Don Drake v. Jana M. Williams, M.D.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 5, 2008 Session

DON DRAKE ET AL. v. JANA M. WILLIAMS, M.D., ET AL.

Appeal from the Circuit Court for Davidson County

No. 05C-2513 Hamilton V. Gayden, Jr., Judge

No. M2007-00979-COA-R3-CV - Filed April 25, 2008

The parents of a young man who committed suicide after being discharged from a psychiatric

hospital sued the hospital and the treating psychiatrist for wrongful death. The trial court granted

the defendants’ motions for summary judgment on the basis that the decedent’s act of suicide was

an intervening, superseding cause. We reverse and remand for further proceedings.

Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded

ANDY D. BENNETT, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J., M.

S., and FRANK G. CLEMENT, JR., J., joined.

Andy Allman, Clinton L. Kelly, and F. Dulin Kelly, Hendersonville, Tennessee, for the appellants,

Don Drake and Sandra Drake.

Garrett E. Asher and Emily H. Wilburn, Nashville, Tennessee, for the appellee, Jana M. Williams,

M.D.

Dixie W. Cooper, Carol Elaine Davis, and Clarence James Gideon, Nashville, Tennessee, for the

appellee, Centennial Medical Center/Parthenon Pavilion.

OPINION

This case involves a tragic set of circumstances and raises difficult issues concerning a

treating psychiatrist’s liability for her patient’s suicide after his discharge from inpatient treatment.

Eric Drake turned 24 years of age in January 2005. In November and December 2004, Eric

was seen by a counselor and a psychiatrist near his home in Kentucky after his family noticed

changes in his behavior. Eric did not seem like himself. He appeared withdrawn, was quiet, did not

shave and was unkempt, was not eating or sleeping well, and had lost weight. The psychiatrist

diagnosed a major depressive disorder, single episode, severe without psychotic features. Eric did

not want to consider taking psychotropic medications and did not return to the psychiatrist for

treatment after the initial evaluation. There had been an earlier incident during the past year when

Eric’s brother, Ben, found him walking along the road in a distressed state. That day, Eric reportedly

left work abruptly and just started walking because he heard God’s voice telling him to follow.

On January 7, 2005, Eric’s mother, Sandra Drake, found him sitting on the side of the bathtub

in his parents’ home staring into space. He stayed there for several hours and was uncommunicative.

Ms. Drake called her husband, Don Drake, to come home from work. They took Eric to see Dr.

Reynolds, the family physician who had treated Eric since childhood. Dr. Reynolds expressed

concern about Eric and recommended further evaluation at Parthenon Pavilion. Back at home later

that day, Mr. and Ms. Drake became aware that Eric had a gun in his pocket. Mr. Drake was able

to get the gun away from Eric. It was Mr. Drake’s gun that he kept in his night stand, usually

unloaded; when Mr. Drake retrieved the gun from Eric, it had one bullet in it.

Later that day, Eric was admitted to Parthenon Pavilion under the care of Dr. Jana Williams,

a psychiatrist. The next day, January 8, 2005, Dr. Williams met with Eric to perform a psychiatric

evaluation. Eric told Dr. Williams about the recent incident when he got his father’s gun. Dr.

Williams noted some suicidal ideation with a plan to use his parent’s gun. She diagnosed a major

depressive disorder, single episode, severe. Her assessment of Eric’s level of functioning reflected

severe limitations. Eric was placed on suicide precautions, which meant that the hospital staff would

check on him every 15 minutes. Dr. Williams testified in her deposition that, when she initially

assessed Eric, she felt his suicide risk was low, based largely on the fact that he denied being suicidal

or having plans to commit suicide. She also noted that he had no prior history of being suicidal.

According to her deposition testimony, Dr. Williams saw inpatients each morning and would

look over the progress notes written by the staff before meeting with each patient. Eric was

compliant with the prescribed medication schedule. On January 10, 2005, Eric began exhibiting

psychotic symptoms. Staff members observed him eating a plastic fork at meal time. Dr. Williams

noted “very bizarre behavior” and described Eric as “elusive, withdrawn.” She concluded that Eric

was having a first-break psychosis and diagnosed schizophrenia. Dr. Williams opined that Eric was

“a danger to self at this time,” and she started him on antipsychotic medication. Over the next few

days, Eric admitted having auditory hallucinations and thought broadcasting, believing that his

thoughts were being read or heard by other people. Dr. Williams testified that, “Eric became

somewhat mute, odd behavior, and finally admitted to me that he thought he was hearing voices of

people that he recognized and then he thought the people could read his mind and could read his

thoughts.” On January 12, 2005, she increased the dosage of Risperdal, an anti-psychotic

medication.

Staff notes for January 13, 2005, stated that Eric received a phone call from his father but did

not recognize his father’s voice. That evening, he did not recognize his parents when they visited

him at the hospital. On January 14, 2005, Dr. Williams spent time talking to Mr. Drake on the

telephone explaining that Eric’s behavior was part of his psychosis. Dr. Williams felt that Eric was

more “spontaneous” and fluent in his conversation with her that day. He admitted having trouble

recognizing people on the telephone. Dr. Williams felt he was making slow progress. Staff

observations for later in the day included noninteraction with peers and bizarre affect. Although he

denied suicidal ideations, Eric would not answer when asked whether he was having thoughts of

hurting himself.

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Dr. Williams was aware that Eric was not participating in many of the group therapy

sessions. She stated: “If [patients] are paranoid or if they feel like other people can read their

thoughts, then they tend not to want to be around other people.” She opined that this did not

necessarily indicate a lack of progress. Throughout his hospitalization, Eric expressed a desire to

go home.

