Hobart v. Shin

FIRST DIVISION
September 15, 1997

No. 1-95-3735

MILDRED A. HOBART, Indiv. and ) Appeal from the
as Special Adm'r of the Estate ) Circuit Court
of Kathryn Hobart, Deceased, ) of Cook County.
)
Plaintiff-Appellant, )
)
v. )
)
DANIEL C. SHIN, ) Honorable
) LEONARD L. LEVIN,
Defendant-Appellee. ) Judge Presiding.

JUSTICE BUCKLEY delivered the opinion of the court:

Plaintiff, Mildred Hobart, brought this action against
defendant, Dr. Donald Shin, alleging that defendant deviated from
the required standard of care by prescribing an excessive amount
of the antidepressant Doxepin to plaintiff's daughter, Kathryn
Hobart. Kathryn committed suicide by taking a lethal dose of the
drug. The case went to trial, and the jury returned a verdict in
favor of defendant. Plaintiff appeals, contending that: (1) the
trial court erred in permitting defendant to file an affirmative
defense raising Kathryn's contributory negligence; (2) the trial
court improperly refused to give a jury instruction tendered by
plaintiff regarding Kathryn's purported contributory negligence;
and (3) the trial court erred in allowing defendant to testify as
to personal experiences and attitudes.
In 1987, Kathryn's father suffered a cerebral hemorrhage and
Kathryn moved in with her mother to help with chores and
transportation. Kathryn became depressed and, by August 1988,
her depression had become quite severe. Defendant is a family
practitioner at the University of Illinois who coordinates his
patients' overall health. On August 9, 1988, Kathryn consulted
defendant about her depression. She was experiencing fatigue,
changing moods, lack of appetite, irritability, dizziness,
nausea, and breathing difficulty. She denied feeling suicidal.
Defendant diagnosed Kathryn with general anxiety disorder.
He had another visit from Kathryn on August 18, 1988, and she
appeared to be much better. In November 1988, Kathryn's
depression returned. Defendant agreed to allow Kathryn to visit
a psychiatrist at Hinsdale Hospital who prescribed Imipramine, an
antidepressant. She was not suicidal, but the psychiatrist told
defendant that Kathryn had a long history of depression and panic
attacks.
Defendant saw Kathryn again on November 22, 1988. Her
condition had deteriorated to the point where she could not walk,
sleep, or eat. Defendant was concerned that Kathryn may be
considering suicide and arranged for her to see Dr. Doris France,
a psychologist. Dr. France shared defendant's concerns and
recommended that Kathryn be hospitalized.
Kathryn voluntarily checked herself into the University of
Illinois Hospital on November 23, 1988. Dr. Jeffrey Stovall
processed Kathryn's admission. He testified that he believed
Kathryn was thinking logically and did not have suicidal
ideation. Nonetheless, he still put her on "Q-30 minute suicide
precautions," the least restrictive suicide watch.
Dr. Rachel Fargason treated Kathryn while she was
hospitalized. When she first saw Kathryn, Dr. Fargason removed
her from the Q-30 suicide precaution because there was no risk of
suicide. During her stay at the hospital, Kathryn's condition
went from active depression to depression in partial remission.
Dr. Fargason kept Kathryn on Doxepin, prescribing 21 pills at a
time. Although she was not displaying the symptoms of depression
at the time of her release from the hospital on December 12,
1988, Kathryn's depression was only in "partial remission"
because the clinical term "complete remission" is only applicable
when a patient has been symptom free for three months. Dr.
Fargason believed Kathryn was competent upon discharge and
understood her treatment.
After being released, defendant took responsibility for
follow-up treatment. Defendant kept Dr. Fargason informed as to
Kathryn's progress, which was substantial. Defendant testified
that Kathryn was acting positive and upbeat. On December 21,
1988, Kathryn visited defendant complaining of constipation, a
sideeffect of Doxepin. She also expressed concern about running
out of medication and about the cost of filling frequent small
prescriptions. Defendant gave Kathryn a laxative as well as a
prescription for 90 Doxepin pills with one refill, 50 milligrams
each. This constituted a month's supply of the drug. Defendant
did not notify Dr. Fargason that he wrote the prescription.
Dr. Fargason also saw Kathryn on an outpatient basis three
times after her discharge. Dr. Fargason testified that Kathryn's
depression remained under control throughout the outpatient
period; she displayed no symptoms. On December 30, 1988, Kathryn
told Dr. Fargason that she had no suicidal inclinations, and
there was no evidence of distress. Dr. Fargason testified that
defendant's conduct was consistent with the standard of care even
though he did not call her when he wrote the December 21
prescription, because a prescription is not a matter of such
importance that it must be communicated.
