Gardner v. Or. Health Scis. Univ., A165903

• Decision Date: 11 September 2019
• Docket Number: A165903
• Citation: 450 P.3d 558,299 Or.App. 280
• Parties: Kazuko Arai GARDNER, Personal Representative of the Estate of Jacqueline S. Mahoney, Plaintiff-Appellant, v. OREGON HEALTH SCIENCES UNIVERSITY, a public corporation; Marvin D. Fickle, M.D., an individual; and Jennifer Shay, an individual, Defendants-Respondents.
• Court: Oregon Court of Appeals

299 Or.App. 280

450 P.3d 558

Kazuko Arai GARDNER, Personal Representative of the Estate of Jacqueline S. Mahoney, Plaintiff-Appellant,

v.OREGON HEALTH SCIENCES UNIVERSITY, a public corporation; Marvin D. Fickle, M.D., an individual; and Jennifer Shay, an individual, Defendants-Respondents.

A165903

Court of Appeals of Oregon.

Argued and submitted March 15, 2019.

September 11, 2019

Gregory Kafoury argued the cause for appellant. Also on the briefs were Mark McDougal and Kafoury & McDougal, Portland.

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, Portland.

Jay W. Beattie argued the cause for respondent Jennifer Shay. Also on the brief were Thomas McDermott, Katie Eichner, and Lindsay Hart, LLP, Portland.

Before Lagesen, Presiding Judge, and DeVore, Judge, and Sercombe, Senior Judge.

DeVORE, J.

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.

At trial, plaintiff called an expert witness who testified to OHSU’s negligence. In closing argument, defense counsel made disparaging comments about that plaintiff’s witness:

"[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.

Subsequently, plaintiff moved for a new trial. Plaintiff based the motion, in relevant part, upon "the misconduct of the defense counsel," who, plaintiff argued, "poisoned the proceedings" by suggesting that plaintiff’s witness "was forced out of his position" due to "disreputable" conduct. The trial court entered an order denying that motion. Plaintiff appealed the general judgment of dismissal and the order denying a new trial.

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 ORS 31.600, depend on the facts and evidence of the particular case. Defendants argue that they properly invoked the defense here, where the decedent failed to "be candid" or to "cooperate with" defendants during treatment.

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 must determine whether, as a matter of law, Oregon’s comparative fault statute provides a special exception for actions against mental-health providers arising from an outpatient’s suicide. That presents a question of statutory construction, requiring us to examine the statute’s text in context, including related case law. State v. Gaines , 346 Or. 160, 171-73, 206 P.3d 1042 (2009) (outlining the methodology). Second, if the statute provides no special exception, we will assess whether the defense was appropriate in this particular case. In this analysis, we review the trial court’s decision for legal error. In doing so, we assume the truth of the facts alleged and draw inferences in favor of the nonmoving party. Son v. Ashland Community Healthcare Services , 239 Or. App. 495, 508, 244 P.3d 835 (2010), rev . den . , 350 Or. 297, 255 P.3d 489 (2011) (citing Doyle v. Oregon Bank , 94 Or. App. 230, 232, 764 P.2d 1379 (1988), rev . den . , 307 Or. 571, 771 P.2d 1021 (1989) ) (reviewing the trial court’s motion to strike for failure to state a defense).

We first consider whether the legislature intended to provide an exception in ORS 31.600 for comparative fault involving suicide. We conclude that it did not. To determine the legislature’s intent, we begin with the statute. Gaines , 346 Or. at 171-73, 206 P.3d 1042. Oregon’s statute on contributory and comparative negligence allows the factfinder to compare a plaintiff’s fault with that of the tortfeasor and to award damages accordingly. ORS 31.600. The law provides, in relevant part,

"(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."

ORS 31.600. Examining the statute’s plain text, we see that it expressly allows for consideration of a claimant’s relative fault. It specifies certain exceptions, none of which involve circumstances related to mental-health treatment or suicide. Given what is written, the text itself offers no support for the special exception that plaintiff puts forth, and we are not at liberty to insert such language ourselves. ORS 174.010 ("In the construction of a statute, the office of a judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted or to omit what has been inserted[.]").

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 P.3d 563 (2015) (citing ...