After Eric had trouble recognizing his parents, Mr. Drake requested a second opinion

concerning Eric’s condition. In their depositions, Mr. and Ms. Drake both expressed dissatisfaction

that Dr. Williams had failed to follow through on their request to her for an evaluation by another

psychiatrist. Dr. Williams testified that she had been informed of the Drakes’ desire for a second

opinion and that she had made the initial request for the nurses to call another psychiatrist. For some

reason, the first request did not result in an appointment for a second opinion. By the time Dr.

Williams learned that the first request had been unsuccessful, she felt that Eric was improving and

almost ready for discharge. She did not process a second request for a referral because she did not

think there was time to get a second opinion. Dr. Williams also testified that she did not feel there

was a need. She assumed that a social worker had communicated this information to the family.

When she saw Eric on the morning of January 15, 2005, Dr. Williams noted continuing

auditory hallucinations and thought broadcasting, with less thought blocking. He was “fairly verbal

about things he wants to say but can shut down when asked about his symptoms.” Dr. Williams

increased the evening dose of Risperdal. On January 16, 2005, Eric was more talkative and

responded “appropriately and fluently” when Dr. Williams saw him initially in his room. He

admitted to some depression. Dr. Williams further noted “vague suicidal ideations; no intent while

here; states the thought occurs occasionally; still psychotic but progressing slowly; positive auditory

hallucinations.” She felt that he was progressing; he was talking. Staff notes from later in the day

indicate minimal interaction, bizarre affect, and erratic appetite and sleep patterns. Eric had not used

towels since being at Parthenon; he dried off with t-shirts. The staff also noted that Eric denied

auditory hallucinations and suicidal ideations, attended the groups with some participation, and

appeared to enjoy a visit with his parents that evening.

On the morning of January 17, 2005, Dr. Williams noted that Eric “continues to vaguely

acknowledge what he feels are auditory hallucinations but seems unsure; continues to have thought

broadcasting but states, sometimes.” The staff had observed odd behaviors and minimal interactions

with other patients. Eric told Dr. Williams that he was preoccupied “with what to do once he gets

home.” He stated that “if you’d just open the door and let me go, I’d be okay.” Dr. Williams noted

“this is very doubtful, as the patient is still psychotic, although progressive.” She again increased

Risperdal. Dr. Williams felt Eric was slowly progressing because he talked with her more fluently;

he was getting out in the ward more, interacting more, and going to some group meetings.

When Dr. Williams saw Eric on January 18, 2005, he was “working a puzzle with another

patient; clean shaven; more verbal, appropriate responses; still with psychosis, auditory

hallucinations, thought broadcasting, but overall certainly progressing.” She continued his

medications. Staff notes for the rest of the day indicate that Eric was “isolated to room between

groups; guarded; still difficult to get answers from; eye contact still poor; did admit to suicidal

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thoughts.” On January 19, 2005, Dr. Williams stated that Eric was “much improved.” She described

him as “interacting more; still vaguely psychotic and guarded but more spontaneous.”

On January 20, 2005, Dr. Williams met with the Drakes. Her notes from that meeting

indicate that she educated them about psychotic disorders and talked about Eric’s treatment and

prognosis. Dr. Williams’s notes also stated: “Eric progressing; my concern now is more so the

depression, as he continues to have suicidal thoughts that come and go; he’s unsure if auditory

hallucinations and thought broadcasting is still present.” Eric expressed uncertainty about auditory

hallucinations to Dr. Williams that day. When she met with Eric on January 21, 2005, Dr. Williams

noted that he was “still feeling depressed with suicidal thoughts; unable to say the degree of if he’d

act on these; I feel he’s confused over this and lots of things but certainly coming out of a severe

psychosis.” Eric refused to answer when asked by staff members if he was having hallucinations.

On January 22, 2005, Eric was preoccupied with going home and finding a job; he had spent a lot

of time in bed the previous day, which was his birthday. Eric did “admit depression and continues

to be very unclear about the level of suicidal ideation he’s having.”

On January 24, 2005, Dr. Williams noted that Eric was “still depressed with vague thoughts

of suicide that he feels are related to being here so long.” She felt that he was “still very fragile and

could easily suffer a relapse; I’m also still very concerned with the suicidal thoughts as vague as they

may be now; psychosis is stabilizing.” Dr. Williams felt that Eric might be ready for discharge by

Thursday, which was January 27, 2005. She noted, “I don’t feel that Eric should go home to his

apartment but should agree to live with parents for at least a month or until he can have one to two

follow-up visits.”

In her deposition, Dr. Williams testified that, in deciding whether Eric was ready for

discharge, she considered a number of factors, including whether “the medications are at the right

dosage and he’s tolerating the medications without significant side effects, that we are scheduling

a meeting to talk to the family, that he agrees to live with them for a while after he’s discharged, that

we can begin to look at some type of follow-up care for him.” She further stated that, to be ready

for discharge, Eric would have to be “not psychotic, he’s not exhibiting psychotic symptoms, and

that he’s no longer considered a suicide risk.”

On January 25, 2005, Dr. Williams discussed discharge with Eric. When asked about

suicidal thoughts, Eric said, “I haven’t done it yet so I probably wouldn’t.” Staff observations for

this day indicate that Eric attended group meetings. He “presented with flat affect and bland mood;

he had an unkempt appearance and poor eye contact; patient was quiet with no observed peer

interaction.” Later in the day, Eric denied suicidal ideation and stated that he wanted to go home

“because there’s nothing to do.” He denied hallucinations.

Dr. Williams wrote the order to discharge Eric on January 26, 2005. Her discharge diagnosis

was schizophreniform disorder, ruled out paranoid schizophrenia and schizoaffective disorder.

Eric’s medications at discharge were Lexapro and Risperdal. The follow-up care coordinator was

to arrange for outpatient psychiatric treatment and therapy. Dr. Williams testified that the Drakes

requested that he be referred to Dr. Kapley, a psychiatrist in Kentucky.