On January 4, 1989, Kathryn's backpack was stolen. This
event sent her back into a severe depression, but she did not
call her doctors because she was afraid she would be
hospitalized. On January 6, 1989, Kathryn was found dead in a
motel room. Next to her body were two bottles of pills. Police
officer Joseph Jeras testified that one was an empty bottle which
had contained 180 Doxepin pills, 25 milligrams each, prescribed
by defendant. This prescription was refilled on January 5, 1989.
The other bottle was a prescription for 21 Doxepin, 50 milligrams
each. This prescription was filled December 12, 1988. The
second bottle contained 28 pills.
The Cook County medical examiner's office determined the
cause of death to be Doxepin intoxication. Dr. Randall Baselt,
an expert in toxicology, testified that he believed Kathryn
ingested about 5,600 milligrams of Doxepin, or the equivalent of
224 pills, 25 milligrams each. A lethal dose would be
approximately 500 milligrams.
Numerous expert witnesses testified at trial. Dr. Robert
Nyquist is a psychiatrist who treated Kathryn at River Edge
Hospital in 1982, after she made two suicidal "gestures." Dr.
Nyquist testified that a suicidal gesture is a much less serious
incident than a suicide attempt. After her discharge from the
hospital, Dr. Nyquist prescribed a month's supply of Doxepin with
one or two refills.
Dr. Nyquist testified that in his opinion defendant breached
the standard of care for failing to communicate the December 21,
1988, prescription to Dr. Fargason. The prescription itself was
within the standard of care so long as defendant determined
before writing it that Kathryn had no suicidal ideation.
Dr. Gerson Kaplan was another psychiatric expert who
testified on behalf of plaintiff. In Dr. Kaplan's opinion,
Kathryn had suicidal ideation when she visited defendant on
December 21, 1988, and at all times thereafter. In his opinion,
defendant breached the standard of care by prescribing 90 pills
of Doxepin with a refill and by failing to communicate the
prescription to Dr. Fargason.
Dr. Fargason testified that physicians only contact each
other regarding important medical developments. Writing a
prescription is not an important medical development. Dr.
Fargason further testified that she had warned Kathryn repeatedly
that taking one week's supply of Doxepin can be lethal. She
believed Kathryn was responsible for her own suicide because at
the time Kathryn was rational and competent, and she understood
the consequences of her actions. Kathryn's suicide was carefully
planned, as she obtained a refill and rented a motel room to do
it.
Dr. Fargason also testified that Kathryn knew she had other
options available to her, including contacting Dr. Fargason.
Kathryn had entered into a "no suicide" contract where she agreed
to call Dr. Fargason if she became upset. Kathryn had Dr.
Fargason's pager number and could have contacted her at any time.
Dr. Andrew Slaby is a past president of the American
Suicidology Association. He testified that it was well within
the standard of care for defendant to prescribe a month's supply
of Doxepin to Kathryn on December 21, 1988. At the time, Kathryn
was stable; she exhibited no suicidal ideation. Furthermore, she
was showing a favorable response to Doxepin. She had greatly
improved in the time before the prescription was issued. Dr.
Slaby further testified that Kathryn's suicide was a rational
act. She could have killed herself any number of ways, including
taking a much smaller dosage of Doxepin than the amount she
ingested in the motel room.
Finally, Dr. Finley Brown testified on behalf of defendant.
Dr. Brown is a family practitioner. He testified that it is
within the standard of care for a family physician to prescribe a
month's supply of antidepressant medication to a patient
experiencing severe depression. Dr. Brown believes that the
prescription defendant wrote on December 21, 1988, was
appropriate because Kathryn was stable at the time. He further
testified that defendant was not required to call Dr. Fargason
about the prescription.
At the conclusion of the trial, the parties submitted their
proposed jury instructions. With respect to the instruction
pertaining to Kathryn's contributory negligence, defendant
submitted Illinois Pattern Jury Instruction, Civil, No. 10.03,
which states that it was Kathryn's duty to "use ordinary care for
her own safety" and that a decedent is contributorily negligent
if (1) she fails to use ordinary care, and (2) that failure is a
proximate cause of death. Illinois Pattern Jury Instructions,
Civil, No. 10.03 (3d ed. 1993). The circuit court gave the jury
this instruction.
Plaintiff submitted a non-IPI "capacity-based" instruction.
Plaintiff's proposed instruction provided that "[i]t was the duty
of the plaintiff's decedent before and at the time of the
occurrence to use the degree of care that she was capable of
exercising in light of her mental condition at the time of the
occurrence." The circuit court refused this instruction.
On June 28, 1995, the jury returned a verdict in favor of
defendant. Plaintiff's posttrial motion was denied on October
11, 1995. Plaintiff filed a timely notice of appeal.
