Wilkins v. Lamoille County Mental Health Services, Inc.

Wilkins v. Lamoille County Mental Health Services, Inc. (2003-552); 179 Vt. 107; 
889 A.2d 245

2005 VT 121

[Filed 21-Oct-2005]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2005 VT 121

                                No. 2003-552


  Sheryl R. Wilkins	                         Supreme Court

                                                 On Appeal from
       v.	                                 Lamoille Superior Court


  Lamoille County Mental Health  	         November  Term, 2004
  Services, Inc. andCopley Hospital


  Edward J. Cashman, J.
  	
  James A. Dumont of Law Office of James A. Dumont, P.C., Bristol, for
    Plaintiff-Appellant.

  John D. Monahan, Jr. and Angela R. Clark of Dinse, Knapp & McAndrew, P.C.,
    Burlington, for Defendant-Appellee.


  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Gibson, J. (Ret.), Specially Assigned

       ¶  1.  JOHNSON, J.   This appeal arises out of the suicide of
  twenty-two-year-old Melissa Issler, whose estate filed this action against
  Lamoille County Mental Health Services, Inc., (hereafter "defendant")
  alleging that defendant's negligence in treating Ms. Issler's suicidal
  condition was the cause of her death.  The estate (hereafter "plaintiff")
  appeals from a summary judgment in favor of defendant.  Although we do so
  on slightly different grounds, we affirm the judgment of the trial court. 
  Based on controlling law and the undisputed material facts, we hold that
  plaintiff failed to adduce evidence sufficient to prove that defendant's
  conduct was the proximate cause of death. 
   
       ¶  2.  The material facts are undisputed.  On January 19, 1999, Ms.
  Issler (hereafter "decedent") was brought to Copley Hospital in Morrisville
  after taking an overdose of Xanax tablets.  There, as alleged in the
  complaint, she "received treatment and was evaluated by emergency room
  staff and an Emergency Service Worker" employed by defendant, which had
  contracted with the hospital to provide mental health evaluations.  After
  her physical condition was stabilized, decedent was interviewed by the
  emergency services worker, Kathleen Greenmun, for a period of between
  fifteen and twenty-five minutes.  In her notes from the interview, Greenmun
  reported that decedent appeared "groggy" and "pale," that she had recently
  experienced a series of seizures, and that after a particularly severe
  seizure "she felt something snapped, and she attempted to swallow a bottle
  of medication not her own."  According to Greenmun's notes, decedent stated
  that "things had piled up" and that "she felt overwhelmed."  Decedent
  acknowledged, however, that "taking the overdose was a stupid, impulsive
  act."  She "denie[d] any current suicidal ideation or plan," and indicated
  that she wanted to go home to rest at her boyfriend's residence.   

       ¶  3.  Based on the interview, Greenmun concluded that decedent was
  not a suicide risk, and could safely go home.  The interview notes indicate
  that Greenmun encouraged decedent to call Lamoille County Mental Health to
  discuss counseling, and to contact the mental health agency if she again
  felt overwhelmed.  Decedent's boyfriend and another friend met her at the
  hospital.  Greenmun recalled that she talked with them about removing
  medications from the house, but said nothing about firearms.  Decedent's
  boyfriend stated that he removed and destroyed a number of medications from
  the home, but that it did not occur to him to remove a loaded pistol that
  he kept in his truck.  Six days after the initial incident, on the morning
  of January 25, 1999, decedent entered the truck, removed the pistol from
  its holster, and shot herself in the head.  She died shortly thereafter.

       ¶  4.  In January 2001, plaintiff filed this action against defendant,
  alleging that decedent's suicide was a proximate result of Greenmun's
  "negligence in treating [decedent's] suicidal condition." (FN1)   
  Plaintiff alleged specifically that Greenmun had been negligent in failing
  to determine whether any guns were available to decedent at her boyfriend's
  home, neglecting to enter into a "safety contract" with decedent, failing
  to initiate and schedule a follow-up appointment for decedent, and failing
  to contact decedent's treating physician regarding the reported seizures.  
  In support of the claim, plaintiff's expert witness, Dr. David Ellenbrook,
  Ph.D., offered his opinion that Greenmun had deviated from professional
  standards of care in evaluating and treating patients at risk of suicide in
  several respects, including her decision to conduct the evaluation while
  decedent was still groggy rather than to wait until she was more alert, and
  her omissions in failing to conduct an adequate suicide assessment, to
  enter into a written safety contract with decedent, and to schedule
  follow-up appointments with decedent before her discharge.  It was Dr.
  Ellenbrook's opinion that these additional steps would have resulted in "a
  decreased probability" of decedent's committing suicide.