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In her deposition, Ms. Drake testified that Dr. Williams and the social worker told her and

her husband that they needed to find a psychiatrist in Kentucky since Eric could not come back to

Parthenon Pavilion if he needed to be readmitted because his insurance would not cover such a stay.

Based upon what the social worker told Ms. Drake, Parthenon Pavilion had just learned at the time

of Eric’s discharge that his insurance company would pay for the hospitalization. According to Ms.

Drake, the Parthenon Pavilion staff told her that Eric “was supposed to be in a Kentucky facility”

and that “he’d been admitted there by mistake, on the insurance purposes.” Mr. Drake testified that

Dr. Williams had called him the Monday before Eric’s discharge on Thursday to make sure Mr.

Drake knew that Eric’s insurance was running out. According to Mr. Drake, “she wanted me to be

aware that if it ran out, someone would be responsible for the bill.”

Upon his discharge, Eric stayed at his parents’ home for some period of time. It appears that

Eric spent some nights in his apartment with some supervision by his brother, who lived nearby in

the same apartment complex, and by a friend. On February 1, 2005, Eric saw therapist James Ashby,

who assessed Eric’s suicide risk as being low to none because “we had spent a lot of time talking

about what his plans were for that week and what his plans were for the future . . . . and he was

thinking that he might go back to school and pursue nursing.” Eric told Mr. Ashby that he was

having some trouble with side effects from his medications and was going to speak to his psychiatrist

about them. Mr. and Ms. Drake both testified that Eric was having side effects of sweaty hands,

heart racing, and a facial tic. Eric told Ms. Drake on February 1, 2005, that he had called Dr.

Williams’s office about the side effects but had not heard back from her. Mr. Drake was with Eric

when Eric called Dr. Williams’s office. Dr. Williams testified that Eric called her office and was

told, on January 31, 2005, to go to the emergency room or see his primary care physician if his side

effects got worse.

On February 2, 2005, Eric went to see Dr. Reynolds, his primary care doctor. Dr. Reynolds

observed that Eric was smiling and “looking great.” He gave Eric an antibiotic for an upper

respiratory infection with bronchitis. Dr. Reynolds did not note any abnormal neuropsychological

findings. He felt good about Eric’s progress.

The next day, February 3, 2005, Eric committed suicide.1 He was alone at his parents’ home

and shot himself with the same gun his father had taken from him prior to his hospitalization. Mr.

Drake had taken the bullet out of the gun and hidden the gun in the pocket of a coat in a bathroom

closet.

Mr. and Ms. Drake initiated the instant wrongful death lawsuit on August 23, 2005, against

Dr. Williams and Parthenon Pavilion. The Drakes allege that the defendants breached a duty of care

to Eric Drake “to accurately diagnose and adequately treat him; not to release him until they were

reasonably certain that his suicide risk was minimized and he would not harm himself or others; to

1

Eric’s suicide is a tragedy for his family and those who knew him. According to the Centers for Disease

Control, “[s]uicide is the second leading cause of death among 25-34 year olds and the third leading cause of death

among 15- and 24-year olds.” Suicide: Facts at A Glance, http://www.cdc.gov/ncipc/dvp/suicide/SuicideDataSheet.pdf

(last visited April 2, 2008). For all age groups, in 2004 there were over 32,000 suicides in the United States. Id. This

equals about 89 suicides per day or one every 16 minutes. Id.

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inform/instruct his family re suicide danger signs and safeguards; to promptly initiate the follow-up

care that they had indicated was necessary for Eric Drake and which they stated they would set up

for him; and to respond promptly to calls concerning the post-release problems he was having.”

Depositions were taken of Mr. and Ms. Drake, Dr. Williams, Eric’s brother Ben Drake, Dr.

Reynolds, James Ashby, and Dr. Mullick, the psychiatrist who had seen Eric on one occasion in

December 2004. Parthenon Pavilion and Dr. Williams moved for summary judgment in November

2006 and December 2006 respectively.2 In support of her motion for summary judgment, Dr.

Williams submitted her own affidavit as well as affidavits from three other physicians. The Drakes

opposed the motions for summary judgment and submitted an affidavit from Dr. Joel Reisman.3

In a memorandum opinion filed on April 11, 2007, the trial court granted summary judgment

in favor of Dr. Williams and Parthenon Pavilion. The court determined that “all of the expert

affidavits are sufficient and meet the requirements of Tenn. R. Civ. P. 56.” The court then went on

to conclude that “Eric’s suicide was a superceding, intervening cause of death.”

On appeal, the Drakes argue that the trial court erred in finding that Eric’s suicide was

unforeseeable as a matter of law and therefore broke the chain of causation. Dr. Williams and

Parthenon Pavilion argue that the affidavit of Dr. Reisman submitted by the plaintiffs was

insufficient to create a genuine issue of material fact; they further assert that the trial court correctly

found Eric’s suicide to be a superseding, intervening cause of Eric’s death. Parthenon Pavilion has

also requested an award of attorney fees related to the trial and the appeal.

STANDARD OF REVIEW

The issues were resolved in the trial court upon summary judgment. Summary judgments

do not enjoy a presumption of correctness on appeal. BellSouth Adver. & Publ’g Co. v. Johnson, 100

S.W.3d 202, 205 (Tenn. 2003). This court must make a fresh determination that the requirements

of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997).

When reviewing the evidence, we first determine whether factual disputes exist. If a factual dispute

exists, we then determine whether the fact is material to the claim or defense upon which the

summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd

v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993); Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102,

104 (Tenn. Ct. App. 1998).

