Appeal from the Superior Court of the District of Columbia. (CA-7951-99). (Hon. Michael L. Rankin, Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge
Dissenting opinion by Associate Judge SCHWELB at page 18.
Before SCHWELB and FARRELL, Associate Judges, and BLACKBURNE-RIGSBY, Associate Judge, Superior Court of the District of Columbia.*fn1
Pirjo K. Garby brought this wrongful death and survival action following the suicide of her husband, Michael Garby.*fn2 Mr. Garby took his own life approximately six hours after his discharge from the Emergency Room of the George Washington University Hospital ("the Hospital") during the night of November 7-8, 1998. Mrs. Garby contends that her husband's suicide was proximately caused by the professional negligence of the Hospital and of Jeffrey S. Akman, M.D., who was the decedent's attending psychiatrist.
Following a trial in February and March of 2003, the jurors were unable to agree upon a verdict and the judge declared a mistrial. In a subsequent written order, however, he granted the defendants' motion for judgment as a matter of law, concluding among other things that the evidence was insufficient to reasonably permit a verdict by a jury that any negligence of the defendants had proximately caused Mr. Garby's death.
On appeal, Mrs. Garby argues that the defendants breached the applicable standard of care in several respects, chiefly in that although they were aware that the decedent was depressed and mentally ill and that he had reported recent plans to commit suicide by jumping off a bridge, they released him to go home with his wife without apprising her of his suicidal ideation. She contends that Mr. Garby's leap to his death from his eighth floor balcony hours after leaving the hospital, while she was in the shower, was proximately caused by the defendants' professional negligence. For the reasons that follow, we agree with the trial judge that the evidence was insufficient to support a reasonable inference by a jury that the alleged negligence of the defendants proximately caused Mr. Garby's death.
On Saturday, November 7, 1998, Mr. Garby, an electrical engineer, was in a depressed and seemingly paranoid frame of mind, believing that he might be in legal trouble and that numerous persons, including his wife, were conspiring against him. On the previous day he had gone to see his attorney, who later testified that during their meeting Mr. Garby exhibited such nervousness, and so lacked any sense of proportion, that his manner "could be described as bordering on delusion." In the days before his death, Mr. Garby's suspicions had intensified, as he believed, among other things, that waiters, bartenders, and his wife were working for the police in an effort to set him up for copyright infringement,*fn3 and that the police were tapping every telephone he used. As a result of his concern about the supposed interception of his conversations, Mr. Garby made calls from various telephones to his sister, Ruth Torres, a police detective in Connecticut. After Mr. Garby had made some twenty calls to Ms. Torres in a single day, she urged him to seek medical assistance. Michael Garby's other sister, a nurse, provided similar advice, as did his wife. Ultimately, Mr. Garby agreed to follow the women's suggestions.
On the evening of November 7, Mr. Garby presented himself at the Hospital's Emergency Room. His wife accompanied him, but at his request she was not present in the room when he described his problems to the physicians. Mr. Garby reported to Emergency Room personnel that he was, or had been, experiencing anxiety, persecutory delusions, and suicidal thoughts. Craig Norris, M.D., the first doctor to examine Mr. Garby, noted in Mr. Garby's chart that the patient "had been feeling anxious and paranoid [at] work [and at] home for [the] past 2 weeks (maybe more) and more depressed [and had] some suicidal ideation plan to jump off bridge." Tenagne Haile Mariam, M.D., the supervising physician in the Emergency Room, also interviewed Mr. Garby and wrote in his chart that the patient was suffering from "mild paranoia & depression -- 'whole world is against me,' has thoughts of suicide -- 'to jump off a bridge' -- but no other more concrete plan."
Dr. Mariam referred Mr. Garby to a psychiatric resident, Alfredo F. Soto, M.D., who spoke with Mr. Garby in some detail. Dr. Soto noted, after examining Mr. Garby, that the patient reported legal problems which he refused to describe in his wife's presence. Dr. Soto wrote that the patient "notes recent [increasing] hopelessness because of [the legal problems]," and that "from this hopelessness, he has had some SI*fn4 w/ plan to jump off bridge." According to Dr. Soto's notes, "[h]is wife, who is unaware of his concerns w/ legal prob's, has noted [greater] paranoid ideation X2 days with [greater] awareness of persecutory feelings/concerns on her husband's part." Neither Mr. Garby nor the physicians told Mrs. Garby of his suicidal thoughts.