A. AFFIRMATIVE DEFENSE
Plaintiff contends that the circuit court erred in allowing
defendant to file an affirmative defense alleging contributory
negligence. Initially, plaintiff claims that the affirmative
defense should have been barred as untimely. The record shows
that plaintiff filed her original complaint in December 1989.
Defendant sought leave to file his affirmative defense on May 30,
1995. The trial began in June 1995.
The decision of whether to allow amendments to the pleadings
is within the sound discretion of the trial court and should not
be disturbed upon review absent an abuse of that discretion.
Carlisle v. Harp, 200 Ill. App. 3d 908, 915 (1990). Such
amendments should be liberally allowed to further the ends of
justice. Carlisle, 200 Ill. App. 3d at 915. However, leave to
amend may be properly denied where the amendment is offered on
the eve of or during trial and there is no good reason for its
omission from the original pleading. Carlisle, 200 Ill. App. 3d
at 915.
Here, the affirmative defense was filed 5« years after
plaintiff filed her original complaint and only a few days before
trial. Defendant offers no explanation for this late filing, and
none is apparent from the record. The basis of defendant's
affirmative defense of contributory negligence is that Kathryn
wilfully took her own life. However, this fact was obviously
known to defendant at the time he filed his original answer. We
are not aware of any circumstances that may have justified the
late filing.
Furthermore, the untimeliness of the affirmative defense was
prejudicial to plaintiff in that she was denied the opportunity
to prepare adequately for the trial. This case revolved in large
part around the testimony of several doctors and other experts.
However, until defendant filed his affirmative defense on the eve
of trial and alleged for the first time that Kathryn was
contributorily negligent, plaintiff had no reason to prepare to
examine these witnesses about any aspect of Kathryn's own
behavior except insofar as it related to the issue of whether
defendant breached the standard of care in treating her. By
allowing defendant to file his defense at the last minute, the
trial court denied plaintiff her right to depose these witnesses
on this issue and to prepare an appropriate trial strategy.
Since defendant offers no explanation to justify the
untimeliness of his affirmative defense and plaintiff was
significantly prejudiced by it, we find that the trial court
abused its discretion in allowing it.
Plaintiff further claims that, in any event, the issue of
contributory negligence is inappropriate in an action against a
doctor involving a mental health patient's suicide. In support
of this contention, plaintiff relies principally on the Fifth
District Appellate Court case of Peoples Bank v. Damera, 220 Ill.
App. 3d 1031 (1991). In Damera, a psychiatric patient, John
Taylor, was hospitalized for severe depression and suicidal
ideation in early December 1985. During his hospitalization,
nurses noted in Taylor's medical records that they had observed
him stating such things as "I just can't take it anymore" and "If
I had a way to do it I would." Damera, 220 Ill. App. 3d at 1032.
Taylor was released, but just before Christmas of 1985, he
returned to the hospital, extremely upset, because he had learned
that his wife wanted a divorce. The next day, he asked to be
released. Defendant approved Taylor's discharge and prescribed a
two-week supply of medication for sleeplessness and depression.
A nurse testified that she told Taylor not to use other drugs or
alcohol in combination with these prescribed medications. A few
hours after the discharge, Taylor bought a bottle of wine and
committed suicide by ingesting all of the prescription drugs and
at least some of the wine. Damera, 220 Ill. App. 3d at 1032.
The jury returned a verdict in favor of defendant, and
plaintiff, the administrator of Taylor's estate, appealed.
Plaintiff claimed that the trial court's instructions to the jury
improperly skewed the jury's focus from the conduct of the
defendant to that of the decedent. The appellate court agreed.
The court held that the case was different than the typical
medical malpractice case because Taylor sought defendant's
assistance in battling his suicidal ideation. Damera, 220 Ill.
App. 3d at 1035. The court stated that "here the patient does
not share the goal of his physician of getting better ***. We
hold that in a suicide malpractice case against the decedent's
psychiatrist, the comparative fault of the decedent is not likely
ever to be an appropriate or relevant issue, and here it was
not." Damera, 220 Ill. App. 3d at 1035-36. Therefore, the case
was reversed and remanded for a new trial. Damera, 220 Ill. App.
3d at 1036.
The facts of the Damera case are quite similar to those in
this case in that the estate of a suicide victim brought an
action against the decedent's doctor alleging negligence in the
issuance of prescription drugs that were ultimately used in the
suicide. Therefore, plaintiff claims that under Damera, issues
of comparative fault are inappropriate in this case as well.
