Gardner v. OHSUGardner v. OHSU
Affirmed.
Gregory Kafoury argued the cause for appellant. Also on the briefs were Mark McDougal and Kafoury & McDougal.
Janet M. Schroer argued the cause for respondents Oregon Health Sciences University and Marvin D. Fickle, M.D. Also on the brief was Hart Wagner, LLP.
Jay W. Beattie argued the cause for respondent Jennifer Shay. Also on the brief were Thomas McDermott, Katie Eichner, and Lindsay Hart, LLP.
Affirmed.
After the decedent‘s suicide, plaintiff, the personal representative of the estate, brought this wrongful death action against the decedent‘s mental-health providers. Plaintiff now appeals a general judgment of dismissal and award of costs, assigning error to the trial court‘s decision to deny a motion in limine and to allow consideration of the decedent‘s comparative fault. Plaintiff also assigns error to the denial of a motion for a new trial. With respect to the first assignment of error, we conclude that Oregon has no per se rule against comparative fault in cases involving outpatient suicide. Plaintiff‘s second assignment of error presents no reversible error. Accordingly, we affirm.
The relevant facts are not disputed. The decedent was receiving mental-health treatment from defendants, a psychiatrist and a licensed clinical social worker, at Oregon Health & Science University (OHSU). After the decedent took her life by firearm, her estate brought this wrongful death action, asserting that defendants knew she had purchased a gun and had expressed the intent to commit suicide, but negligently failed to take a number of preventative steps. Specifically, the complaint alleged that defendants failed to adequately obtain and consider the decedent‘s history, ensure removal of the gun from her possession, hospitalize her, or develop and implement a safety plan.
Defendants raised the affirmative defense of comparative fault, arguing that the decedent‘s death resulted from her own actions, including: denying and withholding the true nature and extent of her suicidality and suicide plans; declining voluntary commitment to a mental treatment facility or intensive outpatient therapeutic unit; denying that she would use the gun to commit suicide; refusing to notify her mother about the gun or consent to notification; and failing to return the gun or give it to her mother. In a motion in limine, plaintiff moved to exclude any reference to that defense, arguing that, as a matter of law, “contributory negligence does not apply in suicide cases,” and asserting that similar reasoning applied to comparative fault. The court denied that motion.
“[DEFENSE COUNSEL]: The law is very clear in this state. I don‘t care what [plaintiff‘s witness] says, you can‘t just go be a cowboy. One of the reasons he probably isn‘t at OHSU anymore.
“[PLAINTIFF‘S COUNSEL]: Objection, Your Honor.
“THE COURT: Sustained.
“[DEFENSE COUNSEL]: The law in this state is very clear. * * *
“And the criteria is defined by the Oregon Health Division to mean imminently dangerous. * * * That doesn‘t mean you get to hold them against their will indefinitely, any time you want to act like a cowboy and put them in an institution. Doctors don‘t get to do that to us because we have legal rights.”
Plaintiff raised no further objection, but later responded to defense counsel‘s statements during rebuttal:
“[PLAINTIFF‘S COUNSEL]: So what‘s the attack on [plaintiff‘s witness]? That‘s why he was doing this, he‘s a cowboy. That‘s probably why he‘s not at OHSU. You represent OHSU. If you have any evidence of why he‘s not there or you‘ve got dirt against him, you‘ve been a lawyer for a long, long time. You know how—
“[DEFENSE COUNSEL]: Your Honor, I could have brought the evidence in.
“THE COURT: [Plaintiff‘s counsel], move on.”
As instructed, plaintiff proceeded to make other arguments.
The case was submitted to the jury, including the issue of comparative fault. The jury returned a verdict assigning 42 percent of the responsibility to defendants and 58 percent to the decedent. As a result, the court entered a general judgment of dismissal and award of costs in favor of defendants.
On appeal, plaintiff first assigns error to the trial court‘s decision permitting defendants to assert comparative fault. As a matter of law, plaintiff argues, mental-health providers cannot assert that defense when the decedent commits suicide, the very thing those defendants have a duty to prevent. Plaintiff contends that the decedent‘s failure to seek help or follow professional advice was “precisely the behavior to be expected from people with [her] condition,” and that suicide “was the ultimate symptom of her underlying mental illnesses.” Plaintiff claims, “It makes little sense to argue, as defendants do, that [the decedent] bears fault for acting in conformity with her illnesses.”
Defendants argue that Oregon has no per se rule regarding the availability of comparative fault defenses in cases involving suicide or outpatient treatment, and that the proper approach, adopted by the majority of jurisdictions, looks to the “uniquely tragic facts” of the case to determine whether such a defense is appropriate. Defendants conclude that cases involving suicide are “simply a variety of malpractice cases *** subject to the same rules as other malpractices cases,” and, therefore, the defenses available, including under
The question before us, then, is whether the trial court erred in allowing defendants to plead and prove comparative fault.1 We approach this question in two steps. First,
We first consider whether the legislature intended to provide an exception in
“(2) The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled. ** * Except for persons who have settled with the claimant, there shall be no comparison of fault with any person:
“(a) Who is immune from liability to the claimant;
“(b) Who is not subject to the jurisdiction of the court; or
“(c) Who is not subject to action because the claim is barred by a statute of limitation or statute of ultimate repose.”