       ¶  5.  Defendant moved for summary judgment on the ground that
  plaintiff had failed to adduce expert testimony establishing the requisite
  causal link between the alleged negligence and decedent's suicide. 
  Plaintiff opposed the motion and filed a cross-motion for partial summary
  judgment, alleging that defendant had violated certain safety regulations,
  requiring a finding of negligence per se.  The trial court issued a written
  decision in October 2003, ruling that the expert's testimony was deficient
  on several grounds, and that defendant was therefore entitled to summary
  judgment.  This appeal followed.    

       ¶  6.  Plaintiff principally contends the court erroneously rejected
  the testimony of her expert witness, Dr. Ellenbrook.  The court found that
  Dr. Ellenbrook's testimony failed to establish the requisite causal link
  between defendant's conduct and decedent's suicide because, in the court's
  view, "it is an opinion without basis, without substance."  The court
  asserted that the testimony offered "no explanation as to the mechanistic
  steps of causation[,] . . . no analytic brick building."  Accordingly, it
  concluded that the opinion failed to establish the necessary causal element
  of 12 V.S.A. § 1908(3), which requires the plaintiff to prove "[t]hat as a
  proximate result" of the defendant's failure to exercise the requisite
  degree of care "the plaintiff suffered injuries that would not otherwise
  have been incurred" in order to establish medical negligence. (FN2)
    
       ¶  7.  We are uncertain as to the precise meaning of the court's
  ruling or the basis of the "substantive" or "mechanistic" deficiencies to
  which it refers.  Nevertheless, it is axiomatic that a judgment predicated
  on one theory that proves to be unfounded will be affirmed if it may be 
  correctly resolved on another.  See Gochey v. Bombardier, 153 Vt. 607, 613,
  572 A.2d 921, 925 (1990) (this Court "may affirm a correct judgment even
  though the grounds stated in support of it are erroneous").   In this case,
  it is undisputed that plaintiff failed to adduce an expert opinion that
  decedent's suicide would not have occurred in the absence of defendant's
  alleged negligence. Accordingly, as explained more fully below, we agree
  with the trial court's fundamental conclusion that plaintiff failed to
  establish the essential causal element of her claim, and that defendant was
  therefore entitled to summary judgment. 
   
       ¶  8.  The principal basis of defendant's motion for summary
  judgment, and the focal point of dispute between the parties, was the legal
  sufficiency of an expert opinion that failed to assert  decedent's suicide
  would not have occurred in the absence of defendant's alleged negligence. 
  Plaintiff's expert-witness disclosure statement had described her expert,
  Dr. Ellenbrook, as holding the opinion that defendant's negligence "was a
  substantial and significant factor in the patient's death."  Defendant's
  attorney attempted to explore this statement at Dr. Ellenbrook's
  deposition, asking whether it "mean[s] that except for those failures to
  meet the standard of care that you have testified to, Melissa Issler would
  not have killed herself?"  Dr. Ellenbrook responded, "I would say that
  there is a decreased probability that she would have."  Defendant's
  attorney had the question re-read on the ground that the answer was
  nonresponsive, but Dr. Ellenbrook maintained the same response, stating:
  "Other than the answer I gave you, I can't answer that question, other than
  to give you that answer."  When pressed again, Dr. Ellenbrook's response
  remained essentially the same,  to the effect that the risk of decedent's
  suicide would have been "[s]ignificantly decreased if the standards of care
  had been met, or at least decreased."  Beyond that he would not, or could
  not, go. 

       ¶  9.  As noted, defendant argued below that Dr. Ellenbrook's
  testimony failed to establish a necessary statutory element of plaintiff's
  claim, to wit, that "as a proximate result" of defendant's failure to meet
  the standard of care "the plaintiff suffered injuries that would not
  otherwise have been incurred."  12 V.S.A. § 1908(3).   Plaintiff argued, in
  response, that to establish proximate cause it was sufficient merely to
  show-as Dr. Ellenbrook had essentially stated-that defendant's negligence
  was a "substantial factor" in placing decedent at a "greater risk" of harm. 
  The trial court appeared to accept plaintiff's formulation, but rejected
  the testimony as inadequate on other grounds.
   
