Silva v. Lovelace Health Sys., Inc.

• Decision Date: 01 August 2014
• Docket Number: No. 31,723.,31,723.
• Parties: Anthony and Cheng SILVA, Individually and as Personal Representatives of the Estate of Susan SILVA, Deceased, and Anthony Silva, Jr., and Jinlen Silva, as Surviving Siblings of Susan Silva, Plaintiffs–Appellees, v. LOVELACE HEALTH SYSTEM, INC., and Dr. Isabel Lopez–Colberg, Defendants–Appellants.
• Court: Court of Appeals of New Mexico

331 P.3d 958

Anthony and Cheng SILVA, Individually and as Personal Representatives of the Estate of Susan SILVA, Deceased, and Anthony Silva, Jr., and Jinlen Silva, as Surviving Siblings of Susan Silva, Plaintiffs–Appellees,

v.LOVELACE HEALTH SYSTEM, INC., and Dr. Isabel Lopez–Colberg, Defendants–Appellants.

No. 31,723.

Court of Appeals of New Mexico.

May 6, 2014.

Certiorari Granted, Aug. 1, 2014, No. 34,784.

Jason Bowles, B.J. Crow, Bowles and Crow, Travis G. Jackson, Foster, Rieder & Jackson, P.C. Albuquerque, NM, for Appellees.

Pete V. Domenici, Jr., Lorraine Hollingsworth, Domenici Law Firm, P.C., Edward R. Ricco, Jocelyn Drennan, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Appellants.

OPINION

FRY, Judge.

{1} In this case, we address the doctrine of independent intervening cause in circumstances where the evidence was conflicting as to whether the conduct of Plaintiffs' relative, the decedent, was (1) intentional and (2) foreseeable. Plaintiffs sued Lovelace Health System, Inc., and Dr. Isabel Lopez–Colberg (collectively, Defendants) for the wrongful suicide death of Susan Silva (Decedent) on the theory that Dr. Lopez–Colberg negligently prescribed Decedent twelve months of antidepressant refills without requiring follow-up visits while knowing that the drug may cause suicidality in patients. Defendants raised several defenses to Plaintiffs' claims, including the defense that Decedent's overdose on antidepressants and resulting suicide constituted an independent intervening cause that eliminated any liability they might have for their own negligence. The district court refused to instruct the jury on this defense. On appeal from a jury verdict against them, Defendants argue that the district court erred in (1) refusing to instruct the jury on suicide as an independent intervening cause, and (2) denying Defendants' motion for a directed verdict on Plaintiffs' loss of consortium claims.

{2} On the first issue, we acknowledge that, in cases involving only the negligence of the parties, our Supreme Court has virtually eliminated the defense of independent intervening cause. See Torres v. El Paso Elec. Co., 1999–NMSC–029, ¶ 13, 127 N.M. 729, 987 P.2d 386, overruled on other grounds by Herrera v. Quality Pontiac, 2003–NMSC–018, ¶ 33, 134 N.M. 43, 73 P.3d 181. However, independent intervening cause may still apply in cases where there are intentional or criminal acts or forces of nature that are unforeseeable. In this case, we conclude that the evidence gave rise to reasonable inferences that Decedent's acts of overdosing on antidepressants and committing suicide may have been intentional rather than negligent and that these acts may have been unforeseeable. This evidence could theoretically lead a properly instructed jury to conclude that these intentional acts constituted an independent intervening cause that interrupted and negated any negligence by Dr. LopezColberg in prescribing the drug to Decedent. We therefore hold that the district court erred by failing to instruct the jury on Decedent's suicide as an independent intervening cause. It was for the jury, not the district court, to determine whether Decedent's suicide was intentional and foreseeable to Dr. Lopez–Colberg. We therefore reverse and remand.

{3} On the second issue, which we address in the event it arises on remand, we hold that Plaintiffs failed to show the degree of mutual dependence required to support their loss of consortium claims.

I. BACKGROUND

{4} This wrongful death case is based on the alleged negligent treatment of Decedent by Defendants. As stated above, the theory of Plaintiffs' case was that Dr. Lopez–Colberg gave Decedent a twelve-month prescription for paroxetine (Paxil), which allegedly “causes suicidality,” and failed to follow up or monitor Decedent. As a result, Plaintiffs claimed, Decedent “engaged in a self-mutilation suicide.” The evidence presented to the jury at trial included the following.

{5} In May 2004, Dr. Lopez–Colberg began treating Decedent and diagnosed her with anxiety. Dr. Lopez–Colberg prescribed Paxil, a selective serotonin re-uptake inhibitor, commonly used to treat depression and anxiety, at ten milligrams per day. During the next seven months, Dr. Lopez–Colberg saw Decedent four times to address persistent symptoms, and she adjusted her Paxil dosage to twenty milligrams. In November 2004, Decedent changed insurance carriers and began treatment with another physician.

