IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-01002-COA
BAPTIST MEMORIAL HOSPITAL - NORTH APPELLANTS
MISSISSIPPI, INC., AND BAPTIST MEMORIAL
HEALTH SERVICES, INC.
v.
C. JAKE LAMBERT, M.D. APPELLEE
DATE OF JUDGMENT: 05/16/2013
TRIAL JUDGE: HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: STEPHAN L. MCDAVID
REBECCA LYNN WILKS
ATTORNEYS FOR APPELLEE: CHARLES M. MERKEL JR.
EDWARD P. CONNELL JR.
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL
INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION: GRANTED APPELLEE’S MOTION FOR
SUMMARY JUDGMENT
DISPOSITION: AFFIRMED - 01/27/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
ROBERTS, J., FOR THE COURT:
¶1. In 2006, Dr. Jake Lambert filed a complaint in the Lafayette County Circuit Court
against several parties, including Baptist Memorial Hospital North Mississippi Inc. (Hospital)
and Baptist Memorial Health Services Inc. (collectively Baptist), related to his termination.
Baptist filed a counterclaim against Dr. Lambert alleging he breached his employment
contract. The circuit court granted summary judgment on Dr. Lambert’s complaint in favor
of Baptist; however, Baptist’s counterclaim was not addressed at that time, nor was it
addressed in the first appeal.1 Subsequently, Baptist pursued its counterclaim, but the circuit
court granted summary judgment on the issue to Dr. Lambert, which Baptist now appeals.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. The underlying facts, as detailed in our prior opinion, are as follows:
Dr. Lambert signed an employment agreement with Baptist Health
Services on February 26, 2004. He agreed to provide cardio-thoracic-surgery
services to the Hospital located in Oxford, Mississippi. Almost immediately
after Dr. Lambert’s employment began, the Hospital began to receive
complaints from staff and patients about Dr. Lambert’s angry and abusive
behavior. They reported his demeaning attitude, insecurity and hesitancy in
decision making, hand shaking, freezing up during surgery, and anger toward
patients and their families.
After numerous complaints about Dr. Lambert’s anger issues were filed,
Zach Chandler, the Hospital’s CEO, requested that Dr. Lambert attend a
discretionary interview. At the interview, Dr. Lambert agreed to be referred
to the Mississippi Professional Health Program (“MPHP”). The MPHP then
referred him to Dr. Edward Anderson at Pine Grove Recovery Center in
Hattiesburg, Mississippi.
Dr. Lambert was evaluated by Dr. Anderson on December 15, 2004.
Dr. Anderson submitted his detailed evaluation to the Hospital. Dr. Anderson
made the following recommendations:
1. Dr. Lambert should enter a monitoring contract with Dr. Gary
Carr and the Mississippi Professionals Health Program for a
period of no less than five years. This monitoring should
include parameters of disruptive physician behavior as well as
monitoring of his surgical performance, due to the fact that there
have been several occasions on which his team has felt he has
“frozen up” during the surgical process.
1
See Lambert v. Baptist Mem’l Hosp.-N. Miss. Inc., 67 So. 3d 799 (Miss. Ct. App.
2011).
2
2. Dr. Lambert should enter an intensive, structured treatment to
address the disruptive behavior described above and his
underlying personality disorder. The treatment program should
be one approved by the Mississippi Professionals Health
Program.
3. Dr. Lambert, the administration of Baptist Hospital of North
Mississippi, or the Mississippi Professionals Health Program are
invited to seek a second opinion, should they disagree with these
findings or recommendations.
....
Dr. Anderson filed an addendum, which stated:
It is our impression that Dr. Lambert is currently unfit to
practice medicine with reasonable skill and safety, based on the
report of a credible source that he has “frozen up” on three
separate occasions in the midst of a surgical procedure.
However, this is based upon a secondhand report. Dr. Lambert
would not allow us consent to speak with the original sources to
verify this report. . . . We believe that Dr. Lambert needs
intensive treatment as quickly as possible.