The party seeking summary judgment bears the burden of demonstrating that no genuine

disputes of material fact exist and that the party is entitled to judgment as a matter of law. Godfrey

v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). Summary judgment should be granted at the trial court

level when the undisputed facts, and the inferences reasonably drawn from the undisputed facts,

2

The parties later agreed to dismiss the plaintiffs’ claims of direct negligence against Parthenon Pavilion. There

is still an issue as to whether Parthenon Pavilion may be vicariously liable for the acts of Dr. Williams.

3

Dr. Reisman’s deposition was not taken.

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support one conclusion, which is that the party seeking summary judgment is entitled to a judgment

as a matter of law. Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002);

Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001). The court must take

the strongest legitimate view of the evidence in favor of the non-moving party, allow all reasonable

inferences in favor of that party, discard all countervailing evidence, and, if there is a dispute as to

any material fact or if there is any doubt as to the existence of a material fact, summary judgment

cannot be granted. Byrd v. Hall, 847 S.W.2d at 210; EVCO Corp. v. Ross, 528 S.W.2d 20 (Tenn.

1975). To be entitled to summary judgment, the moving party must affirmatively negate an essential

element of the non-moving party's claim or establish an affirmative defense that conclusively defeats

the non-moving party's claim. Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).

ANALYSIS

Affidavits

We will begin with an examination of the sufficiency of the affidavits presented by the

parties.

Our Supreme Court has held: “[I]n those malpractice actions wherein expert testimony is

required to establish negligence and proximate cause, affidavits by medical doctors which clearly

and completely refute plaintiff’s contention afford a proper basis for dismissal of the action on

summary judgment, in the absence of proper responsive proof by affidavit or otherwise.” Bowman

v. Henard, 547 S.W.2d 527, 531 (Tenn. 1977). The first question, then, is whether the defendants’

affidavits “clearly and completely refute” the plaintiffs’ claim of medical malpractice and, therefore,

are sufficient to shift the burden to the plaintiffs to substantiate the essential elements of their claim.

To effectively refute a claim of malpractice, the defendants “must present facts rebutting the

allegations of [the] complaint as to at least one of the three statutory elements for medical

malpractice actions.” Fitts v. Arms, 133 S.W.3d 187, 190 (Tenn. Ct. App. 2003).

Tenn. Code Ann. § 29-26-115(a) sets out the three elements that a plaintiff must prove

through expert testimony:

(1) The recognized standard of acceptable professional practice in the profession and

the speciality thereof, if any, that the defendant practices in the community in which

the defendant practices or in a similar community at the time the alleged injury or

wrongful action occurred;

(2) That the defendant acted with less than or failed to act with ordinary and

reasonable care in accordance with such standard; and

(3) As a proximate result of the defendant’s negligent act or omission, the plaintiff

suffered injuries which would not otherwise have occurred.

To refute one of the statutory elements, a defendant “must simply file an expert affidavit

stating that all of his care and treatment of the plaintiff met the recognized standard of acceptable

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professional practice or that his treatment was not the cause of any injury to the plaintiff that plaintiff

would not otherwise have suffered.” Fitts, 133 S.W.3d at 191. In fact, a defendant may shift the

burden by submitting his or her “own self-serving affidavit stating that their conduct neither violated

the applicable standard of care nor caused injury to their patient that would not otherwise have

occurred.” Kenyon, 122 S.W.3d at 758.

Tenn. R. Civ. P. 56.06 provides that “[e]xpert opinion affidavits shall be governed by

Tennessee Rule of Evidence 703.” Tenn. R. Evid. 703 states that “[t]he court shall disallow

testimony in the form of an opinion or inference if the underlying facts or data indicate lack of

trustworthiness.” An expert’s opinion must be based upon the actual facts of a particular case; an

expert’s opinion should be disallowed if based upon inaccurate facts. Cole v. State, No. 02A01-

9801-BC-00004, 1998 WL 397374, *7 (Tenn. Ct. App. July 16, 1998).

In support of her motion for summary judgment, Dr. Williams submitted her own affidavit

as well as affidavits from three other psychiatrists. After summarizing her treatment of Eric, Dr.

Williams stated in her affidavit:

When I discharged Eric Drake, it was done in coordination with his parents.

Eric actually was discharged to the care of his parents, who agreed to watch him.

Eric’s parents told me that Eric could live with them.

I am familiar with the recognized standard of acceptable professional practice

of a psychiatrist in the Nashville, Tennessee community and similar communities as

such standard presently exists and as it existed in January of 2005, when I discharged

Eric Drake from Parthenon Pavilion.

It is my opinion, to a reasonable degree of medical certainty, that I was

correct to discharge Eric Drake from Parthenon Pavilion. To a reasonable degree of

medical certainty, Eric Drake was not suicidal at the time of his discharge, and I did

not release him prematurely.

In everything I did concerning the care of Eric Drake, I complied with the

recognized standard of acceptable professional practice of a psychiatrist in the

Nashville, Tennessee community and similar communities that would apply during

the time I was involved in the care of Eric Drake. No act or omission on my part

caused any injury to the persons identified in the Complaint in this matter.

The other three physicians who completed affidavits in support of Dr. Williams are Dr. Greg

Kyser, a psychiatrist with hospital privileges at Parthenon Pavilion; Dr. George Corvin, a North

Carolina psychiatrist; and Dr. Kirby Pate, a Tennessee psychiatrist. In his affidavit, each psychiatrist

set forth his qualifications and his familiarity with the “recognized standard of acceptable

professional practice of a psychiatrist in the Nashville, Tennessee community and similar

communities.” All subsequent paragraphs of the three affidavits are identical. The physicians state

that they have reviewed the Parthenon Pavilion records concerning Eric Drake; the medical records

of Dr. Mullick, Dr. Reynolds, and James Ashby; the depositions of Mr. and Ms. Drake and Dr.

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Williams; and Eric’s suicide note. After summarizing the history of Eric’s condition and Dr.

