Kelly on Malpractice

Is a medical malpractice case based on the failure to prevent suicide subject to the intervening/superceding cause defense? Whether suicide or any other event constitutes an intervening/superseding cause should be for the jury to determine, unless the uncontroverted facts and inferences to be drawn from the facts make it so clear that all reasonable persons must agree on the proper outcome. McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 905 (Tenn.1996). This question is now directly before the Middle Section Court of Appeals in Drake v. Williams, M2007-00979-COA-R3-CV. It is whether the decedent’s intentional act of suicide was unforeseeable as a matter of law such that it broke the chain of causation. The proposed answer is that the decedent’s intentional act of suicide is not unforeseeable as a matter of law such that it breaks the chain of causation when the plaintiffs’ expert psychiatrist testifies that the decedent’s suicide was medically foreseeable.

The proposed answer is in accordance with White v. Lawrence, 975 S.W.2d 525 (Tenn.1998). Before White v. Lawrence, Tennessee courts held that suicide was an intervening cause if it was a willful, calculated, and deliberate act of one who had the power of choice. Suicide had to be the product of mind “bereft of reason” in order for the plaintiff to sustain a wrongful death action. In White v. Lawrence, 975 S.W.2d 525 (Tenn.1998), the Supreme Court changed the law by holding:

As our cases dealing with proximate or legal causation have indicated, the crucial inquiry is whether the defendant’s negligent conduct led to or made it reasonably foreseeable that the deceased would commit suicide. If so, the suicide is not an independent intervening cause breaking the chain of legal causation. Those decisions holding to the contrary are overruled. Id. at 530.

“Foreseeability or likelihood of a suicide does not necessarily depend upon the mental capacity of the deceased at the time the suicide was committed.” Id. This means that the decedent’s state of mind (intentional or otherwise) is not a dispositive issue anymore. Even the Use Note to the Tennessee Pattern Jury Instructions informs the trial court that suicide is no longer a superseding cause as a matter of law in medical negligence cases arising as a result of the suicide. T.P.I. Civil 3.22. While a negligent defendant may raise a third party’s intentional act to refute elements of a plaintiffs negligence claim, such a defendant cannot rely upon foreseeable harm it had a duty to prevent. White, 975 S.W.2d at 525. Therefore, the decedent’s “intentional” act of suicide is no longer a superseding cause as a matter of law.

Rule 8.03 lists intervening and superseding causes as two separate affirmative defenses. TENN.R.CIV.P. 8.03. Courts and litigators frequently blur the chalk lines between them. Nonetheless, they are different. A superseding cause cuts off the liability of an “admittedly negligent defendant.” Godbee v. Dimick, 213 S.W.3d 865, 886-87 (Tenn.Ct.App.2006). An intervening cause “presupposes a defendant’s negligence and causation.” Id. Without proof of some initial tortious act or omission by a defendant that precipitates the plaintiff’s ultimate injury, subsequent causes and their injuries cannot “intervene.” Id. Without proof of causation, there is nothing for the subsequent cause to “interrupt” or “intervene”… there is no chain of causation to break. Id (quoting Kelly v. Montoya, 470 P.2d 563, 567 (N.M.Ct.App.1970). In absence of (1) an admission of antecedent negligence by the Defendants or (2) a finding of negligence by the trial court, there is no intervening/superseding cause in this case.

Furthermore, the Defendants’ antecedent negligence is an indispensible prerequisite to an intervening/superseding cause defense. There cannot be one without the other. Without antecedent negligence, the Defendant has no viable intervening/superseding cause affirmative defense. Godbee, 213 S.W.3d at 886-87. An intervening act, which is a normal response created by the defendant’s negligence, does not relieve the defendant of liability if the intervening act “could have reasonably been foreseen.” McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991). An intervening act does not exculpate the Defendants when the intervening act “could not have been reasonably anticipated.” Id. at 775. In summary, the foreseeability of a patient’s suicide deprives the physician or hospital of the intervening/superseding defense.