegations, but must set forth in an affidavit or otherwise
specific facts showing that issues exist which necessitate a trial. Drummond v. Buckley, 627
So. 2d 264, 267 (Miss. 1993). The nonmovant’s “claim must be supported by more than a
mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could
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return a favorable verdict.” Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205,
1213-14 (Miss. 1996).
¶11. “In other words . . . the non-moving party ‘must rebut by producing significant
probative evidence . . . .” Id. (quoting Foster v. Noel, 715 So. 2d 174, 180 (Miss. 1998)).
Summary judgment is required if the respondent fails “to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Wilbourn, 687 So. 2d at 1214 (quoting Galloway v.
Travelers Ins. Co., 515 So. 2d 678, 683 (Miss. 1987)). When a party who opposes summary
judgment will bear the burden of proof at trial and “fails to make a showing sufficient to
establish an essential element of the claim or defense, then all other facts are immaterial, and
the moving party is entitled to judgment as a matter of law.” Id.
B. Whether the circumstantial evidence in this case proves
negligence on the part of McBeth and Rankin Medical.
¶12. While the trial court held there was insufficient evidence in this case, Doe argues a
review of the circumstantial evidence clearly shows that she can defeat a motion for summary
judgment. Doe argues the trial court reached its decision considering only the lack of direct
evidence in support of Doe’s claim. Doe claims this is error because the court is required to
consider all evidence, including circumstantial evidence, in favor of the nonmoving party.
¶13. We agree with Doe that “negligence may be proven by circumstantial evidence . . .
.” K-Mart Corp. v. Hardy, 735 So. 2d 975, 981 (Miss. 1999); see also Thomas v. The Great
Atlantic and Pacific Tea Co., Inc., 233 F.3d 326, 329-30 (5th Cir. 2000). But the
circumstances must be “sufficient to take the case ‘out of the realm of conjecture and place
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it within the field of legitimate inference.’” Id. “[Circumstantial evidence] is evidence of a
fact, or a set of facts, from which the existence of another fact may reasonably be inferred
. . . . Verdicts may rest upon reasonable probabilities.” Mississippi Winn-Dixie v. Hughes,
156 So. 2d 734, 736 (Miss. 1963).
1. The Potential Sources of Breached Information
¶14. Doe argues there are many reasons for the deduction that the disclosure of the rape
could not have come from anyone other than McBeth. Doe first focuses on the group of
teenage boys who committed the sexual assault. According to Doe, the boys did not attend
the same school as she did, and they were not part of the same social groups as Doe or her
friend. Doe claims it is thus unlikely and highly speculative that the disclosure of the rape
would have come from this group, since it would implicate them in a crime.
¶15. Doe also argues that neither she nor her friend could have disclosed the information.
Because rape victims tend to feel confused, ashamed, and helpless, it is common for many
victims to remain silent and not report the assault to authorities.2 Doe also claims that during
that short time frame, her family never had a chance to disclose this information. It is
obvious, Doe argues, that McBeth disclosed her confidential medical information and
breached the standard of care.
2
Doe cites a study from the Office of Juvenile Justice and Delinquency Prevention
that found only ten percent of victims report to the police and only two and a half percent
report to medical personnel. See U.S. Dep’t of Justice, Child and Youth Victimization Known
to Police, School and Medical Authorities 1 (2012), http://www.ojjdp.gov/pubs/235394.pdf,
(last visited Mar. 8, 2016).
7
¶16. Doe relies chiefly on two cases concerning circumstantial-evidence and negligence
claims. One case is Anderson v. Walmart, No. 2013 U.S. Dist. LEXIS 48239, at *2 (S.D.
Miss. Apr. 3, 2013), in which the plaintiff claimed that she slipped and fell over a piece of
metal on Walmart’s floor. The plaintiff alleged that the employees placed the piece of metal
on the floor while they were working on the store’s shelves. Id. at *7. The plaintiff offered
no direct evidence of how the metal piece got on the floor, and Walmart denied any role. Id.
Walmart filed a motion for summary judgment. Id. at *2. Plaintiff opposed the motion and
stated that although she could not prove with certainty how the metal piece got on the floor,
there was sufficient circumstantial evidence that it was likely part of the shelving that the
Walmart employees were handling on the day of the accident. Id. at *7. The trial court found
there was sufficient circumstantial evidence in the record to create a jury issue and denied
Walmart’s motion for summary judgment. Id. at *23.