Based on Dr. Anderson’s conclusion that Dr. Lambert was unfit to
practice medicine, the Hospital suspended Dr. Lambert’s staff privileges. A
letter from the Hospital informed Dr. Lambert that his staff privileges were
suspended pending successful completion of a treatment program
recommended by Dr. Anderson or the MPHP. The letter also stated that the
staff privileges may be reinstated subject to supervision and a probationary
period upon Dr. Lambert’s successful completion of a treatment program. The
Hospital informed Dr. Lambert that he was entitled to apply for a hearing
under the Hospital’s Fair Hearing Plan.
Baptist Health Systems then terminated Dr. Lambert’s employment due
to the suspension of his staff privileges at the Hospital. Dr. Lambert’s
employment contract specifically states that Baptist Health Systems may
terminate the contract for cause due to the termination or restriction of Dr.
Lambert’s clinical privileges at the Hospital. The notice of termination
provided that Dr. Lambert had the option to use Baptist Health Systems’
Problem Solving Procedure. Dr. Lambert never exercised his rights to a
hearing; indeed, his attorney waived those rights.
3
On January 12, 2006, Dr. Lambert filed a complaint against the
Hospital, Baptist Health Systems, Dr. Anderson, and Forrest General Health
Services[] Inc. d/b/a Pine Grove Recovery Center. Pine Grove and Dr.
Anderson were dismissed due to Dr. Lambert’s failure to comply with the
requirements of the Mississippi Tort Claims Act.
Lambert v. Baptist Mem’l Hosp.-N. Miss. Inc., 67 So. 3d 799, 800-02 (¶¶2-10) (Miss. Ct.
App. 2011). There was no genuine issue of material fact that Dr. Lambert was diagnosed
with obsessive-compulsive personality disorder, and the report outlining his diagnosis was
signed by two medical doctors: Dr. Alexis Polles and Dr. Chapman Sledge; and two licensed
psychologists: Dr. Ed Anderson and Dr. Austin Smith. The circuit court granted summary
judgment in favor of Baptist, and Dr. Lambert appealed. This Court affirmed the circuit
court’s grant of summary judgment. Id. at 800 (¶1).
¶3. Following this Court’s decision, Baptist pursued its counterclaim in the circuit court
and filed a motion for summary judgment, and a subsequent motion for declaratory
judgment, or in the alternative, for partial summary judgment. The circuit court denied
Baptist’s motions. Dr. Lambert also filed a motion for summary judgment, which the circuit
court granted, and the circuit court dismissed Baptist’s counterclaim against Dr. Lambert.
It found that “[b]ecause Dr. Lambert was determined to be mentally, physically, or otherwise
unfit to practice medicine, and because he was terminated from his employment, this [circuit]
court finds his performance under the Physician Services Agreement was legally
impracticable or impossible.”
¶4. Aggrieved, Baptist raises three issues on appeal:
I. Whether the [circuit] court erred in denying [Baptist’s] motion for
summary judgment, . . . despite there being no genuine issue of material
fact and despite Lambert’s failure to properly plead or substantiate his
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affirmative defense, thereby waiving the defense.
II. Whether the [circuit] court erred in denying [Baptist’s] motion for
declaratory judgment, or, in the alternative, motion for partial summary
judgment, . . . despite the lack of responsive pleadings and there being
no genuine issue of material fact.
III. Whether the [circuit] court erred in granting [Lambert’s] motion for
summary judgment, . . . despite Lambert’s failure to properly plead his
affirmative defense, resulting in waiver of that defense, and despite
[Baptist’s] showing [of] a genuine issue of material fact.
ANALYSIS
I. AFFIRMATIVE DEFENSE
¶5. Pursuant to Mississippi Rule of Civil Procedure 8(c):
[A] party shall set forth affirmatively accord and satisfaction, arbitration and
award, assumption of risk, contributory negligence, discharge in bankruptcy,
duress, estoppel, failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute of frauds, statute
of limitations, waiver, and any other matter constituting an avoidance or
affirmative defense.
The comment to Rule 8(c) provides that the rule’s requirement that “defendants plead
affirmative defenses when answering is intended to give fair notice of such defenses to
plaintiffs so that they may respond to such defenses.”
