Stanphill v. Ortberg
Stanphill v. Ortberg
Opinion
¶ 1 The defendant, Lori Ortberg, performed a suicide screening of Keith Stanphill and determined that Stanphill was not at imminent risk of harming himself. Nine days after that screening, Keith killed himself. The plaintiff, Zachary Stanphill, Keith's son and the administrator of his estate, filed a wrongful death and survival action against Ortberg and her employer, Rockford Memorial Hospital. Following a jury trial, the jury returned a general verdict in the plaintiff's favor and awarded almost $1.5 million in damages. The jury, however, also answered in the negative a special interrogatory that asked whether Ortberg could reasonably foresee that Keith would commit suicide nine days after his meeting with her. The trial court entered judgment in favor of the defendants, based on the special interrogatory answer. The plaintiff appeals, arguing that the jury's answer to the special interrogatory was not irreconcilable with the general verdict or, alternatively, that the special interrogatory should never have been given. We reverse and remand with directions.
¶ 2 BACKGROUND
¶ 3 Between May 24 and June 2, 2016, the trial court conducted a jury trial on the plaintiff's complaint. The relevant portions of that trial are summarized below.
¶ 4 In the last month of his life, Keith's physical and psychological condition deteriorated substantially, based on his concerns that his wife, Susan, was having an extramarital affair. At the time of his suicide, he and Susan were no longer sleeping in the same house. From late August until September 30, 2005, he had lost nearly 15 pounds, he walked around in a lethargic state, he was pale, and his eyes were sunken. He was slipping in his performance at work as a car salesperson, and he had effectively withdrawn his participation in the church of which he had been a lifelong member. Susan believed he needed help and arranged for him to see a counselor through the Employee Assistance Program (EAP) at Rockford Memorial Hospital, which was a benefit provided under her health insurance plan through the Rockford School District.
¶ 5 On September 30, 2005, Keith met with Ortberg, a licensed clinical social worker who was employed by Rockford Memorial Hospital. Ortberg's responsibilities included assessing whether her patients posed threats of imminent suicide or potentially lethal violence. Ortberg had Keith complete a questionnaire as to his psychological condition. On that questionnaire, Keith indicated that he had (1) feelings of harming himself or others most of the time; (2) feelings of sadness most of *932 the time; (3) sleep changes most of the time; (4) appetite changes all of the time; (5) feelings of anxiety, nervousness, worry, and fear all of the time; (6) sudden unexpected panic attacks most of the time; and (7) feelings of being on the verge of losing control most of the time. Keith also indicated on the questionnaire that he was seeing a primary care physician for "mood."
¶ 6 At trial, Ortberg testified that she had no specific recollections of Keith other than what was reflected in her chart of his meeting with her. Her chart indicated that Keith denied having ideas of suicide or a plan of how he would commit such an act. Her chart also indicated that he had lost weight and was taking an anti-depressant. She was not able to reconcile the conflict between Keith's answers to the questionnaire, indicating that he had thoughts of harming himself, and her conclusion in her chart that he did not have ideas of suicide. Her chart did not indicate (1) how much weight Keith had lost over what period of time, (2) what his eating or sleeping disturbances entailed, (3) any trouble he was having at work, or (4) how he physically presented himself. Ortberg acknowledged that issues involving sleep, appetite, work life, changes in mood, and changes in concentration or focus were all signs of depression that could lead someone to being suicidal.
¶ 7 Ortberg diagnosed Keith with adjustment disorder with depressed mood and referred him to a marriage counselor. Ortberg acknowledged that Keith's answers to the self-assessment questionnaire were indicators of depression. She further acknowledged that major depression is much more severe than adjustment disorder with depressed mood and that there is a correlation between major depression and suicide.
¶ 8 Ortberg testified that, when she determines that a patient is suicidal, the standard of care requires certain actions on her part. Specifically, she would (1) not let the patient leave her office, (2) call a family member and have them pick up the patient and take them to an emergency room and explain the situation, and (3) if a family member could not be contacted, call 911 or the police and take whatever steps are necessary to get the patient to the emergency room to be evaluated. Ortberg acknowledged that she took none of those steps in Keith's case.
¶ 9 On October 4, 2005, Susan called the EAP office to confirm that Keith had scheduled an October 11 appointment with the marriage counselor whom Ortberg had recommended. However, on October 9, 2005, Keith was found dead on the floor of his garage with his car ignition on and the gas tank empty. He left a suicide note, attaching copies of romantic e-mails between Susan and her coworker. An autopsy determined that Keith had died from asphyxia resulting from acute carbon monoxide poisoning.
