Wilkins v. Lamoille Cty. Mental Hlth. Serv.

• Decision Date: 21 October 2005
• Docket Number: No. 03-552.,03-552.
• Citation: 2005 VT 121,889 A.2d 245
• Court: Vermont Supreme Court
• Parties: Sheryl R. WILKINS v. LAMOILLE COUNTY MENTAL HEALTH SERVICES, INC. and Copley Hospital.

889 A.2d 245

2005 VT 121

Sheryl R. WILKINS v. LAMOILLE COUNTY MENTAL HEALTH SERVICES, INC. and Copley Hospital.

No. 03-552.

Supreme Court of Vermont.

October 21, 2005.

James A. Dumont of Law Office of James A. Dumont, P.C., Bristol, for Plaintiff-Appellant.

John D. Monahan, Jr. and Angela R. Clark of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee.

Present: DOOLEY, JOHNSON, SKOGLUND and REIBER, JJ., and GIBSON, J. (Ret.), Specially Assigned.

¶ 1. JOHNSON, J.

This appeal arises out of the suicide of twenty-two-year-old Melissa Issler, whose estate filed this action against Lamoille County Mental Health Services, Inc. (hereafter "defendant") alleging that defendant's negligence in treating Ms. Issler's suicidal condition was the cause of her death. The estate (hereafter "plaintiff") appeals from a summary judgment in favor of defendant. Although we do so on slightly different grounds, we affirm the judgment of the trial court. Based on controlling law and the undisputed material facts, we hold that plaintiff failed to adduce evidence sufficient to prove that defendant's conduct was the proximate cause of death.

¶ 2. The material facts are undisputed. On January 19, 1999, Ms. Issler (hereafter "decedent") was brought to Copley Hospital in Morrisville after taking an overdose of Xanax tablets. There, as alleged in the complaint, she "received treatment and was evaluated by emergency room staff and an Emergency Service Worker" employed by defendant, which had contracted with the hospital to provide mental health evaluations. After her physical condition was stabilized, decedent was interviewed by the emergency services worker, Kathleen Greenmun, for a period of between fifteen and twenty-five minutes. In her notes from the interview, Greenmun reported that decedent appeared "groggy" and "pale," that she had recently experienced a series of seizures, and that after a particularly severe seizure "she felt something snapped, and she attempted to swallow a bottle of medication not her own." According to Greenmun's notes, decedent stated that "things had piled up" and that "she felt overwhelmed." Decedent acknowledged, however, that "taking the overdose was a stupid, impulsive act." She "denie[d] any current suicidal ideation or plan," and indicated that she wanted to go home to rest at her boyfriend's residence.

¶ 3. Based on the interview, Greenmun concluded that decedent was not a suicide risk, and could safely go home. The interview notes indicate that Greenmun encouraged decedent to call Lamoille County Mental Health to discuss counseling, and to contact the mental health agency if she again felt overwhelmed. Decedent's boyfriend and another friend met her at the hospital. Greenmun recalled that she talked with them about removing medications from the house, but said nothing about firearms. Decedent's boyfriend stated that he removed and destroyed a number of medications from the home, but that it did not occur to him to remove a loaded pistol that he kept in his truck. Six days after the initial incident, on the morning of January 25, 1999, decedent entered the truck, removed the pistol from its holster, and shot herself in the head. She died shortly thereafter.

¶ 4. In January 2001, plaintiff filed this action against defendant, alleging that decedent's suicide was a proximate result of Greenmun's "negligence in treating [decedent's] suicidal condition."¹ Plaintiff alleged specifically that Greenmun had been negligent in failing to determine whether any guns were available to decedent at her boyfriend's home, neglecting to enter into a "safety contract" with decedent, failing to initiate and schedule a follow-up appointment for decedent, and failing to contact decedent's treating physician regarding the reported seizures. In support of the claim, plaintiff's expert witness, Dr. David Ellenbrook, Ph.D., offered his opinion that Greenmun had deviated from professional standards of care in evaluating and treating patients at risk of suicide in several respects, including her decision to conduct the evaluation while decedent was still groggy rather than to wait until she was more alert, and her omissions in failing to conduct an adequate suicide assessment, to enter into a written safety contract with decedent, and to schedule follow-up appointments with decedent before her discharge. It was Dr. Ellenbrook's opinion that these additional steps would have resulted in "a decreased probability" of decedent's committing suicide.