¶17. Doe also relies on Elston v. Circus Circus Mississippi, Inc., 908 So. 2d 771 (Miss.
Ct. App. 2005). The plaintiff in Elston slipped in a puddle of water in the lobby of a casino.
Id. at 772. The casino filed a motion for summary judgment, arguing the plaintiff could not
show sufficient evidence regarding how the water got on the floor. Id. Plaintiff opposed the
summary-judgment motion by showing that the water was near the potted plants and that the
plaintiff fell on a day the plants were usually watered. Id. The plaintiff did not offer any
direct proof that the plants were watered on that exact day. Id. Based on the circumstantial
evidence, the trial court’s order granting the casino’s motion for summary judgment was
reversed and the case was remanded for trial. Id. at 776.
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¶18. We note that there are distinctions between Elston, Anderson, and this case. First, the
Elston and Anderson plaintiffs were injured by a tangible and identifiable danger (the puddle
or piece of metal shelving), which were capable of a definite description (substance,
appearance, location, etc.). Here, Doe claims injury from a “nebulous and evolving
danger”–the rumors allegedly repeated by unidentified students. Second, in Elston and
Anderson, the casino and Walmart were unable to identify any source for the puddle or metal
piece. In this case, McBeth and Rankin Medical argue that several other individuals are
equally as likely as McBeth to have participated–intentionally or unintentionally–in the
spread of the rumors. Such individuals include Doe, her parents, her siblings, her friend, the
alleged assailants, law enforcement officials, or unknown witnesses at the movie theater.
¶19. As to the alleged assailants, they knew Doe’s identity and even called her cell phone
during the relevant time frame. While the assailants did not attend Doe’s school, Doe did not
cite any evidence indicating that the boys did not know Doe’s other classmates. McBeth and
Rankin Medical argue that it is equally likely that these boys (directly or indirectly) spread
the rumors as it is that they did not. Doe never deposed them, so one can only speculate
whether this was true.
¶20. McBeth and Rankin Medical also note that Doe’s friend, who was treated by McBeth
at Rankin Medical, cannot be excluded as a possible source of the rumors. Doe’s friend was
an eyewitness to the sexual assault and to Doe’s treatment at Rankin Medical. Doe never
deposed her friend, nor did she obtain an affidavit. Doe testified she did not remember
talking to her friend about the rumors, and she stated that she didn’t remember whether the
9
two still went to school together at the time of these events. Doe failed to cite any evidence
or testimony which excludes her friend as a source for the rumors at the school. Additionally,
as McBeth and Rankin Medical argue, the Does spent the entire day waiting and giving
statements at the police station. Doe did not present any testimony or affidavits from police
officers or other individuals who may have–directly or indirectly–been the source of the
information.
¶21. This Court finds that Doe’s failure to obtain testimony or affidavits from any of these
possible sources to counter McBeth’s and Rankin Medical’s motion for summary judgment
means that Doe has not taken “the case out of the realm of conjecture and place[d] it within
the field of a legitimate inference of liability.” Patterson v. T.L. Wallace Constr., Inc., 133
So. 3d 325, 332 (Miss. 2013) (quoting Huynh v. Phillips, 95 So. 3d 1259, 1263 (Miss.
2012)).
2. Whether Doe’s testimony creates a genuine issue of
material fact.
¶22. Not only did Doe fail to provide any affidavits or other testimony to counter the
motions for summary judgment, Doe’s testimony of the statements made by her unidentified
classmates is hearsay and not admissible evidence to prove a breach of confidentiality.
McBeth denied disclosing Doe’s medical treatment at Rankin Medical to her daughter. The
only testimony to the contrary is Doe’s. Doe testified that “more than ten” unidentified
classmates approached her, stating they knew she had been raped and that McBeth’s daughter
had told them. Doe did not remember the names of the students who approached her at
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school.3 Nor did Doe confront McBeth’s daughter. Doe had no personal knowledge or any
other admissible evidence that McBeth had disclosed her confidential medical information
to anyone.