Initially, both Dr. Soto and Mrs. Garby believed that Mr. Garby should remain in the Hospital. Mrs. Garby did not want her husband to sign a document in which he agreed to be released to go home, but despite the advice of the doctors, Mr. Garby stated that he wanted to go home. Dr. Soto telephoned Dr. Akman, the attending psychiatrist who was Dr. Soto's superior, at Dr. Akman's home and the two physicians discussed the case for some time. Dr. Soto ultimately wrote in Mr. Garby's record:
As pt does not meet full criteria for involuntary hospitalization, he has agreed (as has his wife) to be observed by his wife over next 24-48 hours. Both have agreed to call both insurance co. and our outpatient clinic to obtain urgent F/U w/in next wk. Attending (Dr. Akman) agrees.
Mr. Garby was released from the Emergency Room between 2:30 and 3:00 a.m.; his wife was given a prescription for sleeping pills (Ambien) for her husband. According to Mrs. Garby, Dr. Soto told her that "it was my responsibility for the [next] 48 hours" to keep an eye on her husband. The couple then left the Emergency Room and walked home without having the prescription filled.
Mr. and Mrs. Garby went to bed at approximately 3:30 or 4:00 a.m. on Sunday, November 8. Mr. Garby woke up at about 7:00 a.m. After he and his wife had breakfast, Mrs. Garby decided to be the first to take a shower. When she came out of the shower, she discovered, to her horror, that her husband had leaped to his death from the eighth floor balcony of their apartment.
In his written order of July 21, 2003, the trial judge entered judgment as a matter of law in favor of the defendants. He first concluded that, "according to the evidence in the case, defendant doctors adhered to the standard of care required of them, and provided adequate aid and treatment under the circumstances." Although, in the judge's view, this conclusion mooted the issue of proximate causation, he went on to conclude alternatively that Mrs. Garby's position that the defendants had proximately caused Mr. Garby's suicide "amounted to mere speculation" and rested on insufficient evidence to meet her burden of proof by a preponderance of the evidence on that issue.
We agree with the trial court that Mrs. Garby failed as a matter of law to prove that any negligence attributable to the defendants proximately caused the death of her husband. That being so, we need not resolve the parties' dispute over whether Mrs. Garby's medical expert, Dr. Cavanaugh, correctly defined a national standard of care allegedly breached by the defendants. We assume arguendo that in one or more respects Dr. Cavanaugh was correct (or that a jury could properly so find) in opining that the emergency room physicians failed to exercise reasonable care in the manner by which they treated or discharged Mr. Garby. Even so, Mrs. Garby was required to "introduce evidence . . . afford[ing] a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant[s] was a substantial factor in bringing about the [death of her husband; a] mere possibility of such causation is not enough; and [if] the matter remain[ed] one of pure speculation or conjecture, or the probabilities [were] at best evenly balanced, it [became] the duty of the court to direct a verdict for the defendant[s]." Gordon v. Neviaser, 478 A.2d 292, 296 n.2 (D.C. 1984). See also Talley v. Varma, 689 A.2d 547, 552 (D.C. 1997) ("To establish causation, the plaintiff must present evidence from which a reasonable juror could find that there was a direct and substantial causal relationship between the defendant's breach of the standard of care and the plaintiff's injuries, and that the injuries were foreseeable."); Twyman v. Johnson, 655 A.2d 850, 854 (D.C. 1995) (directed verdict required where a conclusion that negligence had substantially contributed to the injury "would have rested upon surmise").