¶6. Baptist argues that the circuit court erred in granting summary judgment in favor of
Dr. Lambert because Dr. Lambert did not timely plead Restatement (Second) of Contracts
section 261 (1961) as an affirmative defense under Rule 8(c), thereby waiving his right to
rely on this as a defense. While our research provides no caselaw regarding whether the
doctrine of impossibility is an affirmative defense, it appears it would fall under the “any
other matter constituting an avoidance or affirmative defense” portion of Rule 8(c). It is
5
important to note that, while Baptist is correct that Dr. Lambert failed to plead section 261
as an affirmative defense in his answer to Baptist’s counterclaim, Dr. Lambert did plead
section 261 in his response to Baptist’s motion to reconsider the denial of its two summary-
judgment motions. And, when impossibility was pled, the fact that Dr. Lambert was unable
to perform his personal-services contract due to his medical diagnosis should have come as
no surprise to Baptist.
¶7. Thus, while section 261 may be an affirmative defense that was not raised in Dr.
Lambert’s answer, we believe that, in the interests of justice and judicial economy, the grant
of summary judgment in reliance on section 261 should be affirmed. Furthermore, this case
has yet to proceed to trial, since it was disposed of by the grant of summary judgments, for
Baptist on the initial complaint and for Dr. Lambert on the counterclaim. If this Court were
to reverse and remand the grant of summary judgment to Dr. Lambert on the ground that this
affirmative defense was not raised, the case would then proceed to trial. But upon remand,
there would be nothing prohibiting Dr. Lambert from filing a motion to amend his answer
to the counterclaim to add this affirmative defense and reschedule the trial if necessary. Such
an occurrence would simply return this case to the same posture as presently exists.
¶8. Thus, as we stated above, it is in the interest of judicial economy and in bringing
finality to a lengthy dispute that we find that even though Dr. Lambert failed to raise section
261 as an affirmative defense in his answer to the counterclaim, the circuit court’s reliance
on section 261 when granting Dr. Lambert’s motion for summary judgment was permissible.
II. SUMMARY JUDGMENT
¶9. This Court reviews de novo a circuit court’s grant of summary judgment. Price v.
6
Purdue Pharma Co., 920 So. 2d 479, 483 (¶10) (Miss. 2006). “[W]e must examine all the
evidentiary matters before us, including admissions in pleadings, answers to interrogatories,
depositions, and affidavits[,]” in the light most favorable to the nonmovant. Id. (citation
omitted). “The movant carries the burden of demonstrating that no genuine issue of material
fact exists, and the non-moving party is given the benefit of the doubt as to the existence of
a material fact issue.” Id. (citation omitted). However, the nonmovant may not rely solely
on the mere allegations or denials of his pleadings. Id. at 483-84 (¶10). Instead, the
nonmovant’s response “must set forth specific facts showing that there is a genuine issue for
trial.” Id. at 484 (¶10) (citations omitted). “If no genuine issue of material fact exists[,] and
the moving party is entitled to [a] judgment as a matter of law, summary judgment should
be entered in that party’s favor.” Id. at 483 (¶10) (citation omitted).
A. Denial of Baptist’s Motions for Summary Judgment
¶10. Baptist first argues that the circuit court erred in denying its motion for summary
judgment. “[T]he denial of a motion for summary judgment is an interlocutory order[,]” and
“the only means of seeking appellate review of an interlocutory order is by filing a petition
with this Court under Rule 5 of the Mississippi Rules of Appellate Procedure.” Hinds Cnty.
v. Perkins, 64 So. 3d 982, 984 (¶7) (Miss. 2011); see Holland v. Peoples Bank & Trust Co.,
3 So. 3d 94, 104 (¶25) (Miss. 2008) (“An order denying summary judgment is neither final
nor binding upon the court or successor courts.”). We decline to address Baptist’s issue that
the circuit court erred in denying its motion for summary judgment, because it is not properly
before us as an appealable issue.