¶23. Doe’s statements of what other students allegedly told her is hearsay under Rule
801(c) of the Mississippi Rules of Evidence, which is inadmissable at trial and not
appropriate evidence in opposition to McBeth’s and Rankin Medical’s motions for summary
judgment. Doe cannot repeat the purported statements of unidentified students/declarants in
order to prove that McBeth’s daughter communicated the rumors to them. See Karpinsky v.
Am. Nat’l Ins. Co., 109 So. 3d 84, 91 (Miss. 2013) (affidavit testimony about what an
incident report documented about notice provided to a defendant before a slip-and-fall
incident was hearsay, which is not sufficient to defeat summary judgment). While Doe may
believe that McBeth’s breach of confidentiality led to rumors at school about her sexual
assault, these are unverified alleged hearsay statements by unknown classmates, and they do
not create a genuine issue of material fact. See Meador, 81 So. 3d at 1117 (excluding
portions of affidavits given in opposition to a motion for summary judgment, which were not
based on personal knowledge).
¶24. We find that Doe cannot overcome her lack of direct evidence of McBeth’s supposed
role in the rumors through speculation and conjecture, which she attempts to pass off as
circumstantial evidence. The testimony offered by Doe is inadmissible hearsay. Thus, this
issue is without merit.
3
Doe testified to the identity of another classmate named Candace Tillman, who told
her about the rumors. But Doe did not depose her or provide a supporting affidavit from her.
11
C. Whether McBeth’s credibility as a witness creates a genuine
issue of material fact.
1. McBeth’s Prior Drug Use
¶25. The exact date is not clear from the record, but McBeth died sometime before March
7, 2011, when the suggestion of death was filed with the circuit court. Her cause of death is
not given. When McBeth was alive, she testified by deposition that she did not tell her
daughter about Doe’s treatment for rape at Rankin Medical. Doe argues that McBeth’s
testimony must be completely disregarded, because McBeth was not a credible witness. Doe
argues that, since McBeth had a history of drug abuse, of falsifying records to get drugs from
hospital patients, and of stealing drugs from the hospitals that employed her, this seriously
calls into question the veracity of any statement she made under oath in her deposition.
¶26. McBeth admitted she was fired from her nursing position at St. Dominic’s Hospital,
a previous employer, for suspicion of drug abuse and theft. Rankin Medical also fired
McBeth for drug abuse, drug theft, and falsifying medical records. McBeth admitted abusing
Demerol and other opiates during the time frame in question. Doe notes that the side effects
of those drugs seriously affect the mind and functionality of the abuser, and that McBeth
admitted that the drug abuse affected her memory. Because of this, Doe argues the trial court
should have disregarded McBeth’s and Rankin Medical’s attempts to rely on her statement
that she did not disclose the information.
¶27. The circumstances of McBeth’s termination and drug use would be inadmissible at
trial under Sheffield v. Sheffield, 405 So. 2d 1314 (Miss. 1981). Sheffield involved a medical
negligence/wrongful death action. Id. Plaintiffs introduced at trial, over objection, testimony
12
about the defendant physician’s drug use. Id. at 1315. No proof was introduced that the
defendant was using drugs at any time or was impaired at the time of the treatment at issue.
Id. at 1316. In ordering reversal, the Court noted that the “testimony that would show that
the [the defendant] was under the influence of drugs at any time during which he did
anything relating to the baby’s care or at the time he was testifying” would be relevant. Id.
at 1317.
¶28. As in Sheffield, Doe has not shown that McBeth was in any way impaired at the time
of her deposition testimony or on March 3, 2003, when Doe’s friend was in McBeth’s care.
Not only is evidence regarding McBeth’s employment termination and prior drug use
inadmissible as evidence at trial, it also is insufficient to rebut the motion for summary
judgment. See Walker v. Skiwski, 529 So. 2d 184, 186-87 (Miss. 1988). No attacks on
McBeth’s credibility can substitute for Doe’s failure to meet the defendants’ motion for
summary judgment with admissible evidence to support claims of an improper disclosure of
confidential information. We find this issue is without merit.
2. McBeth’s Statement About Another Classmate
¶29. Rankin Medical also investigated McBeth for her role in disclosing Doe’s sexual
assault. McBeth defended herself by stating to Christopher Powe, Rankin Medical’s Director
of Emergency Services, who conducted the internal investigation, that another one of her
daughter’s classmates had disclosed the information to other schoolmates. Doe claims this
disclosure from the other classmate is impossible because this other classmate was in the
hospital at Rankin Medical the week before Doe was there. This student, according to Doe,
13
could not have reported the rape one week before it occurred. Doe states this is another
example of McBeth’s blurred memory from drug abuse and lack of trustworthiness and
credibility.