       ¶  10.  We have recently reaffirmed the common-law and statutory
  principle that in medical malpractice, as in tort law generally, "the
  plaintiff must prove that as a result of the defendant's conduct the
  injuries 'would not otherwise have been incurred,' " and therefore "an act
  or omission of the defendant cannot be considered a cause of the
  plaintiff's injury if the injury would have occurred without it."  Smith v.
  Parrott, 2003 VT 64, ¶ 12, 175 Vt. 375, 833 A.2d 843 (quoting 12 V.S.A. §
  1908(3)).  The plaintiff in Smith had urged adoption of the so-called "loss
  of chance" doctrine to permit recovery where the defendant's malpractice
  had increased the risk of harm, even where the plaintiff could not adduce
  evidence of a probability that, as a result of the malpractice, the
  plaintiff suffered injuries that would not otherwise have occurred.  Id.
  ¶ 7.  In addressing the issue, we recognized the several "policy
  arguments in favor of the doctrine, most notably the harshness of the
  traditional rule in denying recovery" where the defendant's negligence may
  have significantly increased the risk of harm.   Id. ¶ 8.   Nevertheless,
  we declined to adopt the loss-of-chance doctrine, noting that it
  represented a "significant departure from the traditional meaning of
  causation in tort law," id. ¶ 13, and posed ramifications for the
  practice of medicine, as well as perhaps other professions in Vermont,
  better addressed through legislative action "where hearings may be held,
  data collected, and competing interests heard before" a correct decision is
  reached.  Id. ¶ 14.
   
       ¶  11.  The same considerations impel a like conclusion here.  We
  recognize, as in Smith, the difficulties of proof that may inhere in
  meeting the traditional causation standard in malpractice cases, and the
  potentially harsh outcomes that may result.  Such difficulties may, indeed,
  be uniquely complex and challenging in cases involving suicide, where even
  under accepted standards of care predictions of suicide are notoriously
  difficult and compounded by the fact that the patient, unlike other
  malpractice situations, may be actively working at cross-purposes to the
  practitioner's goals.  See, e.g., People's Bank of Bloomington v. Damera,
  581 N.E.2d 426, 429 (Ill. App. Ct. 1991) (noting that unlike typical
  malpractice case, the suicidal patient may not "share the goal of his
  physician of getting better"); Randall v. Benton, 802 A.2d 1211, 1215 (N.H.
  2002) (affirming judgment for defendant psychologist where plaintiff's
  expert testified that defendant's deviations from standard of care
  "substantially contributed to [decedent's] death by suicide" but "failed to
  provide any evidence that [decedent's] suicide would not have otherwise
  occurred"); Nieves v. City of N.Y., 458 N.Y.S.2d 548, 549 (N.Y. App. Div.
  1983) (concluding that although plaintiff's expert was able to testify that
  decedent's suicide "could have been" a result of his premature discharge
  from emergency room and that it was "possible" decedent would not have
  committed suicide otherwise, such evidence was insufficient to meet
  traditional causation standard); see generally P. Coleman & R. Shellow,
  Suicide: Unpredictable and Unavoidable-Proposed Guidelines Provide Rational
  Test for Physician's Liability, 71 Neb. L. Rev. 643, 644-45 (1992)
  (discussing factors that make suicide difficult for mental health
  practitioners to predict).  

       ¶  12.  Such complexity does not, however, militate in favor of
  lowering the causation threshold, but rather reinforces Smith's conclusion
  that such a departure implicates an array of medical-practice, economic,
  and social issues better addressed through the legislative process.  Nor, 
  in fact, does the traditional causation standard represent an
  insurmountable barrier to recovery in malpractice claims involving suicide. 
  While plaintiffs' verdicts in such cases-as in medical malpractice cases
  generally-may be difficult to achieve, they are not uncommon. See, e.g.,
  Bramlette v. Charter-Medical Columbia, 393 S.E.2d 914, 916 (S.C. 1990)
  (rejecting hospital's claim that plaintiff had failed to establish "but
  for" causation where patient on recreational outing jumped from bridge);
  Husted v. Echols, 919 S.W.2d 43, 45 (Tenn. Ct. App. 1995)  (holding that it
  was error to direct verdict for defendant where expert testified that
  defendant's "failure to adequately evaluate and treat [decedent] was a
  direct proximal cause of his death by suicide"); Providence Health Ctr. v.
  Dowell, 167 S.W.3d 48, 53-56 (Tex. App. 2005) (upholding judgment for
  parents of suicidal patient released from emergency room of hospital who
  subsequently hanged himself and rejecting claim that plaintiffs had failed
  to prove but-for causation); see generally P. Kussman, Annotation,
  Liability of Doctor, Psychiatrist, or Psychologist for Failure to Take
  Steps to Prevent Patient's Suicide, 81 A.L.R.5th 167, 199-201, 203-04,
  216-19 (2000) (collecting cases).    