¶ 10 Keith's estate filed a wrongful death action against Ortberg and Rockford Memorial in 2007 and then refiled it on February 7, 2014. At trial, both parties called experts in the area of social work and psychiatry to review the counseling that Ortberg had provided Keith.
¶ 11 Daniel Potter, a licensed clinical social worker for 22 years, testified as an expert for the plaintiff. He testified that Ortberg breached the standard of care by failing to recognize that Keith was suicidal. Ortberg failed to do a proper mental health evaluation, lethality assessment, and mental status exam. Potter testified that, had Ortberg performed a proper mental health assessment, she would have recognized that Keith was suicidal-thus triggering a duty to take immediate action.
*933 Potter further testified that Ortberg had breached the standard of care by misdiagnosing Keith as having adjustment disorder, when in fact he had major depression. Potter explained that there is a high correlation between major depression and suicide. Potter believed that Ortberg's misdiagnosis of adjustment disorder was the reason she failed to recognize that Keith was suicidal.
¶ 12 Terri Lee, a licensed clinical social worker, testified as a defense expert. She stated that Ortberg conducted a thorough assessment and complied with the standard of care for a reasonably careful licensed clinical social worker in her one-hour counseling session with Keith. Lee believed that Keith was not suicidal on the day he met with Ortberg. This was evident because he scheduled a follow-up date with the counselor whom Ortberg had recommended. Lee testified that someone who is planning to kill himself does not make an appointment for a future date.
¶ 13 Dr. David Bawden, the plaintiff's expert psychiatrist, testified that he had been practicing for 37 years and evaluated 10 to 20 people per day for suicidal risk. He worked in psychiatric hospitals and had been called into emergency rooms to evaluate patients for suicidal risk and involuntary admission. He had extensive training in what happens when there is a referral to an emergency room, a psychiatrist, or a psychiatric facility and the evaluation that must be conducted for involuntary admission.
¶ 14 Dr. Bawden testified that he agreed with Potter's opinions concerning Ortberg's failure to recognize Keith as suicidal, her misdiagnosis of his level of depression, and her failure to properly assess his mental health. Dr. Bawden testified that each of those failures, individually, was a proximate cause of Keith's death. He believed that Keith had a high risk of suicide on September 30, 2005, and that, had he been referred to an emergency room or a psychiatrist or a psychiatric facility, his suicide could have been prevented. He explained that the vast majority of persons who are suicidal and treated, whether on voluntary or involuntary admission, ultimately are released safely. He testified that Ortberg's failure to properly refer Keith to an emergency room or a psychiatrist was a cause of Keith's death.
¶ 15 Dr. Steven Hanus, the defendants' expert psychiatrist, testified that it was not reasonably foreseeable to Ortberg on September 30, 2005, that Keith would kill himself on or before October 9, 2005. He believed that Keith was not at imminent risk of harming himself, because (1) Ortberg specifically documented that Keith had no ideas of suicide; (2) he had not made a suicide attempt before; (3) there was no family history of suicide; (4) the EAP documentation demonstrated that Keith was working; (5) he was religious and receiving pastoral care; (6) he was living with his in-laws, with whom he had a close relationship; (7) he was seeing his children every day; (8) he was keeping up with his hygiene; (9) at the end of the EAP session, he had agreed to outpatient therapy; and (10) he had actually scheduled a follow-up appointment. Dr. Hanus believed that someone who was suicidal would not schedule a follow-up counseling appointment for some future date. Dr. Hanus opined that, even if Ortberg had referred Keith to a psychiatrist or an emergency room on September 30, 2005, Keith's suicide would not have been foreseeable to a psychiatrist or to hospital personnel on that date, for the same reasons that Keith's suicide was not foreseeable to Ortberg.
¶ 16 At a jury instruction conference, the defendants asked the court to submit a special interrogatory to the jury regarding *934 the foreseeability of Keith's suicide. The interrogatory read as follows:
"Was it reasonably foreseeable to Lori Ortberg on September 30, 2005 that Keith Stanphill would commit suicide on or before October 9, 2005?"
The defendants drew the wording of the interrogatory from
Garcia v. Seneca Nursing Home
,
¶ 17 In closing arguments, the plaintiff encouraged the jury to vote "yes" on the special interrogatory. The defendants encouraged the jury to answer the question "no."