¶30. McBeth and Rankin Medical respond that Doe’s claim to have excluded this classmate
is a red herring based on a misreading of McBeth’s and Powe’s testimony. In her deposition,
McBeth testified that her daughter, Alana, reported another student (Phillips) as the source
of Alana’s information–not the initial source of the rumors around the school. Powe testified
about the contents of a report in which he paraphrased McBeth’s reference to an unidentified
“best friend” who recently had been to Rankin Medical and “knew the details of that case
from a network or friends at school.” McBeth claims there was no implication that this
“mystery friend” was the source of the rumors at school and that Doe failed to explore
possible explanations for this comment in the investigator’s report. We agree and find this
issue is without merit.
D. Whether Doe has proven an actionable disclosure by McBeth
or Rankin Medical under any theory of recovery.
¶31. Doe claims that McBeth breached: (1) the federal Health Insurance Portability and
Accountability Act (“HIPPA”) laws, see 42 U.S.C. § 1320d-5(d)(1) (2012); (2) the
nurse/patient communications privilege, see Miss. Code. Ann § 13-1-21 (Rev. 2012); (3) the
Mississippi Nursing Practice Law, see Miss. Code Ann. § 73-15-29 (Rev. 2012); and/or (4)
the Mississippi Board of Nursing Regulations, see Miss. Admin. Code 30-18-2830:1.2(B)(2)
and (B)(3) (Rev. 2012).
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¶32. We first note that HIPPA does not create a private cause of action for disclosures of
confidential information. Acara v. Banks, 470 F. 3d 569, 571-72 (5th Cir. 2006). Only
Mississippi’s Attorney General may bring claims on behalf of Mississippi residents for
alleged HIPPA violations. See 42 U.S.C. § 1320d-5(d)(1). Even under a liberal construction
of the pleadings, Doe has presented no proof that she exhausted these administrative
remedies.
¶33. We also find that a private cause of action is not granted for an alleged improper
disclosure of confidential information under the Mississippi Nursing Practice Law. See Miss.
Code Ann. § 73-15-29; Tunica County v. Gray, 13 So. 3d 826, 830 (Miss. 2009) (finding
that, based on the language of the statute and relevant legislative history, the statute that
provided a procedure for disposing of unclaimed corpses did not create a private right of
action). We believe this also is true for the Board of Nursing Regulations. Miss. Admin.
Code 30-18-2830:1.2(B)(2) and (B)(3). Only Section 13-1-21 of the Mississippi Code creates
civil liability for improper disclosures of medical information, but this is only for “willful or
reckless and wanton” disclosures. See Miss. Code Ann. § 13-1-21.
¶34. The physician-patient and/or healthcare provider-patient privilege did not exist at
common law. Franklin Collection Serv., Inc., v. Kyle, 955 So. 2d 284, 288 (Miss. 2007).
Thus, “the medical privilege exists in Mississippi only to the extent of the narrow privilege
created by Section 13-1-21 of the Mississippi Code, and the broader privilege created by
Rule 503 of the Mississippi Rules of Evidence.” Id. Under Mississippi law, all
communications made to a nurse are privileged. Miss. Code Ann. § 13-1-21. Nurses are
15
“civilly liable for damages for any willful or reckless and wanton acts or omissions
constituting such violations.” Miss. Code Ann. § 13-1-21(3) (emphasis added). Since Doe
cannot prove the disclosure of her confidential information by McBeth, she certainly cannot
establish a disclosure made with willful, reckless, or wanton intent.
¶35. We cannot find anywhere in Section 13-1-21 of the Mississippi Code, Mississippi
Rule of Evidence 803, or Missississippi jurisprudence a cause of action for a negligent
breach of patient confidentiality. Thus, we conclude that Doe’s reliance on cases discussing
proving negligence and proximate cause in negligence cases by circumstantial evidence is
without merit.