Williams’s treatment, the doctors state:

Dr. Williams’ assessment and treatment of Lee Eric Drake was correct. Her

decision to discharge Lee Eric Drake was correct.

All of my statements and opinions herein are stated to a reasonable degree of

medical certainty.

. . . In everything that Dr. Williams did in connection with Lee Eric Drake,

she complied with the recognized standard of acceptable professional practice

applicable to her. In addition, no deviation from the recognized standard of

acceptable professional practice caused any injury to Mr. Lee Eric Drake.

In addition, to a reasonable degree of medical certainty, Eric Drake was

competent and was able to make independent choices when he decided to kill

himself. Eric Drake was in full command of all faculties when he did this. The

suicide note Eric left evidences that Eric was not suffering from a psychosis that

compelled him to kill himself. The note demonstrates that Eric had fully thought

through his actions. Eric Drake knew and understood the nature of his act of suicide

and exercised his power of choice when he chose to kill himself. Eric Drake made

a conscious decision to take his own life.

On their face, the defendants’ affidavits refute all three of the elements described in Tenn.

Code Ann. § 29-26-115(a). The affiants opine that Dr. Williams acted in accordance with the

applicable standard of practice and that no action or omission on her part contributed to Eric Drake’s

death. In light of the available proof as to the underlying facts in this case, however, there is reason

to take a closer look at the factual basis for these opinions. As quoted above, Dr. Williams’s

affidavit includes the following statement: “When I discharged Eric Drake, it was done in

coordination with his parents. Eric actually was discharged to the care of his parents, who agreed

to watch him. Eric’s parents told me that Eric could live with them.” In the factual summary set

forth in the affidavits of the other three psychiatrists states: “Eric Drake was discharged to his

parent’s [sic] home on January 26, 2005 with instructions for follow-up care . . . .” All three

physicians state that they reviewed the depositions of Mr. and Ms. Drake as well as the deposition

of Dr. Williams. However, these depositions reveal factual disputes regarding the instructions given

to the Drakes prior to Eric’s discharge.

Dr. Williams testified in her deposition that she met with the Drakes on January 26, 2005,

“to educate them about Eric’s disorder, to make sure they understood what Eric was going to be like

when he came home, to make sure that they knew of the follow-up, to make sure that they knew that

I had told Eric he would have to live with them for a while, just to make sure they understood the

importance of follow-up and the importance of making sure that he was with them at all times.” Dr.

Williams testified that she reiterated to the Drakes that “it was important that Eric be with them in

their care basically twenty-four/seven until he established a relationship with his referring

psychiatrist.” She further testified that, although the discharge instructions did not mention a

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suicide risk, she had informed the Drakes of Eric’s diagnosis of schizophreniform disorder and that

this diagnosis meant that “Eric was at risk of attempting suicide.” Dr. Williams stated that she told

the Drakes “the importance of keeping Eric in sight at all times due to suicide being a common cause

of death in patients with Eric’s disease process.” According to her testimony, she further told them

“that Eric should not go to his apartment without them.” Dr. Williams also stated that she instructed

the Drakes about signs of decompensation and medication side effects. She testified that she advised

the Drakes that they “should remove all firearms from the house.” Dr. Williams claimed that the fact

that Eric’s insurance coverage was about to expire did not play a role in her discharge decision.

The Drakes’ deposition testimony concerning the meeting with Dr. Williams on January 26,

2005, differs from Dr. Williams’s account. Both Ms. Drake and Mr. Drake denied that Dr. Williams

or any other hospital staff member told them that Eric was at risk for suicide or instructed them to

remove all guns from the house. They both testified that Dr. Williams told them to treat Eric as if

he were recovering from major surgery. Ms. Drake testified that she and her husband were told “to

watch [Eric] for the first three days at home” and that “it would be good if he lived with us for about

a month.” She further testified that, “[t]hey said it’d be good for the first two or three days to watch

him very closely, but after that, he needed–it would be fine if he tried to resume his normal life to

try to get back and–just get back into functioning, I guess.” Ms. Drake testified that Dr. Williams

never used the word “suicide.” She stated that, “had we known he was suicidal or had suicidal

tendencies when he walked out of that hospital, we certainly would have never ever left him out of

our sight as parents.” Mr. Drake testified that Dr. Williams advised them “to watch [Eric] pretty

closely for three or four days” and to have him stay at their house “probably about a month.”

According to Mr. Drake, he specifically asked Dr. Williams, “Is there any chance that Eric would

hurt himself?” Dr. Williams responded by asking Eric whether he would ever hurt himself. Mr.

Drake testified that Eric paused and said, “Well, I haven’t done it yet, so I probably wouldn’t.” Mr.

Drake stated that he would have removed his guns from the house if he had been told to do so.

In evaluating a motion for summary judgment, “we consider the evidence in the light most

favorable to the non-moving party and resolve all inferences in that party's favor.” Godfrey, 90

S.W.3d at 695. The depositions of Dr. Williams and the Drakes contain factual disputes concerning

what Dr. Williams told the Drakes about their son’s condition and what steps they needed to take

to promote his recovery. Specifically, the parties disagree as to whether Dr. Williams told them that

Eric was at risk for suicide, that the Drakes needed to watch Eric constantly for more than a few

days, and that they needed to lock up or remove all guns. The defendants’ affidavits do not

specifically describe the applicable standard of practice for a psychiatrist treating and discharging

a patient like Eric Drake or outline how Dr. Williams’s actions accorded with that standard. Instead,

the affidavits describe Eric’s course of treatment at Parthenon Pavilion and then opine that Dr.

Williams’s treatment conformed with the standard of practice. Since the affidavits of Dr. Williams

and the other three psychiatrists specifically mention the fact that Eric was discharged to the care of

his parents, however, it appears that the circumstances of the discharge formed part of the basis for

their opinions that Dr. Williams acted appropriately. Therefore, these factual disputes cast doubt

upon the trustworthiness of the opinions of the defendants’ experts.