¶ 18 The jury returned a general verdict finding the defendants liable for negligence and awarding the plaintiff $1,495,151. However, the jury also answered the special interrogatory in the negative, finding that it was not reasonably foreseeable to Ortberg that Keith would commit suicide within nine days of his meeting with her. Based upon the jury's answer to the special interrogatory, the trial court entered judgment in favor of the defendants.
¶ 19 The plaintiff filed a motion to reconsider the judgment on the special interrogatory and to enter judgment on the general verdict. Following a hearing, the trial court denied the plaintiff's motion. The trial court explained that it was bound by the decision in Garcia , which had entered judgment in favor of the defendant based on a similar special interrogatory. The trial court, however, questioned the correctness of the decision in Garcia , stating:
"I think Garcia was wrongly decided. I think Garcia is an anomaly. I don't think Garcia sets forth what the law of the State of Illinois is or should be with respect to whether or not suicide is reasonably foreseeable. How in the world can a jury figure out how to answer that question? [I]t says was it reasonably foreseeable to Lori Ortberg, the defendant.
How can that not be ambiguous? I can't imagine how that can't be ambiguous. Because Lori Ortberg was charged with several elements of negligence, one of which was that she didn't foresee the suicide. It was one of the things that the jury had to consider in terms of whether she was negligent. It was the number one thing. The whole trial was about whether or not she should have foreseen the suicide. It's throughout the record.
And-and so-and the jury found in favor of the plaintiff. They found that she was negligent. And so we have to consider that special interrogatory as saying this: Was it reasonably foreseeable to a negligent Lori Ortberg that this suicide was-that Keith Stanphill would commit suicide on or such a date[?]
* * *
And so how can we issue a special interrogatory about Lori Ortberg before we know what the jury-whether she was negligent or not negligent. How can that not be ambiguous? Because it seems to me it's perfectly understandable that the jury would find that she was negligent, award-award damages to *935 the plaintiff, and then say all right, was it reasonably foreseeable to Lori Ortberg? No, it wasn't foreseeable to her, she was negligent. So no, it wasn't foreseeable to Lori Ortberg because she was negligent. She didn't foresee it was suicide, we already found that, so we're going to check that box no.
That makes perfect sense to me, and that's one of the arguments the plaintiff [ ] [has] raised here, that it's consistent with the verdict. And yet the Garcia Court approved that special interrogatory.
* * *
Garcia is the case that the Second Appellate District needs to take a good, strong, hard look at and decide whether or not it was properly decided or wrongly decided.
I think it was wrongly decided. I think if we're going to give any kind of a special interrogatory in a suicide case where the defendant is allegedly negligent for not foreseeing the suicide, that the special interrogatory needs to not have the defendant's name in it. It needs to say was it foreseeable or was it reasonably foreseeable to a reasonably careful social worker that so and so would commit suicide on such and such a date.
That's what it should say if we're going to give special interrogatories at all in a case like this. It shouldn't have the defendant's name because it throws terrible ambiguity into the special interrogatory.
And if there's one thing Illinois case law is clear about, it's that you shouldn't give an ambiguous special interrogatory. It should be clear. This is anything but clear. It's-it's muddy.
* * *
I think the Second District should take a hard look at Garcia , and if they find that plaintiff[']s arguments are appropriate, which, quite frankly, I think they are, then it should not follow Garcia and it should reverse this case and enter judgment in favor of the plaintiff[ ]."
¶ 20 Following the trial court's ruling, the plaintiff filed a timely notice of appeal.
¶ 21 ANALYSIS
¶ 22 On appeal, the plaintiff contends that the trial court erred in either (1) entering judgment in the defendants' favor, because the jury's answer to the special interrogatory was not irreconcilable with the general verdict, or (2) giving the special interrogatory, because it was not in the proper form.
¶ 23 At the outset, we note that the defendants argue that the plaintiff forfeited his objection to the special interrogatory, because he failed to object to the specific form of the special interrogatory. Generally, a party's failure to raise a specific objection to the form of an interrogatory forfeits that ground for appeal.
Morton v. City of Chicago
,
¶ 24 Special interrogatories are governed by section 2-1108 of the Code of Civil Procedure ( 735 ILCS 5/2-1108 (West 2016) ), which reads in full as follows:
"Verdict-Special interrogatories. Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of *936 fact submitted to the jury in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly."
We review
de novo
as a question of law a trial court's decision on whether to give a special interrogatory that has been requested by a party. See
¶ 25 Special interrogatories are designed to be the "guardian of the integrity of a general verdict in a civil jury trial," and they "test[ ] the general verdict against the jury's determination as to one or more specific issues of ultimate fact." (Internal quotation marks omitted.)