¶36. In conclusion, we find Doe presented no significant probative evidence in response
to McBeth’s and Rankin Medical’s motions for summary judgment to create a genuine issue
for trial. She offered no affidavits or sworn deposition testimony from other classmates or
other potential sources of the information. Additionally, the testimony of what the
unidentified students told her is inadmissable hearsay. Issues of McBeth’s credibility,
including her prior drug use, are insufficient summary-judgment evidence. Finally, Doe’s
claims do not fall under any actionable legal theory. Thus, we find that the circuit court
judge did not err in granting McBeth’s and Rankin Medical’s motions for summary
judgment.
II. Whether the circuit court judge should have recused himself since
he was the prosecuting attorney for the underlying rape case.
¶37. Circuit Court John H. Emfinger presided over Doe’s trial after the former judge retired
in 2010. Before assuming the bench as the Rankin County Circuit Court judge, he served as
16
Assistant District Attorney in the Twentieth Circuit Court District. Doe listed Judge Emfinger
as a potential witness because he was the prosecutor at sentencing of the teenaged boys who
committed the underlying sexual assault. For the first time on appeal, Doe asserts that Judge
Emfinger committed reversible error by not recusing himself. We find that Doe’s argument
for recusal fails for two reasons.
¶38. First, Rule 1.15 of the Uniform Rules of Circuit and County Court Practice requires
that a motion for the recusal of a judge be filed “within 30 days following notification to the
parties of the name of the judge assigned to the case; or, if it is based upon facts which could
not reasonably have been known to the filing party within such time, it shall be filed within
30 days after the filing party could reasonably discover the facts underlying the grounds
asserted.” URCCC 1.15. Doe never filed a motion seeking Judge Emfinger’s recusal and
even agreed on two occasions to allow the case to be set before him. “The failure to seek
recusal generally is considered implied consent to have the judge go forward in presiding
over the case.” Rice v. State, 134 So. 3d 292, 299 (Miss. 2014). This Court “will not allow
a party to take his chances with a judge about whom he knows of grounds for recusal and
then, after he loses, file his motion.” Tubwell v. Grant, 760 So. 2d 687, 689 (Miss. 2000).
¶39. Doe states that, during a telephone conference with all parties and Judge Emfinger,
her counsel advised the judge that he might be called as a witness and asked whether this
presented a conflict of interest which would warrant recusal. That, in and of itself, Doe
argues, was an ore tenus motion for recusal. Doe claims that Judge Emfinger noted that he
was listed as a witness and stated that his involvement in the underlying prosecution of the
17
sexual assault would not interfere with his partiality and ability as a judge at the trial of this
case. We note that we could not find any evidence of this exchange in the record.
¶40. Even if we were to hold that Doe’s announcement that the judge might be a witness
was effectively an ore tenus motion for recusal that satisfies Rule 1.15, Doe’s argument fails
for a second reason. Rule 1.15 of the Uniform Rules of Circuit and County Court Practice
states that “[t]he denial of a motion to recuse is subject to review by the Supreme Court on
motion of the party filing the motion as provided in M.R.A.P. 48B.” URCCC 1.15. “[I]f
within 30 days following the filing of the motion for recusal the judge has not ruled, the
filing party may within 14 days following the judge’s ruling, or 14 days following the
expiration of the 30 days allowed for ruling, seek review of the judge’s action by the
Supreme Court.” Miss. R. App. P. 48B. The record does not show that Doe sought review
from this Court within fourteen days of the date when she argues Judge Emfinger should
have ruled on her ore tenus motion.
¶41. Doe failed to file a motion for recusal under Rule 1.15 of the Uniform Rules of
Circuit and County Court Practice within thirty days. She also did not seek a review from this
Court within fourteen days after the date when she argues Judge Emfinger should have ruled
on her ore tenus motion. Thus, we find this issue is without merit.
CONCLUSION
¶42. Doe did not offer any affidavits or sworn deposition testimony from other classmates
or from other potential sources of the information. Hearsay and issues of McBeth’s
credibility are not significant probative evidence to create a fact issue for trial in response to
18
McBeth’s and Rankin Medical’s motions for summary judgment. Doe’s claims also do not
fall under any actionable legal theory. Finally, Doe failed to file a motion for recusal or to
appeal a denial of a motion for recusal. Thus, we affirm the judgment of the circuit court
granting summary judgment in favor of McBeth and Rankin Medical.
¶43. AFFIRMED.
DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, KING,
COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.
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