Even if we assume that the defendants’ affidavits “clearly and completely refute” at least one

of the elements of the plaintiffs’ claim of malpractice, thereby shifting the burden to the plaintiffs

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to establish the essential elements of their claim, we have determined that the physician affidavit

submitted by the plaintiffs is sufficient to establish genuine issues of material fact. Pursuant to Tenn.

Code Ann. § 29-26-115(a), the plaintiffs have the burden of establishing the recognized standard of

acceptable medical practice, the defendant’s breach of that standard, and causation. Fitts, 133

S.W.3d at 191. Dr. Reisman, a Memphis psychiatrist, provided an affidavit submitted by the

plaintiffs in opposition to the motions for summary judgment. In his affidavit, Dr. Reisman details

his qualifications and familiarity with the “recognized standard of acceptable professional practice

for a psychiatrist in a community similar to Nashville, Davidson County.” Dr. Reisman then states:

I have treated patients like Lee Eric Drake in a hospital setting like Parthenon

Pavilion. A patient like Lee Eric Drake must meet certain benchmarks of treatment

before release from the hospital.

In my professional opinion, the recognized standard of acceptable

professional practice required Dr. Williams to keep Lee Eric Drake hospitalized for

a longer period of time in order to prevent his suicide. The recognized standard of

acceptable professional practice required Dr. Williams to keep Lee Eric Drake

hospitalized until he successfully reached the benchmarks of treatment. Dr. Williams

deviated from the standard of care by releasing Lee Eric Drake prematurely.

In my professional opinion, Dr. William’s [sic] deviation from the standard

of care was the proximate cause of Lee Eric Drake’s suicide, which would not

otherwise have occurred. If Dr. Williams has not prematurely released Lee Eric

Drake, then he would have gotten the requisite treatment for depression and suicidal

ideation. This treatment more likely than not would have prevented Lee Eric Drake

from taking his own life on February 3, 2005. This means the deviation from the

recognized standard of acceptable professional practice caused an injury on February

3, 2005, that would not otherwise have occurred.

In my professional opinion, Dr. Williams foresaw or should have foreseen

that Lee Eric Drake would commit suicide. The recognized standard of acceptable

professional practice requires psychiatrists like Dr. Williams to consider suicide as

a likely outcome when their patients are prematurely released from mental health

care facilities like Parthenon Pavilion.

If Dr. Williams did not foresee that Lee Eric Drake would commit suicide,

then that failure alone is a deviation from the recognized standard of acceptable

professional practice because she should have foreseen it.

On February 3, 2005, Lee Eric Drake was psychotic and bereft of reason prior

to his suicide.

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The defendants challenge the sufficiency of Dr. Reisman’s affidavit on the grounds that it

is “conclusory and unreliable.”4 As the defendants point out, “mere conclusory generalizations are

inadequate to place a material fact in controversy.” Cawood v. Davis, 680 S.W.2d 795, 796-97

(Tenn. Ct. App. 1984). To satisfy the requirements of Tenn. R. Civ. P. 56, the non-moving party

must “set forth specific facts, not legal conclusions.” Byrd, 847 S.W.2d at 215. In a medical

malpractice case not involving the “common knowledge” exception, a plaintiff must introduce expert

testimony to establish the requisite factual elements. Kenyon, 122 S.W.3d at 758. We find,

however, that Dr. Reisman’s affidavit is not conclusory. According to Dr. Reisman, “[t]he

recognized standard of acceptable professional practice required Dr. Williams to keep Lee Eric

Drake hospitalized until he successfully reached the benchmarks of treatment. Dr. Williams deviated

from the standard of care by releasing Lee Eric Drake prematurely.” He further opines that Dr.

Williams’s failure to comply with the applicable standard of practice resulted in injuries that would

not have occurred otherwise. Thus, Dr. Reisman addressed all three of the required elements; he

identified deficiencies in Dr. Williams’s conduct sufficient to show that there are genuine issues of

material fact.

The defendants rely on two cases in support of their argument that a greater degree of

specificity is required to create a genuine issue of material fact for trial. We find both cases

distinguishable from the present case. In Estate of Henderson v. Mire, 955 S.W.2d 56 (Tenn. Ct.

App. 1997), a physician’s affidavit filed on behalf of the plaintiff stated in pertinent part that the

defendants “failed to diagnose, treat or intervene to provide the plaintiff decedent with timely and

competent care after receiving the results of various tests . . . .” Mire, 955 S.W.2d at 58. The court

held that this affidavit “fails to establish the requisite facts to demonstrate that a genuine issue of

material fact exists.” Id. at 59. Specifically, the court found that the affidavit was full of conclusions

and did not state “with any degree of precision, what, if anything, [the defendant physician] did

wrong in his treatment of the deceased.” Id. The affidavit did not identify what treatment should

have occurred. Moreover, there was nothing in the affidavit to indicate that “as a proximate result

of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not

otherwise have occurred.” Id. at 59-60. In the instant case, Dr. Reisman’s affidavit identifies a

specific deficiency in Dr. Williams’s actions: releasing Eric prematurely, before he reached

treatment benchmarks. While describing and discussing the treatment benchmarks would have

increased the specificity of the affidavit, we cannot say that the affidavit was too vague or

conclusory. Furthermore, Dr. Reisman specifically addressed the issue of causation.

