Abille v. United States, C-78-0486-WWS.

• Decision Date: 02 January 1980
• Docket Number: No. C-78-0486-WWS.,C-78-0486-WWS.
• Citation: 482 F. Supp. 703
• Parties: Humildeflor M. ABILLE, as Administratrix of the Estate of Manuel V. Abille, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of California

482 F. Supp. 703

Humildeflor M. ABILLE, as Administratrix of the Estate of Manuel V. Abille, Plaintiff, v. UNITED STATES of America, Defendant.

No. C-78-0486-WWS.

United States District Court, N. D. California.

January 2, 1980.

James R. Toone, Wesley H. Harris, San Diego, Cal., for plaintiffs.

John M. Kern, Asst. U. S. Atty., San Francisco, Cal., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OF DECISION

WILLIAM W SCHWARZER, District Judge.

This is an action brought under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., arising from the wrongful death of plaintiff's husband, Manuel Abille. Jurisdiction exists under 28 U.S.C. § 1346(b). The law of Alaska, the place where the act or omission complained of occurred, controls. Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); United States v. English, 521 F.2d 63, 65 (9th Cir. 1975).¹ The case was tried to the Court, without a jury, on November 13, 14 and 15, 1979. The following shall constitute the Court's findings of fact and conclusions of law.

FACTS

Manuel Abille was 51 years old at the time of his death. Following retirement from the U. S. Navy in 1965, he attended school in the Philippines until 1970. From 1970 to 1973 he was a merchant seaman. From 1974 until the time of his death, he was a cannery worker employed by Pacific Pearl Seafoods in Kodiak, Alaska. He was survived by his wife, then 41 years old, two daughters aged 17 and 19, and two sons aged 12 and 18.

In September, 1974, Abille had been given a prescription for the drug Reserpine for treatment of high blood pressure. On April 15, 1977, he was taken off the drug by a doctor in Kodiak, Alaska, because of increasing depression, a side effect sometimes induced by Reserpine. Abille had no history of depression or suicidal tendencies prior to taking Reserpine, and the record reflects no other contributing causes of his depression.

As a result of Abille's depression and thoughts of suicide, he voluntarily entered the psychiatric unit of the United States Air Force Hospital at Elmendorf Air Force Base, Anchorage, Alaska, on April 26, 1977. His medical history was taken the next day by Dr. Abel Hipolito, one of the three psychiatrists on the hospital staff, who then became his treating physician. Dr. Hipolito noted, among other things, the following:

"moderate psychomotor retardation — flat affect — relating obsessive preoccupation with suicidal ideas for 3 weeks — hopelessness — helplessness — sleep disturbances — decreasing energy — self-condemnation."

He stated his conclusions:

"1) Depressive neurosis

2) Hypertension

3) Reactive depression to Reserpine"

All psychiatric patients were assigned status levels in accordance with their condition. As a newly admitted patient, Abille was automatically assigned S-1. In that status, he was not allowed to leave the psychiatric unit without a staff escort.

The medical record contains no subsequent notations by a physician while Abille was alive. The nurse's notes for April 27 indicate only that Abille slept for only three hours the preceding night. The notes for April 28 state that Abille had a "brighter affect" and that he said he felt much better and wanted to go home, although the nurse recommended that his treatment "continue as before." On April 29, the notes state in substance that Abille had not slept well, was nervous but less depressed, resisted group therapy and wanted to discuss his problems only with the doctor. The psychiatric technician further noted that Abille was depressed and concerned about his thoughts of suicide. No further progress notes were made.

Beginning not later than Saturday, April 30, the psychiatric nurses on duty in the ward treated Abille as having been assigned S-2 status. It was the understanding of the medical and nursing staff that S-2 patients were permitted to leave the ward escorted by a staff member or patient having S-3 or S-4 status (permitting freer movement), or unescorted upon approval by the duty nurse to go to a specific place in the hospital for a specific purpose. According to a government memorandum,

"S-2 level was assigned to patients sic who had been an inpatient for at least 24 hours, was not considered suicidal . . did not exhibit behavior that might be harmful to himself or others . . ."

During the day on Saturday, April 30, the duty nurse permitted Abille to attend mass in the building unescorted. Abille returned without incident. Early on Sunday, May 1, the duty nurse permitted Abille to use his razor to shave and then to go to breakfast unescorted. Shortly after he left the ward, his body was found on the ground outside the building beneath a window of the Red Cross lounge, an unsupervised facility on the seventh floor of the hospital. He was pronounced dead shortly thereafter. The autopsy report concluded that he had committed suicide.