{6} In October 2005, Decedent returned to Dr. Lopez–Colberg's care. When she returnedto her care, Decedent was taking twenty milligrams of Paxil a day, plus Ativan for breakthrough anxiety. Dr. Lopez–Colberg noted that Decedent had “serotonin syndrome,” which she clarified meant that Decedent was experiencing serotonin withdrawal when she forgot to take her Paxil. Dr. Lopez–Colberg also noted that Decedent was experiencing many psychosocial stressors, which Decedent declined to detail. Decedent's use of Ativan indicated to Dr. Lopez–Colberg that Decedent's anxiety was not under control, and Dr. Lopez–Colberg wanted to increase the Paxil dosage. Dr. Lopez–Colberg wrote Decedent two prescriptions: one month's worth of Ativan and one year's worth of Paxil (one month's worth with eleven authorized refills). At this point, Decedent had been on twenty milligrams of Paxil for seventeen months. After Dr. Lopez–Colberg prescribed the medication, there were no follow-up appointments scheduled, although Decedent was to return “when she fe[lt] that she would like to increase the Paxil.”

{7} According to a June 2005 FDA advisory, “[s]everal recent publications suggest the possibility of increased risk for suicidal behavior in adults being treated with antidepressants.” However, Dr. Lopez–Colberg's patient notes for Decedent's visits did not indicate that Decedent had any thoughts of suicide.

{8} Decedent's friends and family reported that Decedent began exhibiting very strange behavior in April 2006, which was over five months after Decedent's last visit with Dr. Lopez–Colberg. On April 13, 2006, Decedent was found dead in her apartment, having taken her own life. Toxicology analysis determined that Decedent had twenty-two times the therapeutic dose of Paxil in her system at the time of her death. It was determined that she had obtained thirty Paxil tablets three days prior to her death, and there were no pills left in that thirty-day prescription.

{9} Decedent's parents filed suit asserting negligence and wrongful death claims against Defendants. Decedent's parents and two surviving siblings also asserted claims for loss of consortium. Plaintiffs' claims against Defendants were tried to a jury, and Defendants argued that the jury should be instructed on their theory that Decedent's suicide constituted an independent intervening cause that absolved them of liability. The district court refused the requested instructions, and the jury returned a verdict for Plaintiffs.

{10} On appeal, Defendants argue that the district court erroneously refused to instruct the jury on their theory that Decedent's suicide was an independent intervening cause. They also argue that the district court erred in denying their motion for directed verdict on Plaintiffs' claims for loss of consortium. We address each contention in turn.

II. DISCUSSIONA. Independent Intervening Cause Instruction

{11} Defendants argued below and on appeal that Decedent's death resulted from the intentional and unforeseeable act of suicide and, therefore, that the suicide was an independent intervening cause that released them from all liability. As we explain, we agree with Defendant that the jury should have received instruction on this defense theory.

{12} In the district court, Defendants tendered three jury instructions relevant to this theory. The first requested instruction was based on UJI 13–305 NMRA, the definition of causation, which included the optional language relevant to independent intervening cause (italicized below):

An act or omission is a “cause” of injury if unbroken by an independent intervening cause, it contributes to bringing about the injury and if the injury would not have occurred without it. It need not be the only explanation for the injury, nor the reason that is nearest in time or place. It is sufficient if it occurs in combination with some other cause to produce the result. To be a “cause[,”] the act or omission, nonetheless, must be reasonably connected as a significant link to the injury.

(Emphasis added.) Second, Defendants requested an instruction based on UJI 13–306 NMRA, the definition of independent interveningcause: “An independent intervening cause interrupts and turns aside a course of events and produces that which was not foreseeable as a result of an earlier act or omission.” Third, Defendants tendered an instruction based on Johnstone v. City of Albuquerque, 2006–NMCA–119, ¶¶ 10–11, 140 N.M. 596, 145 P.3d 76, which holds that suicide is generally an independent intervening cause unless one of two exceptions is satisfied. The district court refused to instruct the jury on independent intervening cause, stating, “I really don't see that these facts fit.”

1. Standard of Review

{13} We review a district court's refusal to give a proffered instruction de novo to determine whether the instruction correctly stated the law and was supported by the evidence presented at trial. See Benavidez v. City of Gallup, 2007–NMSC–026, ¶ 19, 141 N.M. 808, 161 P.3d 853. A party is entitled to have the jury instructed on the party's theory if there is substantial evidence to support it. City of Belen v. Harrell, 1979–NMSC–081, ¶ 14, 93 N.M. 601, 603 P.2d 711. In determining whether the district court erroneously denied Defendants' requested instructions, we first review the law relevant to the theory of independent intervening cause.

2. Torres and Chamberland v. Roswell Osteopathic Clinic, Inc., 2001–NMCA–045, 130 N.M. 532, 27 P.3d 1019:...