Breese v. State

• Decision Date: 31 May 1983
• Docket Number: No. 2-880A283,2-880A283
• Citation: 449 N.E.2d 1098
• Parties: Lester W. BREESE, As Administrator of the Estate of Jerry W. Breese, Deceased, Appellant (Plaintiff Below), v. STATE of Indiana d/b/a LaRue D. Carter Memorial Hospital, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1098

449 N.E.2d 1098

Lester W. BREESE, As Administrator of the Estate of Jerry W.

Breese, Deceased, Appellant (Plaintiff Below), v. STATE of Indiana d/b/a LaRue D. Carter Memorial Hospital,

Appellee (Defendant Below).

No. 2-880A283.

Court of Appeals of Indiana,

Second District.

May 31, 1983.

Rehearing Denied June 29, 1983.

William J. Norton, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Frederick N. Kopec, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Jerry Breese, while a patient at LaRue Carter Hospital, committed suicide by hanging himself. He was survived by a minor child.

Lester Breese (Breese), Administrator of the Estate of his son, Jerry Breese, appeals the judgment entered on a jury verdict for Defendant-Appellee, the State of Indiana d/b/a LaRue D. Carter Memorial Hospital (hereinafter LaRue Carter), on Counts I (negligence) and III (breach of contract) of Breese's wrongful death complaint. Breese also appeals the court's Judgment on the Evidence in favor of LaRue Carter on the second count (res ipsa loquitur) of his complaint.

The issues before us involve admission and exclusion of evidence, the giving and refusal of instructions and the granting of defendant's motion for judgment on the evidence as to the res ipsa loquitur count of the complaint.

We reverse and remand for a new trial upon Counts I and III of the complaint. For this reason we feel constrained to deal with issues which are likely to be presented upon retrial.

FACTS

On October 10, 1973, Jerry Breese (Jerry), age 27, was admitted to Community Hospital in Anderson, Indiana, after he was found in a supermarket parking lot screaming and beating his fists on his car. During his second day at Community Hospital, Jerry cut himself on the stomach with a piece of broken glass. When they were told by hospital personnel that Community did not have the facilities to watch Jerry continuously, Breese and his wife arranged to have friends and relatives stay with him around the clock for the remainder of his nearly two-week stay there. After the incident with the glass and while still at Community, Jerry tried to jump out of a window and tampered with an electrical outlet in his room.

Breese testified at trial that Jerry's treating physician at Community Hospital told him that Community did not have the facilities necessary to deal with Jerry's psychiatric condition, which was diagnosed as "Catatonic Reaction and Reactive Depression." Record at 451. Jerry was transferred to Methodist Hospital in Indianapolis on October 24, 1973. Breese testified that he accompanied Jerry during his transfer by ambulance to Methodist Hospital, and that during this transfer, Jerry grabbed a pair of scissors and held them until Breese asked that he give them to him. Breese stated that when they arrived at Methodist he informed admitting personnel about the scissors incident and Jerry's behavior at Community Hospital.

Jerry was initially diagnosed at Methodist as "acute schizophrenic on schizo affective reaction with catatonic and depressive manifestations." Record at 445, Plaintiff's Exhibit No. 1. While at Methodist, Jerry continued his suicidal gestures: on November 5, he was found in his room with his belt around his neck "apparently trying to figure out a way to hang himself" (Record at 454, Plaintiff's Exhibit No. 1, statement by Dr. Ronald Hull--Jerry's treating psychiatrist at Methodist) and the Nurse's Clinical Record relates the following incidents: On November 7, he checked a fellow patient's crochet needle for sharpness; on November 8, he was found with a broken plastic spoon; on November 10, after eating, he attempted to keep his knife; and medication was found in his clothing on November 13, and in his room on November 14 and 15. On November 15, he also broke a window in his room and cut his elbow superficially. On the 16th it was noted that Jerry "still tries to palm pills." On November 19 he superficially cut his wrist with a After Jerry had been at Methodist about a month, he was temporarily committed to LaRue Carter because his insurance coverage was about to run out and there were no other resources for his continued treatment at Methodist. He was transferred to LaRue Carter on November 26, 1973.

table knife, and reopened the wound the next day with a broken plastic spoon. On the 20th Jerry also removed a spring from his bed and refused to give it to hospital personnel, and on November 25th he attempted to take a fork with him from dinner.