B. Grant of Dr. Lambert’s Motion for Summary Judgment
7
¶11. Baptist next argues that the circuit court erred in granting Dr. Lambert’s motion for
summary judgment. As was discussed above, the use of section 261, even though not
specifically pled as an affirmative defense, as the basis for summary judgment was
permissible. Further, Baptist has failed to show there is a genuine issue of material fact. It
is undisputed that, at Baptist’s request, Dr. Lambert was seen by Dr. Anderson, who
diagnosed Dr. Lambert with obsessive-compulsive personality disorder and opined that, as
a consequence, Dr. Lambert was “unfit to practice medicine with reasonable skill and
safety[.]” As a result of his diagnoses, Dr. Lambert’s hospital privileges were suspended,
which led to Baptist enforcing the termination clause of the employment agreement and
terminating Dr. Lambert’s employment. As the circuit court noted, Restatement (Second)
of Contracts section 261 provides:
Where, after a contract is made, a party's performance is made impracticable
without his fault by the occurrence of an event the non-occurrence of which
was a basic assumption on which the contract was made, his duty to render that
performance is discharged, unless the language or the circumstances indicate
the contrary.
Additionally, section 262 of the Restatement (Second) of Contracts (1981) provides: “If the
existence of a particular person is necessary for the performance of a duty, his death or such
incapacity as makes performance impracticable is an event the non-occurrence of which was
a basic assumption on which the contract was made.”
¶12. The issue of whether a diagnosed mental illness, which was not known at the time the
contract was formed, can serve as a basis to relieve a party from performance has not been
addressed in our jurisprudence. In Handicapped Children’s Education Board of Sheboygan
County v. Lukaszewski, 332 N.W.2d 774, 777 (Wis. 1983), the Wisconsin Supreme Court
8
noted that “under certain conditions[,] illness or health dangers may excuse nonperformance
of a contract[,]” and that “where the act to be performed is one which the promisor alone is
competent to do, the obligation is discharged if he is prevented by sickness or death from
performing it.” Baptist has not shown, and we cannot find, how Dr. Lambert’s medical
diagnosis, which was the direct cause of the suspension of Dr. Lambert’s hospital privileges
and subsequent termination, was his own fault or the result of his own actions. Therefore,
the doctrines of impossibility and impracticability relieve Dr. Lambert from the performance
of his contract, because Dr. Lambert’s performance was made impractical through no fault
of his own.
¶13. In short, Dr. Lambert’s medical diagnosis coupled with the finding that he is unfit to
practice medicine due to his medical diagnosis makes it impossible and impractical for him
to perform the personal services of a cardio-thoracic surgeon necessary to fulfill his contract;
thus, he is excused from performing by section 261 and section 262. We find that there was
no genuine issue of material fact, and summary judgment in favor of Dr. Lambert was
appropriate. This issue is without merit.
III. DECLARATORY JUDGMENT
¶14. Because we find that Dr. Lambert was entitled to summary judgment, we decline to
address this issue. The grant of summary judgment in favor of Dr. Lambert is dispositive.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, MAXWELL, FAIR AND
JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY BARNES, J.
9
CARLTON, J., DISSENTING:
¶16. I respectfully dissent from the majority’s opinion and submit that the circuit court
erred in granting Dr. Lambert’s motion for summary judgment and dismissing Baptist’s
counterclaim against Dr. Lambert. As the majority recognizes, this Court reviews de novo
a circuit court’s grant or denial of summary judgment. Price v. Purdue Pharma Co., 920 So.
2d 479, 483 (¶10) (Miss. 2006).
¶17. The circuit court found that Dr. Lambert’s obsessive-compulsive personality disorder
(OCPD) rendered him unfit to practice medicine. The circuit court further found no dispute
of material fact existed to contest that the defense of impossibility protected Dr. Lambert
from breach of his contract. The circuit court’s finding that no dispute of material fact
existed to contest that the defense of impossibility protected Dr. Lambert from breach of his
employment contract fails to distinguish the difference between a mental impairment (or
condition) and an actual disability resulting from a mental impairment or condition.
¶18. Without considering the mitigating factors that may have allowed Dr. Lambert,
despite his OCPD, to perform the contractual duties in his employment contract, the circuit
court found that Dr. Lambert’s OCPD excused his performance of his employment contract.