Simmons v. Garces
,
"If a special interrogatory does not cover all the issues submitted to the jury and a 'reasonable hypothesis' exists that allows the special finding to be construed consistently with the general verdict, they are not 'absolutely irreconcilable' and the special finding will not control. [Citation.] In determining whether answers to special interrogatories are inconsistent with a general verdict, all reasonable presumptions are exercised in favor of the general verdict. [Citation.]"Id.
¶ 26 The trial court's duty to instruct the jury to answer a special interrogatory arises only when the interrogatory is in the proper form.
Garcia
,
¶ 27 We observe that our court addressed a similar alleged inconsistency between a general verdict and a special interrogatory in
Lancaster v. Jeffrey Galion, Inc.
,
" 'Does the jury find from a preponderance of the evidence that the misuse of the roller by Ronald Herbig, an employee of Rockford Blacktop, was the proximate cause of the injuries sustained by the plaintiff in the occurrence in question?' " Id. at 821,33 Ill.Dec. 259 ,396 N.E.2d 648 .
The jury returned a general verdict in the plaintiff's favor, but answered affirmatively
*937
to the special interrogatory. The trial court determined that the jury's findings were inconsistent and therefore entered judgment for the defendant.
¶ 28 On appeal, this court reversed, holding that the general verdict and the special interrogatory were not necessarily inconsistent. We explained that the jury's general verdict implicitly found that the roller was in an unreasonably dangerous condition when it left the manufacturer's control and that the roller was being used and operated in a manner either intended or reasonably foreseeable.
Id.
at 823-24,
¶ 29 Here, as in
Lancaster
, we hold that the general verdict and the answer to the special interrogatory are not necessarily inconsistent. The plaintiff's theory at trial was that Ortberg was negligent in the performance of her duties when she counseled Keith on September 30, 2005. A juror could conclude that, because she was negligent, it was not reasonably foreseeable to her that Keith would commit suicide approximately nine days after he met with her. As the general verdict and the answer to the special interrogatory were not clearly and absolutely irreconcilable, the trial court should have entered judgment in favor of the plaintiff. See
Simmons
,
¶ 30 Even if we were to construe the general verdict and the answer to the special interrogatory as inconsistent, we would still hold that the answer should not prevail over the general verdict, because the special interrogatory was not in the proper form. In addressing the foreseeability of Keith's suicide, the special interrogatory was really asking whether Ortberg's conduct was a proximate cause of Keith's suicide. Proximate cause is one of three elements a plaintiff must prove to succeed in a negligence action: (1) the defendant owed a duty of care, (2) the defendant breached that duty, and (3) the plaintiff's resulting injury was proximately caused by the breach.
Espinoza v. Elgin, Joliet & Eastern Ry. Co.
,
¶ 31 A claim of medical malpractice is proven when the plaintiff shows that there was a standard of care by which to measure the defendant's conduct, the defendant negligently breached that standard of care, and the defendant's breach was the proximate cause of the plaintiff's injury.
Northern Trust Co. v. University of Chicago Hospitals & Clinics
,
¶ 32 There are two requirements for a showing of proximate cause: cause in fact and legal cause.
Lee v. Chicago Transit Authority
,
¶ 33 However, the special interrogatory presented to the jury was not in the proper form, because it did not ask whether Keith's suicide was foreseeable as the type of harm that a
reasonable person
(or a
reasonable
licensed clinical social worker) would expect to see as a likely result of her conduct. See
Lee
,
¶ 34 In so ruling, we reject the defendants' contention that
Garcia
requires us to reach a different result here. In
Garcia
, the decedent was a resident of the defendant nursing home when he ejected himself from a fifth-floor window, causing his own death.
Garcia
,
" 'Prior to Roberto Garcia's death, was it reasonably foreseeable to [the defendant] that he would commit suicide or act in a self-destructive manner on or before April 21, 2004.' " Id. ¶ 10.
The jury entered a general verdict for the estate but answered the special interrogatory in the negative. The trial court therefore entered judgment in favor of the defendant. Id. ¶ 13.
¶ 35 On appeal, the plaintiff argued that the interrogatory was not in proper form, because the jury was required to make the following four factual findings: "(1) [whether] Roberto committed suicide, and (2) if so, was it foreseeable, or (3) whether Roberto committed a self-destructive act, and (4) if so, was it foreseeable?" Id. ¶ 51. The reviewing court disagreed and affirmed the trial court's decision, finding that the question was properly phrased as a single question regarding the foreseeability of two alternatives in the disjunctive and that an affirmative answer to either alternative required an affirmative answer to the entire interrogatory. Id.