       ¶  13.  Nor is it the case, as plaintiff argues, that we have applied
  a lower causation standard under the guise of the so-called "significant
  factor" test. Indeed, plaintiff's premise-that a "substantial factor" means
  something less than but-for cause and therefore may support liability in
  this case-is fundamentally mistaken.  Although the Restatement (Second) of
  Torts § 431(a) (1995), employs the phrase "significant factor" in its
  definition of proximate cause, it is widely recognized - as explained in
  the comments to the most recent Draft of the Restatement of Torts - that
  "[w]ith the sole exception of multiple sufficient causes, 'substantial
  factor' provides nothing of use in determining whether factual cause
  exists."  Restatement (Third) of Torts, Proposed Final Draft No. 1 § 26
  cmt. j, at 443 (2005). (FN3)  As the comments to the Draft Restatement
  (Third) of Torts explain: 

    The essential requirement, recognized in both Torts Restatements,
    is that the party's tortious conduct be a necessary condition for
    the occurrence of the plaintiff's harm:  The harm would not have
    occurred but for the conduct.  To the extent that substantial
    factor is employed instead of the but-for test, it is undesirably
    vague.  As such it may lure the factfinder into thinking that a
    substantial factor means something less than but-for cause . . . .
    Thus, use of substantial factor may unfairly permit proof of
    causation on less than a showing that the tortious conduct was a
    but-for cause . . . . [I]ts overuse, abuse, and the confusion
    generated by it in determining factual causation counsel against
    its continued employment.   

  Id. at 443-44; accord D. Robertson, The Common Sense of Cause in Fact, 75
  Tex. L. Rev. 1765, 1776, 1780 (1997) ("In the narrowest and only fully
  legitimate usage, the term [substantial factor]  describes a cause-in-fact
  test that is useful as a substitute for the but-for test in a limited
  category of cases in which two causes concur to bring about an event, and
  either cause, operating alone, would have brought about the event absent
  the other cause. . . . When courts begin turning to the substantial factor
  vocabulary in a broader range of cases valuable precision of analysis is
  lost and nothing is gained.").

       ¶  14.  A claim similar to plaintiff's was recently considered by the
  Oregon Court of Appeals in Joshi v. Providence Health System of Oregon
  Corp., 108 P.3d 1195 (Or. Ct. App. 2005), where the plaintiff argued that
  the Oregon courts had abandoned but-for causation in malpractice cases "in
  favor of a more lenient 'substantial factor' " test.  Id. at 1198.  The
  court categorically rejected the claim, explaining:  "When employed as a
  standard for determining cause-in-fact, the phrase 'substantial factor'
  generally does not eliminate the concept of 'but-for' causation.  Rather,
  the substantial factor standard is an alternate description of the
  cause-in-fact test and requires a showing of but-for causation in all but a
  few cases."  Id.; see also Viner v. Sweet, 70 P.3d 1046, 1051 (Cal.  2003)
  (noting that the substantial-factor test "subsumes the 'but for' test" and
  holding that there is nothing distinctive about legal malpractice cases
  "that would justify a relaxation of, or departure from, the
  well-established requirement in negligence cases that the plaintiff
  establish [but-for] causation").  Like these and other courts, we have
  occasionally employed the phrase "substantial  factor" in referring to
  proximate cause, see, e.g., Lorrain v. Ryan, 160 Vt. 202, 206-08, 628 A.2d 543, 546-48 (1993); Chater v. Cent. Vt. Hosp., 155 Vt. 230, 234-35, 583 A.2d 889, 891 (1990), but we have never abandoned the but-for test of
  causation or suggested that "substantial factor" represents anything other
  than an equivalent formulation of the but-for test.  Accordingly, we find
  no merit to plaintiff's claim.

       ¶  15.  Finally, plaintiff contends the trial court erred in ruling
  that the medical malpractice statute, 12 V.S.A. § 1908, applies here, and
  that expert testimony was required to establish the proximate-cause element
  set forth in § 1908(3).  As to the first part of the claim, plaintiff
  asserts that the mental health worker who evaluated decedent does not fit
  within the category of hospital "personnel" covered by § 1908 because the
  evaluator was an employee of Lamoille County Mental Health under contract
  with Copley Hospital rather than a hospital employee. (FN4)  Plaintiff's
  claim is contained in a footnote in her opening brief, and is not
  sufficiently briefed or argued to warrant consideration on appeal.  See
  Johnson v. Johnson, 158 Vt. 160, 164 n.*, 605 A.2d 857, 859 n.* (1992)
  (Court will not consider claims so inadequately briefed as to fail to meet
  standards of V.R.A.P. 28(a)(4)).                                          
   