Mitigating factors in disability law include the severity of the OCPD and whether the
condition is treatable through counseling, medication, or behavior modification. Clearly, the
circuit court’s finding excused Dr. Lambert from performance under his employment contract
without any factual determination of available mitigating factors such as treatment,
10
psychotherapy, or medication.2
¶19. Nothing in the record establishes that a diagnosis of OCPD precludes a physician from
obtaining medical licensure or receiving hospital privileges. See generally 27 Am. Jur. 3d
Proof of Facts § 1.5 (Supp. 2014) (discussing caselaw that acknowledged the claimant’s
mental impairments did not necessarily totally preclude her work activity).3 As previously
discussed, the extent of the personality disorder, whether it can be treated, and other
mitigating factors are relevant to whether the defense of impossibility applies to excuse
contractual performance by one with a mental condition such as a personality disorder like
OCPD. Mitigation considerations include expected duration, available treatments, behavior
modification, psychotherapy, and medications. The mere existence of a personality disorder
or mental impairment is insufficient to support a finding that the defense of impossibility
applies, or by comparison, that an actual disability exists.4 As set forth in the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, OCPD
2
Compare Dutcher v. Ingalls Shipbldg., 53 F.3d 723, 726 (5th Cir. 1995) (discussing
disability law); Hamm v. Runyon, 51 F.3d 721, 726 (7th Cir. 1995) (finding the mere
existence of an impairment insufficient to establish an actual disability or a substantial
limitation on the ability to work).
3
See also American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 725-29 (4th ed. text revision 2000) (discussing that OCPD constitutes a
personality disorder and not a mental disease or defect and is reflected in the behavior trait
of a pattern of inflexible behavior that leads to impairment and stress).
4
See Smith v. City of Jackson, 792 So. 2d 335, 338-39 (¶¶12, 15) (Miss. Ct. App.
2001) (finding no error in the Mississippi Workers’ Compensation Commission’s
determination that the claimant’s psychological responses to work-related stressors were a
normal incident of his employment); Miss. Code Ann. § 71-3-3(i) (Rev. 2011) (defining
disability relative to workers’ compensation law). See also Barnes v. Dep’t of Human
Servs., 42 So. 3d 10, 13-18 (¶¶7-28) (Miss. 2010) (defining disability relative to social-
security law and the obligation to pay child support).
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manifests through a pattern of inflexible behavior that leads to stress and impairment. As
acknowledged herein, however, and as established in disability law, mitigating facts may be
available for such conditions that modify behavior and thus allow for the avoidance of work-
related stress and impairment.5
¶20. The record in the present case reflects that, after Dr. Lambert’s pattern of disruptive
and unprofessional behavior and after Dr. Anderson’s diagnosis of Dr. Lambert’s disorder,
Baptist provided Dr. Lambert with notice of the suspension of his privileges to practice at the
hospital. Baptist’s letter informed Dr. Lambert of the procedures he could follow to seek
reinstatement of his hospital privileges. These procedures included completion of an
approved treatment program, supervision during a probationary period, and any further action
that Baptist might deem necessary. The record therefore reflects that mitigating factors
existed that would allow Dr. Lambert, even with his OCPD diagnosis, to perform the medical
duties stated in his employment contract and to seek reinstatement of his hospital privileges.
The record further reflects that Dr. Lambert was previously aware that he displayed
disruptive and uncooperative behavior in his past medical jobs and that he was asked to leave
a prior position due to such behavior. However, the record also shows that, despite an
awareness of his prior contentious and uncooperative work history, Dr. Lambert never sought
or received treatment to modify his workplace behavior.
¶21. Based on the foregoing, I respectfully submit that a dispute of material fact exists as
5
See Kathleen M. Dorr, Exclusion of, or Discrimination against, Physician or
Surgeon by Hospital, 28 A.L.R. 5th 107 § 18(a), at 303 (1995) (discussing caselaw where
physicians were terminated and/or suffered termination of their hospital privileges due to
disruptive and uncooperative behavior).
12
to whether the defense of impossibility applies in this case to excuse Dr. Lambert from
performance of his employment contract for physician services. I therefore would reverse
the circuit court’s grant of summary judgment and remand the case for trial on the issues
raised in Baptist’s counterclaim.
¶22. BARNES, J., JOINS THIS OPINION.
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Baptist Memorial Hospital - North Mississippi, Inc v. C. Jake Lambert
Combined Opinion