Defendant, however, maintains that because it is fundamental
that people owe a duty to exercise ordinary care for their own
safety (see, e.g., Haist v. Wu, 235 Ill. App. 3d 799, 813
(1992)), an affirmative defense of contributory negligence was
properly allowed. In the context of an action against a suicide
victim's doctor, defendant relies on the First District Appellate
Court case of Biundo v. Christ Community Hospital, 104 Ill. App.
3d 670 (1982).
In Biundo, the decedent, Michele Biundo, committed suicide
by jumping from a hospital window after having a laminectomy (the
surgical removal of the posterior arch of the vertebra).
Biundo's estate brought an action against the doctor and the
hospital claiming that Biundo was neglected by defendants and
driven to jump by extreme pain he suffered after the surgery.
The trial court entered a directed verdict in favor of the
hospital, and the jury returned a verdict in favor of the doctor.
Biundo, 104 Ill. App. 3d at 671.
On appeal, plaintiff claimed that the trial court committed
reversible error by giving the jury certain instructions
regarding Biundo's contributory negligence. The appellate court
affirmed, holding that "[w]hether or not a mentally disturbed
person is capable of contributory negligence is a question of
fact for the jury, where, as here, decedent was never found
mentally ill or incapacitated." Biundo, 104 Ill. App. 3d at 674.
The two cases relied upon by the parties in this case are
consistent. Damera holds that principles of comparative
negligence have no place in "a suicide malpractice case against
the decedent's psychiatrist" (Damera, 220 Ill. App. 3d at 1035-
36), whereas Biundo holds that comparative negligence is a viable
issue in a suicide case where the decedent was never found to be
mentally ill or incapacitated. Biundo, 104 Ill. App. 3d at 674.
Therefore, the critical difference between the two cases is that
Damera involved a mentally ill patient, whereas Biundo did not.
In this case, Kathryn Hobart was clearly seeking treatment
for a mental illness. Therefore, the Damera case is more
persuasive here. Plaintiff's action in this case asserts that
the nature of Kathryn's illness caused her to have suicidal
ideation. Plaintiff alleges that Kathryn's lack of care for her
own safety was known or should have been known to defendant at
the time he issued the December 21, 1988, prescription. Since it
was for this condition that Kathryn sought treatment, defendant
should not be permitted to allege that Kathryn was contributorily
negligent for acting in a manner consistent with her disorder.
Defendant may well have been able to prove that he was not
negligent because he did not breach the standard of care in
issuing the December 21, 1988, prescription. Indeed, all the
medical experts who treated and consulted with Kathryn around the
time the prescription was issued testified that she appeared to
be well on the road to recovery, due in large part to her
favorable response to Doxepin and the lack of any sign of
suicidal ideation. Nonetheless, contributory negligence in a
suicide malpractice case against a treating doctor is
inappropriate and irrelevant. Therefore, the decision of the
trial court to allow defendant's affirmative defense on
contributory negligence grounds was reversible error.
Furthermore, while we are aware of the supreme court's discussion
of sole proximate cause in Holton v. Memorial Hospital, 176 Ill. 2d 95, 133, 679 N.E.2d 1202, 1219 (1997), that issue is not
before us.
B. JURY INSTRUCTIONS
Since we find that the defense of contributory negligence
has no place in a suicide malpractice case, we need not address
the question of how the jury should be instructed on the issue.
C. DEFENDANT'S TESTIMONY
Plaintiff also claims that she was denied a fair trial
because defendant was allowed to testify at trial about his
religious beliefs and personal hardships. Specifically,
plaintiff claims she was prejudiced by defendant's testimony that
his uncle suffered from schizophrenia (a serious mental
disorder), that he felt he had a calling from God to practice
medicine, and that his father had liver cancer.
Plaintiff's counsel did not object to this testimony, which
defense counsel elicited early in his direct examination of
defendant. Rather, after the testimony had already been given,
plaintiff's counsel asked the judge for a sidebar in chambers on
the record. During the sidebar, plaintiff's counsel complained
that the testimony was irrelevant and improperly offered to stir
the sympathy of the jury. Counsel asked the judge to give the
jury a special instruction that they are not to consider this
testimony. The judge honored counsel's request and delivered the
following special instruction immediately upon return from
sidebar:
"Members of the jury, the Court is
instructing you to disregard any personal
family problems or any sympathies that they
may have engendered in this direct
examination by [defense counsel] in regard to
Mr. Shin's family."
These facts show that plaintiff's counsel failed to object
in a timely fashion. When he eventually requested that the court
remedy what he believed to be improperly admitted testimony, the
court granted counsel's request and delivered precisely the
relief requested. Therefore, the admission of this testimony was
cured by way of special instruction, and the error was harmless.
For the foregoing reasons, the judgment in favor of
defendant is reversed and the case is remanded for a new trial.
Reversed and remanded.
O'BRIEN and GALLAGHER, JJ., concur.