¶ 5. Defendant moved for summary judgment on the ground that plaintiff had failed to adduce expert testimony establishing the requisite causal link between the alleged negligence and decedent's suicide. Plaintiff opposed the motion and filed a cross-motion for partial summary judgment, alleging that defendant had violated certain safety regulations, requiring a finding of negligence per se. The trial court issued a written decision in October 2003, ruling that the expert's testimony was deficient on several grounds, and that defendant was therefore entitled to summary judgment. This appeal followed.

¶ 6. Plaintiff principally contends the court erroneously rejected the testimony of her expert witness, Dr. Ellenbrook. The court found that Dr. Ellenbrook's testimony failed to establish the requisite causal link between defendant's conduct and decedent's suicide because, in the court's view, "it is an opinion without basis, without substance." The court asserted that the testimony offered "no explanation as to the mechanistic steps of causation[,] ... no analytic brick building." Accordingly, it concluded that the opinion failed to establish the necessary causal element of 12 V.S.A. § 1908(3), which requires the plaintiff to prove "[t]hat as a proximate result" of the defendant's failure to exercise the requisite degree of care "the plaintiff suffered injuries that would not otherwise have been incurred" in order to establish medical negligence.²

¶ 7. We are uncertain as to the precise meaning of the court's ruling or the basis of the "substantive" or "mechanistic" deficiencies to which it refers. Nevertheless, it is axiomatic that a judgment predicated on one theory that proves to be unfounded will be affirmed if it may be correctly resolved on another. See Gochey v. Bombardier, Inc., 153 Vt. 607, 613, 572 A.2d 921, 925 (1990) (this Court "may affirm a correct judgment even though the grounds stated in support of it are erroneous"). In this case, it is undisputed that plaintiff failed to adduce an expert opinion that decedent's suicide would not have occurred in the absence of defendant's alleged negligence. Accordingly, as explained more fully below, we agree with the trial court's fundamental conclusion that plaintiff failed to establish the essential causal element of her claim, and that defendant was therefore entitled to summary judgment.

¶ 8. The principal basis of defendant's motion for summary judgment, and the focal point of dispute between the parties, was the legal sufficiency of an expert opinion that failed to assert decedent's suicide would not have occurred in the absence of defendant's alleged negligence. Plaintiff's expert-witness disclosure statement had described her expert, Dr. Ellenbrook, as holding the opinion that defendant's negligence "was a substantial and significant factor in the patient's death." Defendant's attorney attempted to explore this statement at Dr. Ellenbrook's deposition, asking whether it "mean[s] that except for those failures to meet the standard of care that you have testified to, Melissa Issler would not have killed herself?" Dr. Ellenbrook responded, "I would say that there is a decreased probability that she would have." Defendant's attorney had the question re-read on the ground that the answer was nonresponsive, but Dr. Ellenbrook maintained the same response, stating: "Other than the answer I gave you, I can't answer that question, other than to give you that answer." When pressed again, Dr. Ellenbrook's response remained essentially the same, to the effect that the risk of decedent's suicide would have been "[s]ignificantly decreased if the standards of care had been met, or at least decreased." Beyond that he would not, or could not, go.

¶ 9. As noted, defendant argued below that Dr. Ellenbrook's testimony failed to establish a necessary statutory element of plaintiff's claim, to wit, that "as a proximate result" of defendant's failure to meet the standard of care "the plaintiff suffered injuries that would not otherwise have been incurred." 12 V.S.A. § 1908(3). Plaintiff argued, in response, that to establish proximate cause it was sufficient merely to show—as Dr. Ellenbrook had essentially stated—that defendant's negligence was a "substantial factor" in placing decedent at a "greater risk" of harm. The trial court appeared to accept plaintiff's formulation, but rejected the testimony as inadequate on other grounds.

¶ 10. We have recently reaffirmed the common-law and statutory principle that in medical malpractice, as in tort law generally, "the plaintiff must prove that as a result of the defendant's conduct the injuries `would not otherwise have been incurred,'" and therefore "an act or omission of the defendant cannot be considered a cause of the plaintiff's injury if the injury would probably have occurred without it." Smith v. Parrott, 2003 VT 64, ¶ 12, 175 Vt. 375, 833 A.2d 843 (quoting 12 V.S.A. § 1908(3)). The plaintiff in Smith had urged adoption of the so-called "loss of chance" doctrine to permit recovery where the defendant's malpractice had increased the risk of harm, even where the plaintiff could not adduce evidence of a probability that, as a result of the malpractice, the plaintiff suffered injuries that would not otherwise have occurred. Id. ¶ 7. In addressing the issue, we recognized the several "policy arguments in favor of the doctrine, most notably the harshness of the traditional...