       ¶  16.  Nevertheless, even assuming, without deciding, that § 1908
  does not apply, it is of no consequence.  The malpractice statute, as we
  have previously noted, merely codifies longstanding common-law principles
  relating to causation in negligence law, and therefore adds nothing
  substantive to the causal requirements of plaintiff's case.  See Smith,
  2003 VT 64, ¶ 11  (noting that the malpractice statute "essentially
  codifies the common law elements of a medical malpractice action")
  (citation omitted).  Plaintiff's case rests squarely on the allegation
  expressed in her complaint that defendant's negligence "in treating
  [decedent's] suicidal condition" proximately caused her death.  We have
  repeatedly held that the standard-of-care and causation elements of
  professional negligence claims "[o]rdinarily . . . must be proved by expert
  testimony," Jones v. Block, 171 Vt. 569, 569, 762 A.2d 846, 848 (2000)
  (mem.), and this is no less true of claims relating to the negligent
  treatment or assessment of patients at risk of committing suicide.  See,
  e.g., Dimitrijevic v. Chi. Wesley Mem'l Hosp., 236 N.E.2d 309, 313 (Ill.
  App. Ct. 1968) (whether defendants were negligent "in not characterizing
  decedent as a suicidal risk falls within the general rule requiring the
  affirmative testimony of experts"); Kanter v. Metro. Med. Ctr., 384 N.W.2d 914, 916 (Minn. Ct. App. 1986) (because "potential tendencies of patients
  suffering from mental illness" are not easily determined "without special
  training and knowledge," court did not abuse discretion in requiring expert
  testimony to establish nurse's alleged negligent care of patient who
  committed suicide); Moats v. Preston County Comm'n, 521 S.E.2d 180, 188 (W.
  Va. 1999) (determining whether mental health center's negligence caused
  suicide "involves complicated medical issues, specifically, the manner and
  method of protecting someone who is suicidal," that are not within
  knowledge of lay jurors); see also Estate of Joshua T. v. State, 840 A.2d 768, 772 (N.H. 2003) (holding that because "[s]uicide is not easily
  explained or understood" and "[i]ts causes, prevention, triggers and
  warning signs cannot be readily calculated," expert testimony is required
  to establish causal link between suicide and alleged negligence in placing
  decedent in foster home).

       ¶  17.  Plaintiff's claim that defendant deviated from the standard of
  care by prematurely evaluating decedent while she was still feeling the
  effects of the overdose; failing to conduct a sufficient suicide-risk
  evaluation, including the risk posed by firearms; failing to require a
  written safety contract; and failing to schedule follow-up appointments,
  together with the claim that such conduct was the proximate cause of
  decedent's suicide, all involve complex psychiatric/medical issues relating
  to the causes, warning signs, and prevention of suicide.  These are plainly
  not issues within a lay juror's common knowledge and experience.  See
  Estate of Nicholson v. Fleming, 168 Vt. 495, 497-98, 724 A.2d 1026, 1028
  (1998) (expert testimony not required "[w]here a professional's lack of
  care is so apparent that only common knowledge and experience are needed to
  comprehend it").  Accordingly, we find no error in the court's ruling that
  expert testimony was required under traditional common-law principles, and
  thus no basis to disturb the judgment. 

       Affirmed.



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  The complaint also named Copley Hospital, Inc. as a defendant,
  alleging violations of the federal Emergency Medical Treatment and Active
  Labor Act, 42 U.S.C. § 1395dd (2005), but plaintiff settled with the
  hospital and dismissed the claim.

FN2.  Plaintiff also contends in this regard that the trial court
  erroneously "excluded" Dr. Ellenbrook's testimony, but the court merely
  stated that the testimony was so deficient in "substance" and "basis" that
  "it would not be admissible under Vermont Rule of Evidence 702."  The court
  did not, however, actually rule the opinion inadmissible.

FN3.  The classic illustration of "multiple sufficient" or "independent
  concurring" causes involves a situation where two separate fires (only one
  of which was caused by the defendant) join together to damage property, and
  either of which was sufficient to cause the harm, but it is impossible to
  determine which actually did so.  Since the harm would have occurred
  without the defendant's conduct, the plaintiff cannot satisfy the "but for"
  test.  In such a case, "the substantial-factor test can be useful because
  it substitutes for the but-for test in a situation in which the but-for
  test fails to accomplish what the law demands."  Restatement (Third) of
  Torts, Proposed Final Draft No. 1 § 26 cmt. j, at 444.  This concept is
  codified in the Restatement (Second) of Torts § 432(2).

FN4.  Section 1908 applies to actions based on the negligence "of the
  personnel of a hospital, a physician . . . , a dentist . . . , a podiatrist
  . . . , a chiropractor . . . , a nurse . . . , or an osteopathic physician
  . . . ."