Nothing in the larger context of the statute suggests a legislative intent to exempt suicidal patients from comparative fault. The legislature would have been aware that existing law generally allowed medical professionals to assert patient fault as a defense. See Montara Owners Assn. v. La Noue Development, LLC, 357 Or 333, 341, 353 P3d 563 (2015) (citing Blachana, LLC v. Bureau of Labor and Industries, 354 Or 676, 691, 318 P3d 735 (2014)) (“The context for interpreting a statute‘s text includes the preexisting common law, and we presume that the legislature was aware of that existing law.“); Wemmett v. Mount, 134 Or 305, 316, 292 P 93 (1930) (a patient‘s contributory negligence could affect recovery in the medical malpractice claim against her physician); Beadle v. Paine, 46 Or 424, 431, 80 P 903 (1905) (“It is a good defense in an action for malpractice * * * that the patient was negligent at the time[.]“). We also recognized liability for mentally ill individuals. See Schumann v. Crofoot, 43 Or App 53, 55, 602 P2d 298 (1979) (adopting the rule from the Restatement (Second) of Torts section 283B (1965) that, “[u]nless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances“). Our limited case law suggests that, to the extent that the legislature contemplated liability for patients or individuals with mental-health issues, it did so with approval.
Plaintiff provides little support for the proposed categorical rule. The main case upon which plaintiff relies is unhelpful, as it was predicated on a legal theory regarding
Assuming Cole was good law at the time of the statute‘s enactment, it nevertheless provides little support for the proposition that the legislature intended to preclude consideration of comparative fault in cases of outpatient
In sum, nothing in the text or context of
Having concluded that
We have said that, to assess a plaintiff‘s comparative fault, “general common-law negligence principles apply.” Son, 239 Or App at 507. The negligence standard is whether the plaintiff “took some action or failed to take some action which a reasonable person could have foreseen would increase
For a medical malpractice claim, “findings of comparative fault can be based on the plaintiff‘s failure to take reasonable measures which might have prevented or reduced the injury caused by the defendant‘s negligence.” Id. at 509 (quoting Becker v. Port Dock Four, Inc., 90 Or App 384, 390, 752 P2d 1235 (1988)) (emphasis omitted). The jury is concerned with the degree to which the patient‘s negligence accounts for harm otherwise attributed to the medical professional. Thus, a plaintiff‘s negligent conduct can form the basis of such a defense when it relates and contributes to the negligent treatment at issue in the malpractice claim. Id. at 509. “[T]he focus is therefore on the injury caused by the malpractice (i.e., the harm caused by the doctor‘s failure to meet the standard of care used in the reasonable practice of the profession in the community), not the original injury that necessitated treatment.” Id.
A medical malpractice claim looks to the harm arising from the negligent medical treatment, and, as a consequence, the underlying health issue precipitating that treatment cannot serve as a predicate for liability of the medical professional or, comparatively, the patient. Accordingly, Oregon law is consistent with the majority of other jurisdictions in that “a physician simply may not avoid liability for negligent treatment by asserting that the patient‘s injuries were originally caused by the patient‘s own negligence.” Id. at 510 (citing Fritts v. McKinne, 934 P2d 371, 374 (Okla Civ App 1996)). “[A]s a matter of law, conduct that merely creates the need for medical treatment cannot cause the type of harm at issue in medical malpractice cases—the injury resulting from the malpractice.” Id.
We explained this distinction in Son. In that case, the decedent, who ingested an unknown quantity of pills, died hours after arriving to the emergency room. Id. at 498-99. The decedent‘s estate filed a wrongful death action against the hospital and attending physicians, alleging that they failed to (1) perform an adequate assessment, (2) make
On appeal, the defendants argued that the court improperly struck their defense that the decedent was comparatively at fault for consuming the substances that caused her medical condition and death. Id. at 502. We disagreed that the “type of conduct alleged” could “support a comparative fault defense,” reasoning,
“[G]iven that the focus in medical malpractice claims is on the negligent acts or omissions of the medical provider, it is inappropriate to use the patient‘s negligence that led to the condition that required medical attention to excuse the defendants’ failure to meet the accepted standard of care. A patient who negligently injures himself is nevertheless entitled to subsequent nonnegligent medical treatment, and, if it is not provided, the patient is entitled to recover damages for the consequences of that negligence.”
