Texas SC reverses jury verdict against hospital in suicide case

Steve Korris May 28, 2008, 1:39pm

Texas Supreme Court

AUSTIN – Emergency room doctors who released 21-year-old Lance Dowell to his family after stitching a wrist he had cut with a pocket knife didn't cause his death in a successful suicide the next day, the Texas Supreme Court decided May 23.

Five of nine justices wiped out a jury verdict awarding $800,000 to his parents, Jimmy and Carolyn Dowell, in a suit against Providence Health Center of Waco.

Justice Nathan Hecht wrote that any negligence on the hospital's part "was too attenuated from the suicide to have been a substantial factor in bringing it about."

Three justices dissented.

"There is no evidence that, had it been explained to Lance that it was in his best interest to stay, he would have refused," Justice Harriet O'Neill wrote.

Justice Dale Wainwright, partially dissenting, favored a new trial that would consider Lance's responsibility as well as the hospital's negligence.

On the last Friday in the summer of 1997, Lance swallowed three or four Tylenol capsules and a shot of whiskey at the home of his parents on a farm near Teague.

The parents of his 16-year-old girlfriend had told him to stay away from her.

He opened his knife and cut across a wrist, about two millimeters deep.

By the time a police officer and a deputy arrived, he had stopped bleeding.

As they entered, Lance crawled out a window and ran to nearby woods.

His older brother, Larry Dowell, arrived. The officers left.

Lance returned and told Larry to leave and let him finish it. Larry thought he meant it, so he called the sheriff's office.

A deputy took custody of Lance as a substantial risk to himself and headed for Waco, more than an hour away. On the trip Lance grew calm and kept quiet.

They arrived around dawn on Saturday.

"Lance had been there before," Hecht wrote. "When he was 19, another girlfriend threatened to leave him, and he went out in the pasture and put a gun to his head."

On that occasion Lance consented to admission at Providence's psychiatric division, DePaul Center.

"He was discharged five days later and instructed to obtain counseling from the local mental health and mental retardation center, but he never did," Hecht wrote.

On the second visit, nurse Mary Theresa Fox examined Lance and physician James Pettit sutured his cut.

His mother Carolyn, herself a registered nurse, arrived. Lance told her he did not want to be kept there.

"Because he was an adult," Hecht wrote, "he could not be held involuntarily for more than the holiday weekend without a court order."

Nurse Fox agreed to release him if he would sign a no-suicide contract, promise to report for assessment Tuesday, and stay with his family until then.

Two hours and 45 minutes after the deputy delivered Lance, he walked out.

Later that day Lance attended a family reunion at Lake Limestone. He saw his father Jimmy, who had spent time in hospitals with severe depression.

Carolyn needed to go to work in Waco but she didn't want to leave Lance. He kept telling her he would be okay.

That night, Larry and Lance went to a rodeo. "Lance talked with friends, and Larry saw nothing in his behavior to cause concern," Hecht wrote.

On Sunday, Larry and Lance returned to the reunion. When Larry left, Lance stayed with his father.

Later, he told his father he needed to leave so he could help one of his friends bale hay. His father reported this to her mother.

The friend found him dead at the farm at 7 p.m., hanging in a tree.

Jimmy and Carolyn sued Providence, DePaul Center, and Dr. Pettit in McLennan County circuit court.

District Judge Joe Johnson ruled that jurors would not consider any negligence on Lance's part or on the part of his parents.

Jurors found negligence and allocated 40 percent of responsibility to Providence, 40 percent to DePaul Center and 20 percent to Pettit.

They awarded $400,000 to Lance's estate and $400,000 to his parents.

The 10th District appellate court in Waco affirmed the verdict in a divided decision.

Another divided decision followed at Austin, this time in the hospital's favor.

"Several things defeat causality," Hecht wrote.

There was evidence that Lance would not have consented to treatment, he wrote, and no evidence that Providence could have kept him.

"Lance had complete control over whether to stay or go," he wrote.

"Furthermore, the Dowells' expert never actually testified that hospitalization, more likely than not, would have prevented Lance's suicide," he wrote.

The expert only stated that Lance would have improved with hospitalization and would have been at lower risk when he left, he wrote.

"The issue is whether hospitalization would have made Lance's suicide unlikely, and the Dowells' expert rather pointedly did not offer that opinion," he wrote.

"If Lance had followed the written discharge instructions to stay with parents, then as the Dowells' expert conceded, it is doubtful he would have committed suicide," he wrote.

Justices Scott Brister, Paul Green, Phil Johnson and Don Willett joined Hecht.

O'Neill argued in dissent that, "Because Lance was never properly advised, we cannot know whether he would have consented to treatment."

She wrote, "The Court implies that Lance's family was contributorily negligent in letting Lance out of their sight. But parents have no legal duty regarding the behavior of their adult children."

She wrote, "Furthermore, the fact that Lance showed no signs of his impending suicide that were discernible to his family is precisely why the intervention of trained mental health professionals is so important."

Chief Justice Wallace Jefferson and Justice David Medina joined the dissent.

Wainwright didn't agree with the majority or the minority. He thought the trial judge should have allowed the jury to consider Lance's responsibility.

"I conclude that although it was not an error to exclude the Dowells, it was error for the trial court to refuse to include Lance in the negligence and proportionate responsibility questions," he wrote.

Patients have a duty to cooperate with physicians in diagnosis and treatment, he wrote.

Greg White and Andy McSwain represented Providence. Sharon Cullen, Vincent Marable and Jim Dunnam represented the Dowells.

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