When the duty nurses permitted Abille to leave the ward unescorted on Saturday and Sunday, they assumed that his status had been changed from S-1 to S-2. Had he still been on S-1, they would not have given him permission. Neither of the nurses could remember how or when the status change was made, or by whom. Dr. Hipolito testified only that he authorized it, but there is no written record that he did. A medical order purporting to change Abille's status did not in fact do so; when the order was prepared on April 29, it contained no reference to S-2 status — that reference was added by a nurse on May 1, after Abille had died.

LIABILITY

The issue before the Court is whether defendant exercised due care in protecting Abille against self-inflicted harm. The duty of a hospital and its staff to exercise reasonable care to protect suicidal patients against foreseeable harm to themselves is well-established. Stuppy v. United States, 560 F.2d 373, 375 (8th Cir. 1977); Dinnerstein v. United States, 486 F.2d 34, 36-37 (2d Cir. 1973); Pietrucha v. Grant Hospital, 447 F.2d 1029, 1033 (7th Cir. 1971); Bornmann v. Great Southwest General Hospital Inc., 453 F.2d 616, 621 (5th Cir. 1971); Baker v. United States, 226 F.Supp. 129, 132 (S.D.Iowa 1964) aff'd, 343 F.2d 222 (8th Cir. 1965); Meier v. Ross General Hospital, 69 Cal.2d 420, 424, 71 Cal.Rptr. 903, 907, 445 P.2d 519, 523 (1968).² As these decisions show, that duty exists whether the patient is a voluntary admittee or one who has been involuntarily committed, although its degree and precise character may vary with the circumstances. Cf. Castillo v. United States, 552 F.2d 1385 (10th Cir. 1977).

Liability in this case turns on the change in Abille's status from S-1 to S-2. Three questions are raised:

1. Did Dr. Hipolito in fact change Abille's status?

2. If he did change it, did he exercise due care in doing so?

3. If he failed to exercise due care, was his negligence a proximate cause of Abille's death?

1. Did Dr. Hipolito in fact change Abille's status from S-1 to S-2?

The parties' expert witnesses agreed that the responsibility for determining the appropriate degree of security for a patient rests on the physician, and that is where the Elmendorf hospital's procedures placed it. As described by the government's witnesses, those procedures provided that a patient's status level could be changed only by a physician's medical order or by a therapeutic group or nurse's decision approved by a physician's medical order. If the change was made by a staff member other than the physician, a written medical order signed by the physician had to be issued within 24 hours.

It is not disputed that no proper medical order changing Abille's status was issued here; the April 29 order altered after Abille's death cannot be accepted as a change order. Thus, if Abille's status was changed, it was changed in a manner violating the hospital's procedures. If it was not changed, the action of the nurse permitting Abille to leave the ward unescorted violated the hospital's rules governing S-1 patients and was below the standard of care, according to both parties' expert witnesses.

The evidence which tends to show that Abille's status was changed by Dr. Hipolito is as follows:

a. The psychiatric nurses on duty April 30 and May 1 testified that there had been a staff conference concerning Abille's status, that Abille was shown on the patients' sign-in board as S-2, that he was treated accordingly, and that he would not have been permitted to leave unescorted had he still been S-1.

b. Dr. Hipolito testified on deposition that he ordered Abille's status changed from S-1 to S-2 on April 29.³

The evidence which tends to show the contrary is as follows:

c. No proper written order changing Abille's status was ever issued, as required by hospital procedures.

d. In the narrative summary prepared by Dr. Hipolito on May 1, 1977, immediately following Abille's death, he noted that Abille was classified as S-1 upon admission but made no reference to any subsequent change to S-2.

e. The change of status from S-1 to S-2 was written by a nurse after Abille's death on the order issued by Dr. Hipolito on April 29.

Plaintiffs of course have the burden of proving by a preponderance of the evidence that defendant was negligent, i. e., that Abille was permitted to leave the ward unescorted when his S-1 status had not been changed by a physician. The issue of credibility is a close one. The Court finds and concludes that the evidence tending to show that Dr. Hipolito did not change Abille's status from S-1 to S-2 is more persuasive. In this connection, the Court notes that Dr. Hipolito did not appear to testify at the trial. Only his deposition is in evidence. On the issue whether he ordered Abille's status changed, his testimony, given in response to poorly phrased and leading questions, is unpersuasive.⁴

One or more of the nurses may well have believed or assumed in good faith, for some reason not known to the Court, that Abille's status had been changed. The possibility of confusion in...