The defendants also rely upon Fair v. Fulton, No. 03A01-9812-CV-00422, 1999 WL

486884 (Tenn. Ct. App. July 13, 1999), a case in which two physician affidavits stated that, in light

of the patient’s condition, “many physicians in this setting would obtain an ECG.” Id. at *2. The

physicians opined that the defendant “acted with less than or failed to act with ordinary and

reasonable care in accordance with [the recognized standard of acceptable professional practice]”

and that the plaintiff suffered injuries as a proximate result. Id. After discussing Mire, the Fair court

4

The defendants do not challenge Dr. Reisman’s qualifications or competency as a witness. A trial court’s

decision on these matters would be reviewed under the abuse of discretion standard. Kenyon v. Handal, 122 S.W.3d

743, 749 (Tenn. Ct. App. 2003).

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concluded that the affidavits were insufficient because they “merely state the conclusion” that the

defendant’s actions breached the standard of care and were the proximate cause of the plaintiff’s

injuries. Id. at *3. The court determined that this conclusion was “not supported by specific acts

or omissions to act and [was] not sufficient to create a genuine issue of fact.” Id. In the present case,

as discussed above, Dr. Reisman’s affidavit does not merely state conclusions; he identified a

specific deficiency in Dr. Williams’s actions that violated the applicable standard of practice.

The defendants further argue that Dr. Reisman’s affidavit is unreliable because he does not

detail what records he reviewed but states only that “I have reviewed the records in this case,” and

because of his statement that “[m]y opinion is subject to amendment as more facts come to my

attention.” These statements do not suggest to this court that Dr. Reisman’s affidavit is unreliable

due to an inadequate factual basis. As indicated by the second quoted statement, an expert’s opinion

is subject to change if and when additional facts come to light. Thus, in any medical malpractice

case, expert opinions may change as additional facts are revealed during discovery or at trial. Dr.

Reisman’s affidavit is sufficient to establish that genuine issues of material fact exist, making

summary judgment improper.

The trial court did not err in determining that Dr. Reisman’s affidavit was sufficient to

establish the existence of genuine issues of material fact.

Suicide as a superseding, intervening cause

The Drakes make two main arguments in opposition to the trial court’s finding that Eric’s

suicide was a superseding, intervening cause of his death. First, the Drakes argue that the trial court

erred in applying the doctrine of superseding, intervening cause without finding antecedent

negligence by the defendants. Second, they argue that the trial court erred in finding that Eric’s

suicide was unforeseeable as a matter of law.

(1)

As to the first argument, there is no requirement that a court make a finding of negligence

prior to considering whether there is a superseding, intervening cause. Tenn. R. Civ. P. 8.05 allows

a party to plead in the alternative and to “state as many separate claims or defenses as he or she has,

regardless of consistency.” The case cited by the Drakes in support of their argument, Godbee v.

Dimick, 213 S.W.3d 865 (Tenn. Ct. App. 2006), involved the propriety of jury instructions on

superseding, intervening cause. We find no merit to the argument that, under Godbee, negligence

must be found before a court can consider a superseding, intervening cause.

(2)

The Drakes’ second argument presents the much more difficult issue of the application of

the doctrine of superseding, intervening cause to the facts of this case.

A superseding, intervening cause relates to the element of proximate cause: a superseding,

intervening cause “breaks the chain of proximate causation and thereby precludes recovery.” White

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v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998). Proximate cause is ordinarily a question of fact

for the jury. Rains v. Bend of the River, 124 S.W.3d 580, 588 (Tenn. Ct. App. 2003). Summary

judgment is appropriate on the issue of whether an act constitutes a superseding, intervening cause

only if “the uncontroverted facts and inferences to be drawn from the facts make it clear that all

reasonable persons must agree to the proper outcome.” White, 975 S.W.2d at 529-30.

An act “which is a normal response created by negligence, is not a superseding, intervening

cause so as to relieve the original wrongdoer of liability, provided the intervening act could have

reasonably been foreseen and the conduct [of the original wrongdoer] was a substantial factor in

bringing about the harm.” McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991). Thus, an

intervening act will not cut off the liability of the original wrongdoer unless it is shown that the

intervening act could not reasonably have been anticipated. Id. at 775. The superseding,

intervening cause doctrine applies “only when the intervening act (1) was sufficient by itself to cause

the injury, (2) was not reasonably foreseeable to the negligent actor, and (3) was not a normal

response to the negligent actor’s conduct.” Rains, 124 S.W.3d at 593. The issue for determination

here is whether Eric’s suicide was foreseeable to Dr. Williams.

We have considered two key cases that deal with the foreseeability of suicide in the summary

judgment context. White v. Lawrence was a medical malpractice case involving the suicide of Mr.

White, an alcoholic who suffered from depression. White, 975 S.W.2d at 527. The defendant, Dr.

Lawrence, was aware of Mr. White’s problems with alcohol and depression and admitted that Mr.

White was at risk for suicide. Id. Dr. Lawrence gave Mr. White’s wife a prescription for Antabuse

and instructed her to give this medication to Mr. White surreptitiously in his food to discourage him

from drinking. Id. Soon after he began receiving the medication, Mr. White became ill and went

to the emergency room. Id. Since Mr. White did not know he was taking Antabuse, he did not

inform the emergency room personnel of that fact and was diagnosed as having heat exhaustion. Id.

Four hours after leaving the emergency room, Mr. White committed suicide. Id. at 528. In response

to Dr. Lawrence’s motion for summary judgment, Ms. White submitted a physician’s affidavit

stating that Dr. Lawrence’s actions violated the standard of care and that his actions made it

reasonably foreseeable that Mr. White would commit suicide. Id.