Id. at 508-09 (citation omitted). The defendants could not invoke the decedent‘s consumption of substances as a defense for their malpractice, because that was the event that created the need for her medical care in the first instance. Id. at 512.5
Conversely, we noted that a plaintiff‘s negligent conduct can form the basis of a comparative-fault defense when it relates and contributes to the negligent treatment at issue in the malpractice claim. Id. We recognized examples of such conduct, including (1) failing to follow medical instructions, (2) refusing or neglecting prescribed treatment,
In the case at hand, defendants allege facts that can constitute a legally viable comparative-fault defense. Notably, they predicate the defense on the decedent‘s conduct relating and contributing to the injury associated with the malpractice, citing acts or omissions that undermined the treatment itself. Defendants assert that the decedent provided incomplete or inaccurate information by denying and withholding the true nature and extent of her suicidality and her suicidal plans. Defendants also allege that the decedent failed to follow their advice and prescribed treatment in declining voluntary commitment to an inpatient mental treatment facility or intensive outpatient therapeutic unit, refusing to permit the psychiatrist to notify her mother about the gun, and failing to return the gun or give it to her mother.
Unlike in Son, defendants here do not base their comparative-fault defense on the decedent‘s conduct that created the initial need for treatment. They do not, as plaintiff suggests, blame the decedent‘s underlying depression or its symptom, suicide.7 Rather, their complaint focuses on
Plaintiff argues that assigning fault to the decedent‘s conduct here is effectively the same as blaming the decedent for her mental illness, the condition necessitating treatment, because the alleged conduct and the mental illness are inseparable. As noted, our case law is not so categorical and, instead, permits consideration of negligent interference with treatment as a matter of comparative fault.8 The ultimate determination is a question of fact for the jury, depending on the evidence in any given case.
Further, most jurisdictions permit mental-health providers to allege comparative fault in cases involving outpatient suicide. See, e.g., Mulhern v. Catholic Health Initiatives, 799 NW2d 104, 117 (Iowa 2011) (concluding that mental-health professionals in a medical malpractice action could raise a comparative fault defense based on a noncustodial patient‘s act of suicide); Sheron v. Lutheran Med. Ctr., 18 P3d 796, 801 (Colo App 2000), cert dismissed (2001) (“[W]e hold that a patient who is treated by health care providers for suicidal ideations, and who later commits suicide, may be found comparatively negligent or at fault[.]“); Brandvain v. Ridgeview Institute, Inc., 188 Ga App 106, 372 SE2d 265, 275, aff‘d, 259 Ga 376, 382 SE2d 597 (1989) (holding comparative fault of suicidal patient was a question for the jury); Hobart v. Shin, 185 Ill 2d 283, 290, 705 NE2d 907, 911 (1998), reh‘g den (1999) (finding “the better-reasoned approach” is to allow the defense of contributory negligence when mental incapacity is unchallenged or
In sum, we agree with defendants and other jurisdictions that “[e]ach case turns on its uniquely tragic facts,” Mulhern, 799 NW2d at 107, and that the comparative fault of a mentally ill or suicidal outpatient is a question of fact for the jury. This approach corresponds with statute and case law, and it allows for consideration of the distinctive mental health issues, symptoms, and conduct in a given case. Here, defendants raised an appropriate comparative-fault defense for a medical malpractice action, predicated on conduct that contributed to the injury and hampered the treatment itself, and they did not fault decedent for the underlying illness. For those reasons, we conclude that the trial court did not err in allowing the jury to consider the defense by denying plaintiff‘s motion in limine.
In a second assignment of error, plaintiff challenges the trial court‘s denial of the motion for a new trial. Plaintiff argues that defense counsel‘s disparaging remarks, and his assertion that he had evidence to prove them, were “extremely inappropriate, deliberate, and constituted misconduct extremely prejudicial to plaintiff.”
As we have previously stated,
“It is well established that, when an irregularity occurs during trial and is known to a party but the party fails to call it to the trial court‘s attention, the party thereby waives any objection, and the denial of a later motion for a new trial on that ground generally is not reviewable.”
State v. Carrasco-Montiel, 279 Or App 64, 79, 379 P3d 529, rev den, 360 Or 568 (2016) (citing State v. Sundberg, 233 Or App 77, 87, 225 P3d 89 (2009), rev‘d on other grounds, 349 Or 608, 247 P3d 1213 (2011)) (internal quotation marks and brackets omitted). Our precedents have made clear that “the
Here, plaintiff takes issue with multiple statements by defense counsel, only one of which provides grounds for review; two are not reviewable. First, defense counsel insinuated that plaintiff‘s witness no longer worked with OHSU because he was “be[ing] a cowboy.” Second, defense counsel referenced that earlier statement, saying that a doctor cannot legally “act like a cowboy,” holding individuals “against their will indefinitely.” Third, when plaintiff‘s counsel later alluded to those remarks, defense counsel responded that he “could have brought the evidence in” as support.
With respect to the first statement, the trial court sustained plaintiff‘s objection, defense counsel complied with that ruling, and no further remedy was requested. Although the issue was preserved, there is no error to be corrected on appeal. As for the other statements, plaintiff failed to raise any objection or otherwise bring the purported issues to the trial court‘s attention. Plaintiff was aware of the ostensible irregularity before the verdict was rendered, and the lack of objection distinguishes this case from the one upon which plaintiff relies.9 For those reasons, plaintiff‘s second assignment of error presents no reversible error.
Affirmed.