*939 Thus, the court concluded that the interrogatory's construction was not impermissibly compound. Id.
¶ 36 We note that the plaintiff in
Garcia
did not raise, and the reviewing court did not consider, whether the interrogatory was improper because it tested foreseeability through the eyes of the individual defendant rather than a reasonable person. As the
Garcia
court did not consider that issue, its decision cannot establish that the proper basis to test foreseeability is through the eyes of the individual defendant. See
Brecht v. Abrahamson
,
¶ 37 Although
Garcia
did not squarely address the issue, the defendants insist that numerous other cases have held that a defendant will not be found negligent if the harm that befell the plaintiff was not foreseeable to the individual defendant. We disagree with the defendants' characterization of the law. Our supreme court has repeatedly held that the appropriate test for foreseeability is whether a reasonable person would anticipate the harm that occurs to the plaintiff. See
City of Chicago v. Beretta U.S.A. Corp.
,
¶ 38 By contrast, in the litany of cases they cite, the defendants rely upon only one Illinois Supreme Court case-
American National Bank & Trust Co. of Chicago v. National Advertising Co.
,
¶ 39 Moreover, we also reject the defendants' argument that, in light of the proper jury instructions and the plaintiff's counsel's closing statement asking the jury to vote "yes" on the special interrogatory, this court should find that the general verdict and the answer to the special interrogatory were inconsistent and therefore affirm the trial court's judgment. The test for construing the meaning of a jury instruction
*940
"is not what meaning the ingenuity of counsel can at leisure attribute to the instructions, but how and in what sense, under the evidence before them and the circumstances of the trial, ordinary men acting as jurors will understand the instructions."
Reivitz v. Chicago Rapid Transit Co.
,
¶ 40 We next turn to the defendants' argument that we should affirm on the alternate basis that the plaintiff failed to establish proximate cause. In making this argument, the defendants essentially ask us to enter judgment in their favor notwithstanding the jury's general verdict in favor of the plaintiff. Judgment notwithstanding the verdict should not be entered unless the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.
Holton v. Memorial Hospital
,
¶ 41 Proximate cause means any cause that, in natural or probable sequence, produced the injury complained of.
Capiccioni v. Brennan Naperville, Inc.
,
¶ 42 Here, Potter testified that Ortberg had misdiagnosed Keith as not being suicidal when she had evaluated him. Ortberg acknowledged that, had she diagnosed Keith as suicidal, it would have been her duty to take steps to get him further care from a mental health specialist. Because Ortberg did not refer Keith to a mental health specialist, the jury could reasonably infer that Ortberg had breached her duty of reasonable care.
¶ 43 Dr. Bawden testified that one who has suicidal thoughts has a very treatable condition and that, if Ortberg had properly referred Keith, Keith would not have killed himself. Dr. Bawden's testimony was sufficient for the jury to conclude that Ortberg's misdiagnosis and misevaluation of Keith was a proximate cause of his death.
Cf.
Holton
,
¶ 44 The defendants point to several cases in which courts have found that a lack of expert testimony prevented the plaintiffs from establishing that the defendants' conduct was a proximate cause of the plaintiffs' injuries. See,
e.g.
,
Snelson v. Kamm
,
¶ 45 The plaintiff points out that the defendants made no objection at trial to the foundation of Dr. Bawden's opinion, and therefore he contends that the defendants' objections to his testimony now on appeal are forfeited. We agree. See
Mabry v. Boler
,
¶ 46 CONCLUSION
¶ 47 For the foregoing reasons, the judgment of the circuit court of Winnebago County is reversed, and the cause is remanded with directions to enter judgment for the plaintiff on the general verdict.
¶ 48 Reversed and remanded with directions.
Justices McLaren and Burke concurred in the judgment and opinion.
Reference
- Full Case Name
- Zachary STANPHILL, Administrator of the Estate of Keith Stanphill, Deceased, Plaintiff-Appellant, v. Lori ORTBERG, Individually and as an Agent of Rockford Memorial Hospital, D/B/A Rockford Memorial Health Systems; And Rockford Memorial Hospital, D/B/A Rockford Memorial Health Systems, Defendants-Appellees.
- Cited By
- 9 cases
- Status
- Unpublished