O'Donnell v. Bailey & Assoc. Counseling

• Court: Appellate Court of Illinois
• Writing for the Court: JUSTICE MIKVA delivered the judgment of the court, with opinion.
• Citation: O'Donnell v. Bailey & Assoc. Counseling, 240 N.E.3d 626 (Ill. App. 2023)
• Docket Number: 1-22-1736
• Decision Date: 22 December 2023
• Parties: Patricia O’DONNELL, Independent Administrator of the Estate of Alex Melnyk, Deceased, Plaintiff-Appellant, v. BAILEY & ASSOCIATES COUNSELING, AND PSYCHOTHERAPY LLC; Nicole M. Bailey; Foundations Recovery Network, LLC; Zachary Kordik, M.D.; Biana Mavasheva; and Burke Halinovych, n/k/a Burke Baldwin, Defendants-Appellees.

240 N.E.3d 626

2023 IL App (1st) 221736

Patricia O’DONNELL, Independent Administrator of the Estate of Alex Melnyk, Deceased, Plaintiff-Appellant,

v.BAILEY & ASSOCIATES COUNSELING, AND PSYCHOTHERAPY LLC; Nicole M. Bailey; Foundations Recovery Network, LLC; Zachary Kordik, M.D.; Biana Mavasheva; and Burke Halinovych, n/k/a Burke Baldwin, Defendants-Appellees.

No. 1-22-1736

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed December 22, 2023

Appeal from the Circuit Court of Cook County. No. 2019 L 7393, Honorable Daniel A. Trevino, Judge Presiding.

Milo W. Lundblad, of Brustin & Lundblad, Ltd., of Chicago, for appellant.

Lawrence S. Gosewisch and Richard C. Harris, of Hinshaw & Culbertson LLP, Gretchen Harris Sperry, of Gordon Rees Scully Mansukhani LLP, Scott L. Howie, John M. McGarry, and Zachary A. Kutsulis, of Donohue Brown Mathewson & Smyth LLC, and Thomas B. Orlando and Douglas J. Palandech, of Foran Glennon Palandech Ponzi & Rudloff PC, all of Chicago, for appellees.

OPINION

JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 In late 2014, Alexander Melnyk began to receive outpatient mental health treatment. In July 2017, he died by suicide. The administrator of his estate brought an action alleging both wrongful death and injury to the person under section 27-6 of the Probate Act of 1975 (Survival Act) (755 ILCS 5/27-6 (West 2016)) against Mr. Melnyk’s outpatient mental healthcare providers—Nicole M. Bailey, Dr. Zachary Kordik, Biana Mavasheva, Burke Baldwin, and vicariously, Bailey & Associates Counseling and Psychotherapy LLC and Foundations Recovery Network LLC (collectively, defendants).

¶ 2 The administrator alleged that defendants breached a duty to provide Mr. Melnyk with reasonable care, including taking reasonable precautions to protect him from self-harm. The administrator further alleged that the breach of that duty proximately caused Mr. Melnyk’s death. The circuit court granted summary judgment to defendants on the basis that suicide is an intervening and independent act by the decedent that precludes liability as a matter of law.

¶ 3 For the reasons that follow, we hold that a mental healthcare provider can be held liable when treating an outpatient client for a suicide that is proximately caused by the provider’s failure to act within the standard of care. Accordingly, we reverse the court’s order granting summary judgment to defendants and remand for further proceedings.

¶ 4 I. BACKGROUND

¶ 5 The following facts, based on the pleadings and the attachments to the motion for summary judgment and response, provided the basis upon which the circuit court granted summary judgment.

¶ 6 In December 2014, defendant Nicole Bailey, a licensed clinical professional counselor, began providing psychotherapy to Alexander Melnyk. In intake paperwork, Ms. Bailey recorded that Mr. Melnyk experienced "depression" and "excessive alcohol consumption." Progress notes demonstrate the two met regularly for therapy sessions.

¶ 7 In January 2017, Ms. Bailey recorded that Mr. Melnyk attempted suicide. In addition to continuing to provide him with therapy, she also referred Mr. Melnyk to an intensive outpatient program with defendants Foundations Recovery Network, LLC, and its subsidiary, Foundations Chicago, LLC (collectively, Foundations).

¶ 8 At Foundations, defendants Biana Mavasheva, a licensed professional counselor, and Burke Halinovych, a licensed clinical social worker (now known as Burke Baldwin), provided Mr. Melnyk with counseling and psychotherapy. Defendant Dr. Zachary Kordik, a psychiatrist, served as the medical director at Foundations, performed a psychiatric evaluation of Mr. Melnyk, and prescribed Mr. Melnyk medications. A document, titled "Face Sheet," indicates that Mr. Melnyk was diagnosed with major depressive disorder, alcohol use disorder, and unspecified cannabis related disorder.

¶ 9 During intensive outpatient therapy sessions, Mr. Baldwin recommended that Mr. Melnyk use the "Wim Hof method." The Wim Hof method is a breathing exercise that combines shorter and longer breaths with periods of holding one’s breath while exposed to cold water.

¶ 10 On July 10, 2017, Mr. Melnyk’s mother found Mr. Melnyk dead in his apartment with a belt looped around his neck and the other end attached to a doorknob. The Office of the Medical Examiner in Cook County ruled Mr. Melnyk’s death a suicide.