In addressing the issue of whether Mr. White’s suicide was a superseding, intervening cause

as a matter of law, the Supreme Court cited prior cases, including Weathers v. Pilkinton, 754 S.W.2d

75, 78-79 (Tenn. Ct. App. 1988) (a case cited by the defendants in the present case), holding that

“suicide may constitute an intervening cause if it is a willful, calculated, and deliberate act of one

who has the power of choice.” White, 975 S.W.2d at 530. The court went on, however, to elaborate

a broader analytical framework:

[T]he foreseeability or likelihood of a suicide does not necessarily depend upon the

mental capacity of the deceased at the time the suicide was committed. The fact that

the deceased was not insane or bereft of reason does not necessarily lead to the

conclusion that the suicide, which is the purported intervening cause, is

unforeseeable. 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

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suicide is not an intervening cause breaking the chain of legal causation. Those

decisions holding to the contrary are overruled.

Id. at 530. Applying the foreseeability test to the facts before it, the court stated:

[R]easonable minds could conclude that the decedent’s act of suicide was a

foreseeable consequence of the defendant’s negligence in surreptitiously prescribing

and administering the Antabuse. The record shows that leading risk factors for

suicide include physical illness and depression. . . . The plaintiff presented medical

proof that the decedent’s suicide was reasonably foreseeable from a medical

standpoint, and that the defendant’s conduct was a substantial factor in bringing

about the suicide. Both Dr. Pate and Dr. Smith testified that the defendant should

have reasonably foreseen that secretly prescribing Antabuse to an alcoholic and

depressed patient would cause severe physical problems and could cause the

decedent to choose to end his life.

Id. The court determined that there was a jury question as to whether Mr. White’s suicide was a

foreseeable consequence of the defendant’s negligence and overturned the judgment of the Court of

Appeals granting summary judgement. Id. at 531-32.

The second case we consider, Rains v. Bend of the River, involved the death of an eighteen-

year-old who committed suicide using his parents’ handgun and ammunition he had purchased from

a local retailer hours before his death. Rains, 124 S.W.3d at 584. As in White, the key issue was

foreseeability. The court found summary judgment in favor of the retailer was proper as there was

“no evidence that [the decedent’s] conduct or demeanor when he purchased the ammunition should

have given the clerk . . . reason to foresee or anticipate that he intended to use the ammunition to

commit suicide or to misuse it in any other way.” Id. at 595. The court found that the decedent’s

act of suicide was an independent, intervening cause that insulated the retailer from liability for his

death. Id. at 596.

Especially relevant to the present case is the court’s discussion in Rains of three exceptions

to the application of the independent intervening cause doctrine in suicide cases: “(1) circumstances

in which the defendant’s negligence causes delirium or insanity that results in self-destructive acts

. . . (2) custodial settings in which the custodian knew or had reason to know that the inmate or

patient might engage in self-destructive acts . . . and (3) special relationships, such as a physician-

patient relationship, when the caregiver knows or has reason to know that the patient might engage

in self-destructive acts.” Id. at 593-94 (citations omitted). The latter two exceptions have relevance

in the present case. White is an example of the application of the third exception. In Cockrum v.

State, 843 S.W.2d 433, 437 (Tenn. Ct. App. 1992), the court applied the second exception to prison

and psychiatric settings: “In the custodial context, when the intervening act is itself the foreseeable

harm that gives rise to the custodian’s duty, the custodian who fails to prevent the act will not be

relieved from liability simply because the act has occurred.” In Cockrum, the court held that an

inmate’s suicide was foreseeable and did not constitute an independent intervening cause to shield

the state from liability. Id. at 438; see also Husted v. Echols, 919 S.W.2d 43 (Tenn. Ct. App. 1995)

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(holding that a jury question was presented on the issue of whether the negligence of a physician was

the proximate cause of the suicide of a psychotic jail inmate).

The central issue then is whether reasonable minds could conclude that Eric’s suicide was

a foreseeable result of Dr. Williams’s negligence in releasing him prematurely. Viewing the

evidence in the light most favorable to the non-moving party, we have concluded that summary

judgment was not properly granted in this case as reasonable minds could conclude that Eric’s

suicide was foreseeable. Dr. Reisman’s affidavit includes the following statement: “Dr. Williams

foresaw or should have foreseen that Lee Eric Drake would commit suicide. The recognized

standard of acceptable professional practice requires psychiatrists like Dr. Williams to consider

suicide as a likely outcome when their patients are prematurely released from mental health care

facilities like Parthenon Pavilion.” Thus, as in White, there is evidence that Eric’s suicide was

foreseeable from a medical standpoint. The deposition testimony of the Drakes and Dr. Williams

also provides some support for the conclusion that Eric’s suicide was foreseeable. For example, Dr.

Williams testified that Eric was at higher risk for suicide because of his diagnosis and that he needed

to be discharged under the close supervision of his parents until outpatient psychiatric care had been

established. Eric’s parents testified that they were not given proper warning or instructions

concerning the supervision necessary to protect Eric.

In Jacoves v. United Merch. Corp., 9 Cal.App.4th 88, 111 (Cal. Ct. App. 1992), the plaintiffs

presented facts indicating that the decedent “was prematurely discharged in light of his continuing

active suicidal ideation, based on improper considerations of insurance coverage, and an

inappropriate reliance on his nonsuicide contract with his parents.” The court reversed summary

judgment in favor of the hospital, finding a triable issue of fact as to whether suicide was a

superseding, intervening cause. See also Scheidt v. Denney, 644 So.2d 813 (La. Ct. App. 1994)

(evidence could support a finding of improper discharge care and/or failure to give adequate firearms

warnings).

In our opinion, there is a jury question as to whether Eric’s suicide was a foreseeable result

of Dr. Williams’s alleged negligence. It was, therefore, improper for the trial court to find Eric’s

suicide to be a superseding, intervening cause of his death as a matter of law and to grant summary

judgment.

In light of our decision, we deny Parthenon Pavilion’s request for attorney fees.

We, therefore, reverse the decision of the trial court and remand for further proceedings.

Costs of appeal are assessed against the appellees, for which execution may issue if necessary.

___________________________________

ANDY D. BENNETT, JUDGE

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