Of considerable importance to our conclusion that Mrs. Garby's proof of causation failed is that she has not challenged, either here or in the trial court, the determination by the Hospital and Dr. Akman that they had no basis for detaining Mr. Garby involuntarily for observation under the District of Columbia Hospitalization of the Mentally Ill Act, D.C. Code §§ 21-521 et seq. (2001) (the Ervin Act). Section 21-521 states that "a physician or qualified psychologist of the person in question, who has reason to believe that a person is mentally ill and, because of the illness, is likely to injure himself or others if he is not immediately detained may, without a warrant, take the person into custody, transport him to a public or private hospital, . . . and make application for his admission thereto for purposes of emergency observation and diagnosis" (emphasis added). Section 21-522 (a)(2) in turn permits the administrator of a hospital to admit and detain, for purposes of emergency observation and diagnosis, a person certified by a psychiatrist or qualified psychologist to have "symptoms of a mental illness and [who], because of the mental illness, is likely to injure himself or others unless the person is immediately detained."*fn5 Mrs. Garby presented no expert testimony disputing the reasonableness of the defendants' judgment that Mr. Garby's mental illness, as revealed to them, did not create a likelihood that he would injure himself unless immediately hospitalized under these statutes. In this court, as Mrs. Garby's principal brief was somewhat ambiguous on the point ("Appellant . . . has never contended that involuntary commitment was the only option for properly treating Michael Garby" (emphasis added)), the court pressed her attorney on it at oral argument, and he replied that "[w]e do not contend that [Mr. Garby] met the standard for involuntary commitment."*fn6 This was in keeping with plaintiff's position at trial. Although her complaint alleged that the defendants had been "negligent in failing to involuntarily hospitalize . . . [Mr.] Garby," by the time of her pretrial statement the claim had changed to one that the defendants had negligently "fail[ed] to adequately urge and insist that [Mr.] Garby accept treatment at the hospital for his illness." At trial the judge inquired twice about the matter. The first time Mrs. Garby's counsel hedged,*fn7 but when the judge pursued the issue by asking, rhetorically, "I don't expect that you would argue or imply in an argument that the decedent could have been involuntarily committed," counsel responded, "I can't argue facts that aren't in evidence, and I can't ask the jury to speculate." In his testimony regarding involuntary hospitalization, Dr. Cavanaugh, Mrs. Garby's expert, could say only that reasonable care required the emergency room doctors, as one option, to "consider involuntarily committing [Mr. Garby]." Yet it was undisputed that the doctors did consider that option but concluded that they lacked reason to believe he would injure himself unless detained, and Dr. Cavanaugh expressed no opinion that that judgment was negligent or mistaken.
To summarize, then, Mrs. Garby does not claim, and presented no evidence, that the defendants negligently failed to hospitalize Mr. Garby against his will or that any failure on their part to accurately assess and diagnose his condition deprived them of information that would have supported such commitment. Instead, her argument rests on three assertions related to the pivotal issue of causation:
(1) Had the physicians kept Mr. Garby in the emergency room longer for observation, they might have been able to persuade him to agree to voluntary hospitalization overnight or longer.
(2) Had they administered or prescribed anti-depressant or tranquilizing medications rather than send Mr. Garby home with a prescription merely for sleeping pills (Ambien), that might have quelled his suicidal impulses enough to prevent his death six hours later; and
(3) Had Mrs. Garby been informed of her husband's "true condition" rather than have it withheld from her based on the doctors' erroneous reliance on physician-patient confidentiality, she "would have done many things" at home "to further reduce the likelihood of the tragic events whether it was to keep him in her sight at all times, bring others in, such as his sister to help her out, or seek better medical treatment."
We consider these arguments in order.
Mrs. Garby argues that the defendants did not try hard enough to persuade Mr. Garby to check himself into the psychiatric unit on the night in question, relying on Dr. Cavanaugh's testimony that if Mr. Garby "couldn't be involuntarily committed for legal reasons," a reasonable physician "would try quite hard, very hard to get him to come in voluntarily." Only conjecture, however, supports a conclusion that additional efforts to persuade Mr. Garby to agree to voluntary hospitalization would have succeeded. By the time Mr. Garby was sent home, he had been in the emergency unit for nearly four hours, and twice during that time he had been told of and refused the option of voluntary commitment to the Hospital. Holding him there longer against his will, or attempting to persuade him more forcefully to remain there overnight, would have amounted to asserting the very same authority to compel his admission to the Hospital that Mrs. Garby admits the defendants lacked. Nor would enlisting Mrs. Garby's help to convince him to remain there have offered more than speculative assistance. The undisputed testimony was that Mr. Garby viewed her as one of the persons plotting against him. He did not want her present during his communications with the doctors, and when she initially opposed his signing a document agreeing to be released to go home, he insisted that he wanted to be released, and she acceded to his wishes. The inference Mrs. Garby argues that had she been more fully informed of his recent thoughts of suicide she would have persuaded him to stay in the hospital rests on surmise or "at best evenly balanced [probabilities]." Gordon, 478 A.2d at 296 n.2. Indeed, informing Mrs. Garby of her husband's "true condition" (Br. for App. at 34) would have meant telling her that the doctors did not believe he was presently dangerous enough to himself to need hospitalization, and that information doubtless would have influenced how forcefully, if at all, she sought to have him remain there voluntarily.*fn8