¶ 11 Patricia O’Donnell, administrator of Mr. Melnyk’s estate, filed the underlying complaint on behalf of his parents and two brothers. Ms. O’Donnell asserted a claim for wrongful death against each defendant, based on the theory that the individual defendants breached their duty of care to Mr. Melnyk. She asserted a separate claim under the Survival Act against each defendant for Mr. Melnyk’s suffering. 755 ILCS 5/27-6 (West 2016).

¶ 12 Ms. O’Donnell alleged that defendants breached their duty by failing, despite Mr. Melnyk’s symptoms, to properly assess him, appropriately treat his mental illness, or refer Mr. Melnyk for emergent or additional psychiatric services. She additionally alleged that Dr. Kordik failed to properly supervise Mr. Baldwin, allowing Mr. Baldwin to recommend the Wim Hof method, which Ms. O’Donnell alleged was an inappropriate intervention. Ms. O’Donnell alleged that Foundations and Bailey & Associates Counseling and Psychotherapy LLC were vicariously liable.

¶ 13 Foundations and Ms. Mavasheva filed a motion for summary judgment. The remaining defendants adopted the motion in full. Defendants asserted that, under Illinois law, suicide is an independent intervening act that breaks any alleged chain of causation. According to defendants, Illinois law recognizes only two exceptions to this "black letter rule." These exceptions are (1) where the defendant assumes custody and control of the decedent and (2) where the defendant causes the decedent to become insane or bereft of reason. Because neither exception applied, defendants argued "as a matter of law" that they could not be found to have breached any duty to prevent the suicide, and plaintiff could not prove causation.

¶ 14 Plaintiff filed a response in opposition to defendants’ motions. She argued that Illinois courts have made it clear that mental healthcare professionals owe a duty to their patients to take reasonable steps to protect them from reasonably foreseeable self-hann and that this duty exists even when the patient is being treated on an outpatient basis. Plaintiff attached affidavits from Dr. Cheryl D. Wills and Dr. Richard J. Stride. These two doctors expressed the opinion that "it should have been reasonably foreseeable to *** any mental health professional that Alex Melnyk would commit suicide or act in a self-destructive manner."

¶ 15 The circuit court granted defendants’ motion for summary judgment. The circuit court’s oral ruling was not transcribed but it issued a brief written order in which it wrote that "in addition to the reasons stated in open court, the Court specifically relied on the following cases and citations." The court then cited three cases, which the court summarized as follows:

"Stanphill v. Ortberg, 2018 IL 122974, ¶ 35, 432 Ill.Dec. 624, 129 N.E.3d 1167, stating the general rule that ‘the injured party’s voluntary act of suicide is an independent intervening act, which is unforeseeable as a matter of law and breaks the causal link between any alleged negligent conduct and the injury.’

Winger v. Franciscan Medical Center, 299 Ill. App. 3d 364, 375, 233 Ill.Dec. 748, 701 N.E.2d 813 (1998), *** which states that ‘when the mental healthcare professional has assumed the custody or control of an individual, be it for a voluntary or involuntary admission, so that it is treating the individual and has knowledge of his suicidal tendencies, the defendant assumes the patient’s duty of self-care and must act reasonably to prevent self-inflicted harm ***’; and,

[Doe I v. Doe I], 2016 IL App (1st) 153272, ¶ 16 [409 Ill.Dec. 308, 67 N.E.3d 520], noting the general rule as stated by the First District Appellate Court that ‘the voluntary act of suicide "is an independent intervening act which is unforeseeable as a matter of law, and which breaks the chain of causation from the tortfeasor’s negligent conduct," ’ and noting there are only two recognized exceptions to the general rule, when (1) ‘as the proximate result of a physical injury caused by the tortfeasor, the injured party becomes insane or bereft of reason and while in that state commits suicide,’ and (2) ‘when a mental health professional who has assumed the care, custody [or] control over an individual with suicidal tendencies fails to act reasonable to prevent self-inflicted harm ***’ (citing [Winger, 299 Ill. App. 3d at 375, 233 Ill.Dec. 748, 701 N.E.2d 813])."

¶ 16 As the circuit court made clear in denying plaintiffs motion to reconsider, which it did with a court reporter present, the court viewed the exception to the suicide rule noted in Winger and repeated in Doe as inapplicable in this case because Mr. Melnyk "was not in the [defendants’] custody or control. He was not in the defendants’] facility."

¶ 17 II. JURISDICTION

¶ 18 The circuit court denied plaintiff's timely motion to reconsider on October 26, 2022. Plaintiff filed a notice of appeal on November 18, 2022. This court has jurisdiction over the appeal pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017), governing appeals from final judgments entered by the circuit court in civil cases.

¶ 19 III. ANALYSIS

¶ 20 A. Suicide Is Not Unforeseeable as a Matter of Law for an Outpatient

¶ 21 The primary issue on appeal is whether the circuit court properly granted summary judgment on the basis that suicide is an independent intervening cause that is unforeseeable as a matter of law, such that, except in two limited exceptions that are not applicable here, mental health professionals can never be liable for a failure to...