Donald F. Moore, M.D., Medical Director at LaRue Carter and Professor of Psychiatry at Indiana University School of Medicine, testified that personnel at LaRue Carter were made aware that Jerry had exhibited suicidal behavior while at Methodist by a statement in a "transfer record" and a phoned request for admission. The "transfer record" referred to was a single sheet of paper entitled "Request for Continuity of Care Form," which contained the following statement: "Persistent suicidal behavior--recommend full precautions." Record at 212, 779.

Lester Breese testified that during Jerry's admission to LaRue Carter, he told hospital personnel seven or eight times about his son's suicidal gestures or attempts at Methodist and Community Hospitals, including the incident when Jerry was found with a belt around his neck. Breese stated that he offered to arrange to have friends and relatives watch Jerry continuously if the staff could not properly watch him, but was assured that LaRue Carter could do so. In answer to Breese's Request for Admissions, LaRue Carter admitted that Lester Breese had informed one or more hospital employees of certain of Jerry's suicidal acts.

Marvin Miller, M.D., Jerry's admitting and treating physician at LaRue Carter, diagnosed him as "paranoid, schizophrenic and suicidal" and ordered suicidal precautions for him which entailed, inter alia, placing him in a double room and observing him at 15 minute intervals. Dr. Moore testified that during the day of his admission, Jerry was "quite cooperative" and at one point in conversation with Dr. Miller, seemed "almost optimistic." However, in a document entitled "Clinical Record and Final Summary, Admission Mental Status," Dr. Miller reported that:

"The patient was quite anxious, fidgeting around in the chair throughout the interview. At times he would raise his voice quite abruptly to an anxious whine. Throughout most of the interview there was a flat facial feature and flat tone of voice.... The patient's insight and judgment were both felt to be poor." Record at 346-347, Plaintiff's Exhibit 2.

Dr. Moore testified that, according to his review of the Clinical Record, after Jerry was admitted to his ward, he ate well, talked with ward personnel and other patients, and took his medication without objection, but Reverend Earl Moore, who had previously visited Jerry at Methodist, testified that when he tried to visit Jerry at LaRue Carter, and was told to leave by an orderly, Jerry seemed "kinda wild eyed." Record at 339.

In the Clinical Record, a ward nurse noted that when Jerry went to his room after dinner he had a "strange look" on his face. When she went to check on him, he was lying in bed apparently asleep. Approximately ten minutes later, Jerry was found hanging from a closet door with a belt tied around his neck. Ward personnel unsuccessfully attempted to revive him, and summoned Dr. Smith, the physician on call. Further attempts to revive Jerry were unsuccessful and he was transported to Marion County General Hospital where he was pronounced dead approximately one-half hour after arrival.

Lester Breese brought a wrongful death action, as Administrator of Jerry's estate, against LaRue Carter and seven other defendants. ¹ Count I of the complaint alleged that Jerry's death was caused by LaRue Resolution of the issues is complicated by the fact that certain evidence and instructions are arguably relevant and appropriate to some aspects of the case but are improper considerations with respect to others.

Carter's failure to properly guard and restrain him; Count II alleged liability based upon the doctrine of res ipsa loquitur; and Count III alleged that LaRueCarter had breached its contract to guard, care for or protect decedent.

The trial involved a claim that LaRue Carter was negligent in failing to guard and protect Breese against his own self destructive conduct. A separate count of the complaint, however, was couched in terms of breach of contract and asserted, inter alia, that LaRue Carter failed to "care for" the patient. The difficulty is particularly salient with respect to evidence that LaRue Carter did not provide or utilize available suction equipment which, it is asserted, may have saved Breese after his suicidal act.

Our determination on the various issues presented, therefore, depend in part upon whether one is considering the conduct of LaRue Carter as it relates to the suicidal act of Breese or whether one views the case as a failure to adequately "care for" the patient after the suicidal incident which culminated in his death.

I. DUTY OF REASONABLE CARE

At the outset it is appropriate to consider the duty owed by a mental hospital to a patient who has exhibited suicidal tendencies and the standard by which it is necessary to measure the hospital's conduct in relationship to the duty. Such consideration is perhaps most germane with regard to certain instructions given or tendered and refused.

Breese argues that the trial court erred in refusing to instruct the jury as requested in his tendered instruction # 7, which stated:

"You are instructed that when a mental hospital which accepts a patient knows or is put on notice of a patient's suicidal tendencies, that hospital, its agents and employees, are required not only to use reasonable care in treating the patient for his illness, but also to safeguard him from self-inflicted injury or death. This duty is proportionate...