Dr. Cavanaugh faulted the doctors for "send[ing Mr. Garby] home with sleeping pills," which made "no clinical sense." Rather, proper care would have been to "[s]end [Mr. Garby] home with antidepressant [or anti-anxiety] medications," which "might make some sense" because "[y]ou always want to treat the anxiety," something "[y]ou don't treat . . . with sleeping pills." Dr. Cavanaugh's testimony, however, failed to support an inference beyond conjecture that treating Mr. Garby with anti-anxiety or anti-depressant drugs would have prevented his suicide within six hours of his release. Other expert testimony, uncontradicted by Dr. Cavanaugh, was that a substantially longer period of time is required for anti-depressant drugs to take effect. While no similar testimony was given about tranquilizers, Dr. Cavanaugh did not explain how they, any more than anti-depressants, could be expected to work quickly and effectively enough to prevent Mr. Garby's suicide within so short a time.*fn9 Further, prescribing either tranquilizers or anti-depressants depended on Mr. Garby's cooperation, and the evidence showed that when he and Mrs. Garby passed an all-night CVS pharmacy as they walked home from the Hospital, they did not stop to fill the Ambien prescription he had been given. In these circumstances, Dr. Cavanaugh's opinion that it "might make some sense" to prescribe anti-depressants or tranquilizers did not permit a conclusion by a preponderance of the evidence that doing so would have prevented Mr. Garby's suicide.
Mrs. Garby's primary argument is that if the physicians had told her of her husband's suicidal ideation, she would have taken measures to insure that he was not in a position to harm himself that night. She relies on Dr. Cavanaugh's testimony that the exercise of proper care by physicians required that Mrs. Garby be made "fully cognizant of the risk that was being assumed, the potential for danger" in taking Mr. Garby home - "that she know exactly what had been going on with this man in the few days or so before he gets into the emergency room" - and that her ignorance in particular of his "suicidal ideation with [a] plan to jump off a bridge" denied her the ability to take precautions against him injuring himself.
This argument highlights the basic tension, not to say contradiction, in Mrs. Garby's position. A common theme of her briefs (opening and reply) is that the defendants erroneously believed that physician-patient confidentiality barred them from informing her of her husband's suicidal impulses. Thus, she states: "There is no doubt in this case that Pirjo Garby was not aware of her husband's suicidal thoughts or his plan to jump off of a bridge." And, citing her own testimony, she adds that "if she had been made aware of her husband's suicidal ideations she would not have taken custody of him" (Br. for App. at 24; Reply Br. for App. at 2; emphasis added). Dr. Cavanaugh too acknowledged that, had Mrs. Garby known the seriousness of her husband's condition, she realistically would not have believed herself able to protect him by any precautions at home:
Q: Now assuming[, Doctor, that] Mr. Garby had gone home and Mrs. Garby had been told that you believed that he was imminently in danger of committing suicide[,] . . . what would you have expected her to do?
A: I honestly would have expected her not to take him home.
Yet, as we have seen, Mrs. Garby presented no evidence and does not argue that the doctors were negligent in concluding that Mr. Garby was not "imminently in danger of committing suicide" such that he could be hospitalized for observation against his will. She similarly does not argue that if they had informed her of the gravity of his condition and learned that she was unwilling to take him home, that fact would have given them adequate reason, otherwise lacking, to involuntarily commit him.*fn10
What Mrs. Garby's position comes down to, rather, is that while her husband was not dangerous enough to be hospitalized against his will, he was "very, very close" to that (to quote her attorney's language at argument in this court), and thus it was foreseeable to the defendants that if she was not informed of his suicidal ideation and able to take measures to guard against it at home, he would attempt to end his life. The problems with this argument begin, however, with the fact that Dr. Cavanaugh himself was skeptical about the efficacy of any measures Mrs. Garby could reasonably have taken to prevent the suicide, as this exchange reveals:
A: . . . I would have expected her to be as vigilant as she possibly could have with some particular attention to [-] . . . which would be very difficult I admit [-] how to block access to the porch in their condominium. . . .
Q: You would not have expected Mrs. Garby to stay up all Saturday evening and Sunday morning to ...