Malpractice

Facts of the Case

Kristi M. Dodson graduated from high school in 1998 and married in 2000. During her high school years, she was involved in numerous activities and had several friends. Shortly after getting married, she developed various health problems and began to display “erratic behavior.” In 2001, while hospitalized at Avera McKennan Hospital, she presented as very depressed, and on April 1, about 10 days after admission, she attempted to commit suicide. She was found unconscious but was successfully resuscitated. A diagnosis of bipolar disorder was made during this hospitalization. Three days after her serious suicide attempt, Mrs. Dodson was transferred to the South Dakota Human Services Center (HSC) for long-term treatment. After approximately a week in this facility, she was discharged home. She committed suicide the following day.

Mr. Dodson, individually and as special administrator of the estate of his wife, brought a medical malpractice action against the physicians and hospitals involved in his wife's psychiatric care on the days and weeks preceding the incident. The jury for this trial was given specific instructions to apply the affirmative defenses of contributory negligence and assumption of the risk. For the defense of contributory negligence, the jury was told to apply an objective reasonable-person standard to Mrs. Dodson's conduct, and there was an instruction on the assumption of risk. The instruction for contributory negligence included language stating, “A plaintiff who is contributorily negligent may still recover damages if that contributory negligence is slight or less than slight when compared with the negligence of the defendants” (Dodson, 703 N.W.2d, p 355).

The jury found that the Avera McKennan Hospital and the physician there were not negligent, but HSC or the physician who provided her care in that facility breached the applicable standard of care for Mrs. Dodson and that this breach was the legal cause of her injuries. However, they also found that Mrs. Dodson's contributory negligence was more than slight, thus barring recovery against the appellees and causing the jury not to address the issue of assumption of risk. Mr. Dodson appealed this decision to the Supreme Court of South Dakota alleging that the trial court erred in the instructions given to the jury with respect to contributory negligence and assumption of the risk. The physician at Avera McKennan Hospital and his employer were not part of the appeal because the trial court did not find them negligent.

Ruling and Reasoning

The South Dakota Supreme Court established that the defense of contributory negligence is applicable to medical malpractice actions. Citing Mid-Western Elec., Inc. v. DeWild Grant Reckert & Assocs., Co., 500 N.W.2d 250, 254 (S.D 1993), the court stated that the general rule is that in judging the contributory negligence of a plaintiff with mental illness, the proper standard to be used holds that “such a person should be held only to the exercise of such care as he or she was capable of exercising, that is the standard of care of a person of like mental capacity under similar circumstances” rather than the objective reasonable-person standard (Dodson, 703 N.W.2d, p 357).

In reviewing Mr. Dodson's allegations that contributory negligence instructions should not be given in suicide cases, the court first cited cases supporting that position. For instance, in Cole v. Multnomah County, 592 P.2d 221, 223 (Oreg. Ct. App. 1979), it was determined that “a defendant's liability may not be reduced by comparing his negligent conduct with the decedent's intentional suicide since the suicide was the foreseeable risk created by the defendant's negligence.” More recently, in the case of Hoeffner v. The Citadel, 429 S.E.2d 190, 193 (S.C. 1993), it was held that “where the duty exists to prevent a patient from committing suicide, the very suicide which the defendant has the duty to prevent cannot constitute assumption of the risk or contributory negligence.”

Mr. Dodson contended that it was proper to instruct the jury on contributory negligence relying on a 1925 decision by the South Dakota Supreme Court involving a situation similar to his wife's. In Fetzer v. Aberdeen Clinic, 204 N.W. 364 (S.D. 1925), a postsurgical delirious patient, jumped or fell from a third-story window. In this case, the court ruled that there can be no requirement to guard against an event that a reasonable person would not anticipate as likely to happen. However, the opinion points out that the Fetzer court also indicated that a defendant may be liable if he has “notice or knowledge of conduct or a condition of mind on the part of the plaintiff which indicates that he intended self-injury or self-destruction” (Dodson, 703 N.W.2d, p 357). The court indicated in Fetzer that “a subjective standard should be applied in such a case, not an objective standard, ” as used in the current case (Dodson, 703 N.W.2d, 357–8). The South Dakota Supreme Court stated that this 1925 decision is in accord with the majority view in other cases, that a mentally ill person should be required only to exercise such care as he or she is capable of exercising. The court noted that is the standard of care of a person of like mental capacity under similar circumstances that would require a jury to apply a subjective or capacity-based test to a mentally ill plaintiff's conduct, as opposed to the objective reasonable-person standard that was used by the trial court.

The supreme court concluded that the evidence in the instant case was sufficient to show mental incapacity on the part of Mrs. Dodson and to show that her physician and staff at HSC had notice of that incapacity. The suicide attempt on April 1 should have given them notice of this condition and reason to anticipate that Mrs. Dodson could harm herself. The Dodson court found that the jury should have been instructed to evaluate the effect of that mental incapacity in judging Mrs. Dodson's contributory negligence, and that, in not doing so, the instructions were erroneous. They also found the instructions to be prejudicial in that, had the faulty instructions not been given to the jury, they probably would have come to a different verdict.

With respect to the instructions of assumption of risk, the South Dakota Supreme Court noted that they were confusing. One of the instructions stated the conditions under which such defense would apply, but it was followed by another instruction that indicated that the assumption of risk did not apply to patients with mental illness. Because the jury found that Mrs. Dodson was contributorily negligent, they made no finding on the issue of assumption of risk. The court held that the trial court should have instructed the jury that this defense of assumption of risk could be used only if, after considering her age, intelligence, experience, and mental condition, Mrs. Dodson was found to be able to comprehend fully and appreciate the danger of injury.

Discussion

This case affirms a standard to be used in suicide cases when considering the contributory negligence and assumption of risk doctrines. In considering contributory negligence, one argument made by the defense in suicide cases has been that, independent of the errors the clinician makes in the course of treatment, it is the patient's self-imposed conduct that caused the harm. The issue before the court becomes whether mentally ill patients, who are receiving psychiatric treatment for life-threatening behavior that is an expected risk of their illness should be considered contributorily negligent when they die from the very behavior for which they sought treatment and against which defendants had a duty to protect.

Courts nationwide have often addressed this question by looking at the capacity of the individual who commits a high-risk act such as suicide at the time the action is undertaken. The general conclusion has been, as it was in the opinion of the South Dakota Supreme Court, that a plaintiff with mental illness should be expected to be responsible for his self-destructive actions only to the extent that his diminished capacity permits. The rationale behind this position seems to be that as the capacity of a mentally ill individual who attempts or commits suicide decreases, the clinician's responsibility may increase. The diminished capacity of patients impairs their ability to appreciate the risks and dangers involved in their self-destructive acts, arguing against the use of an assumption of risk defense. In sum, the defenses of contributory negligence and assumption of risk have been viewed by many, including the courts, as an often unjustifiable excuse for mental health professionals who failed in their duty to provide reasonable care to individuals with foreseeable life-threatening behavior.